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EXHIBIT 10.16(l)
LIST OF WARRANT CERTIFICATES
Certificate Registered Number of
Number Holder Shares
A-33 Muico & Co. 9,022
A-34 Muico & Co. 1,646
A-35 Muico & Co. 3,932
A-36 Muico & Co. 5,715
A-37 Muico & Co. 5,806
A-38 Muico & Co. 17,739
A-39 Muico & Co. 91,864
A-40 Muico & Co. 14,142
A-41 Muico & Co. 2,545
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Total 152,411
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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPTION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144(K)
OR RULE 144A UNDER SUCH ACT.
No. A-41
CINEMARK MEXICO (USA), INC.
COMMON STOCK WARRANT CERTIFICATE
Warrant to purchase 2,545 shares of Common Stock
THIS CERTIFIES that, for value received, Muico & Co., or its registered
successors and assigns, is the owner of 2,545 Warrants, each of which permits
the owner thereof to purchase from CINEMARK MEXICO (USA), INC., a Texas
corporation (herein called the "Company"), at any time or from time to time
immediately preceding the occurrence of a Triggering Event, as that term is
defined in the Indenture dated as of July 30, 1993 among the Company, Cinemark
de Mexico, S.A. de C.V., a corporation organized under the laws of the United
Mexican States (the "Guarantor"), and United States Trust Company of New York,
as Trustee, but in any event no later than 5:00 p.m., New York time on the
Expiration Date (as defined below), one share of common stock, par value $.OO1
per share, of the Company (the "Common Stock") at an initial exercise price per
share equal to one cent ($0.01), subject to adjustment from time to time
pursuant to the provisions of Section 2 hereof (the "Exercise Price"). For
purposes of this Warrant Certificate, the term "Common Shares" shall mean the
class of capital stock of the Company designated as Common Stock in the
Company's Articles of Incorporation, as in effect on the date hereof, and any
other class of capital stock of the Company resulting from successive changes
or reclassification of the Common Stock.
1. Exercise of Warrants.
1.1 Cash Exercise. The Warrants evidenced hereby may be exercised at any
time after a Triggering Event and before February 1, 2005 (the "Expiration
Date") by the registered holder hereof, in whole or in increments of no less
than 1,000 Warrants, by the surrender of this Warrant Certificate, duly
endorsed (unless endorsement is waived by the Company), at the principal office
of the Company (or at such other office or agency of the Company as it may
designate by notice in writing to the registered holder hereof at such holder's
last address appearing on the books of the Company) and upon payment to the
Company by a check payable to the order of the Company for the Exercise Price
for each Warrant exercised. The certificate(s) for such Common Shares shall be
delivered to the registered holder hereof within a reasonable time, not
exceeding ten (10) days, after Warrants evidenced hereby shall have been so
exercised and a new Warrant Certificate
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evidencing the number of Warrants, if any, remaining unexercised shall also be
issued to the registered holder within such time unless such Warrants have
expired. The holder of the Warrants evidenced by this certificate shall have
all the rights of a holder of Common Shares to be issued upon exercise of the
Warrants when such Warrant holder tenders payment of the Exercise Price to the
Company along with this Warrant Certificate duly endorsed in accordance with
this Section 1. No fractional Common Shares of the Company, or scrip for any
such fractional shares, shall be issued upon the exercise of any Warrants; but
the holder hereof shall be entitled to cash equal to such fraction multiplied
by the then effective Exercise Price.
1.2 Net Issue Exercise.
(a) In lieu of exercising this Warrant, the holder hereof may elect
to receive shares of Common Stock equal to the value of this Warrant (or the
portion thereof being cancelled) by surrender of this Warrant at the principal
office of the Company together with notice of such election in which event the
Company shall issue to the holder hereof a number of shares of the Company's
Common Stock computed using the following formula:
X = Y (A - B)
---------
A
Where X - The number of shares of Common Stock to be issued to holder.
Y - The number of shares of Common Stock purchasable under this
Warrant.
A - The fair market value of one share of the Company's Common
Stock.
B - Exercise Price (as adjusted to the date of such calculations).
(b) For purposes of this Section, fair market value of the Company's
Common Stock shall mean the average of the closing bid and asked prices of the
Company's Common Stock quoted in the over-the-counter market summary or the
closing price quoted on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Eastern Edition of The Wall Street
Journal for the ten trading days prior to the date of determination of fair
market value. If the Common Stock is not traded over-the-counter or on an
exchange, the fair market value shall be determined in good faith by the Board
of Directors of the Company with the approval of the holder of this
Certificate, which approval shall not be unreasonably withheld or delayed. If
the fair market value of the Common Stock is to be determined on a date
preceding, but in contemplation of, a public offering of shares of the Common
Stock, the fair market value shall be the price at which such shares of Common
Stock are sold to the public in such public offering.
2. Adjustment in Exercise Price and Number of Shares. The Exercise Price per
Warrant shall be subject to adjustment from time to time as hereinafter
provided. Upon each adjustment of the Exercise Price pursuant to Sections 2.2
or 2.3 hereof, the holder of this Warrant shall thereafter be entitled to
purchase at the Exercise Price resulting from such
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adjustment, the number of shares obtained by dividing (1) the product of (x)
the number of shares purchasable pursuant hereto immediately prior to such
adjustment and (y) the Exercise Price immediately preceding such adjustment by
(2) the Exercise Price resulting from such adjustment.
2.1 Issuance of Additional Shares.
(a) Special Definitions. For purposes of this Section 2.1, the
following definitions shall apply:
(i) "Options" shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
(ii) "Convertible Securities" shall mean any evidences of
indebtedness, shares or other securities convertible into or exchangeable for
Common Stock or convertible into or exchangeable for securities convertible
into or exchangeable for Common Stock.
(iii) "Additional Shares of Common Stock" shall mean all shares
of Common Stock issued (or, pursuant to subsection 2.1(c), deemed to be issued)
by the Company after the date hereof other than shares of Common Stock issued
or issuable at any time:
(A) Pursuant to any Warrants issued and sold pursuant to
the Purchase Agreement dated as of July 30, 1993, among the Company, the
Guarantor and said Purchasers (the "Original Purchase Agreement");
(B) Pursuant to any Warrants issued to the purchaser of
up to $2,000,000 in aggregate principal amount of the Company's 12% Series A
Senior Subordinated Notes due 2003 as provided for in Section 2.1.3 of the
Original Purchase Agreement;
(C) Pursuant to any Warrants issued and sold pursuant to
the Purchase Agreement dated as of August 30, 1995, among the Company and said
Purchasers (the "Second Purchase Agreement");
(D) Pursuant to a stock option, stock bonus or other
employee or nonqualified stock plan or plans approved by the Board of Directors
of the Company, for up to 10% of the Common Stock of the Company; or
(E) As the result of any event for which adjustment is
provided pursuant to Sections 2.2 or 2.3 hereof.
(b) No Adjustment of Exercise Price. No adjustment in the
applicable Exercise Price shall be made in respect of the issuance of
Additional Shares of Common Stock unless the consideration per share for an
Additional Share of Common Stock issued or deemed to be issued by the Company
is less than the applicable Exercise Price in effect on the date of, and
immediately prior to, such issue.
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(c) Deemed Issue of Additional Shares of Common Stock - Options and
Convertible Securities. Except as provided in Sections 2.1(a) or 2.1(b)
hereof, in the event the Company at any time or from time to time after the
date hereof shall issue any Options or Convertible Securities or shall fix a
record date for the determination of holders of any class of securities
entitled to receive any such Options or Convertible Securities, then the
maximum number of shares (as set forth in the instrument relating thereto
without regard to any provisions contained therein for a subsequent adjustment
of such number) of Common Stock issuable upon the exercise of such Options or,
in the case of Convertible Securities and Options therefor, the conversion or
exchange of such Convertible Securities, shall be deemed to be the number of
Additional Shares of Common Stock issued as of the time of such issue or, in
case such a record date shall have been fixed, as of the close of business on
such record date, provided that Additional Shares of Common Stock shall not be
deemed to have been issued unless the consideration per share (determined
pursuant to Section 2.1(f) hereof) of such Additional Shares of Common Stock
would be less than the applicable Exercise Price in effect on the date of and
immediately prior to such issue, or such record date, as the case may be, and
provided further that in any such case in which Additional Shares of Common
Stock are deemed to be issued,
(A) no further adjustment in the applicable Exercise
Price shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(B) if such Options or Convertible Securities by their
terms provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof, the
applicable Exercise Price computed upon the original issue thereof (or upon the
occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities;
(C) upon the expiration of any such Options or any rights
of conversion or exchange under such Convertible Securities which shall not
have been exercised, the applicable Exercise Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such expiration, be
recomputed as if,
(1) in the case of Convertible Securities or Options
for Common Stock, the only Additional Shares of Common Stock issued were shares
of Common Stock, if any, actually issued upon the exercise of such Options or
the conversion or exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the Company for
the issue of all such Options, whether or not exercised, plus the consideration
actually received by the Company upon such exercise, or for the issue of all
such Convertible Securities whether or not converted or exchanged, plus the
additional consideration, if any, actually received by the Company upon such
conversion or exchange, and
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(2) in the case of Options for Convertible
Securities, only the Convertible Securities, if any, actually issued upon the
exercise thereof were issued at the time of issue of such Options, and the
consideration received by the Company for the Additional Shares of Common Stock
deemed to have been then issued was the consideration actually received by the
corporation for the issue of all such Options, whether or not exercised, plus
the consideration deemed to have been received by the Company upon the issue of
the Convertible Securities with respect to which such Options were actually
exercised;
(D) no readjustment pursuant to clause (B) or (C) above
shall have the effect of increasing the applicable Exercise Price to an amount
which exceeds the lower of (i) the applicable Exercise Price immediately prior
to the original adjustment, or (ii) the applicable Exercise Price that would
have resulted from any issuance of Additional Shares of Common Stock between
the original adjustment date and such readjustment date.
(d) Adjustment of Exercise Price Upon Issuance of Additional Shares
of Common Stock. In the event the Company shall issue Additional Shares of
Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Section 2.1(c)) for a consideration per share less than the
applicable Exercise Price of the Warrant in effect on the date of and
immediately prior to such issue, then and in such event, the applicable
Exercise Price shall be reduced, concurrently with such issue, to the price
(calculated to the nearest cent) at which such Additional Shares of Common
Stock are issued.
(e) Alternative Adjustment of Exercise Price. Notwithstanding the
provisions of Section 2.1(d) above, if the preferences, voting powers,
qualifications and special or relative rights or privileges of any other class
or series of the Company's capital stock provide that the conversion rate for
such other class or series of the Company's capital stock shall be adjusted in
accordance with a method or formula which, if applied to the adjustment of the
Exercise Price, would result in a lower Exercise Price, then the Exercise Price
shall be adjusted in accordance with such other method or formula, rather than
in accordance with Section 2.1(d).
(f) Determination of Consideration. For purposes of this Section
2.1, the consideration received by the Company for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(i) Cash and Property: Such consideration shall:
(A) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Company excluding amounts paid or
payable for accrued interest or accrued dividends;
(B) insofar as it consists of property other than cash,
be computed at the fair value thereof at the time of such issue, as determined
in good faith by the Board of Directors of the Company; and
(C) in the event Additional Shares of Common Stock are
issued together with other shares or securities or other assets of the Company
for consideration which covers
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both, be the proportion of such consideration so received, computed as provided
in clauses (A) and (B) above, as determined in good faith by the Board of
Directors.
(ii) Options and Convertible Securities. The consideration per
share received by the Company for Additional Shares of Common Stock deemed to
have been issued pursuant to Section 2.1(c), relating to Options and
Convertible Securities, shall be determined by dividing
(A) the total amount, if any, received or receivable by
the Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration) payable to
the Company upon the exercise of such Options or the conversion or exchange of
such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities by
(B) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon the
exercise of such options or the conversion or exchange of such Convertible
Securities.
2.2 Stock Dividends. If and whenever at any time the Company shall
declare a dividend or make any other distribution upon any class or series of
stock of the Company payable in Common Shares or securities convertible into or
exercisable for Common Stock, the number of Common Shares to be obtained upon
exercise of this Warrant shall be proportionately adjusted to reflect the
issuance of any such securities issuable in payment of such dividend or
distribution.
2.3 Subdivision or Combination of Stock. If and whenever the Company
shall at any time subdivide its outstanding Common Shares into a greater number
of shares, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the outstanding
Common Shares of the Company shall be combined into a smaller number of shares,
the Exercise Price in effect immediately prior to such combination shall be
proportionately increased.
2.4 Recapitalizations. If at any time or from time to time there shall be
any capital reorganization or reclassification of the capital stock of the
Company, consolidation or merger of the Company with another corporation, or
sale, transfer or other disposition of all or substantially all of the
Company's property to another corporation (any such event being referred to
herein as a "recapitalization") provision shall be made so that the holders of
the Warrants shall thereafter be entitled to receive upon exercise of the
Warrants the number of shares of stock or other securities or property of the
Corporation or otherwise, to which a holder of Common Shares deliverable upon
exercise would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 2 with respect to the rights of the holders of the Warrants after
the recapitalization to the end that the provisions of this Subsection 2
(including adjustment
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of the Exercise Price then in effect and the number of shares for which the
Warrants may be exercised) shall be applicable after that event in as nearly an
equivalent manner as may be practicable.
3. Company to Provide Stock. The Company covenants and agrees that all the
Common Shares which may be issued upon the exercise of the Warrants evidenced
hereby upon the due exercise, including the receipt by the Company of the
aggregate Exercise Price for all Warrants exercised, will be duly authorized,
validly issued and fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof to the registered holder hereof
other than those which the Company shall promptly pay or discharge. The
Company further covenants and agrees that during the period within which the
Warrants evidenced hereby may be exercised, the Company will at all times
reserve such number of shares of Common Stock as may be sufficient to permit
the exercise in full of the Warrants hereby.
4. Other Notices. If any time prior to the Expiration of the Warrants
evidenced hereby:
(a) The Company shall declare any dividend on the Common Shares
payable in shares of capital stock of the Company; or
(b) The Company shall authorize the issue of any options, warrants
or rights pro rata to all holders of Common Shares entitling them to subscribe
for or purchase any shares of stock of the Company or to receive any other
rights; or
(c) The Company shall authorize the distribution pro rata to all
holders of Common Shares of evidences of its indebtedness or assets (including
cash dividends or distributions paid out of retained earnings or retained
surplus); or
(d) There shall occur any reclassification of the Common Shares, or
any consolidation or merger of the Company with or into another corporation
(other than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification of the Common
Stock) or a sale or transfer to another corporation of all or substantially all
of the properties of the Company; or
(e) There shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company;
then, and in each of such cases, the Company shall mail to the registered
holder hereof at its last address appearing on the books of the Company, as
promptly as practicable but in any event at least twenty days prior to the
applicable record date (or determination date) mentioned below, a notice
stating, to the extent such information is available, (i) the date on which a
record is to be taken for the purpose of such dividend, distribution or rights,
or, if a record is not to be taken, the date as of which the holders of Common
Shares of record to be entitled to such dividend, distribution or rights are to
be determined, or (ii) the date on which such liquidation, dissolution or
winding up is expected to become effective and the date as of which it is
expected that holders of Common Shares of record shall be entitled to exchange
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their Common Shares for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up.
5. Replacement of Warrants. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any Warrant, and
in the case of any such loss, theft or destruction of any Warrant, on delivery
of an indemnity agreement or security reasonably satisfactory in form and
amount to the Company or, in the case of any such mutilation, on surrender and
cancellation of such Warrant, unless the Company has received notice that any
such Warrant has been acquired by a bona fide purchaser, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor;
provided, however, if any Warrant of which the original holder of this Warrant,
its nominee, or any of its affiliates is the registered holder (but not any
transferee of such original holder) is lost, stolen or destroyed, the affidavit
of the President, Vice President, Treasurer, Secretary, or Clerk, of the
registered holder setting forth the circumstances with respect to such loss,
theft or destruction shall be accepted as satisfactory evidence thereof, and no
indemnity bond or other security shall be required as a condition to the
execution and delivery by the Company of a new Warrant in replacement of such
lost, stolen or destroyed Warrant other than the registered holder's written
agreement to indemnify the Company.
6. Registered Holder. The registered holder of this Warrant Certificate, (the
"Holder"), shall be deemed the owner hereof and of the Warrants evidenced
hereby for all purposes. The registered holder of this Warrant Certificate
shall not be entitled by virtue of ownership of this Warrant Certificate to any
rights whatsoever as a shareholder of the Company.
7. Amendments and Waivers. Any provision in this Warrant Certificate to the
contrary notwithstanding, changes in or additions to this Warrant Certificate
may be made and compliance with any covenant or provision herein set forth may
be omitted or waived if the Company shall obtain consent thereto in writing
from persons holding or having the right to acquire an aggregate of at least a
majority of the aggregate of the Warrants issued and then outstanding pursuant
to the Purchase Agreement dated as of August 30, 1995 among the Company and the
Purchasers and shall, in each such case, deliver copies of such consent in
writing to any holders who did not execute the same.
8. Transfer. (a) This Warrant Certificate and the Warrants evidenced hereby
may not be sold, transferred, pledged, hypothecated or otherwise disposed of
unless and until:
(i) There is then in effect a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), covering such
proposed disposition and such disposition is made in accordance with such
registration statement and all applicable state securities laws; or
(ii) (A) The transferor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a statement of
the circumstances surrounding the proposed disposition, and (B) if reasonably
requested by the Company, such transferor shall have furnished the Company with
an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such shares
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under the Securities Act and that all requisite action has been or will, on a
timely basis, be taken under any applicable state securities laws in connection
with such disposition; and
(iii) The proposed transferee shall have agreed in writing to
be bound by the terms and provisions of this Section 8.
(b) Notwithstanding the provisions of paragraphs (i) and (ii) above,
no such registration statement or opinion of counsel shall be necessary for a
transfer to a partner, former partner, subsidiary, shareholder or affiliate of
such transferor if the transferee agrees in writing to be subject to the terms
hereof to the same extent as if such transferee were an original holder of this
Warrant Certificate or for transfers pursuant to Rule 144 or 144A promulgated
under the Securities Act.
9. Offer to Purchase Warrants By Company.
(a) If no Triggering Event, as defined in the Indenture, has
occurred prior to August 1, 1998, on that date the Company shall:
(i) offer to repurchase for cash all Warrants at the
Redemption Price (as defined in Section 10 hereof); or
(ii) on the last business day of each of January, 2000,
January, 2001 and January, 2002 offer to repurchase for cash one-third of the
aggregate number of Warrants outstanding on the last business day of January,
2000, January, 2001 and January, 2002 at the Redemption Price in effect on each
of January, 2000, January, 2001 and January 2002.
(b) Written notice of the Company's offer to purchase the Warrants
pursuant to Section 9(a)(i) or (ii) shall be sent by first-class U.S. mail,
postage-prepaid, certified or registered mail, return receipt requested, to
each Holder at its address as the same shall appear on the warrant register of
the Company within twenty days of the relevant offer date (the "Call Notice").
On or before the acceptance date indicated in the Call Notice, the Holder shall
deliver the Warrant to the Company. Such Warrant, if required, shall be
properly stamped for transfer and accompanied by proper instruments of
assignment and transfer duly executed in blank, with all signatures
appropriately guaranteed by a national bank or a firm which is a member of the
New York Stock Exchange, Inc. The Redemption Price shall be paid to the Holder
on the later to occur of (i) the date fixed as the acceptance date or (ii) the
fifth day following the determination of the Redemption Price pursuant to
Section 10(d).
(c) If no Triggering Event, as defined in the Indenture, has
occurred prior to February 1, 2000, and either (i) there exists a Default in
the payment of interest or principal on the Notes, all as defined in the
Indenture, or (ii) the Company is prohibited by law or by agreement from
repurchasing the Warrants pursuant to Section 9(a) hereof, the Warrants shall
be immediately exercisable and, pursuant to the Warrant Registration Rights
Agreement dated as of July 30, 1993, as amended, among the Company and the
Purchasers, the Company shall use its reasonable efforts to cause a
Registration Statement to be filed and
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declared effective in respect of the Common Shares to be issued upon exercise
of the Warrants.
10. Redemption of Warrants.
(a) Subject to the limitations set forth below, at any time and from
time to time after January 31, 1998 the Company shall have the right to redeem
in whole or in part outstanding Warrants at their fair market value (the
"Redemption Price") as determined pursuant to Section 10(d) hereof.
(b) The right of redemption set forth in Section 10(a) shall be
exercisable upon not less than ninety (90) days prior written notice (the
"Redemption Notice") sent by first-class U.S. mail, postage-prepaid, certified
or registered mail, return receipt requested, to the Holder at its address as
the same shall appear on the warrant register of the Company. After the
sixtieth day following the receipt by any Holder of a Redemption Notice, all
rights of the Holder in the Warrant, except the right to receive the Redemption
Price, shall cease and terminate and the Warrant shall no longer be deemed
outstanding, and, in such event, the Holder shall, on or before the redemption
date, deliver to the Company the Warrant Certificate. Such Warrant Certificate,
if required, shall be properly stamped for transfer and accompanied by proper
instruments of assignment and transfer duly executed in blank, with all
signatures appropriately guaranteed by a national bank or a firm which is a
member of the New York Stock Exchange, Inc. If the Holder shall fail to tender
its Warrant Certificate as provided in this subsection, the Company shall have
the right to cancel such Warrant Certificate upon its books and, upon receipt
of a reasonable and customary indemnity, pay to the Holder the Redemption Price
for such Warrant Certificate. The Warrant Certificate so cancelled shall for
all purposes be considered to have been redeemed as provided herein. The
Redemption Price shall be paid in cash on the later to occur of (i) the date
fixed in the Redemption Notice as the redemption date by the Company (which
shall be not earlier than the ninetieth nor later than the one hundred
twentieth day following the date of such Redemption Notice) or (ii) the fifth
business day following the determination of the Redemption Price pursuant to
Section 10(d).
(c) Up to the sixtieth day following the receipt by any Holder of a
Redemption Notice, the Holder may exercise the Warrant or transfer the Warrant
to a third party.
(d) The Redemption Price shall be determined by an independent
appraiser mutually acceptable to the Holders of 66 2/3% of the Warrants that
are the subject of the Redemption Notice or Call Notice, as the case may be
(the "Majority Holders"), and the Company. In the event the Majority Holders
and the Company cannot agree upon an independent appraiser within sixty-five
(65) days after receipt of the Redemption Notice or Call Notice, as the case
may be, by the Majority Holders, the Majority Holders and the Company each
shall, within seventy (70) days after the Majority Holders have received the
Redemption Notice or Call Notice, as the case may be, appoint an appraiser to
determine the Redemption Price. Each party shall furnish the other party hereto
with written notice of the name, address and telephone number of such
appraiser. The failure of any party entitled to appoint an appraiser to make
such appointment within such five (5) day period shall constitute a waiver of
such party's right to appoint an appraiser and the determination of the other
party's appraiser shall
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be deemed to be the Redemption Price. If within fifteen (15) days after the
date on which last appraiser was appointed, the two appraisers are able to
agree upon the Redemption Price, or arrive at appraisals which do not differ
from one another by more than 5% of the greater of those appraisals, the
Redemption Price shall be the amount agreed upon or the average of the two
appraisals. If within such fifteen (15) day period the two appraisers are
unable so to agree upon the Redemption Price or so to arrive at appraisals to
be averaged, a third independent appraiser shall, within five (5) days after
the expiration of such fifteen (15) day period, be chosen by the mutual consent
of such first two appraisers or, if such first two appraisers fail to agree
upon the appointment of a third appraiser, such appointment shall be made by
the New York City office of the following firms (or their successor firms),
which shall choose the third appraiser in the following order of priority,
provided that such firm has not, for the prior three years, rendered
professional services to either the Company or the Holder:
(1) Arthur Andersen & Co.
(2) Coopers & Lybrand
(3) Ernst & Young
(4) Price Waterhouse & Co.
(5) Deloitte & Touche
(6) KPMG Peat Marwick
The appraisal by such third appraiser of the Redemption Price shall be
announced within twenty (20) days after the selection of such third appraiser
and shall be the Redemption Price, binding and conclusive on the Company and
the holders of all Warrants subject to the Redemption Notice or Call Notice, as
the case may be. If the Company and the Majority Holders agree as to one
independent appraiser, the fees and other costs of such appraiser shall be paid
one-half by the Company and one-half by the Majority Holders of all Warrants
subject to the Redemption Notice or the Call Notice, as the case may be. If the
Company and the Majority Holders cannot agree as to one independent appraiser,
the fees and other costs of each of the first two (2) appraisers shall be borne
by the party appointing such appraiser, and the fees and other costs of the
third appraiser shall be paid one-half by the Company and one- half by the
Majority Holders of all Warrants subject to the Redemption Notice or the Call
Notice, as the case may be. No discount for any lack of liquidity of the Common
Stock underlying the Warrants will be applied by any appraiser in determination
of the Redemption Price.
IN WITNESS WHEREOF, CINEMARK MEXICO (USA), INC. has caused this Warrant
Certificate to be signed by a duly authorized officer under its corporate seal,
and this Warrant Certificate to be dated August 30, 1995.
CINEMARK MEXICO (USA), INC.
By: /s/ Jeffrey J. Stedman
----------------------- -
Name: Jeffrey J. Stedman
Title: Vice President
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