[NUMBER OF SHARES]
LIONS GATE ENTERTAINMENT CORP.
COMMON SHARES
UNDERWRITING AGREEMENT
, 2003
XX XXXXX SECURITIES CORPORATION
As Representative of the several Underwriters
c/o XX Xxxxx Securities Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Lions Gate Entertainment Corp., a British Columbia corporation
(the "Company") proposes to sell, pursuant to the terms of this Agreement, to
the several underwriters named in Schedule A hereto (the "Underwriters," or,
each, an "Underwriter"), an aggregate of ____ common shares, no par value (the
"Common Shares") of the Company. The aggregate of ____ Common Shares so proposed
to be sold is hereinafter referred to as the "Firm Shares". The Company and the
Selling Shareholder listed in Schedule B hereto (the "Selling Shareholder") also
propose to sell to the Underwriters, upon the terms and conditions set forth in
Section 3 hereof, up to an additional ______ Common Shares (the "Optional
Shares"). The Firm Shares and the Optional Shares are hereinafter collectively
referred to as the "Shares". XX Xxxxx Securities Corporation ("XX Xxxxx") is
acting as representative of the several Underwriters and in such capacity is
hereinafter referred to as the "Representative."
2. (I) Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) The Company meets the requirements under the Securities Act (British
Columbia) (the "BCSA") and the rules, regulations and published policy
statements applicable in the Province of British Columbia, including the
rules and procedures established for use of a short form prospectus with
respect to the Shares pursuant to National Instrument 44-101-Short Form
Prospectus Distributions (collectively, "British Columbia Securities
Laws"); a preliminary short form prospectus relating to the distribution
of the Shares in the United States has been filed with the British
Columbia Securities Commission in the Province of British Columbia (the
"BCSC") (the "Canadian Preliminary Prospectus"); the BCSC has issued a
preliminary receipt for the Canadian Preliminary Prospectus; a final short
form prospectus relating to the distribution of the Shares in the United
States has been filed with the BCSC for which a final receipt has been
received from the BCSC, (the "Canadian Prospectus"); the Canadian
Preliminary Prospectus and the Canadian Prospectus for which a preliminary
receipt and a final receipt were issued by the BCSC, respectively, were
each in the form heretofore delivered to you and for each of the other
Underwriters (including all documents incorporated by reference in the
prospectus contained therein) and no other document with respect to such
Preliminary Canadian Prospectus or Canadian Prospectus or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the BCSC; no order having the effect of ceasing or
suspending the
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distribution of the Shares has been issued by the BCSC and no proceeding
for that purpose has been initiated or, to the best of the Company's
knowledge, threatened by the BCSC.
(b) A registration statement on Form S-2 (File No. 333-104836) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, but including all documents incorporated by reference in the
prospectus contained therein, to you for each of the other Underwriters,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Securities Act") and the
rules and regulations (the "Rules and Regulations") of the Commission
thereunder, which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or, to the best of the Company's knowledge,
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the Rules and Regulations, is hereinafter called a
"Preliminary Prospectus" and together with the Canadian Preliminary
Prospectus, the "Preliminary Prospectuses"); the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act and deemed by virtue of
Rule 430A under the Securities Act to be part of the Initial Registration
Statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statements"; such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Securities Act, is hereinafter called the
"Prospectus" and any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under
the Securities Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be. No document has been or will be prepared
or distributed in reliance on Rule 434 under the Securities Act. No order
preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission.
(c) The Registration Statement conforms (and the Rule 462(b) Registration
Statement, if any, the Prospectus and any amendments or supplements to
either of the Registration Statements or the Prospectus, when they become
effective or are filed with the Commission, as the case may be, will
conform) in all material respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the
applicable effective date (as to the Registration Statements and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing representations and
warranties shall not apply to information contained in or omitted from the
Registration Statements or the Prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by or on
behalf of any Underwriter specifically for inclusion therein, which
information the parties hereto agree is limited to the Underwriters'
Information (as defined in Section 16).
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(d) No order preventing or suspending the use of the Canadian Preliminary
Prospectus has been issued by the BCSC, and the Canadian Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the British Columbia Securities Laws, and
did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information the parties hereto
agree is limited to the Underwriters' Information (as defined in Section
16).
(e) The documents incorporated by reference in the Canadian Prospectus and
the Prospectus (referred to collectively, as the "Prospectuses"), when
they were filed with the BCSC and the Commission, as the case may be,
conformed in all material respects to the requirements of the British
Columbia Securities Laws, and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder, as the case may be, and none of such documents
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(f) The Company and each of its subsidiaries (as defined in Section 14)
have been duly incorporated (or, with respect to subsidiaries that are
not corporations, duly organized) and are validly existing as
corporations (or as such other entities, as applicable) in good standing
under the laws of their respective jurisdictions of incorporation (or
organization, as applicable), are duly qualified to do business and are
in good standing as foreign corporations (or other foreign entities, as
applicable) in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such
power or authority would not reasonably be expected to have, singularly
or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations or business of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"). With regard to Lions Gate Television Corp. ("LGTC"):
(i) A trust (the "Trust") is, and since June 1999 has been,
the sole registered shareholder of LGTC;
(ii) The Trust is, and since 1999 has been, a duly formed and
validly existing trust under the laws of the Province of
British Columbia;
(iii) Xxxxx Xxxxxxx, is, and since 1999 has been, the sole
trustee (the "Trustee") of the Trust;
(iv) The Company, LGTC and the Company's subsidiaries are,
and since 1999, have been, the sole beneficiaries (the
"Beneficiaries") of the Trust; and
(v) Pursuant to the terms of the Trust, all economic benefit
flowing from the ownership of the shares of LGTC is to
be held by the Trustee for and on behalf of the
Beneficiaries.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
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(h) The Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein (including, if
applicable, pursuant to The Depository Trust Company's standard procedures
that include the electronic delivery of share capital), will be duly and
validly issued, fully paid and non-assessable and free of any preemptive
or similar rights and will conform to the description thereof contained in
the Prospectuses.
(i) The Company has an authorized capitalization as set forth in the
Prospectuses, and all of the issued shares of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectuses.
(j) All the outstanding shares or other equity interests of each
subsidiary of the Company have been duly authorized and validly issued,
are fully paid and non-assessable and, except to the extent set forth in
the Prospectuses with respect to LGTC, are owned by the Company directly
or indirectly through one or more wholly-owned subsidiaries, free and
clear of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party (except for
pledges of shares or other equity interests of certain subsidiaries
pursuant to the Credit, Security, Guaranty and Pledge Agreement by and
among the Company, the subsidiaries referred to therein, and the lenders
referred to therein, dated as of September 25, 2000, as amended to date).
(k) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
(ii) result in any violation of the provisions of the charter or by-laws
(or other organizational documents, as applicable) of the Company or any
of its subsidiaries or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets, other than, in the case of each of clauses (i)
and (iii), any such conflict, breach, violation or default that would not,
singularly or in the aggregate, have a Material Adverse Effect.
(l) Except for the registration of the Shares under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act, applicable state securities
laws in the United States, and the British Columbia Securities Laws in
connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(m) Each of Ernst & Young LLP and PricewaterhouseCoopers LLP, who have
expressed their opinions on the audited financial statements and related
schedules included or incorporated by reference in the Registration
Statements and the Prospectuses, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(n) The consolidated financial statements, together with the related notes
and schedules, included or incorporated by reference in the Prospectuses
and in each Registration Statement fairly present the financial condition,
results of operations and cash flows of the Company and its consolidated
subsidiaries and other consolidated entities at the respective dates or
for the
5
respective periods therein specified. Such statements and related notes
and schedules have been prepared in accordance with Canadian generally
accepted accounting principles applied on a consistent basis, except as
may be set forth in the Prospectuses, and comply as to form with all
applicable accounting requirements of the Securities Act and the Rules and
Regulations and the British Columbia Securities Laws, as the case may be.
No other financial statements or supporting schedules or exhibits are
required by the Securities Act or the Rules and Regulations, or the
British Columbia Securities Laws, as the case may be, to be included in
the Prospectuses.
(o) Neither the Company nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectuses, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth in the Prospectus; and, since such date, there has not been any
change in the share capital or long-term debt of the Company or any of its
subsidiaries or any material adverse change or, to the Company's
knowledge, any development involving a prospective material adverse
change, in or affecting the business, general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set forth
in the Prospectuses.
(p) Except as set forth in the Prospectuses, there is no legal or
governmental proceeding pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject which, singularly or in the
aggregate, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse
Effect or would prevent or adversely affect the ability of the Company to
perform its obligations under this Agreement; and to the best of the
Company's knowledge, no such proceedings have been threatened by
governmental authorities or others.
(q) Neither the Company nor any of its subsidiaries (i) is in violation of
its charter or by-laws (or other organizational documents, as applicable),
(ii) is in default in any respect, and no event has occurred which, with
the giving of notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or
(iii) is in violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may
be subject except, in the case of each of clauses (ii) and (iii), any
violations or defaults which, singularly or in the aggregate, would not
have a Material Adverse Effect.
(r) The Company and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state, provincial
or foreign regulatory agencies or bodies which are necessary for the
ownership of their respective properties or the conduct of their
respective businesses as described in the Prospectuses except where any
failures to possess or make the same, singularly or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, and
the Company has not received notification of any revocation or
modification of any such license, authorization or permit and has no
reason to believe that any such license, certificate, authorization or
permit will not be renewed except where such non-renewal, singularly or in
the aggregate, would not have a Material Adverse Effect.
(s) Neither the Company nor any of its subsidiaries is or, after giving
effect to the offering of the Shares and the application of the proceeds
thereof as described in the Prospectuses will
6
become, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended and the rules and regulations of the
Commission thereunder.
(t) Neither the Company nor, to the Company's knowledge, any of its
officers, directors or affiliates has taken, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might in
the future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
(u) The Company and its subsidiaries own or possess the right to use all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights (including all rights to market, sell, distribute,
exhibit, commercially exploit and otherwise use all material film and
television titles) material to the conduct of their respective businesses,
singularly and in the aggregate, and the Company is not aware of any claim
to the contrary or any challenge by any other person to the rights of the
Company or any of its subsidiaries with respect to the foregoing, except
any such claim or challenge that would not have a Material Adverse Effect.
The business of the Company and its subsidiaries as now conducted and as
proposed to be conducted does not and will not infringe or conflict with
any patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses or other intellectual property or franchise right of any
person, except as would not have a Material Adverse Effect. No claim has
been made against the Company or any of its subsidiaries alleging the
infringement by the Company or any of its subsidiaries of any patent,
trademark, service xxxx, trade name, copyright, trade secret, license in
or other intellectual property right or franchise right of any person,
except as would not have a Material Adverse Effect.
(v) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real or personal property, whether tangible or intangible,
which are material to the business of the Company and its subsidiaries
taken as a whole, in each case free and clear of all liens, encumbrances,
claims and defects that would reasonably be expected to have a Material
Adverse Effect.
(w) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is
imminent which would reasonably be expected to have a Material Adverse
Effect. Except as set forth in the section in the Prospectus entitled
"Risk Factors -- The loss of key personnel could adversely affect our
business", the Company is not aware that any key employee of the Company
plans to terminate employment with the Company.
(x) No "prohibited transaction" (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan which would reasonably be expected to have a
Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the Code;
the Company has not incurred and does not expect to incur any material
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan"; and each "pension plan" (as defined
in ERISA) for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which could cause the loss of such qualification.
7
(y) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due to, or caused
by the Company or any of its subsidiaries (or, to the best of the
Company's knowledge, any other entity for whose acts or omissions the
Company or any of its subsidiaries is or may be liable) upon any of the
property now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property, in violation of any statute or
any ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any
violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect; there has been no disposal, discharge, emission or other release
of any kind onto such property or into the environment surrounding such
property of any toxic or other wastes or other hazardous substances with
respect to which the Company or any of its subsidiaries have knowledge,
except for any such disposal, discharge, emission, or other release of any
kind which would not have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
(z) Each of the Company and each of its Significant Subsidiaries (as
defined below) and LGTC (i) has filed all necessary federal, state,
provincial and foreign income and franchise tax returns, (ii) has paid all
material federal state, provincial, local and foreign taxes due and
payable for which it is liable, and (iii) does not have any tax deficiency
or claims outstanding or assessed or, to the best of the Company's
knowledge, proposed against it which such deficiency or claim could
reasonably be expected to have a Material Adverse Effect. Each of the
Company's subsidiaries (other than the Significant Subsidiaries and LGTC)
(A) has filed all necessary federal, state, provincial and foreign income
and franchise tax returns, (B) has paid all material federal state,
provincial, local and foreign taxes due and payable for which it is
liable, and (C) does not have any tax deficiency or claims outstanding or
assessed or, to the best of the Company's knowledge, proposed against it
which, in the case of any of (A), (B) or (C), could reasonably be expected
to have a Material Adverse Effect.
(aa) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is customary for
companies engaged in similar businesses in similar industries.
(bb) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with Canadian
generally accepted accounting principles and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(cc) The minute books of the Company, each of the Principal U.S.
Subsidiaries and Principal Canadian Subsidiaries and LGTC have been
made available to the Underwriters and counsel for the Underwriters,
and such books (i) contain a complete summary in all material
respects of all meetings and actions of the board of directors
(including each board committee) and shareholders of the Company and
each of such subsidiaries since the time of its respective
incorporation through the date of the latest meeting and action, and
(ii) accurately in all material respects reflect all transactions
referred to in such minutes. For purposes of this Agreement, the
"Principal U.S. Subsidiaries" are Lions Gate Entertainment Inc.,
Lions Gate Films Inc., Lions Gate Television
8
Inc., and LG Pictures Inc., and the "Principal Canadian Subsidiaries" are
Lions Gate Films Corp. and 408376 BC Ltd.
(dd) There is no franchise, lease, contract, agreement or document
required by British Columbia Securities Laws, the Securities Act or by the
Rules and Regulations to be described in the Prospectuses or to be filed
as an exhibit to the Registration Statements which is not described or
filed therein as required; and all descriptions of any such franchises,
leases, contracts, agreements or documents contained in the Registration
Statements are accurate and complete descriptions of such documents in all
material respects. No such franchise, lease, contract or agreement has
been suspended or terminated for convenience or default by the Company or
any of the other parties thereto except as would not, singularly or in the
aggregate, have a Material Adverse Effect, and the Company has not
received notice and has no other knowledge of any such pending or
threatened suspension or termination, except for such pending or
threatened suspensions or terminations that would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse
Effect.
(ee) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectuses and which is not so described.
(ff) No person or entity has the right to require registration of any
shares or other securities of the Company because of the filing or
effectiveness of the Registration Statements or otherwise, except for
persons and entities who have expressly waived such right (including, if
applicable, the right to timely and proper notice) or who have been given
timely and proper notice and have failed to exercise such right within the
time or times required under the terms and conditions of such right.
(gg) Neither the Company nor any of its subsidiaries owns any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and
none of the proceeds of the sale of the Shares will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security,
for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any
other purpose which might cause any of the Shares to be considered a
"purpose credit" within the meanings of Regulation T, U or X of the
Federal Reserve Board.
(hh) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person or entity that would
give rise to a valid claim against the Company or the Underwriters for a
brokerage commission, finder's fee or like payment in connection with the
offering and sale of the Shares.
(ii) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectuses has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(jj) The Shares have been approved for listing subject to notice of
issuance on the American Stock Exchange (which exchange is the primary
exchange market for the Company's common shares) and on the Toronto Stock
Exchange.
(kk) The Company is in compliance with all applicable corporate governance
requirements set forth in the American Stock Exchange (AMEX) - AMEX
Company Guide.
9
(ll) The Company is in compliance with all applicable requirements of the
Toronto Stock Exchange, including corporate governance requirements.
(mm) The Company is in compliance with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated
thereunder or implementing the provisions thereof (the "Xxxxxxxx-Xxxxx
Act") that are currently in effect.
(II) Representations and Warranties and Agreements of the Selling
Shareholder. The Selling Shareholder represents and warrants to, and agrees
with, the several Underwriters that Selling Shareholder:
(a) Has, and immediately prior to each Closing Date (as defined in Section
3 hereof) the Selling Shareholder will have, good and valid title to the
Shares to be sold by the Selling Shareholder hereunder on such date, free
and clear of all liens, encumbrances, equities or claims; and upon
delivery of such shares and payment therefor pursuant hereto, good and
valid title to such Shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters.
(b) Has duly and irrevocably executed and delivered a power of attorney,
in substantially the form heretofore delivered by the Representative (the
"Power of Attorney"), appointing [insert name of attorney-in-fact] as
attorney-in-fact (the "Attorney-in-fact") with authority to execute and
deliver this Agreement on behalf of the Selling Shareholder, to authorize
the delivery of the Shares to be sold by the Selling Shareholder hereunder
and otherwise to act on behalf of the Selling Shareholder in connection
with the transactions contemplated by this Agreement.
(c) Has duly and irrevocably executed and delivered a custody agreement,
in substantially the form heretofore delivered by the Representative (the
"Custody Agreement"), with [insert name of custodian] as custodian (the
"Custodian"), pursuant to which certificates in negotiable form for the
Shares to be sold by the Selling Shareholder hereunder have been placed in
custody for delivery under this Agreement.
(d) Has full right, power and authority to enter into this Agreement, the
Power of Attorney and the Custody Agreement; the execution, delivery and
performance of this Agreement, the Power of Attorney and the Custody
Agreement by the Selling Shareholder and the consummation by the Selling
Shareholder of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Selling Shareholder is a party or by which the Selling Shareholder is
bound or to which any of the property or assets of the Selling Shareholder
is subject, nor will such actions result in any violation of any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Selling Shareholder or the property or
assets of the Selling Shareholder; and, except for the registration of the
Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Power of
Attorney or the Custody Agreement by such Selling Shareholder and the
consummation by the Selling Shareholder of the transactions contemplated
hereby and thereby.
(e) The Registration Statements do not, and the Prospectus and any further
amendments or supplements to the Registration Statements or the Prospectus
will not, as of the applicable
10
effective date (as to the Registration Statements and any amendment
thereto) and as of the applicable filing date (as to the Prospectus and
any amendment or supplement thereto) contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
preceding sentence applies only to the extent that any information
contained in or omitted from the Registration Statements or Prospectus was
in reliance upon and in conformity with written information furnished to
the Company by such Selling Shareholder specifically for inclusion
therein.
3. Purchase Sale and Delivery of Offered Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of Firm Shares (rounded up or down, as determined
by XX Xxxxx in its discretion, in order to avoid fractions) obtained by
multiplying [ ] Firm Shares by a fraction the numerator of which is the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule A
hereto and the denominator of which is the total number of Firm Shares.
The purchase price per share to be paid by the Underwriters to the Company
for the Shares will be $_____ per share (the "Purchase Price").
The Company will deliver the Firm Shares to the Representative for the
respective accounts of the several Underwriters in either (i) the form of
definitive certificates, issued in such names and in such denominations (and
including such legends as may be required pursuant to British Columbia
Securities Laws for those certificates representing any Shares sold in Canada)
as the Representative may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York time, on the second full business day preceding
the First Closing Date (as defined below) or (ii) in accordance with The
Depository Trust Company's standard procedures that include the electronic
delivery of share capital, against payment of the aggregate Purchase Price
therefor by wire transfer to an account at a bank acceptable to XX Xxxxx,
payable to the order of the Company, all at the offices of XX Xxxxx, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. The time and date of
the delivery and closing shall be at 10:00 A.M., New York time, on
_________________, 2003, in accordance with Rule 15c6-1 of the Exchange Act. The
time and date of such payment and delivery are herein referred to as the "First
Closing Date". The First Closing Date and the location of delivery of, and the
form of payment for, the Firm Shares may be varied by agreement between the
Company and XX Xxxxx.
If physical certificates are used, the Company shall make the certificates
for the Shares available to the Representative for examination on behalf of the
Underwriters in New York, New York at least twenty-four hours prior to the First
Closing Date. If electronic delivery is used in accordance with The Depository
Trust Company's standard procedures, the Company shall make the certificates to
be deposited in the name of The Depository Trust Company's nominee, Cede & Co.,
available to the Representative for examination on behalf of the Underwriters in
New York, New York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Shares as contemplated by the Prospectuses,
the Underwriters may purchase all or less than all of the Optional Shares. The
price per share to be paid for the Optional Shares shall be the Purchase Price.
The Company agrees to sell to the Underwriters the number of Optional Shares
specified in the written notice by XX Xxxxx described below and the Underwriters
agree, severally and not jointly, to purchase such Optional Shares. The Company
and the Selling Shareholder agree, severally and not jointly, to sell to the
Underwriters the respective numbers of Optional Shares obtained by multiplying
the number of Optional Shares specified in such notice by a fraction the
numerator of which is 1,250,000 shares in the
11
case of the Company and 1,000,000 shares in the case of the Selling Shareholder
and the denominator of which is the total number of Optional Shares (subject to
adjustment by XX Xxxxx to eliminate fractions). Such Optional Shares shall be
purchased from the Company and the Selling Shareholder for the account of each
Underwriter in the same proportion as the number of Firm Shares set forth
opposite such Underwriter's name bears to the total number of Firm Shares
(subject to adjustment by XX Xxxxx to eliminate fractions). The option granted
hereby may be exercised as to all or any part of the Optional Shares at any
time, and from time to time, not more than thirty (30) days subsequent to the
date of this Agreement. No Optional Shares shall be sold and delivered unless
the Firm Shares previously has been, or simultaneously is, sold and delivered.
The right to purchase the Optional Shares or any portion thereof may be
surrendered and terminated at any time upon notice by XX Xxxxx to the Company
and the Selling Shareholder.
The option granted hereby may be exercised by written notice being given
to the Company and the Selling Shareholder by XX Xxxxx setting forth the number
of the Optional Shares to be purchased by the Underwriters and the date and time
for delivery of and payment for the Optional Shares. Each date and time for
delivery of and payment for the Optional Shares (which may be the First Closing
Date, but not earlier) is herein called the "Option Closing Date" and shall in
no event be earlier than two (2) business days nor later than five (5) business
days after written notice is given. (The Option Closing Date and the First
Closing Date are herein together called the "Closing Dates".)
The Company and the Selling Shareholder will deliver the Optional Shares
to the Underwriters either (i) in the form of definitive certificates, issued in
such names and in such denominations as the Representative may direct by notice
in writing to the Company given at or prior to 12:00 Noon, New York time, on the
second full business day preceding the Option Closing Date or (ii) in accordance
with The Depository Trust Company's standard procedures that include the
electronic delivery of share capital, against payment of the aggregate Purchase
Price therefor in federal (same day) funds by certified or official bank check
or checks or wire transfer to an account at a bank acceptable to XX Xxxxx
payable to the order of the Company [insert name of custodian] as Custodian for
the Selling Shareholder all at the offices of XX Xxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. The Company and the
Selling Shareholder shall make the certificates for the Optional Shares
available to the Representative for examination on behalf of the Underwriters in
New York, New York not later than 10:00 A.M., New York Time, on the business day
preceding the Option Closing Date. The Option Closing Date and the location of
delivery of, and the form of payment for, the Optional Shares may be varied by
agreement among the Company, the Selling Shareholder, and XX Xxxxx.
The several Underwriters propose to offer the Shares for sale upon the
terms and conditions set forth in the Prospectuses.
4. (I) Further Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representative and file such Rule
462(b) Registration Statement with the Commission on the date hereof;
prepare the Prospectus in a form approved by the Representative and file
such Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the second business day following the execution and delivery of this
Agreement; make no further amendment or any supplement to the Registration
Statements or to the Prospectuses to which the Representative shall
reasonably object by notice to the Company after a reasonable period to
review; advise the Representative, promptly after it receives notice
thereof, of the time when any amendment to either Registration Statement
has been filed or becomes effective or any
12
supplement to the Prospectuses or any amended Prospectuses have been filed
and to furnish the Representative with copies thereof; advise the
Representative, promptly after it receives notice thereof, of the issuance
by the BCSC or the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectuses or the Prospectuses,
of the suspension of the qualification of the Shares for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the BCSC or the Commission, as
the case may be, for the amending or supplementing of the Registration
Statements or the Prospectuses or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any of the Preliminary Prospectuses or the
Prospectuses or suspending any such qualification, use promptly its best
efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Shares is required to be delivered any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representative
thereof and upon their request will prepare an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance. The Company will furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representative may
from time to time reasonably request of such amended or supplemented
Prospectus; and in case any Underwriter is required to deliver a
prospectus relating to the Shares nine months or more after the effective
date of the Initial Registration Statement, the Company upon the request
of the Representative and at the expense of such Underwriter will prepare
promptly an amended or supplemented Prospectus as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the
Securities Act.
(c) To furnish promptly to the Representative and to counsel for the
Underwriters a signed copy of each of the Registration Statements as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith.
(d) To deliver promptly to the Representative in New York City such number
of the following documents as the Representative shall reasonably request:
(i) conformed copies of the Registration Statements as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits); (ii) each of the Preliminary Prospectuses; (iii) the
Prospectuses (not later than 10:00 A.M., New York time, of the business
day following the execution and delivery of this Agreement) and any
amended or supplemented Prospectuses (not later than 10:00 A.M., New York
City time, on the business day following the date of such amendment or
supplement); and (iv) any document incorporated by reference in the
Prospectuses (excluding exhibits thereto).
(e) To make generally available to its shareholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as the
Representative may reasonably request to qualify the Shares for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative may designate and to continue such
13
qualifications in effect for so long as required for the distribution of
the Shares; provided that the Company and its subsidiaries shall not be
obligated to qualify as foreign corporations (or other foreign entities)
in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction.
(g) During the period of three years from the date hereof, the Company
will deliver to the Representative (i) as soon as they are available,
copies of all reports or other communications furnished to shareholders
and (ii) as soon as they are available, copies of any reports and
financial statements furnished or filed with the Commission pursuant to
the Exchange Act, filed in Canada through the System for Electronic
Document Analysis and Retrieval (SEDAR), or any national securities
exchange or automatic quotation system on which the Shares are listed or
quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any Common
Shares or securities convertible into or exercisable or exchangeable for
Common Shares for a period of 180 days from the date of the Prospectus
without the prior written consent of XX Xxxxx other than the Company's
sale of the Shares hereunder and the issuance of shares pursuant to
employee benefit plans, qualified option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights. The Company will cause each
officer, director and shareholder listed in Schedule C to furnish to the
Representative, prior to the First Closing Date, a letter, substantially
in the form of Exhibit I hereto, pursuant to which each such person shall
agree not to directly or indirectly offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of any Common Shares or securities
convertible into or exercisable or exchangeable for Common Shares for a
period of 180 days from the date of the Prospectuses, without the prior
written consent of XX Xxxxx.
(i) The Company will supply the Representative with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Shares under the
Securities Act, or the BCSC in connection with the filing of the Canadian
Prospectus.
(j) Prior to each of the Closing Dates the Company will furnish to the
Representative, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for any
periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectuses.
(k) Prior to each of the Closing Dates, except for routine communications
in the ordinary course of business and consistent with the past practices
of the Company, the Company will not issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or
earnings, business affairs or business prospects, without the prior
written consent of the Representative, unless in the judgment of the
Company and its counsel, and after notification to the Representative,
such press release or communication is required by law or by an applicable
stock exchange.
(l) In connection with the offering of the Shares, until XX Xxxxx shall
have notified the Company of the completion of the resale of the Shares,
the Company will not, and will cause its affiliated purchasers (as defined
in Regulation M under the Exchange Act) not to, either alone or with one
or more other persons, bid for or purchase, for any account in which it or
any of its affiliated purchasers has a beneficial interest, any Shares, or
attempt to induce any person to purchase any Shares; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising
the price of the Shares.
14
(m) The Company shall comply with all applicable provisions of the
Xxxxxxxx-Xxxxx Act at all times after the effectiveness of such
provisions.
(n) The Company will apply the net proceeds from the sale of the Shares as
set forth in the Prospectuses under the heading "Use of Proceeds".
(o) The Company will use its best efforts to ensure that the Company's
common shares remain listed on the Toronto Stock Exchange and the American
Stock Exchange.
(II) Further Agreements of the Selling Shareholder. The Selling
Shareholder agrees with the several Underwriters that:
(a) The Selling Shareholder will not directly or indirectly offer, sell,
assign, transfer, pledge, contract to sell, or otherwise dispose of any
Common Shares or securities convertible into or exercisable or
exchangeable for Common Shares other than the sale of the Shares hereunder
for a period of 180 days from the date of the Prospectus, without the
prior written consent of XX Xxxxx.
(b) The Shares represented by the certificates held in custody under the
Custody Agreement are for the benefit of and coupled with and subject to
the interests of the Underwriters, and that the arrangement for such
custody and the appointment of the Attorney-in-fact are irrevocable; that
the obligations of the Selling Shareholder hereunder shall not be
terminated by operation of law, whether by the death or incapacity,
liquidation or distribution of the Selling Shareholder, or any other
event, that if the Selling Shareholder should die or become incapacitated
or is liquidated or dissolved or any other event occurs, before the
delivery of the Shares hereunder, certificates for the Shares to be sold
by the Selling Shareholder shall be delivered on behalf of the Selling
Shareholder in accordance with the terms and conditions of this Agreement
and the Custody Agreement, and action taken by the Attorney-in-fact or any
of them under the Power of Attorney shall be as valid as if such death,
incapacity, liquidation or dissolution or other event had not occurred,
whether or not the Custodian, the Attorney-in-fact or any of them shall
have notice of such death, incapacity, liquidation or dissolution or other
event.
(c) The Selling Shareholder will deliver to XX Xxxxx on or prior to the
applicable Closing Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Shareholder is a non-United
States person) or Form W-9 (if the Selling Shareholder is a United States
person) or such other applicable form or statement specified by Treasury
Department regulations in lieu thereof.
5. Payment of Expenses. The Company agrees with the Underwriter to pay: (a) the
costs incident to the authorization, issuance, sale, preparation and delivery
(including electronic delivery) of the Shares and any taxes payable in that
connection; (b) the costs incident to the Registration of the Shares under the
Securities Act; (c) the costs incident to the preparation, printing and
distribution of the Registration Statement, Preliminary Prospectuses,
Prospectuses, any amendments and exhibits thereto or any document incorporated
by reference therein, the costs of printing, reproducing and distributing, the
"Agreement Among Underwriters" between the Representative and the Underwriters,
the Master Selected Dealers' Agreement, the Underwriters' Questionnaire and this
Agreement by mail, telex or other means of communications and the costs of
preparing, printing, reproducing and distributing the additional Canadian
supplement prepared in connection with the offering of the Shares in Canada on a
private placement basis; (d) the fees and expenses (including related fees and
expenses of counsel for the Underwriters) incurred in connection with filings
made with the National Association of Securities Dealers, Inc.; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Shares under the securities laws of the several jurisdictions as provided in
Section 4(f) and of preparing, printing
15
and distributing Blue Sky Memoranda and Legal Investment Surveys (including
related fees and expenses of counsel to the Underwriters); (g) all fees and
expenses of the registrar and transfer agent of the Shares; and (h) all other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement (including, without limitation, the fees and expenses of
the Company's counsel and the Company's independent accountants); provided that,
except as otherwise provided in this Section 5 and in Section 10, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Shares which they may sell
and the expenses of advertising any offering of the Shares made by the
Underwriters.
6. Conditions of Underwriters' Obligations. The respective obligations of the
several Underwriters hereunder are subject to the accuracy, when made and on
each of the Closing Dates, of the representations and warranties of the Company
and the Selling Shareholder contained herein, to the accuracy of the statements
of the Company and the Selling Shareholder made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Shareholder of their obligations hereunder, and to each of the following
additional terms and conditions:
(a) No stop order suspending the effectiveness of either the Registration
Statements or the Canadian Prospectus shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by
the Commission or the BCSC, and any request for additional information on
the part of the Commission or the BCSC (to be included in the Registration
Statements or the Prospectuses or otherwise) shall have been complied with
to the reasonable satisfaction of the Representative. The Rule 462(b)
Registration Statement, if any, and the Prospectus shall have been timely
filed with the Commission in accordance with Section 4(a), and a final
short form prospectus relating to the distribution of the Shares in the
United States shall have been timely filed with the BCSC for which a final
receipt shall have been received from the BCSC.
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
any of the Prospectuses or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the opinion
of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Custody
Agreements, the Powers of Attorney, the Shares, the Registration Statement
and the Prospectuses and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters, and
the Company and the Selling Shareholder shall have furnished to such
counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(d) O'Melveny & Xxxxx LLP (the Company's United States counsel) shall have
furnished to the Representatives such counsel's written opinion, as
counsel to the Company, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Lions Gate Entertainment Inc., Lions Gate Films Inc.,
Lions Gate Television Inc. and LG Pictures Inc. (the
"Principal U.S. Subsidiaries") have each been duly
incorporated and each is a corporation validly existing
under the laws of the State of Delaware, with corporate
power to own its properties and assets and to carry on
its business as described in the Prospectus.
16
(ii) Based solely on a review of good standing certificates,
the Principal U.S. Subsidiaries are qualified as foreign
corporations to do business in the States of ________,
________ and _________ and are in good standing in the
States of ___________, ___________ and ______________.
(iii) The outstanding shares of capital stock of each
Principal U.S. Subsidiary have been duly authorized by
all necessary corporate action on the part of such
corporation, are validly issued, fully paid and
nonassessable. Based solely on a review of records
certified to such counsel as the charter documents of
the Principal U.S. Subsidiaries and their respective
corporate minute books, to the best of such counsel's
knowledge, the shares of capital stock are owned free
and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, except under the
Credit, Security, Guaranty and Pledge Agreement by and
among the Company, the subsidiaries referred to therein,
and the lenders referred to therein, dated as of
September 25, 2000, as amended to date (as described in
the Prospectus).
(iv) The execution and delivery by the Principal U.S.
Subsidiaries of the Agreement do not, and the Principal
U.S. Subsidiaries' performance of their obligations
under the Agreement will not, (x) violate the Principal
U.S. Subsidiaries' Certificates of Incorporation or
Bylaws, (y) violate, breach, or result in a default
under, any existing obligation of or restriction on the
Principal U.S. Subsidiaries under any other agreement
identified in Exhibit A to the opinion, which Exhibit A
shall list all agreements listed in Item 16 of the
Registration Statements and which are governed by
California, New York or U.S. federal law (the "Other
Agreements"), or (z) breach or otherwise violate any
existing obligation of or restriction on the Principal
U.S. Subsidiaries under any order, judgment or decree of
any California, New York or U.S. federal court or
governmental authority binding on the Principal U.S.
Subsidiaries identified in the Company Certificate. We
express no opinion as to the effect of the Principal
U.S. Subsidiaries' performance of their obligations in
the Agreement on the Principal U.S. Subsidiaries'
compliance with financial covenants in the Other
Agreements.
(v) The execution and delivery by the Principal U.S.
Subsidiaries of the Agreement do not, and the Principal
U.S. Subsidiaries' performance of their obligations
under the Agreement will not, violate the current
Delaware General Corporation Law or any current
California, New York or U.S. federal statute, rule or
regulation that we have, in the exercise of customary
professional diligence, recognized as applicable to the
Company or to transactions of the type contemplated by
the Agreement.
(vi) No order, consent, permit or approval of, or filing or
registration with, any California, New York or U.S.
federal governmental authority is required on the part
of the Company for the execution and delivery of the
Agreement or for the issuance and sale of the Shares,
except such as have been obtained under the Securities
Act and such as may be required under applicable Blue
Sky or state securities laws.
(vii) The statements in the Prospectus under the caption
"Taxation," insofar as they summarize provisions of U.S.
federal law, fairly present the information required by
Form S-2 and fairly summarize the matters described
therein in all material respects.
17
(viii)There are no actions, suits or proceedings pending or
threatened against the Company or any of its
subsidiaries, with respect to which such counsel has
given substantive attention on behalf of the Company or
any of its subsidiaries.
(ix) The Registration Statement has been declared effective
under the Securities Act and, to our knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued or threatened by the
Commission.
(x) The Registration Statement, and each amendment thereto,
and the 462(b) Registration Statement, on their
respective filing dates, appeared on its face to comply
in all material respects with the requirements as to
form for registration statements on Form S-2 under the
Securities Act and the related rules and regulations in
effect at the date of filing, except that we express no
opinion concerning the financial statements and other
financial information contained or incorporated by
reference therein.
(xi) The documents incorporated by reference in the
prospectus contained in the Registration Statements (the
"Incorporated Documents"), on the respective dates they
were filed, appeared on their face to comply in all
material respects with the requirements as to form for
reports on Form 10-K, Form 10-Q and Form 8-K, as the
case may be, under the Securities Exchange Act of 1934,
as amended, and the related rules and regulations in
effect at the respective dates of their filing, except
that we express no opinion concerning the financial
statements and other financial information contained or
incorporated by reference therein.
(xii) The Company is not investment companies required to
register under the Investment Company Act of 1940, as
amended.
O'Melveny & Xxxxx LLP shall also have furnished to the
Representatives a written statement, addressed to the
Representatives and dated the Closing Date, in form and substance
satisfactory to the Representatives, to the effect that: (x)
O'Melveny & Xxxxx LLP has acted as counsel to the Company in
connection with the preparation of the Registration Statements; (y)
such counsel has participated in conferences in connection with the
preparation of the Registration Statements and the Prospectuses, and
has also reviewed such documents and the Incorporated Documents but
has not independently verified the accuracy, completeness or
fairness of the statements contained or incorporated in those
documents, and although such counsel is unable to assume, and does
not assume, any responsibility for such accuracy, completeness or
fairness (except as otherwise specifically stated in paragraph (vii)
above), on the basis of such participation and review, such counsel
does not believe that the Registration Statements, as of the
effective date of the applicable Registration Statements, contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and does not believe that the
Prospectuses, on the Closing Date, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading; and (z) such counsel expresses
no opinion or belief as to any document filed by the Company under
the Securities Exchange Act of 1934, as amended, whether before or
after the effective date of the applicable Registration Statements,
except to the extent that any such document is an Incorporated
Document read together with the Registration Statements or the
Prospectuses and considered as a whole and as specifically stated in
paragraph (xi) above, nor does such counsel express any opinion or
belief as to the financial statements and other financial
information contained or incorporated by reference in the
Registration Statements, the Prospectuses or the Incorporated
Documents.
18
(e) Xxxxxx Blaikie LLP (the Company's Canadian counsel) shall have
furnished to the Representative such counsel's written opinion, as counsel
to the Company, addressed to the Underwriters and dated the Closing Date,
in form and substance reasonably satisfactory to the Representative, to
the effect that:
(i) The Company, LGTC and each of the Principal Canadian
Subsidiaries have been duly incorporated and are validly
existing in good standing under the laws of their
respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct
of their respective businesses requires such
qualification, and have all power and authority
necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged,
except where the failure to so qualify or have such
power or authority would not have, singularly or in the
aggregate, a Material Adverse Effect.
(ii) The Company has an authorized capitalization as set
forth in the Prospectuses, and all of the outstanding
shares of the Company, including the Shares being
delivered on the Closing Date, have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof
contained in the Prospectuses.
(iii) All the outstanding shares of LGTC and each Principal
Canadian Subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and,
except to the extent set forth in the Prospectuses, are
owned by the Company directly or indirectly through one
or more wholly-owned subsidiaries, free and clear of any
claim, lien, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third
party.
(iv) The Company is a reporting issuer or the equivalent in
each of the provinces of British Columbia, Alberta,
Manitoba, ONTARIO and Quebec and is not on the list of
defaulting issuers maintained by any securities
regulatory authorities in any such jurisdiction; and the
Company is a "qualifying issuer" as such term is defined
in Multilateral Instrument 45-102 - Resale of
Securities.
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no Canadian
federal or provincial legal or governmental proceedings
pending to which the Company or any of its subsidiaries
is a party or of which any property or asset of the
Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, might have a
Material Adverse Effect or would prevent or adversely
affect the ability of the Company to perform its
obligations under this Agreement; and, to the best of
such counsel's knowledge, no such proceedings have been
threatened by governmental authorities or others.
(vi) To the best of such counsel's knowledge, none of the
Company, LGTC or any of the Principal Canadian
Subsidiaries (a) is in violation of its charter or
by-laws, (b) is in default, and no event has occurred,
which, with notice or lapse of time or both, would
constitute a default, in the due performance or
observance of any term, covenant or condition contained
in any agreement or instrument to which it is a party or
by which it is bound or to which any of its properties
or assets is subject or (c) is in violation of any law,
ordinance, governmental rule, regulation
19
or court decree to which it or its property or assets
may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of
its property or to the conduct of its business except,
in the case of clauses (b) and (c), for those defaults,
violations or failures which, either singularly or in
the aggregate, would not have a Material Adverse Effect.
(vii) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or
transfer of, any Shares pursuant to the Company's
charter or by-laws or any agreement or other instrument
known to such counsel.
(viii) There are no restrictions of the corporate power and
capacity of the Company to enter into this Agreement or
to carry out its obligations under this Agreement; and
this Agreement has been duly authorized, and executed
and delivered by the Company.
(ix) The execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby by the Company, LGTC and the
Principal Canadian Subsidiaries will not conflict with
or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any of
the Other Agreements, nor will such actions result in
any violation of the charter or by-laws of the Company
or the charter or by-laws of LGTC or any of the
Principal Canadian Subsidiaries or any statute or any
order, rule or regulation of any Canadian federal or
provincial court or governmental agency or body or court
having jurisdiction over the Company, LGTC or any of the
Principal Canadian Subsidiaries or any of their
properties or assets.
(x) The offering, issuance, sale and delivery of the Shares
by the Company to qualified purchasers in British
Columbia, Alberta, Manitoba, Ontario and Quebec (the
"Private Placement Provinces") pursuant to the Company's
Canadian offering memorandum (the "Offering
Memorandum"), are exempt from the prospectus
requirements of the securities laws of each of the
Private Placement Provinces and no prospectus is
required nor are other documents required to be filed,
proceedings taken or approvals, permits, consents or
authorizations of regulatory authorities obtained under
the securities laws of any of the Private Placement
Provinces to permit the offering, issue, sale and
delivery of the Shares by the Company to qualified
purchasers in the Private Placement Provinces, except
for the requirements that the Company file the required
trade reports, accompanied by the prescribed fees and
deliver a copy of the Offering Memorandum, in each of
the Private Placement Provinces, as applicable.
(xi) No prospectus is required nor are other documents
required to be filed (other than the filing with the
Ontario Securities Commission by the seller of a report
on Form 45-501F2, prepared and executed in accordance
with section 7.2 of Ontario Securities Commission Rule
45-501 - Exempt Distributions, accompanied by the
prescribed fee, or the equivalent provisions of
applicable securities laws in any of the other Private
Placement Provinces), proceedings taken, or approvals,
permits, consents or authorizations of regulatory
authorities obtained under the securities laws of the
Private Placement Provinces to permit a holder of
Shares, to trade such securities in the Private
Placement Provinces, either through registrants or
dealers registered under applicable laws who comply with
such applicable laws
20
or in circumstances in which there is an exemption from
the registration requirements of the applicable laws,
provided that:
(a) at the time of such trade, the Company is, and has
been, a reporting issuer in one or more of the
Provinces of Alberta, British Columbia, Manitoba,
Ontario or Quebec, within the meaning of the
securities laws of that province, for at least
four months;
(b) at the time of such trade, at least four months
have elapsed from the date of this opinion letter;
(c) a certificate evidencing the Shares being traded
was issued that carried a legend in the form
prescribed by Multilateral Instrument 45-102 -
Resale of Securities to the effect that, unless
permitted under securities legislation, the holder
shall not trade them before the date which is four
months and one day from the date of this opinion
letter;
(d) no unusual effort is made to prepare the market or
to create a demand for the securities that are the
subject of the trade;
(e) no extraordinary commission or consideration is
paid to a person or company in respect of the
trade;
(f) the trade is not a control distribution within the
meaning of Multilateral Instrument 45-102 - Resale
of Securities; and
(g) if the holder is an insider or officer of the
Company, the holder has no reasonable grounds to
believe that the Company is in default of
securities legislation.
(xii) Except for consents, approvals, authorizations,
registrations or qualifications as may be required under
British Columbia Securities Laws and the Toronto Stock
Exchange with the purchase and distribution of the
Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration
with, any Canadian federal or provincial court or
governmental agency or body is required for the
execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions
contemplated hereby.
(xiii) The form of share certificate for the Shares has been
duly approved by the Company and complies with the
provisions of the charter and by-laws of the Company and
the Company Act (British Columbia).
(xiv) The statements in the Prospectuses under the heading
"Taxation" to the extent that they constitute summaries
of matters of Canadian federal or provincial law or
regulation or legal conclusions, have been reviewed by
such counsel and fairly summarize the matters described
therein in all material respects.
(xv) The statements contained in the Prospectuses under the
caption "Risk Factors - We may lose investment funds,
tax credits and other benefits if we fail to meet
Canadian regulatory requirements"; "Risk Factors - We
may not be eligible to receive certain British Columbia
refundable tax credits"; "Risk Factors - We may lose
certain benefits by failing to meet certain regulatory
standards"; "Risk
21
Factors - We face other risks in obtaining production
financing from private and other international sources";
"Risk Factors - An Investment by non-Canadians in our
business is potentially reviewable by the Minister of
Canadian Heritage"; "Risk Factors - A failure to meet
Canadian programming restrictions may decrease the time
slots or amount of license fees and incentive programs
available to us"; "Business - Government Incentives and
Regulation - Regulation by CRTC"; "Business - Government
Incentives and Regulation - Government Financial
Support"; "Business - Government Incentives and
Regulation - Tax Credits"; "Business - Co-Production
Treaties"; "Business - Government Incentives and
Regulation - Investment Canada Act (Canada)";
"Description of Share Capital"; "Canadian Statutory
Rights of Withdrawal and Rescission"; and in Part II of
the Registration Statement - Information Not Required in
Prospectus - Item 15 - "Indemnification of Directors and
Officers"; insofar as such statements purport to
summarize the laws of the Provinces of Ontario or
British Columbia and the federal laws of Canada
applicable therein, are fair descriptions of those laws.
(xvi) The Toronto Stock Exchange has conditionally approved
the listing of the Shares in accordance with the
requirements of such exchange on or before [INSERT
DATE].
(xvii) The Registration Statements, as of the respective
effective dates and the Prospectuses, as of their
respective dates, and any further amendments or
supplements thereto, as of their respective dates, made
by the Company prior to the Closing Date (other than the
financial statements and other financial data contained
therein, as to which such counsel need express no
opinion) complied as to form in all material respects
with the requirements of the British Columbia Securities
Laws; and the documents incorporated by reference in the
Prospectuses (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion), when they were filed with the BCSC
complied as to form in all material respects with the
requirements of applicable securities laws of Canada and
the rules and regulations of the BCSC.
(xviii) To the best of such counsel's knowledge, except as set
forth in the Prospectus under the caption "Description
of Share Capital - Registration Rights Agreements", no
person or entity has the right to require registration
of any Common Shares or other securities of the Company
because of the filing or effectiveness of the
Registration Statements or otherwise, except for persons
and entities who have expressly waived such right or who
have been given proper notice and have failed to
exercise such right within the time or times required
under the terms and conditions of such right.
(xix) The choice of the laws of the State of New York ("New
York Law") as the governing law of this Agreement will
be upheld as a valid choice of law by a court of
competent jurisdiction of the Province of Ontario (an
"Ontario Court") and by a court of competent
jurisdiction of the Province of British Columbia (a
"British Columbia Court", and together with an Ontario
Court, the "Relevant Canadian Courts") provided that
such choice of law is bona fide (in the sense that it
was not made with a view to avoiding the consequences of
the law of any other jurisdiction) and is not contrary
to public policy as this term is understood under the
laws of the Province of Ontario ("Ontario Law") or the
laws of British Columbia ("British Columbia Law"), as
the case may be. We have no reason to
22
believe that the choice of New York Law in this
Agreement is not bona fide or is contrary to public
policy under Ontario Law or British Columbia Law.
(xx) In the event that this Agreement is sought to be
enforced in either an Ontario court or a British
Columbia court, those courts would, subject to
subparagraph (xix) above, apply New York Law, upon
proper proof of those laws, except to the extent that
the provisions of this Agreement or New York Law are
contrary to public policy as that term is understood
under Ontario Law or BC Law, as the case may be, or
those laws are foreign revenue, expropriatory or penal
laws; provided, however, that:
(a) a Relevant Canadian Court would not apply New York
Law in matters of procedure or applicable laws in
force which are applicable by reason of their
particular object; and
(b) a Relevant Canadian Court may not enforce an
obligation enforceable under New York Law where
performance of the obligation would be illegal by
the laws of the place of performance.
(xxi) A final and conclusive civil judgment for a sum certain
obtained in a court of competent jurisdiction of the
State of New York ("a New York Court") against the
parties hereto in connection with any action arising out
of or relating to this Agreement would be recognized and
could be sued upon in a Relevant Canadian Court and such
court would grant a judgment which would be enforceable
against the parties hereto in the Province of Ontario or
the Province of British Columbia, as the case may be,
provided that:
(a) the New York Court had jurisdiction over the
judgment debtor in the action according to the
applicable law in the Relevant Canadian Court;
(b) such judgment was not obtained by fraud on the New
York Court or in any manner contrary to natural
justice and the enforcement thereof would not be
inconsistent with public policy as such term is
understood under the applicable law in the
Relevant Canadian Court;
(c) enforcement of such judgment would not be
inconsistent with public policy as such term is
understood under the applicable law in the
Relevant Canadian Court and, in particular, would
not constitute, directly or indirectly, the
enforcement of foreign revenue, expropriatory or
penal laws;
(d) a dispute between the same parties based on the
same subject matter has not given rise to a
decision rendered by a Relevant Canadian Court or
been decided by a foreign authority and that
decision meets the necessary conditions for
recognition under the applicable law in the
Relevant Canadian Court;
(e) no new admissible evidence is discovered after the
New York Court has rendered judgment which could
not have been discovered by the exercise of due
diligence prior to the New York Court rendering
judgment and no new facts have arisen which once
presented before a Relevant Canadian
23
Court would give rise to a finding in the Relevant
Canadian Court contrary to subparagraphs (a), (b)
or (c) above;
(f) a judgment of a Relevant Canadian Court will be
denominated in Canadian currency in accordance
with, in the case of the Province of Ontario, the
Courts of Justice Act (Ontario), and in the case
of the Province of British Columbia, the Foreign
Money Claims Act (British Columbia); and
(g) the action in the Relevant Canadian Court
commenced within the time limits set out in the
Limitations Act (Ontario) or the Limitation Act
(British Columbia), as the case may be.
Xxxxxx Xxxxxxx LLP shall also have furnished to the Representative a
written opinion in form acceptable to the Representative with respect to
the formation and operation of the Trust, the ownership by the Trust of
all shares of LGTC for the Beneficiaries, and such other matters as may be
requested by the Representative.
Xxxxxx Blaikie LLP shall also have furnished to the Representative a
written statement, addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Representative, to the
effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statements and (y)
based on such counsel's examination of the Registration Statements and
such counsel's investigations made in connection with the preparation of
the Registration Statements and conferences with certain officers and
employees of and with auditors for and counsel to the Company, such
counsel has no reason to believe that (I) the Registration Statements, as
of the respective effective dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Prospectuses contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading or (II) any
document incorporated by reference in the Prospectuses, when they were
filed with the Commission, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express
no opinion as to the financial statements or other financial data
contained or incorporated by reference in the Registration Statement or
the Prospectuses.
The foregoing opinions and statements may be qualified by a
statement to the effect that such counsel has not independently verified
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectuses and takes no responsibility
therefor except to the extent set forth in the opinion described in
clauses (e)(xiv) and (e)(xv) above.
(f) [insert the name of counsel to the Selling Shareholder] shall have
furnished to the Representative such counsel's written opinion, as counsel
to the Selling Shareholder, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) The Selling Shareholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of
this Agreement, the Power of Attorney and the
24
Custody Agreement by the Selling Shareholder and the
consummation by the Selling Shareholder of the transactions
contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Selling Shareholder is a party or by which the Selling
Shareholder is bound or to which any of the property or assets
of the Selling Shareholder is subject, nor will such actions
result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Selling
Shareholder or the property or assets of the Selling
Shareholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by
the Selling Shareholder and the consummation by the Selling
Shareholder of the transactions contemplated hereby and
thereby.
(ii) This Agreement has been duly executed and delivered by or on
behalf of the Selling Shareholder.
(iii) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by the Selling Shareholder and
constitute valid and binding agreements of the Selling
Shareholder.
(iv) Upon payment for, and delivery of, the shares of Stock to be
sold by the Selling Shareholder under this Agreement in
accordance with the terms hereof, the Underwriters will
acquire good and valid title to such shares, free and clear of
all liens, encumbrances, equities or claims.
(g) The Representative shall have received from Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP and Osler, Xxxxxx & Harcourt LLP, counsel for the Underwriters,
such opinions, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for enabling them to pass
upon such matters.
(h) At the time of the execution of this Agreement, the Representative
shall have received from each of Ernst & Young LLP and
PricewaterhouseCoopers LLP a letter, addressed to the Underwriters and
dated such date, in form and substance satisfactory to the Representative
(i) confirming that they are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Securities Act and the Rules and Regulations and (ii) stating the
conclusions and findings of such firm with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Prospectuses.
(i) On the Closing Date, the Representative shall have received a letter
(the "bring-down letter") from each of Ernst & Young LLP and
PricewaterhouseCoopers LLP addressed to the Underwriters and dated the
Closing Date confirming, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectuses as of a date not more than three
25
business days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representative
concurrently with the execution of this Agreement pursuant to Section
6(h).
(j) The Company shall have furnished to the Representative a certificate,
dated the Closing Date, of its Chairman of the Board, its President or a
Vice President and its Chief Financial Officer stating that (i) such
officers have carefully examined the Registration Statements and the
Prospectuses and, in their opinion, the Registration Statements as of
their respective effective dates and the Prospectuses, as of each such
effective date, did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) since the
effective date of the Initial Registration Statement no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statements or the Prospectuses, (iii) to the best of their
knowledge after reasonable investigation, as of the Closing Date, the
representations and warranties of the Company in this Agreement are true
and correct and the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, and (iv) subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectuses, there has been no material adverse change in the financial
position or results of operation of the Company and its subsidiaries, or
any change, or, to the knowledge of the Company, any development including
a prospective change, in or affecting the condition (financial or
otherwise), results of operations or business of the Company and its
subsidiaries taken as a whole, except as set forth in the Prospectuses.
(k) The Selling Shareholder shall have furnished to the Representative on
the Closing Date a certificate, dated the such date, signed by, or on
behalf of, the Selling Shareholder stating that the representations,
warranties and agreements of the Selling Shareholder contained herein are
true and correct as of the Closing Date and that the Selling Shareholder
has complied with all agreements contained herein to be performed by the
Selling Shareholder at or prior to the Closing Date.
(l) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectuses any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectuses, (ii) since such date there
shall not have been any change in the equity or long-term debt of the
Company or any of its subsidiaries or any change, or, to the knowledge of
the Company, any development involving a prospective change, in or
affecting the business, general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectuses, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Shares on the terms and in the manner contemplated
in the Prospectuses.
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body or any stock exchange in Canada or the United States which
would, as of the Closing Date, prevent the issuance or sale of the Shares
or materially and adversely affect or potentially materially and adversely
affect the business or operations of the Company; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Shares or materially
and adversely affect or potentially materially and adversely affect the
business or operations of the Company.
26
(n) Subsequent to the execution and delivery of this Agreement there shall
not have occurred or be existing any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or the Toronto Stock Exchange or in the over-the-counter market,
or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or maximum
prices or maximum range for prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction; (ii)
a banking moratorium shall have been declared by United States Federal or
state authorities, or Canadian federal or provincial authorities, or a
material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or Canada; (iii) (A)
a declaration of a national emergency or war by the United States, or an
outbreak or escalation of hostilities between the United States and any
foreign power, (B) an outbreak or escalation of any other insurrection or
armed conflict, or act of terrorism involving the United States, or any
other national or international crisis, calamity or emergency or (C) any
material change in the political conditions, financial markets or economic
conditions in the United States which, in the case of (A), (B) or (C)
above, in the sole judgment of the Representative, makes it impracticable
or inadvisable to proceed with the sale or the delivery of the Shares on
the terms and in the manner contemplated in the Prospectuses; or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the sole judgment of the Representative,
impracticable or inadvisable to proceed with the sale or delivery of the
Shares on the terms and in the manner contemplated in the Prospectuses.
(o) The American Stock Exchange, Inc. and the Toronto Stock
Exchange shall have each approved the Shares for listing, subject
only to official notice of issuance.
(p) XX Xxxxx shall have received the written agreements, substantially in
the form of Exhibit I hereto, of the officers, directors and shareholders
of the Company listed in Schedule C to this Agreement.
(q) XX Xxxxx shall have received an officer's certificate of the General
Counsel of the Company, certifying as to the following:
(i) To the best of such officer's knowledge, neither the Company
nor any of its subsidiaries (A) is in violation of its charter
or by-laws, (B) is in default, and no event has occurred,
which, with notice or lapse of time or both, would constitute
a default, in the due performance or observance of any term,
covenant or condition contained in any agreement or instrument
to which it is a party or by which it is bound or to which any
of its properties or assets is subject or (C) is in violation
of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct
of its business except, in the case of clauses (B) and (C),
for those defaults, violations or failures which, either
individually or in the aggregate, would not have a Material
Adverse Effect.
(ii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or asset of
the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the
Company or any of its subsidiaries,
27
would reasonably be expected to have a Material Adverse Effect
or would prevent or adversely affect the ability of the
Company to perform its obligations under this Agreement; and,
to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(iii) For purposes of such certificate, "subsidiary" shall not
include any of CinemaNow, Inc., Xxxxxxxx Films Distribution
Inc. or CineGroupe Inc.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Company and the Principal U.S. Subsidiaries and the Principal
Canadian Subsidiaries (collectively, the "Principal Subsidiaries"),
jointly and severally, shall indemnify and hold harmless each Underwriter,
its officers, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of the Securities Act
(collectively the "Underwriter Indemnified Parties" and , each an
"Underwriter Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
of the Preliminary Prospectuses, any of the Registration Statements or the
Prospectuses or in any amendments or supplements thereto or (ii) the
omission or alleged omission to state in any of the Preliminary
Prospectuses, any of the Registration Statements or the Prospectuses or in
any amendments or supplements thereto a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and shall reimburse each Underwriter Indemnified Party promptly upon
demand for any legal or other expenses reasonably incurred by that
Underwriter Indemnified Party in connection with investigating or
preparing to defend or defending against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
and the Principal Subsidiaries shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out
of or is based upon (i) an untrue statement or alleged untrue statement in
or omission or alleged omission from any of the Preliminary Prospectuses,
any of the Registration Statements or the Prospectuses or any such
amendments or supplements in reliance upon and in conformity with written
information furnished to the Company through the Representative by or on
behalf of any Underwriter specifically for use therein, which information
the parties hereto agree is limited to the Underwriters' Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Company and Principal Subsidiaries might otherwise
have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each Underwriter Indemnified Party.
(b) The Selling Shareholder shall indemnify and hold harmless each
Underwriter Indemnified Party, against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus,
either of the Registration Statements or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus or in any
28
amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of the Selling Shareholder specifically for inclusion therein, and
shall reimburse each Underwriter Indemnified Party promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to defend
or defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses
are incurred. This indemnity agreement is not exclusive and will be in
addition to any liability which the Selling Shareholder might otherwise
have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each Underwriter Indemnified Party.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company its officers, employees, representatives and agents,
each of its directors and each person, if any, who controls the Company
within the meaning of the Securities Act (collectively the "Company
Indemnified Parties" and each a "Company Indemnified Party") and the
Selling Shareholder, against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Company
Indemnified Parties may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any of the Preliminary
Prospectuses, any of the Registration Statements or the Prospectuses or in
any amendments or supplements thereto or (ii) 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, but in each case
only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representative by or on behalf of that Underwriter specifically for use
therein, and shall reimburse the Company Indemnified Parties for any legal
or other expenses reasonably incurred by such parties in connection with
investigating or preparing to defend or defending against or appearing as
third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided that the
parties hereto hereby agree that such written information provided by the
Underwriters consists solely of the Underwriters' Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in
equity to the Company Indemnified Parties.
(d) Promptly after receipt by an indemnified party under this Section 7 of
notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 7
except to the extent it has been materially prejudiced by such failure;
and, provided, further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the
29
defense thereof other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised in writing by such counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party
and in the reasonable judgment of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the indemnifying
party has failed to assume the defense of such action and employ counsel
reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties, which firm shall be designated in writing by XX
Xxxxx, if the indemnified parties under this Section 7 consist of any
Underwriter Indemnified Party, or by the Company if the indemnified
parties under this Section 7 consist of any Company Indemnified Parties.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 7(a) and 7(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment.
(e) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a)
or 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Principal
Subsidiaries on the one hand and the Underwriters on the other from the
offering of the Shares, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Principal Subsidiaries on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Principal Subsidiaries on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of
the Shares purchased under this Agreement (before deducting expenses)
received by the Company and the Principal Subsidiaries bear to the total
underwriting discounts and commissions received by the Underwriters with
respect to the Shares purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectuses. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company and the Principal Subsidiaries on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission; provided that the parties hereto agree
that the written information furnished to the Company
30
through the Representative by or on behalf of the Underwriters for use in
any of the Preliminary Prospectuses, any of the Registration Statements or
any of the Prospectuses consists solely of the Underwriters' Information.
The Company and the Principal Subsidiaries and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this
Section 7(e) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(e) shall be
deemed to include, for purposes of this Section 7(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public less the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
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.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting
obligations and not joint.
8. Termination. The obligations of the Underwriters hereunder may be terminated
by XX Xxxxx, in its absolute discretion by notice given to and received by the
Company prior to delivery (including electronic delivery) of and payment for the
Firm Shares if, prior to that time, any of the events described in Sections
6(l), 6(m) or 6(n) have occurred or if the Underwriters shall decline to
purchase the Shares for any reason permitted under this Agreement.
9. Reimbursement of Underwriters' Expenses. If (a) this Agreement shall have
been terminated pursuant to Section 8, (b) the Company shall fail to tender the
Shares for delivery (including electronic delivery) to the Underwriters for any
reason permitted under this Agreement, or (c) the Underwriters shall decline to
purchase the Shares for any reason permitted under this Agreement the Company
shall reimburse the Underwriters for the fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been reasonably incurred by
them in connection with this Agreement and the proposed purchase of the Shares,
and within thirty (30) days of demand the Company shall pay the full amount
thereof to the XX Xxxxx.
10. Substitution of Underwriters. If any Underwriter or Underwriters shall
default in its or their obligations to purchase Shares hereunder and the
aggregate number of shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representative and the Company for the purchase
of such shares by other persons are not made within forty-eight (48) hours after
such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the Shares of a defaulting Underwriter
or Underwriters as provided in this Section 10, (i) the Company and the Selling
Shareholder shall have the right to postpone the Closing Dates for a period of
not more than five (5) full business days in order that the Company and the
Selling Shareholder may
31
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectuses, or in any other documents or arrangements, and
the Company agrees promptly to file any amendments to the Registration Statement
or supplements to the Prospectuses which may thereby be made necessary, and (ii)
the respective numbers of shares to be purchased by the remaining Underwriters
or substituted Underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of its liability to the Company, the Selling
Shareholder or the other Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 10 shall
be without liability on the part of any non-defaulting Underwriter, the Selling
Shareholder or the Company, except expenses to be paid or reimbursed pursuant to
Sections 5 and 9 and except the provisions of Section 7 shall not terminate and
shall remain in effect.
11. Successors; Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and the Selling Shareholder and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
representations, warranties, covenants, agreements and indemnities of the
Company and the Selling Shareholder contained in this Agreement shall also be
for the benefit of the Underwriter Indemnified Parties, and the indemnities of
the several Underwriters shall also be for the benefit of the Company
Indemnified Parties and the Selling Shareholder Indemnified Parties. It is
understood that the Underwriters' responsibility to the Company is solely
contractual in nature and the Underwriters do not owe the Company, or any other
party, any fiduciary duty as a result of this Agreement.
12. Survival of Indemnities, Representations, Warranties, etc. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company, the Selling Shareholder and the several Underwriters,
as set forth in this Agreement or made by them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, the Selling Shareholder,
the Company or any person controlling any of them and shall survive delivery
(including electronic delivery) of and payment for the Shares.
13. Notices. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to XX Xxxxx Securities Corporation, Attention:
General Counsel, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Fax: 000-000-0000);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to Lions Gate Entertainment Corp., Attention: Xxxxx
Xxxxx, 0000 Xxxxxxx Xxx., Xxxxx 000, Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
(Fax: 000-000-0000);
(c) if to any Selling Shareholder, shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Shareholder at the address
set forth on Schedule B hereto;
provided, however, that any notice to an Underwriter pursuant to Section 7
shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto
by the Representative upon request. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof.
32
14. Definition of Certain Terms. For purposes of this Agreement: (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading; (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations; provided, however, that solely for purposes of this Agreement the
term "subsidiary" shall include LGTC; and (c) "Significant Subsidiary" has the
meaning set forth in Section 1-02(w) of Regulation S-X of the Commission.
15. GOVERNING LAW AND SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. EACH OF THE PARTIES HERETO
WAIVES THE RIGHT TO TRIAL BY JURY.
16. Underwriters' Information. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the term "Underwriters' Information"
consists solely of the following information in the Prospectuses: (i) the last
paragraph on the front cover page [AND EQUIVALENT PAGE IN THE CANADIAN
PROSPECTUS] concerning the terms of the offering by the Underwriters; and (ii)
the statements concerning the Underwriters contained in the table below the
first paragraph and contained in the third paragraph under the heading
"Underwriting."
17. Authority of the Representative. In connection with this Agreement, you will
act for and on behalf of the several Underwriters, and any action taken under
this Agreement by the Representative, will be binding on all the Underwriters;
and any action taken under this Agreement by any of the Attorneys in fact will
be binding on all the Selling Shareholder.
18. Partial Unenforceability. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. General. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company, the Selling Shareholder, and the
Representative.
20. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
[Signature page follows]
33
If the foregoing is in accordance with your understanding of the agreement
between the Company, the Selling Shareholder and the several Underwriters,
kindly indicate your acceptance in the space provided for that purpose below.
Very truly yours,
LIONS GATE ENTERTAINMENT CORP.
By:
-----------------------------------
Name:
Title:
SELLING SHAREHOLDER
By: [Attorney-in-Fact]
By:
----------------------------
[Attorney-in-fact]
Acting on [his own behalf
and] on behalf of the Selling
Shareholder
Accepted as of
the date first above written:
XX XXXXX SECURITIES CORPORATION
Acting on its own behalf
and as Representative of several
Underwriters referred to in the
foregoing Agreement.
By: XX XXXXX SECURITIES CORPORATION
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Head of Equity Capital Markets
34
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
---- --------- ---------
XX Xxxxx Securities Corporation
---------- ---------
Total
========== =========
35
SCHEDULE B
Number of Number of
Firm Optional
Shares to Shares to
Selling Shareholder be Sold be Sold
------------------- ------- -------
Xxxx Xxxx 0 1,000,000
[Address]
Total 0 1,000,000
36
SCHEDULE C
Xxxxx Xxxxxxxx
Xxxx Xxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxxx
Telemunchen
Xxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxx Xxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxx Xxxxxx
Xxx Xxxxxxxxxx
Xxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxxx Xxxxx
ENT Holding Corporation
Xxxxxx Keep
SBS Broadcasting S.A.
Telemunchen Fernseh GmbH & Co.
37
EXHIBIT I
[Form of Lock-Up Agreement]
[Date]
XX Xxxxx Securities Corporation
As representative of the
several Underwriters
c/o XX Xxxxx Securities Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Lions Gate Entertainment Corp. 15,000,000 Common Shares
Dear Sirs:
In order to induce XX Xxxxx Securities Corporation ("XX Xxxxx") to enter
in to a certain underwriting agreement with Lions Gate Entertainment Corp., a
British Columbia corporation (the "Company"), with respect to the public
offering of common shares, no par value ("Common Shares") of the Company, the
undersigned hereby agrees that for a period commencing with the printing and
distribution of the red xxxxxxx and ending 180 days following the date of the
final prospectus filed by the Company with the Securities and Exchange
Commission in connection with such public offering (the "Offering"), the
undersigned will not, without the prior written consent of XX Xxxxx, directly or
indirectly, (i) offer, sell, assign, transfer, pledge, contract to sell, or
otherwise dispose of, any Common Shares (including, without limitation, Common
Shares which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations promulgated under the Securities Act
of 1933, as the same may be amended or supplemented from time to time (such
shares, the "Beneficially Owned Shares")) or securities convertible into or
exercisable or exchangeable in Common Shares (such securities, together with the
Common Shares and Beneficially Owned Shares, the "Relevant Securities"), (ii)
enter into any swap, hedge or similar agreement or arrangement that transfers in
whole or in part, the economic risk of ownership of the Relevant Securities or
(iii) engage in any short selling of the Common Shares (all collectively, the
"Lock-Up").
Notwithstanding the foregoing, the undersigned may transfer Relevant
Securities (i) by bona fide gift, will or intestate succession and (ii) to any
trust for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned, provided as to each of (i) and (ii) above, each
resulting transferee of Relevant Securities executes and delivers to you an
agreement certifying that such transferee is bound by the terms of this letter
agreement, and provided further that any such transfer not involve a disposition
for value. For the purposes of this letter agreement, "immediate family" means
any relationship by blood, marriage or adoptions, not more remote than first
cousin.
In addition, the undersigned hereby waives, from the date hereof until the
expiration of the 180 day period following the date of the Company's final
prospectus filed by the Company with the Securities and Exchange Commission in
connection with the Offering, any and all rights, if any, to request or demand
registration pursuant to the Securities Act of any Common Shares that are
registered in the name of the undersigned or that are Beneficially Owned Shares.
In order to enable the aforesaid covenants to be enforced, the undersigned
hereby consents to the placing of stop transfer orders with the transfer agent
of the Common Shares with respect to any Common Shares or Beneficially Owned
Shares.
38
Delivery of a signed copy of this letter agreement by facsimile
transmission shall be effective as delivery of the original hereof.
By:
--------------------------------
Name:
Title:
