Exhibit
10.8


 


THIRD
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT


 


OF


 




AMC ENTERTAINMENT INC.


 


 


April
[   ], 2007


 


Originally
dated as of October 29, 2004, 

Amended and Restated as of December 23, 2004

and Amended and Restated as of January 26, 2006


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  BOARD RIGHTS; INVESTOR
  RIGHTS; AND MANAGEMENT ARRANGEMENTS

  	
  3

  
	
  (a)

  	
  Board of Directors

  	
  3

  
	
  (b)

  	
  Voting

  	
  7

  
	
  (c)

  	
  Classified Board

  	
  8

  
	
  (d)

  	
  Committees

  	
  8

  
	
  (e)

  	
  Compliance

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  TRANSFERS

  	
  9

  
	
  (a)

  	
  Transfer Restrictions

  	
  9

  
	
  (b)

  	
  Transfer Notice

  	
  9

  
	
  (c)

  	
  Restrictions on
  Transfers under Rule 144

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  DRAG-ALONG RIGHTS

  	
  10

  
	
  (a)

  	
  Drag-Along Right

  	
  10

  
	
  (b)

  	
  Notice

  	
  11

  
	
  (c)

  	
  Exercise

  	
  11

  
	
  (d)

  	
  Time Limitation

  	
  12

  
	
  (e)

  	
  Investor Expenses

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  TAG-ALONG RIGHTS

  	
  12

  
	
  (a)

  	
  Notice

  	
  12

  
	
  (b)

  	
  Tag-Along Right

  	
  12

  
	
  (c)

  	
  Exercise

  	
  14

  
	
  (d)

  	
  Certain Restrictions

  	
  14

  
	
  (e)

  	
  Time Limitation

  	
  15

  
	
  (f)

  	
  Investor Expenses

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  REGISTRATION RIGHTS

  	
  15

  
	
  (a)

  	
  Demand Registrations

  	
  15

  
	
  (b)

  	
  Piggyback Registrations

  	
  17

  
	
  (c)

  	
  Holdback Agreements

  	
  18

  
	
  (d)

  	
  Expenses

  	
  19

  
	
  (e)

  	
  Registration Procedures

  	
  19

  
	
  (f)

  	
  Conditions to Investor
  Rights; Indemnification by Investor

  	
  23

  
	
  (g)

  	
  Indemnification and
  Contribution

  	
  23

  
	
  (h)

  	
  Rule 144

  	
  26

  



 

















 


	
  (i)

  	
  Termination of
  Registration Rights

  	
  26

  
	
  (j)

  	
  Delay of Registration

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  LEGEND ON CERTIFICATES

  	
  27

  
	
  (a)

  	
  Legends

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  DURATION OF AGREEMENT

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  INFORMATION RIGHTS

  	
  28

  
	
  (a)

  	
  Financial Statements
  and Other Information

  	
  28

  
	
  (b)

  	
  Other Information

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  REGULATORY MATTERS

  	
  29

  
	
  (a)

  	
  Cooperation of Other
  Stockholders

  	
  29

  
	
  (b)

  	
  Covenant Not to Amend

  	
  29

  
	
  (c)

  	
  Exception

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  EFFECTIVENESS OF
  AGREEMENT

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  DEFINITIONS

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  MISCELLANEOUS

  	
  39

  
	
  (a)

  	
  Successors, Assigns and
  Transferees

  	
  39

  
	
  (b)

  	
  Competitive Opportunity

  	
  39

  
	
  (c)

  	
  Specific Performance

  	
  39

  
	
  (d)

  	
  Governing Law

  	
  39

  
	
  (e)

  	
  Submission to
  Jurisdiction; Waiver of Jury Trial

  	
  39

  
	
  (f)

  	
  Descriptive Headings

  	
  40

  
	
  (g)

  	
  Notices

  	
  40

  
	
  (h)

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

  	
  43

  
	
  (i)

  	
  Counterparts

  	
  43

  
	
  (j)

  	
  Severability

  	
  43

  
	
  (k)

  	
  Amendment

  	
  43

  
	
  (l)

  	
  Tax Withholding

  	
  44

  
	
  (m)

  	
  Integration

  	
  44

  
	
  (n)

  	
  Further Assurances

  	
  44

  
	
  (o)

  	
  No Strict Construction

  	
  44

  
	
  (p)

  	
  No Third Party
  Beneficiaries

  	
  44

  
	
  (q)

  	
  No Recourse

  	
  45

  
	
  (r)

  	
  Indemnification

  	
  45

  



 


iii

















 


	
  (s)

  	
  Amendment and
  Restatement

  	
  46

  
	
  (t)

  	
  Termination of
  Management Stockholders Agreement

  	
  46

  



 


	
  SCHEDULES

  
	
   

  	
   

  	
   

  
	
  1

  	
  —

  	
  SCHEDULE OF OTHER AMC
  INVESTORS

  
	
   

  	
   

  	
   

  
	
  9(b)

  	
  —

  	
  REGULATORY PROBLEM
  AGREEMENTS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  	
   

  
	
  A

  	
  —

  	
  FORM OF STOCKHOLDER
  JOINDER

  
	
   

  	
   

  	
   

  
	
  B

  	
  —

  	
  SECOND AMENDED AND
  RESTATED REGULATORY SIDELETTER

  



 


iv

















 


AMC ENTERTAINMENT
INC.

THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT


 


This THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the “Agreement”),
dated as of April [   ], 2007 and effective as of the Effective
Time (as defined below), amends and restates that certain Stockholders
Agreement (the “Initial Stockholders Agreement”) entered into as of
October 29, 2004, amended and restated as of December 23, 2004 and amended and
restated as of January 26, 2006, by and among Marquee Holdings Inc. (renamed
AMC Entertainment Inc. as described below), 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”), J.P. Morgan Partners Global
Investors (Selldown) II, L.P., a Delaware limited partnership (“JPMP
Selldown II”), JPMP Global Fund/AMC/Selldown II, L.P., a Delaware limited
partnership (“JPMP AMC/Selldown II”), J.P. Morgan Partners Global
Investors (Selldown) II-C, L.P., a Delaware limited partnership (“JPMP Selldown
II-C”), 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, JPMP Selldown II, JPMP
AMC/Selldown II, JPMP Selldown II-C,
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 AMC Investors”, and together with the
JPMP Investors and Apollo Investors, the “JPMP/Apollo Investors”), and
is made by and among the JPMP/Apollo Investors and 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
(Loews) I, LLC 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 “BCS Investors”).
Each of the JPMP/Apollo Investors and the BCS 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 11 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 11
hereto.


 


RECITALS


 


WHEREAS, each of the JPMP/Apollo Investors hold 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”);


 


WHEREAS, each of the BCS Investors hold 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”);


 


WHEREAS, each of the stockholders of the Company who are employees of
the Company (or any of its Subsidiaries) hold shares of Class N Common Stock of
the Company, par value $0.01 per share (the “Class N Common Stock”);


 


WHEREAS, the Company is registering shares of the Company’s common
stock, par value $0.01 per share (“Common Stock”), for sale to the
public in an initial public offering (the “Initial Public Offering”)
pursuant to the Company’s registration statement filed on Form S-1 with the
Securities and Exchange Commission on [                            ],
2007;


 


WHEREAS, prior to the Initial Public Offering, each share of Class A
Common Stock, Class L Common Stock and Class N Common Stock shall be converted
into shares of Common Stock pursuant to the Second Amended and Restated
Certificate of Incorporation of Marquee Holdings Inc., dated January 26, 2006
(the “Original Certificate of Incorporation”);


 


WHEREAS, prior to the Initial Public Offering the Company is adopting a
Third Amended and Restated Certificate of Incorporation to replace the Original
Certificate of Incorporation and change its name from Marquee Holdings Inc. to
AMC Entertainment Inc.;


 


WHEREAS, each of the stockholders of the Company who are employees of
the Company (collectively, the “Management Stockholders”), the Company
and the other parties thereto are terminating that certain Amended and Restated
Management Stockholders Agreement by and among the Company, the Principal
Investors and the Management Stockholders (the “Management Stockholders
Agreement”), and the Management Stockholders and the Company are entering
into that certain Registration Rights Agreement dated as of the date hereof;


 


WHEREAS, each of the Investors and the Company desire to amend and
restate the Initial Stockholders Agreement to provide for certain matters
relating to their respective current and future holdings of Common Stock and
the governance of the Company after the Initial Public Offering;


 


WHEREAS, pursuant to Section 13(k) of the Initial Stockholders
Agreement, the JPMP/Apollo Investors and the BCS Investors 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.                            BOARD RIGHTS; INVESTOR
RIGHTS; AND MANAGEMENT ARRANGEMENTS


 


(a)                                  Board
of Directors. From and after the Effective Time, each Investor, severally
and not jointly, in its capacity as a stockholder of the Company, agrees to
vote or otherwise give such Investor’s consent in respect of all Common Stock
(whether now or hereafter acquired) held of record or beneficially owned by
such Investor and to take all such Necessary Action, and the Company shall take
all Necessary Action, in order to cause:


 


(i)                                     the
authorized number of directors on the board of directors of the Company (the “Board”) to be (i) ten directors
immediately after the Effective Time, (ii) eleven directors within 90 days
after the Effective Time and (iii) twelve directors within one year after the
Effective Time, in accordance with this Section 1(a), subject, in each
case, to a decrease or an increase in the size of the Board necessary to comply
with the New York Stock Exchange listing requirements following a Controlled
Company Disqualification and/or to comply with clause (ii)(I) below;


 


(ii)                                  the
election to the Board of:


 


(A)                              that
number of directors designated by the JPMP Investors (each, a “JPMP Designee”) which when added
to the number of JPMP Designees who are then directors and will continue to
serve as directors without regard to such annual or special meeting or action
by written consent is equal to:  (x) two (2) so long as the JPMP
Investors, together with their Permitted Transferees, collectively own Shares
representing at least 10% of the shares of Common Stock outstanding and there
shall not have occurred a Controlled Company Disqualification; (y) one (1) JPMP
Designee so long as the JPMP Investors, together with their Permitted
Transferees, collectively own Shares representing at least 5% but, in the event
there shall not have occurred a Controlled Company Disqualification, less than
10% of the shares of Common Stock outstanding; provided, that there
shall be no JPMP Designees if the JPMP Investors, together with their Permitted
Transferees, collectively own Shares representing less than 5% of the shares of
Common Stock outstanding; provided  further, that for as long as
either JPMP Selldown or JPMP Global owns any Shares and the JPMP Investors have
the right to designate any directors pursuant to this clause (A), (I) if the
JPMP Investors have the right to designate two directors, one such director
shall be designated by JPMP Selldown (so long as JPMP Selldown owns Shares) and
one such director shall be designated by JPMP Global (so long as JPMP Global
owns Shares) and (II) if the JPMP Investors have the right to designate only
one director, such director shall be designated by JPMP Selldown or by JPMP
Global (in the event that JPMP Selldown does not own Shares and JPMP Global
does own Shares); provided, 


 


3

















 


further,
that the designation of JPMP Designees is a right but not an obligation of the
JPMP Investors. The right of the JPMP Investors to designate JPMP Designees
shall be transferable to an Affiliate of the JPMP Investors but to no other
transferee;


 


(B)                                that
number of directors designated by the Apollo Investors (each, an “Apollo Designee”) which when added to the
number of Apollo Designees who are then directors and will continue to serve
without regard to such annual or special meeting or action by written consent
is equal to:  (x) two (2) so long as the Apollo Investors, together
with their Permitted Transferees, collectively own Shares representing at least
10% of the shares of Common Stock outstanding and there shall not have occurred
a Controlled Company Disqualification; (y) one (1) Apollo Designee so long as
the Apollo Investors, together with their Permitted Transferees, collectively
own Shares representing at least 5% but, in the event there shall not have
occurred a Controlled Company Disqualification, less than 10% of the shares of
Common Stock outstanding; provided, that there shall be no Apollo
Designees if the Apollo Investors, together with their Permitted Transferees,
collectively own Shares representing less than 5% of the shares of Common Stock
outstanding; provided  further, that for as long as Apollo Fund V
owns any Shares and the Apollo Investors have the right to designate any
directors pursuant to this clause (B), at least one Apollo Designee shall be
designated by Apollo Fund V; provided, further, that the
designation of Apollo Designees is a right but not an obligation of the Apollo
Investors. The right of the Apollo Investors to designate Apollo Designees
shall be transferable to an Affiliate of the Apollo Investors but to no other
transferee;


 


(C)                                one
(1) director designated by the Bain Investors (the “Bain Designee”) if the Bain Investors,
together with their Permitted Transferees, collectively own Shares representing
at least 5% of the shares of Common Stock outstanding; provided, that
there shall be no Bain Designee if the Bain Investors, together with their
Permitted Transferees, collectively own Shares representing less than 5% of the
shares of Common Stock outstanding; provided, further, that the
designation of the Bain Designee is a right but not an obligation of the Bain
Investors. The right of the Bain Investors to designate a Bain Designee shall
be transferable to an Affiliate of the Bain Investors but to no other
transferee;


 


(D)                               one
(1) director designated by the Carlyle Investors (the “Carlyle Designee”) if the Carlyle
Investors, together with their Permitted Transferees, collectively own Shares
representing at least 5% of the shares of Common Stock outstanding; provided,
that there shall be no Carlyle Designee if the Carlyle Investors, together with
their Permitted Transferees, collectively own Shares representing less than 5%
of the shares of Common Stock outstanding; provided, further,
that the designation of the Carlyle Designee is a right but not an obligation
of the Carlyle Investors. The right of the Carlyle Investors to designate a
Carlyle Designee shall be transferable to an Affiliate of the Carlyle Investors
but to no other transferee;


 


4

















 


(E)                                 one
(1) director designated by the Spectrum Investors (the “Spectrum Designee”) if the Spectrum
Investors, together with their Permitted Transferees, collectively own Shares
representing at least 5% of the shares of Common Stock outstanding; provided,
that there shall be no Spectrum Designee (i) if the Spectrum Investors,
together with their Permitted Transferees, collectively own Shares representing
less than 5% of the shares of Common Stock outstanding or (ii) immediately
following a Controlled Company Disqualification; provided, further,
that the designation of the Spectrum Designee is a right but not an obligation
of the Spectrum Investors. The right of the Spectrum Investors to designate a
Spectrum Designee shall be transferable to an Affiliate of the Spectrum
Investors but t no other transferee;


 


(F)                                 one
(1) director designated by the BCS Investors (the “BCS Designee”), to be determined by a
majority of the Percentage Interest of the Shares then held in the aggregate by
the BCS Investors, and for so long as the Carlyle Investors or the Bain Investors
are Principal Investors, with the consent of such Principal Investors that own
Shares representing at least 5% of the shares of Common Stock outstanding, if
the BCS Investors, together with their Permitted Transferees, collectively own
Shares representing at least 15% of the shares of Common Stock outstanding; provided,
further, that none of the Bain Investors, the Carlyle Investors or the
Spectrum Investors, in each case, as an individual group, shall have the right
to participate in the decision of who will serve as the BCS Designee unless
such group (together with its Permitted Transferees) owns Shares representing
at least 5% of the shares of Common Stock outstanding; and provided, further,
that there shall be no BCS Designee (i) if the BCS Investors, together with
their Permitted Transferees, collectively own Shares representing less than 15%
of the shares of Common Stock outstanding or (ii) immediately following a
Controlled Company Disqualification. The designation of the BCS Designee is a
right but not an obligation of the BCS Investors. The right of a BCS Investor
to designate a BCS Designee shall be transferable to an Affiliate of such BCS
Investor but to no other transferee;


 


(G)                                the
Chief Executive Officer of AMC (the “Management  Designee”);


 


(H)                               a
number of directors designated and determined by a majority of the board of
directors to be independent consistent with the New York Stock Exchange Listed
Company Manual Section 303A.02 (each, an “Independent Director”) as
follows: (1) one Independent Director, who shall be Kenneth M. Reiss,
designated promptly after the Effective Time (the “First Independent
Director”); (2) two Independent Directors designated by the Requisite
Stockholder Majority within 90 days after the Effective Time (including the
designee described in clause (1)); and (3) three Independent Directors
designated by the Requisite Stockholder Majority within one year after the
Effective Time (including the two designees described in clause (2)); and


 


5

















 


(I)                                    such
number of additional Independent Directors as determined by a majority of the
directors on the Board upon recommendation of the Nominating and Corporate
Governance Committee; provided, however, that the Board shall not
designate more than three additional Independent Directors if such designation
would cause the Board to have more than 12 directors in total;


 


All of the foregoing designees shall hold office, subject to their
earlier removal in accordance with clause (a)(iii) below and applicable law,
until their respective successors shall have been elected.;


 


(iii)                               the
removal from the Board (with or without cause) of any director upon the written
request of the Investors having the right to designate such director;


 


(iv)                              upon
any vacancy in the Board as a result of any individual designated by any of the
JPMP Investors, the Apollo Investors, the Bain Investors, the Carlyle
Investors, the Spectrum Investors or the BCS Investors pursuant to clause (ii)
above ceasing to be a member of the Board, whether by resignation, death,
disability, disqualification or otherwise (but not as a result of the loss of a
right to appoint a designee pursuant to Section 1(a)(ii) above and/or
the removal of a director pursuant to Section 1(a)(v)), the election to
the Board of an individual designated by the JPMP Investors, the Apollo
Investors, the Bain Investors, the Carlyle Investors, the Spectrum Investors or
the BCS Investors, in each case, as a group, as the case may be;


 


(v)                                 the
removal from the Board (with or without cause) of, in the event of the right to
designate (i) any of the JPMP Designees that the JPMP Investors are entitled to
designate pursuant to Section 1(a)(ii)(A), (ii) any of the Apollo
Designees that the Apollo Investors are entitled to designate pursuant to Section 1(a)(ii)(B),
(iii) the Bain Designee that the Bain Investors are entitled to designate pursuant
to Section 1(a)(ii)(C), (iv) the Carlyle Designee that the Carlyle
Investors are entitled to designate pursuant to Section 1(a)(ii)(D),
(v) the Spectrum Designee that the Spectrum Investors are entitled to designate
pursuant to Section 1(a)(ii)(E) or (vi) the BCS Designee that the
BCS Investors are entitled to designate pursuant to Section 1(a)(ii)(F),
shall have terminated, in each case, to the extent that a sufficient number of
JPMP Designees or Apollo Designees or the Bain Designee, Carlyle Designee,
Spectrum Designee or BCS Designee, as applicable, have not resigned from the
Board, it being understood and agreed that in the event of any such loss of
entitlement, the JPMP Investors, the Apollo Investors, the Bain Investors, the
Carlyle Investors, the Spectrum Investors or BCS Investors, as applicable,
shall designate for removal, and use commercially reasonable efforts to cause the
removal of, such JPMP Designee, Apollo Designee, Bain Designee, Carlyle
Designee, Spectrum Designee or BCS Designee, as applicable, immediately prior
to such loss of entitlement;


 


(vi)                              until
such time that a majority of the Board is comprised of Independent Directors,
upon any vacancy in the Board as a result of the Management Designee or any
Independent Director ceasing to be a member of the Board, whether by
resignation, death, disability, disqualification, removal or otherwise, the
election to the Board of an 


 


6

















 


individual nominated by the Board (or the Nominating
and Corporate Governance Committee of the Board).


 


(b)                                 Voting.


 


(i)                                     Except
as otherwise expressly provided in this Agreement, as to any matter or action
that requires a vote or written consent of the stockholders of the Company,
whether by law or pursuant to any agreement, and for so long as either the JPMP
Investors or the Apollo Investors have the right to designate at least one
director to the Board pursuant to Section 1(a), each Other AMC Investor
agrees to vote its Shares, or to provide its written consent, in favor of such
matter or action with respect to such number of Shares held by such Other AMC
Investor as is equal to the same proportion of Shares respectively held by the
Apollo Investors and the JPMP Investors that are voted in favor of such matter
or if only one of the Apollo Investors or the JPMP Investors has the right to
designate at least one director to the Board pursuant to Section 1(a),
as directed by such group; provided, that no Other AMC Investor shall be
required to vote in favor of, or provide its written consent to, any action
that would disproportionately affect such Other AMC Investor relative to the
other Investors in any material and adverse manner. In the event that any Other
AMC Investor entitled to vote on or provide its written consent with respect to
a matter shall fail at any time to vote or act by written consent with respect
to any Shares held of record or beneficially owned by such Other AMC Investor
(or as to which such Other AMC Investor otherwise has voting control), as
agreed by such Other AMC Investor in this Agreement, such Other AMC Investor
hereby irrevocably grants to and appoints the Apollo Investors and the JPMP
Investors such Other AMC Investor’s proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of such Other AMC
Investor, to vote or act by written consent with respect to such Shares and to
grant a consent, proxy or approval in respect of such Shares, in each case in
such manner and to the extent as is necessary or desirable to vote such shares
as agreed to by such Other AMC Investors in this Agreement. Each Other AMC
Investor hereby affirms that the irrevocable proxy set forth in this Section 1(a)
will be valid for the term of this Agreement and is given to secure the
performance of the obligations of such Other AMC Investors under this
Agreement. Each such Other AMC Investor hereby further affirms that each proxy
hereby granted shall, for the term of this Agreement, be irrevocable and shall
be deemed coupled with an interest.


 


(ii)                                  Except
as otherwise expressly provided in the Agreement, as to any matter or action
that requires a vote or written consent of the stockholders of the Company,
whether by law or pursuant to any agreement, and for so long as each of the BCS
Investors continue to hold Shares representing at least twenty five percent
(25%) of the Initial Investor Shares held by such BCS Investor, each of the BCS
Investors agrees to vote, and/or to provide written consent, with respect to
such matter or action as directed by any two of the BCS Investors; provided,
that no such BCS Investor shall be required to vote in favor of, or provide its
written consent to, any action that would disproportionately affect such BCS
Investor relative to the other BCS Investors in any material and adverse
manner. In the event that any such BCS Investor entitled to vote on or provide
its written consent with respect to a matter shall fail at any time to vote, or
act by written consent with respect to, any Shares held of record or
beneficially owned by 


 


7

















 


such Investor or as to
which such Investor has voting control, as agreed by such Investor in this
Agreement, such BCS Investor hereby irrevocably grants to and appoints each
other BCS Investor such Investor’s proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of such Investor, to
vote and act by written consent with respect to such Shares and to grant a
consent, proxy or approval in respect of such Shares, in each case in such
manner and to the extent as its necessary or desirable to vote such Shares as
agreed to by such Investor in this Agreement, including Section 1(a)(ii)
and this Section 1(b)(ii). Each BCS Investor affirms that the
irrevocable proxy set forth in this Section 1(b)(ii) will be valid for
the term of this Agreement and is given to secure the performance of the
obligations of such BCS Investor under this Agreement. Each BCS Investor hereby
further affirms that each proxy hereby granted shall, for the term of this
Agreement, be irrevocable and shall be deemed coupled with an interest.


 


(c)                                  Classified
Board.  The Third Amended and
Restated Certificate of Incorporation and the by-laws of the Company provide
that the directors of the Company, subject to any rights of the holders of
shares of any class or series of preferred stock of the Company, shall be
classified with respect to the time for which they severally hold office into
three classes, as nearly equal in number as possible. One class’s (“Class I”)
term will expire at the first annual meeting of the stockholders following the
date hereof, another class’s (“Class II”) term will expire at the second
annual meeting of the stockholders following the date hereof and another
class’s (“Class III”) term will expire at the third annual meeting of
stockholders following the date hereof; provided that the term of each
director shall continue until the election and qualification of a successor and
be subject to such director’s earlier death, resignation or removal.
Thereafter, at each annual meeting of stockholders of the Company, subject to
any rights of the holders of shares of any class or series of preferred stock
of the Company, the successors of the directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election. The directors designated pursuant to Section 1(a)(ii) shall be
allocated among the three classes of the Board as follows: (i) one BCS Designee
and up to three Independent Directors shall be allocated to Class I; (ii) any
Independent Directors in excess of three shall be allocated as evenly as
possible in ascending order among Class I, Class II and Class III; (iii) the
Spectrum Designee and two JPMP Designees shall be allocated to Class II; (iv)
one Apollo Designee shall be allocated to each of Class II and Class III; and
(v) the Bain Designee, the Carlyle Designee and the Management Designee shall
be allocated to Class III.


 


(d)                                 Committees.
The Parties agree to take all Necessary Action to cause the creation and
maintenance of: (A) an Audit Committee of the Board (the “Audit Committee”)
consisting of (I) at the Effective Time, the First Independent Director, (II)
within three months after the Effective Time, the First Independent Director
and one additional Independent Director selected by the Board upon the
recommendation of the Nominating and Corporate Governance Committee and (III)
within twelve months after the Effective Time, the First Independent Director
and two Independent Directors selected by the Board upon the recommendation of
the Nominating and Corporate Governance Committee; (B) a Compensation Committee
of the Board (the “Compensation Committee”) consisting of one JPMP
Designee (who shall initially be Michael Hannon), one Apollo Designee (who
shall initially be Aaron Stone), one Bain Designee (who 


 


8

















 


shall initially be John Connaughton) and one Carlyle Designee (who
shall initially be Michael Connelly); provided that if the JPMP
Investors, the Apollo Investors, the Bain Investors or the Carlyle Investors no
longer have the right to appoint a JPMP Designee, an Apollo Designee, a Bain
Designee or a Carlyle Designee to the Board, as applicable, the JPMP Designee,
the Apollo Designee, the Bain Designee or the Carlyle Designee, as applicable,
may be removed from the Compensation Committee by the Board and replaced with a
director designated by the Board upon the recommendation of the Nominating and
Corporate Governance Committee; and (C)  a
Nominating and Corporate Governance Committee of the Board (the “Nominating
and Corporate Governance Committee”) consisting of one JPMP (who shall
initially be Stephen Murray), one Apollo Designee (who shall initially be Aaron
Stone), the Management Designee (who shall initially be Peter Brown, the Chief
Executive Officer of the Company) and one Bain Designee (who shall initially be
John Connaughton); provided that if the JPMP Investors, the Apollo
Investors or the Bain Investors no longer have the right to appoint a JPMP
Designee, an Apollo Designee or a Bain Designee to the Board, as applicable,
the JPMP Designee, the Apollo Designee or the Bain Designee, as applicable, may
be removed from the Nominating and Corporate Governance Committee by the Board
and replaced with a director designated by the Board upon the recommendation of
the Nominating and Corporate Governance Committee.


 


(e)                                  Compliance.
Notwithstanding anything in this Agreement to the contrary, the Board and all
committees of the Board will operate in such a way as to permit the Company to
comply with applicable laws and maintain its listing on the New York Stock
Exchange.


 


SECTION
2.                            TRANSFERS


 


(a)                                  Transfer
Restrictions. Each of the Investors agrees and acknowledges that, except as
provided in this Section 2, 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
3 and 4), provided that as a condition to any Permitted
Transfer pursuant to clause (i), (ii) or (iv) of the definition of Permitted
Transfer, 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) for
Transfers of Shares in compliance with and subject to the provisions of Sections
3 and 4 and (iii) for Transfers of Shares pursuant to a Public Sale.
Notwithstanding and without limiting the foregoing, (i) each Other AMC Investor
will not, directly or indirectly (through one or more of its Affiliates or
otherwise), Transfer any Shares, without the prior written consent of the
Apollo/JPMP Investors, so long as the Apollo Investors and the JPMP Investors
have a right to designate a director to the Board pursuant to Section 1,
except (A) Transfers in compliance with and subject to the provisions of Sections
3 and 4 and (B) for Permitted Transfers (within the meaning of
clause (v) of the definition of Permitted Transfer) and (ii) no Investor will,
directly or indirectly (through one or more of its Affiliates or otherwise),
Transfer any Shares (other than in a Transfer pursuant to a Public Sale),
without the prior written consent of the Requisite Stockholder Majority, 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.


 


(b)                                 Transfer
Notice. Prior to any proposed Transfer of any Shares that is not made
pursuant to a Public Sale, the Investor holding such Shares to be Transferred
shall give written 


 


9

















 


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 2,
3 and 4 herein (including any applicable time periods set forth in
those Sections), and subject to Section 5(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. 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 2(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
3.                            DRAG-ALONG RIGHTS


 


(a)                                  Drag-Along
Right. At any time prior to the fifth anniversary of the Effective Time and
so long as the Investors and the Other AMC Investors hold in the aggregate at
least 50.1% of the outstanding shares of the Company’s Common Stock, any three
of the Principal Investors (collectively, the “Drag-Along Sellers”) may
require each other Investor (the “Required Sellers”) to participate in
any Company Sale (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, 


 


10

















 


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.


 


(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 and any
approval of the Company’s stockholders as may be required by applicable law, 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 


 


11

















 


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 or, if applicable,
hold a meeting of the Company’s stockholders as may be required by applicable
law, 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.


 


SECTION
4.                            TAG-ALONG RIGHTS


 


(a)                                  Notice.
Subject to Section 4(d), if at any time, prior to the fifth anniversary
of the Effective Time, any Investor (other than the Other AMC Investors) (any
such Investor, referred to in this Section 4 as a “Tag-Along Seller”) proposes to
Transfer Shares held by such Tag-Along Seller to any Person, 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
2(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. The Company shall give each Investor other than the Tag-Along Seller
(collectively, the “Non-Selling Investors”) and the Management
Stockholders a notice within two (2) Business Days after the receipt of the
Transfer Notice 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 of the receipt of the Transfer Notice (the “Tag-Along Election
Period”) to elect 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 


 


12

















 


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 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.


 


13

















 


(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 (directly or through the Company’s transfer agent), 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 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) or (iv) of the definition of Permitted Transfer, (ii) any Transfer
pursuant to a Public Sale, (iii) any Exit Sale pursuant to Section 3,
including any public tender offer launched by a third party, (iv) a Transfer
made by a member of the Apollo Investors, the JPMP Investors, the Carlyle
Investors, the Bain Investors or the Spectrum Investors, if at the time of such
Transfer such group of Investors in which the Transferring party is a member no
longer has a right to designate a director to the Board pursuant to Section
1(a) or (v) in the case of Management Stockholders, pursuant to Transfers
in which the 


 


14

















 


Management Stockholders do not have tag along rights pursuant to Section
2 of the Management Stockholders Agreement.


 


(e)                                  Time
Limitation. If at the end of the 90th day after the end of the
Tag-Along Election Period 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.


 


SECTION
5.                            REGISTRATION RIGHTS


 


(a)                                  Demand
Registrations.


 


(i)                                     Right to Demand Registration. Subject to the terms of any holdback
agreement as provided in Section 5(c) and the limitations provided
in this Section 5(a)(i) and Section 5(a)(ii), the Investors shall
each have the right at any time following the Effective Time 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 Effective Time, 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
5(a)(i) and Section 5(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 5(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 


 


15

















 


inclusion
therein within twenty (20) Business Days after the date such Demand Notice is
received. All requests made pursuant to this Section 5(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); 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 5 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
5(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 5(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 5(a)(ii).
Investors owning a majority of 


 


16

















 


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, 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
5(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.  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 


 


17

















 


registration effected pursuant to a Demand Registration in accordance
with Section 5(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 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 5(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 5,
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 5 that such Investor does not) offer
for Public Sale any Stock during the thirty (30) days before and a period not
to exceed ninety (90)


 


18

















 


days after the effective date of any Registration Statement filed by
the Company in connection with any underwritten Public Sale of Stock (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
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 5(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 5 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 5,
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;


 


19

















 


(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
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);


 


20

















 


(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;


 


(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 


 


21

















 


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 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


 


22

















 


(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.


 


(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 5,
the Company hereby covenants and agrees to indemnify and hold harmless each
Investor and their respective partners, directors, officers, employees,
managers, members, agents, control persons (within the meaning of
Section 15 of the Securities Act) and Permitted Transferees 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 


 


23

















 


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 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
5(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 5,
each Investor, severally and not jointly, hereby covenants and agrees to
indemnify and hold harmless the Company and its directors, officers, agents 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 


 


24

















 


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 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 5(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 5(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 5(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 5(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 5 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 


 


25














 


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 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 5(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 5 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



 


26

















 


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 12(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 5.


 


SECTION
6.                            LEGEND ON CERTIFICATES


 


(a)                                  Legends.
To the extent applicable, each certificate representing one or more Shares
shall bear each of the following legends until such time as the Shares
represented thereby are no longer subject to the provisions hereof or, in the
case of clause (i) below, 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 THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, DATED AS OF APRIL
[   ], 2007, 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
7.                            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 11 and 12, upon
the earlier to occur of (i) the unanimous agreement of the Principal
Investors and (ii) the date on which all of the JPMP Investors, the Apollo
Investors. Bain Investors, Carlyle Investors, Spectrum Investors and BCS
Investors no longer satisfy the conditions necessary to designate at least one
director to the Company Board, in each case, pursuant to the provisions of


 


27

















 


Section
1(a) hereto. 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
5, 6, 7, 10, 11 and 12 shall survive.


 


SECTION
8.                            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, current 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, unless otherwise instructed by written notice from such
Principal Investor, with respect to any significant corporate actions,
including extraordinary dividends or distributions, mergers, 


 


28

















 


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 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 8 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 8(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
9.                            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 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 9 to the contrary
notwithstanding, no Investor shall be required under this Section 9
to take any action or abstain from taking any 


 


29

















 


action that would adversely affect such Investor’s investment in the
Company or reasonable expectations related to the transactions contemplated by
such investment.


 


SECTION
10.                     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
11.                     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.


 


“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 (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.


 


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


 


“Apollo Designee” has the meaning set
forth in Section 1(a)(ii)(B).


 


“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.


 


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


 


30

















 


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


 


“Audit Committee” has the meaning set
forth in Section 1(d)(ii).


 


“Bain Designee” has the meaning set forth
in Section 1(a)(ii)(C).


 


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


 


“BCS Designee” has the meaning set forth
in Section 1(a)(ii)(F).


 


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


 


“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 Designee” has the meaning set
forth in Section 1(a)(ii)(D).


 


“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 I” has the meaning set forth in Section 1(c).


 


“Class II” has the meaning set forth in Section 1(c).


 


“Class III” has the meaning set forth in Section 1(c).


 


“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
5(a)(ii).


 


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


 


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


 


“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.


 


31

















 


“Company Sale” means any one of the following:  (i) a
change in the ownership or control of the Company 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 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 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 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 the Company and its Subsidiaries taken as a whole, to any “person”
(as defined above).


 


“Compensation Committee” has the meaning
set forth in Section 1(d)(ii).


 


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


 


“Controlled Company Disqualification” means the first
anniversary following the first date on which the Company ceases to qualify as
a “controlled company” as defined under the New York Stock Exchange Listed
Company Manual Section 303A.00 (Corporate Governance Requirements).


 


“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 5(a)(i).


 


“Demand Registration”
has the meaning set forth in Section 5(a)(i).


 


“Demanding Investor”
has the meaning set forth in Section 5(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” means the time and date of the consummation of
the Initial Public Offering.


 


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


 


32

















 


“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 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).


 


“First Independent Director” has the meaning set forth in Section
1(a)(ii)(H).


 


“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.


 


“Indemnitees” has the meaning set forth in Section 12(r).


 


“Indemnified Liabilities” has the meaning set forth in Section
12(r).


 


“Indemnified Persons” has the meaning set
forth in Section 5(g)(i).


 


“Independent Director” has the meaning set
forth in Section 1(a)(ii)(H).


 


“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.


 


“Initial Public Offering” has the meaning set forth in the
Recitals.


 


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


 


33

















 


“Investor” or “Investors”
means each of the JPMP Investors, the Apollo Investors, the Other AMC
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.


 


“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 Designee” has the meaning set forth
in Section 1(a)(ii)(A).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Litigation” has the meaning set forth in Section 12(e).


 


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


 


“Management Designee” has the meaning set
forth in Section 1(a)(ii)(G).


 


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


 


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


 


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


 


“Necessary Action” means, with respect to a specified result,
all actions (to the extent permitted by applicable law) necessary to cause such
result, including (i) voting or providing written consent or proxy with respect
to any Shares, (ii) calling and attending meetings in person or by proxy for
purposes of obtaining a quorum and causing the adoption of stockholders’
resolutions and amendments to the Company’s Third Amended and Restated
Certificate of Incorporation or Bylaws, (iii) executing agreements and
instruments and (iv) making, or causing to be made, all filings, registrations
or similar actions that are required to achieve such result.


 


34

















 


“Nominating and Corporate
Governance  Committee” has the meaning set forth in Section 1(d)(ii).


 


“Non-Selling Investor” has the meaning set forth in Section 4(a).


 


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


 


“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.


 


“Original Certificate of Incorporation” has the meaning set
forth in the recitals.


 


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


 


“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) a Transfer by any
Investor as a distribution to its partners, members or stockholders solely in
connection with contributions to one or more Charitable Organizations, or a
Transfer by any Investor directly to one or more Charitable Organizations, in
each case that, in the aggregate when taken together with any and all such
Transfers to one or more partners, members, stockholders or Charitable
Organizations, shall not exceed 20% of the Initial Investor Shares held by such
Investor; (iv) a Transfer made by a JPMP Investor pursuant to and in accordance
with the Amended and Restated Regulatory Sideletter; or (v) a Transfer made
pursuant to the registration rights as set forth in Section 5; provided
that such transferee, in the case of clauses (i), (ii) and (iv) 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 Section 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 may, but shall not be required to (unless otherwise
provided above), 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.


 


35

















 


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


 


“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.


 


“Prospectus” has
the meaning set forth in Section 5(e)(i).


 


“Public Sale”
means a Transfer pursuant to (i) a bona fide public offering pursuant to an
effective registration statement filed under the Securities Act or (ii) Rule
144 (other than in a privately negotiated sale); it being understood that the
provisions of Section 4 shall apply to transfers made by an Investor in a
“block trade.”


 


“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 5(e).


 


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


 


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


 


“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 JPMP/Apollo
Investor is an Approving Principal Investor Party and another JPMP/Apollo
Investor is an Opposing Principal Investor Party, (ii) a BCS Investor is an 


 


36

















 


Approving Principal Investor Party and another BCS 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 Common Stock,
voting together, 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).


 


“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).


 


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


 


“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
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 5(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 Designee” has the meaning set
forth in Section 1(a)(ii)(E).


 


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


 


37

















 


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


 


“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 12(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 2(b).


 


“Underwriter Cutback” has the meaning set forth in Section
5(a)(iii).


 


“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 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.


 


38

















 


SECTION
12.                     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 to
a Permitted Transferee 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 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, 


 


39

















 


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:


 


AMC Entertainment Inc.


920 Main Street

Kansas City, MO 64105 

Fax:                           (816)
480-4700

Attn:                    Kevin M.
Connor


 


with a copy to:


O’Melveny & Myers LLP


Times Square Tower


7 Times Square


New York, NY 10036


Fax: (212) 326-2061


Attn: Monica Thurmond


 


(ii)                                  if to the JPMP Investors, addressed as
follows:


 


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


c/o CCMP Capital Advisors, LLC


245 Park Avenue


 


40

















 


16th Floor


New York, New York 10167


Fax:   (212) 899-3511


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:  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


            Stan
Parker


 


with a copy to:


 


Latham & Watkins LLP


885 Third Avenue


New York, NY 10022


Fax: (212) 751-4864


Attn:  David S. Allinson


 


(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


 


41

















 


with a copy to:


 


Ropes
& Gray LLP


One
International Place


Boston,
Massachusetts 02110


Facsimile:  (617) 951-7050


Attention:  R. Newcomb Stillwell


 Howard S. Glazer


 Jane D. Goldstein


 


(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:


 


Ropes
& Gray LLP


One
International Place


Boston,
Massachusetts 02110


Facsimile:  (617) 951-7050


Attention:  R. Newcomb Stillwell


 Howard S. Glazer


 Jane D. Goldstein


 


(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


 


with a copy to:


 


42

















 


Ropes & Gray
LLP


One International
Place


Boston,
Massachusetts 02110


Facsimile:  (617) 951-7050


Attention:  R. Newcomb Stillwell


 Howard S. Glazer


 Jane D. Goldstein


 


and


 


(vii)
if to any Other AMC Investor, in accordance with the address of each such Other
AMC 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; 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. 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 


 


43

















 


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


 


44

















 


(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)                                    Indemnification.
  The Company hereby covenants and
agrees to indemnify, exonerate and hold each of the JPMP/Apollo Investors and
BCS Investors, and each of their respective partners, shareholders, members,
Affiliates, directors, officers, fiduciaries, managers, controlling Persons,
employees and agents and each of the partners, shareholders, members,
Affiliates, directors, officers, fiduciaries, trustees, managers, controlling
Persons, employees and agents of each of the foregoing (collectively, the “Indemnitees”)
free and harmless from and against any and all actions, causes of action,
suits, claims, liabilities, losses, damages and costs and out-of-pocket
expenses in connection therewith (including reasonable attorneys’ fees and
expenses) incurred by any of the Indemnitees before or after the date of this
Agreement (collectively, the “Indemnified Liabilities”), as a result
of, arising out of, or in any way relating to (i) this Agreement, the Initial
Public Offering and any other transaction to which the Company is a party or
any other circumstance with respect to the Company (other than any such
Indemnified Liabilities to the extent that such Indemnified Liabilities arise
out of any breach by such Indemnitee or its associated or affiliated
Indemnitees or other related Persons as determined by a court of competent
jurisdiction in a final nonappealable judgment of this Agreement or any other
agreements or instruments to which such Indemnitee is or becomes a party or
otherwise becomes bound) or (ii) operations of, or services provided by any of
the Indemnitees to, the Company from time to time; provided that the
foregoing indemnification rights shall not be available to the extent that any
such Indemnified Liabilities arose on account of such Indemnitee’s gross
negligence or willful misconduct, and further provided that, if and to the
extent that the foregoing undertaking may be unavailable or unenforceable for
any reason, the Company hereby agree to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The rights of any Indemnitee to
indemnification hereunder will be in addition to any other rights any such
Person may have under any other agreement or instrument referenced above or any
other agreement or instrument to which such Indemnitee is or becomes a party or
is or otherwise becomes a beneficiary or under law or regulation. None of the
Indemnitees shall in any event be liable to the Company for any act or omission
suffered or taken by such Indemnitee that does not constitute gross negligence
or willful misconduct. The Company agrees to pay or reimburse each of the
JPMP/Apollo Investors and each of the BCS Investors for all reasonable costs
and expenses (including reasonable attorneys fees, charges, disbursement and
expenses) incurred by such Investor in connection with (i)  any amendment, supplement, modification or
waiver of or to any of the terms or provisions of this Agreement, (ii) the consent
of such Investor to any departure by 


 


 


45

















 


the Company or any of its Subsidiaries from the terms
of any provision of this Agreement and (iii) the enforcement by such Investor
of any right granted to it or provided for hereunder.


 


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


 


(t)                                    Termination
of Management Stockholders Agreement. The parties hereto agree that,
effective as of the Effective Time, the Management Stockholders Agreement shall
be terminated and of no further force or effect without any further action on
the part of any party, and each party thereto hereby releases each other party
thereto from all rights and obligations under the Management Stockholders
Agreement effective as of the Effective Time.


 


[Signature pages follow]


 


46














 


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


 


	
   

  	
  AMC ENTERTAINMENT INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN PARTNERS GLOBAL INVESTORS (SELLDOWN) II, L.P.

  
	
   

  	
   

  
	
   

  	
  BY:  JPMP GLOBAL
  INVESTORS, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY:  JPMP
  CAPITAL CORP.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  JPMP GLOBAL FUND/AMC/SELLDOWN II, L.P.

  
	
   

  	
   

  
	
   

  	
  BY:  JPMP GLOBAL
  INVESTORS, L.P.,

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY:  JPMP
  CAPITAL CORP.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN PARTNERS GLOBAL INVESTORS (SELLDOWN) II-C, L.P.

  
	
   

  	
   

  
	
   

  	
  BY:  JPMP GLOBAL
  INVESTORS, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY:  JPMP
  CAPITAL CORP.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMCE (GINGER), L.P.

  
	
   

  	
   

  
	
   

  	
  BY:  JPMP GLOBAL
  INVESTORS, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY:  JPMP
  CAPITAL CORP.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMCE (LUKE), L.P.

  
	
   

  	
   

  
	
   

  	
  BY:  JPMP GLOBAL
  INVESTORS, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY:  JPMP
  CAPITAL CORP.,

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMCE (SCARLETT), L.P.

  
	
   

  	
   

  
	
   

  	
  BY:  JPMP GLOBAL
  INVESTORS, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY:  JPMP
  CAPITAL CORP.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  BAIN CAPITAL (LOEWS) I, LLC

  
	
   

  	
   

  
	
   

  	
  BY: BAIN CAPITAL (LOEWS) L, L.L.C.,

  
	
   

  	
  ITS ADMINISTRATIVE MEMBER

  
	
   

  	
  BY: BAIN CAPITAL HOLDINGS (LOEWS) I, L.P.,

  
	
   

  	
  ITS ADMINISTRATIVE PARTNER

  
	
   

  	
  BY: BAIN CAPITAL PARTNERS VII, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
  BY: BAIN CAPITAL INVESTORS, LLC,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  John
  Connaughton

  
	
   

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  John
  Connaughton

  
	
   

  	
   

  	
  Managing
  Director

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael
  J. Connelly

  
	
   

  	
  Title:

  	
  Managing
  Director

  
				



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  SPECTRUM EQUITY INVESTORS IV, L.P.

  
	
   

  	
   

  
	
   

  	
  BY: SPECTRUM EQUITY ASSOCIATES IV, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brion
  B. Applegate

  
	
   

  	
  Title:

  	
  General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPECTRUM EQUITY INVESTORS PARALLEL  IV, L.P.

  
	
   

  	
   

  
	
   

  	
  BY: SPECTRUM EQUITY ASSOCIATES IV, L.P.,

  
	
   

  	
  ITS GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brion
  B. Applegate

  
	
   

  	
  Title:

  	
  General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPECTRUM IV INVESTMENT MANAGERS’ FUND, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brion
  B. Applegate

  
	
   

  	
  Title:

  	
  General
  Partner

  
				



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  WESTON
  PRESIDIO CAPITAL IV, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  WPC
  ENTREPRENEUR FUND II, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  CAISSE
  DE DEPOT ET PLACEMENT DU QUEBEC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  CO-INVESTMENT
  PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  CSFB
  STRATEGIC PARTNERS HOLDINGS II, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  CSFB
  STRATEGIC PARTNERS PARALLEL HOLDINGS II, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  CREDIT
  SUISSE ANLAGESTIFTUNG

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  PEARL
  HOLDING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  PARTNERS
  GROUP PRIVATE EQUITY PERFORMANCE HOLDING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  VEGA
  INVEST (GUERNSEY) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  ALPINVEST
  PARTNERS CS INVESTMENTS 2003 C.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  ALPINVEST
  PARTNERS LATER STAGE CO-INVESTMENTS CUSTODIAN II B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  ALPINVEST
  PARTNERS LATER STAGE CO-INVESTMENTS CUSTODIAN IIA B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


	
   

  	
  SCREEN
  INVESTORS 2004, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Third Amended and
Restated Stockholders Agreement


 

















 


SCHEDULE 1


 


SCHEDULE OF OTHER AMC INVESTORS


 


	
  Name of
  Other AMC 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 March
  and

  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 (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

THIRD 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 Third Amended and Restated Stockholders Agreement,
dated as of                            ,
as amended from time to time, by and among AMC Entertainment 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., J.P. Morgan Partners Global Investors (Selldown) II, L.P.,
JPMP Global Fund/AMC/Selldown II, L.P., J.P. Morgan Partners Global Investors
(Selldown) II-C, 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,
Carlyle Partners III Loews, L.P., CP III Coinvestment, L.P., Bain Capital
(Loews) I, LLC, 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:

  	
   

  
	
   

  	
   

  
	
  AMC
  ENTERTAINMENT INC.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:  

  
				



 

















 


EXHIBIT B


 


Second Amended and Restated Regulatory Sideletter


 


 


[Attached hereto]