Exhibit 10.8
SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the _______ day of _______ , 2002,
among Loews Cineplex Entertainment Corporation, a corporation existing under the
laws of Delaware (hereinafter referred to as "LCE"), Loews Cineplex Canada
Callco, ULC, an unlimited liability company existing under the laws of Nova
Scotia (hereinafter referred to as "CALLCO ULC"), Loews Cineplex U.S. Callco,
LLC, a limited liability company existing under the laws of Delaware
(hereinafter referred to as "CALLCO LLC") and Loews Cineplex Entertainment
Corporation Canada, a corporation existing under the laws of Ontario
(hereinafter referred to as the "CORPORATION").
RECITALS:
(a) pursuant to a prospectus dated on or around -- , 2002, the
Corporation is effecting an initial public offering of the
Exchangeable Shares (the "OFFERING"); and
(b) in connection with the Offering, LCE, the Corporation, Callco
ULC and Callco LLC have agreed to execute a support agreement
substantially in the form of this agreement.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and sufficiency of which are acknowledged), the parties
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
Each initially capitalized term and the terms "affiliate", "business
day", "holder", "Nullified Shares" and "person" used and not otherwise defined
herein shall have the meaning ascribed thereto in the rights, privileges,
restrictions and conditions (collectively, the "SHARE PROVISIONS") attaching to
the Exchangeable Shares as set out in the articles of the Corporation. In this
agreement, "INCLUDING" means "including without limitation" and "INCLUDES" means
"includes without limitation".
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS
The division of this agreement into Articles, section, Section and
other portions and the insertion of headings are for convenience of reference
only and do not affect the construction or interpretation of this agreement.
Unless otherwise specified, references to an "Article", "Section" or "Section"
refer to the specified Article, Section or Section of this agreement.
1.3 NUMBER, GENDER
Words importing the singular number only shall include the plural and
vice versa. Words importing any gender shall include all genders.
1.4 DATE FOR ANY ACTION
If any date on which any action is required to be taken under this
agreement is not a business day, such action shall be required to be taken on
the next succeeding business day.
-2-
ARTICLE II
COVENANTS OF LCE AND THE CORPORATION
2.1 Covenants Regarding Exchangeable Shares
So long as any Exchangeable Shares (excluding Nullified Shares) are
outstanding, LCE will:
(a) not declare or pay any dividend on the shares of LCE Stock
unless (i) the Corporation shall (A) simultaneously declare or
pay, as the case may be, an equivalent dividend (as provided
for in the Share Provisions and as determined by the Board of
Directors as contemplated by Section 2.7(d)) on the
Exchangeable Shares (an "EQUIVALENT DIVIDEND"), and (B) have
sufficient money or other assets or authorized but unissued
securities available to enable the due declaration and the due
and punctual payment, in accordance with applicable law, of
any such Equivalent Dividend, or (ii) the Corporation shall
(A) simultaneously subdivide the Exchangeable Shares in lieu
of a stock dividend thereon (as provided for in the Share
Provisions) (an "EQUIVALENT STOCK SUBDIVISION"), and (B) have
sufficient authorized but unissued securities available to
enable the Equivalent Stock Subdivision;
(b) advise the Corporation sufficiently in advance of the
declaration by LCE of any dividend on the shares of LCE Stock
and take all such other actions as are reasonably necessary,
in co-operation with the Corporation, to ensure that (i) the
respective declaration date, record date and payment date for
an Equivalent Dividend on the Exchangeable Shares shall be the
same as the declaration date, record date and payment date for
the corresponding dividend on the shares of LCE Stock, or (ii)
the record date and effective date for an Equivalent Stock
Subdivision shall be the same as the record date and payment
date for the corresponding stock dividend on the shares of LCE
Stock;
(c) ensure that the record date for any dividend declared on the
shares of LCE Stock is not less than 10 business days after
the declaration date of such dividend;
(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit the Corporation,
in accordance with applicable law, to pay and otherwise
perform its obligations with respect to the satisfaction of
the Liquidation Amount, the Retraction Price or the Redemption
Price in respect of each issued and outstanding Exchangeable
Share (other than Nullified Shares) upon the liquidation,
dissolution or winding-up of the Corporation or any other
distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs, the
delivery of a Retraction Request by a holder of Exchangeable
Shares or a redemption of Exchangeable Shares by the
Corporation, as the case may be, including all such actions
and all such things as are necessary or desirable to enable
and permit the Corporation to cause to be delivered shares of
LCE Stock to the holders of Exchangeable Shares in accordance
with the provisions of Section 5, 6 or 7, as the case may be,
of the Share Provisions;
(e) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Callco ULC or
Callco LLC, as the case may be, in accordance with applicable
law, to perform its obligations arising upon the exercise by
it of the Liquidation Call Right, the Retraction Call Right or
the Redemption Call Right, including all such actions and all
such things as are necessary or desirable to enable and permit
Callco ULC or Callco LLC, as the case may be, to cause to be
delivered shares of LCE Stock to the holders of Exchangeable
Shares in accordance with the provisions of the Liquidation
Call Right, the Retraction Call Right or the Redemption Call
Right, as the case may be; and
(f) except in connection with any event, circumstance or action
which causes or could cause the occurrence of a Redemption
Date, not (and will cause Callco LLC and Callco ULC not to)
take any actions or exercise its vote as a shareholder or
member, as the case may be, to initiate the voluntary
liquidation, dissolution or winding up of the Corporation,
Callco ULC or Callco LLC or any of their successors or any
other distribution of the assets of the Corporation, Callco
ULC or Callco LLC among their respective shareholders or
members, as the case may be, for the purpose of winding up
their respective affairs, nor take any action or omit to take
any action that is
-3-
designed to result in the liquidation, dissolution or winding
up of the Corporation, Callco ULC or Callco LLC or any other
distribution of the assets of the Corporation, Callco ULC or
Callco LLC among their respective shareholders or members, as
the case may be, for the purpose of winding up their
respective affairs.
2.2 SEGREGATION OF FUNDS
LCE will cause the Corporation to deposit a sufficient amount of funds
in a separate account of the Corporation and segregate a sufficient amount of
such other assets and property as is necessary to enable the Corporation to pay
dividends when due and to pay or otherwise satisfy its respective obligations
under Section 5, 6 and 7 of the Share Provisions, as applicable.
2.3 RESERVATION OF SHARES OF LCE STOCK
LCE hereby represents, warrants and covenants in favour of the
Corporation, Callco ULC and Callco LLC that LCE has reserved for issuance and
will, at all times while any Exchangeable Shares (other than Nullified Shares)
are outstanding, keep available, free from pre-emptive and other rights, out of
its authorized and unissued capital stock such number of shares of LCE Stock (or
other shares or securities into which shares of LCE Stock may be reclassified or
changed as contemplated by Section 2.7) as is equal to the greater of: (a) the
sum of (i) the number of Exchangeable Shares issued and outstanding from time to
time and (ii) the number of Exchangeable Shares issuable upon the exercise of
all rights to acquire Exchangeable Shares outstanding from time to time; and (b)
the number of Exchangeable Shares as are now and may hereafter be required to
enable and permit LCE, Callco LLC or Callco ULC, as the case may be, to meet its
obligations under the Voting and Exchange Trust Agreement and under any other
security or commitment pursuant to which LCE may now or hereafter be required to
issue shares of LCE Stock, to enable and permit Callco ULC or Callco LLC, as the
case may be, to meet its obligations under each of the Liquidation Call Right,
the Retraction Call Right and the Redemption Call Right and to enable and permit
the Corporation to meet its obligations hereunder and under the Share
Provisions.
2.4 NOTIFICATION OF CERTAIN EVENTS
In order to assist LCE to comply with its obligations hereunder and to
permit Callco ULC or Callco LLC to exercise the Liquidation Call Right, the
Retraction Call Right and the Redemption Call Right, the Corporation will notify
LCE, Callco ULC and Callco LLC of each of the following events at the time set
forth below:
(a) in the event of any determination by the Board of Directors to
institute voluntary liquidation, dissolution or winding-up
proceedings with respect to the Corporation or to effect any
other distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs, at
least 60 days prior to the proposed effective date of such
liquidation, dissolution, winding-up or other distribution;
(b) promptly, upon the earlier of receipt by the Corporation of
notice of and the Corporation otherwise becoming aware of any
instituted claim, suit, petition or other proceedings with
respect to the involuntary liquidation, dissolution or
winding-up of the Corporation or to effect any other
distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs;
(c) immediately, upon receipt by the Corporation of a Retraction
Request;
(d) on the same date on which notice of redemption is given to
holders of Exchangeable Shares, upon the determination of a
Redemption Date in accordance with the Share Provisions; and
(e) as soon as practicable upon the issuance by the Corporation of
any Exchangeable Shares or rights, options or warrants to
acquire Exchangeable Shares or other securities exchangeable
or convertible in the Exchangeable Shares.
-4-
2.5 DELIVERY OF SHARES OF LCE STOCK TO THE CORPORATION,
CALLCO ULC AND CALLCO LLC
In furtherance of its obligations under Section 2.1(d) and Section
2.1(e), upon notice from the Corporation, Callco ULC or Callco LLC, as the case
may be, of any event that requires the Corporation, Callco ULC or Callco LLC, as
the case may be, to cause to be delivered shares of LCE Stock to any holder of
Exchangeable Shares, LCE shall forthwith allot, issue and deliver or cause to be
delivered to the relevant holder of Exchangeable Shares as directed by the
Corporation, Callco ULC or Callco LLC, as the case may be, the requisite number
of shares of LCE Stock to be allotted to, received by, and issued to or to the
order of, the former holder of the surrendered Exchangeable Shares (but, for the
avoidance of doubt, not to the Corporation, Callco ULC or Callco LLC). All such
shares of LCE Stock shall be duly authorized and validly issued as fully paid
and shall be free and clear of any lien, claim or encumbrance. In consideration
of the issuance and delivery of each such share of shares of LCE Stock, the
Corporation, Callco ULC or Callco LLC, as the case may be, shall pay a purchase
price equal to the fair market value of such shares of LCE Stock.
2.6 QUALIFICATION OF SHARES OF LCE STOCK
If any shares of LCE Stock (or other shares or securities into which
shares of LCE Stock may be reclassified or changed as contemplated by Section
2.7) to be issued and delivered hereunder require registration or qualification
with or approval of or the filing of any document, including any prospectus or
similar document or the taking of any proceeding with or the obtaining of any
order, ruling or consent from any governmental or regulatory authority under any
United States or Canadian federal, state, provincial or territorial securities
or other law or regulation or pursuant to the rules and regulations of any
securities or other regulatory authority in the United States or Canada or the
fulfillment of any other United States or Canadian legal requirement before such
shares (or such other shares or securities) may be issued by LCE and delivered
by LCE at the direction of Callco ULC, Callco LLC or the Corporation, if
applicable, to the holder of surrendered Exchangeable Shares or in order that
such shares (or such other shares or securities) may be freely traded thereafter
(other than any restrictions of general application on transfer by reason of a
holder being a "CONTROL PERSON" for purposes of Canadian federal, provincial or
territorial securities law or the equivalent thereof under any United States
laws), LCE will in good faith expeditiously take all such actions and do all
such things as are reasonably necessary or desirable to cause such shares of LCE
Stock (or such other shares or securities) to be and remain duly registered,
qualified or approved under United States and/or Canadian law. LCE will in good
faith expeditiously take all such actions and do all such things as are
reasonably necessary or desirable to cause all shares of LCE Stock (or such
other shares or securities) to be delivered hereunder to be listed, quoted or
posted for trading on all stock exchanges and quotation systems on which
outstanding shares of LCE Stock (or such other shares or securities) have been
listed by LCE and remain listed and are quoted or posted for trading at such
time.
2.7 ECONOMIC EQUIVALENCE
So long as any Exchangeable Shares (excluding Nullified Shares) are
outstanding:
(a) LCE will not without prior approval of the Corporation and the
prior approval of the holders of the Exchangeable Shares given
in accordance with Section 9(2) of the Share Provisions:
(i) issue or distribute shares of LCE Stock (or
securities exchangeable for or convertible into or
carrying rights to acquire shares of LCE Stock) to
the holders of all or substantially all of the then
outstanding shares of LCE Stock by way of stock
dividend or other distribution, other than an issue
of shares of LCE Stock (or securities exchangeable
for or convertible into or carrying rights to acquire
shares of LCE Stock) to holders of shares of LCE
Stock (i) who exercise an option to receive dividends
in shares of LCE Stock (or securities exchangeable
for or convertible into or carrying rights to acquire
shares of LCE Stock) in lieu of receiving cash
dividends, or (ii) pursuant to any dividend
reinvestment plan or similar arrangement; provided
that, in either case, an equivalent option or plan is
available to holders of Exchangeable Shares; or
(ii) issue or distribute rights, options or warrants to
the holders of all or substantially all of the then
outstanding shares of LCE Stock entitling them to
subscribe for or to purchase
-5-
shares of LCE Stock (or securities exchangeable for
or convertible into or carrying rights to acquire
shares of LCE Stock); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding shares of
LCE Stock (A) shares or securities (including
evidence of indebtedness) of LCE of any class (other
than shares of LCE Stock or securities convertible
into or exchangeable for or carrying rights to
acquire shares of LCE Stock), or (B) rights, options,
warrants or other assets other than those referred to
in Section 2.7(a)(ii),
unless in each case the economic equivalent (as determined by
the Board of Directors as contemplated by Section 2.7(d)) on a
per share basis of such rights, options, securities, shares,
evidences of indebtedness or other assets is issued or
distributed simultaneously to holders of the Exchangeable
Shares and the same number of days of prior written notice of
the distribution given to the holders of shares of LCE Stock
is given to the holders of Exchangeable Shares.
(b) LCE will not without the prior approval of the Corporation and
the prior approval of the holders of the Exchangeable Shares
given in accordance with Section 10(2) of the Share
Provisions:
(i) subdivide, redivide or change the then outstanding
shares of LCE Stock into a greater number of shares
of LCE Stock; or
(ii) reduce, combine, consolidate or change the then
outstanding shares of LCE Stock into a lesser number
of shares of LCE Stock; or
(iii) reclassify or otherwise change shares of LCE Stock or
effect a merger, reorganization or other transaction
affecting shares of LCE Stock;
unless the same or an economically equivalent change (as
determined by the Board of Directors as contemplated by
Section 2.7(d)) shall simultaneously be made to, or in the
rights of the holders of, the Exchangeable Shares and the same
number of days of prior written notice of the distribution
given to the holders of shares of LCE Stock is given to the
holders of Exchangeable Shares.
(c) LCE will ensure that the record date for any event referred to
in Section 2.7(a) or Section 2.7(b), or (if no record date is
applicable for such event) the effective date for any such
event, is not less than five business days after the date on
which such event is declared or announced by LCE (with
contemporaneous notification thereof by LCE to the
Corporation).
(d) The Board of Directors shall determine, acting in good faith
and in its sole discretion, economic equivalence for the
purposes of any event referred to in Section 2.7(a) or Section
2.7(b) and each such determination shall be conclusive and
binding on LCE and the holders of the Exchangeable Shares. In
making each such determination, the following factors shall,
without excluding other factors determined by the Board of
Directors to be relevant, be considered by the Board of
Directors:
(i) in the case of any stock dividend or other
distribution payable in shares of LCE Stock, the
number of such shares issued in proportion to the
number of shares of LCE Stock previously outstanding;
(ii) in the case of the issuance or distribution of any
rights, options or warrants to subscribe for or
purchase shares of LCE Stock (or securities
exchangeable for or convertible into or carrying
rights to acquire shares of LCE Stock), the
relationship between the exercise price of each such
right, option or warrant and the Current Market Price
of a share of shares of LCE Stock;
(iii) in the case of the issuance or distribution of any
other form of property (including any shares or
securities of LCE of any class other than shares of
LCE Stock, any rights, options or warrants other than
those referred to in Section 2.7(d)(ii), any
evidences of
-6-
indebtedness of LCE or any assets of LCE), the
relationship between the fair market value (as
determined by the Board of Directors in the manner
above contemplated) of such property to be issued or
distributed with respect to each outstanding share of
shares of LCE Stock and the Current Market Price of a
share of LCE Stock;
(iv) in the case of any subdivision, redivision or change
of the then outstanding shares of LCE Stock into a
greater number of shares of LCE Stock or the
reduction, combination, consolidation or change of
the then outstanding shares of LCE Stock into a
lesser number of shares of LCE Stock or any
amalgamation, merger, reorganization or other
transaction affecting shares of LCE Stock, the effect
thereof upon the then outstanding shares of LCE
Stock; and
(v) in all such cases, whether the general taxation
consequences of the relevant event to holders of
Exchangeable Shares may differ from the taxation
consequences to holders of shares of LCE Stock as a
result of differences between taxation laws of Canada
and the United States (except for any differing
consequences arising as a result of differing
marginal taxation rates and without regard to the
individual circumstances of holders of Exchangeable
Shares), and if such differences exist, whether any
change can be made to the relevant event that would
reduce or remove such differences, provided that any
such change shall not, in the sole discretion of the
board of directors, have any negative financial
impact on LCE.
(e) the Corporation agrees that, to the extent required, upon due
notice from LCE, the Corporation will use its best efforts to
take or cause to be taken such steps as may be necessary for
the purposes of ensuring that appropriate dividends are paid
or other distributions are made by the Corporation, or
subdivisions, redivisions or changes are made to the
Exchangeable Shares, in order to implement the required
economic equivalence with respect to the shares of LCE Stock
and Exchangeable Shares as provided for in this Section 2.7.
2.8 TENDER OFFERS
In the event that a tender offer, share exchange offer, issuer bid,
take-over bid or similar transaction for the purpose of acquiring shares of LCE
Stock (an "OFFER") is proposed by LCE or is proposed to LCE or its stockholders
and is recommended by the board of directors of LCE, or is otherwise effected or
to be effected with the consent or approval of the board of directors of LCE,
and the Exchangeable Shares are not redeemed by the Corporation or purchased by
Callco ULC or Callco LLC pursuant to the Redemption Call Right, LCE will
expeditiously and in good faith take all such actions and do all such things as
are reasonably necessary or desirable to enable and permit holders of
Exchangeable Shares (other than holders of Nullified Shares) to participate in
such Offer to the same extent and on an economically equivalent basis as the
holders of shares of LCE Stock, without discrimination. Without limiting the
generality of the foregoing, LCE will use its best efforts to permit holders of
Exchangeable Shares to participate in each such Offer without being required to
retract Exchangeable Shares as against the Corporation (or, if so required, to
ensure that any such retraction shall be effective only upon, and shall be
conditional upon, the closing of such Offer and only to the extent necessary to
tender or deposit to the Offer). Nothing herein shall affect the rights of the
Corporation to redeem (or Callco ULC or Callco LLC to purchase pursuant to the
Redemption Call Right) Exchangeable Shares, as applicable, in the event of an
LCE Control Transaction.
2.9 OWNERSHIP OF OUTSTANDING SHARES
Without the prior approval of the Corporation and the prior approval of
the holders of the Exchangeable Shares given in accordance with Section 10(2) of
the Share Provisions, LCE covenants and agrees in favour of the Corporation
that, as long as any outstanding Exchangeable Shares (excluding Nullified
Shares) are owned by any person, LCE will be and remain the direct or indirect
beneficial owner of all issued and outstanding voting shares in the capital of
the Corporation, Callco ULC and Callco LLC.
-7-
2.10 LCE AND AFFILIATES NOT TO VOTE NULLIFIED SHARES
LCE covenants and agrees that it will appoint and cause to be appointed
proxyholders with respect to all Nullified Shares for the sole purpose of
attending each meeting of holders of Exchangeable Shares in order to be counted
as part of the quorum for each such meeting. LCE further covenants and agrees
that it will not, and will cause other holders of Nullified Shares not to,
exercise any voting rights which may be exercisable by holders of Exchangeable
Shares from time to time pursuant to the Share Provisions or pursuant to the
provisions of the OBCA (or any successor or other corporate statute by which the
Corporation may in the future be governed) with respect to any Nullified Shares
held by it or by its affiliates in respect of any matter considered at any
meeting of holders of Exchangeable Shares.
2.11 ORDINARY MARKET PURCHASES
For certainty, nothing contained in this agreement, including the
obligations of LCE contained in Section 2.8, shall limit the ability of LCE (or
any of its subsidiaries including, without limitation, Callco ULC, Callco LLC or
the Corporation) to make ordinary market purchases of shares of LCE Stock in
accordance with applicable laws and regulatory or stock exchange requirements.
2.12 STOCK EXCHANGE LISTING
LCE covenants and agrees in favour of the Corporation that, as long as
any outstanding Exchangeable Shares (excluding Nullified Shares) are owned by
any person, LCE will use its commercially reasonable efforts (i) to maintain a
listing for such Exchangeable Shares on the TSX and (ii) to ensure the
Corporation remains a "public corporation" within the meaning of the Income Tax
Act (Canada).
ARTICLE III
LCE SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
As long as any outstanding Exchangeable Shares (excluding Nullified
Shares) are owned by any person, LCE shall not consummate any transaction
(whether by way of reconstruction, reorganization, consolidation, arrangement,
merger, transfer, sale, lease or otherwise) whereby all or substantially all of
its undertaking, property and assets would become the property of any other
person or, in the case of a merger, of the continuing corporation resulting
therefrom unless:
(a) such other person or continuing corporation (the "LCE
SUCCESSOR") by operation of law, becomes, without more, bound
by the terms and provisions of this agreement or, if not so
bound, executes, prior to or contemporaneously with the
consummation of such transaction, an agreement supplemental
hereto and such other instruments (if any) as are reasonably
necessary or advisable to evidence the assumption by the LCE
Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such LCE Successor
to pay and deliver or cause to be delivered the same and its
agreement to observe and perform all the covenants and
obligations of LCE under this agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material
respect any of the rights, duties, powers and authorities of
the other parties hereunder or the holders of the Exchangeable
Shares.
3.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 3.1 have been duly observed and
performed, the parties, if required by Section 3.1, shall execute and deliver
the supplemental agreement provided for in Section 3.1(a) and thereupon the LCE
Successor and such other person that may then be the issuer of the shares of LCE
Stock shall possess and from time to time may exercise each and every right and
power of LCE under this agreement in the name of LCE or otherwise and any act or
proceeding by any provision of this agreement required to be done or performed
by the
-8-
board of directors of LCE or any officers of LCE may be done and performed with
like force and effect by the directors or officers of such LCE Successor.
3.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing (i) the amalgamation or
merger of any wholly-owned direct or indirect subsidiary of LCE with or into
LCE, (ii) the winding-up, liquidation or dissolution of any wholly-owned direct
or indirect subsidiary of LCE, provided that all of the assets of such
subsidiary are transferred to LCE or another wholly-owned direct or indirect
subsidiary of LCE, or (iii) any other distribution of the assets of any
wholly-owned direct or indirect subsidiary of LCE among the stockholders of such
subsidiary for the purpose of winding up its affairs, and any such transactions
are expressly permitted by this Article 3.
ARTICLE IV
GENERAL
4.1 TERM
This agreement shall come into force and be effective as of the date
hereof and shall terminate and be of no further force and effect at such time as
no Exchangeable Shares (excluding Nullified Shares) (or securities or rights
convertible into or exchangeable for or carrying rights to acquire Exchangeable
Shares (excluding Nullified Shares)) are held by any person.
4.2 CHANGES IN CAPITAL OF LCE AND THE CORPORATION
At all times after the occurrence of any event contemplated pursuant to
Section 2.7 and Section 2.8 or otherwise, as a result of which either shares of
LCE Stock or the Exchangeable Shares or both are in any way changed, this
agreement shall forthwith be amended and modified as necessary in order that it
shall apply with full force and effect, mutatis mutandis, to all new securities
into which shares of LCE Stock or the Exchangeable Shares or both are so changed
and the parties hereto shall execute and deliver an agreement in writing giving
effect to and evidencing such necessary amendments and modifications.
4.3 SEVERABILITY
If any term or other provision of this agreement is invalid, illegal or
incapable of being enforced by any rule or law, or public policy, all other
conditions and provisions of this agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the fullest extent possible.
4.4 AMENDMENTS, MODIFICATIONS
(a) Subject to Section 4.2, Section 4.3 and Section 4.5, this
agreement may not be amended or modified except by an
agreement in writing executed by the Corporation, Callco ULC,
Callco LLC and LCE and approved by the holders of the
Exchangeable Shares in accordance with Section 10(2) of the
Share Provisions.
(b) No amendment or modification or waiver of any of the
provisions of this agreement otherwise permitted hereunder
shall be effective unless made in writing and signed by all of
the parties hereto.
4.5 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of Section 4.4, the parties to this
agreement may in writing at any time and from time to time, without the approval
of the holders of the Exchangeable Shares, amend or modify this agreement for
the purposes of:
-9-
(a) adding to the covenants of any or all parties provided that
the board of directors of each of the Corporation, Callco ULC,
Callco LLC and LCE shall be of the good faith opinion that
such additions will not be prejudicial to the rights or
interests of the holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with
this agreement as may be necessary or desirable with respect
to matters or questions which, in the good faith opinion of
the board of directors of each of the Corporation, Callco ULC,
Callco LLC and LCE, it may be expedient to make, provided that
each such board of directors shall be of the good faith
opinion that such amendments or modifications will not be
prejudicial to the rights or interests of the holders of the
Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of
counsel to the Corporation, Callco ULC, Callco LLC and LCE,
are required for the purpose of curing or correcting any
ambiguity or defect or inconsistent provision or clerical
omission or mistake or manifest error, provided that the
boards of directors of each of the Corporation, Callco ULC,
Callco LLC and LCE shall be of the good faith opinion that
such changes or corrections will not be prejudicial to the
rights or interests of the holders of the Exchangeable Shares.
4.6 MEETING TO CONSIDER AMENDMENTS
The Corporation, at the request of LCE, shall call a meeting or
meetings of the holders of the Exchangeable Shares for the purpose of
considering any proposed amendment or modification requiring approval pursuant
to Section 4.4. Any such meeting or meetings shall be called and held in
accordance with the bylaws of the Corporation, the Share Provisions and all
applicable laws.
4.7 ENUREMENT
This agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
4.8 NOTICES TO PARTIES
Any notice and other communications required or permitted to be given
pursuant to this agreement shall be sufficiently given if delivered in person or
if sent by facsimile transmission (provided such transmission is recorded as
being transmitted successfully) to the parties at the following addresses:
(a) in the case of LCE, to the following address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
-10-
(b) in the case of Callco ULC or Callco LLC, to the following address:
c/o Loews Cineplex Entertainment Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
(c) in the case of the Corporation, to the following address:
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (416) --
Attention: --
with a copy to:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
and with a further copy to:
Goodmans LLP
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxx/Xxxxxxx Xxxxxxx
or at such other address as the party to which such notice or other
communication is to be given has last notified the party given the same in the
manner provided in this section, and if not given the same shall be deemed to
have been received on the date of such delivery or sending.
4.9 COUNTERPARTS
This agreement may be executed in counterparts (by facsimile or
otherwise), each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
-11-
4.10 JURISDICTION
This agreement shall be construed and enforced in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein.
4.11 ATTORNMENT
Each of the parties hereto agrees that any action or proceeding arising
out of or relating to this agreement or any of the transactions contemplated by
this agreement may be instituted in the courts of Ontario, waives any objection
which it may have now or hereafter to the venue of any such action or
proceeding, irrevocably submits to the non-exclusive jurisdiction of the said
courts in any such action or proceeding, agrees to be bound by any judgement of
the said courts and not to seek, and hereby waives, any review of the merits of
any such judgement by the courts of any other jurisdiction, and LCE and Callco
LLC hereby appoint the Corporation at each of their registered office in the
Province of Ontario as attorney for service of process.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first above written.
LOEWS CINEPLEX ENTERTAINMENT CORPORATION
By:
------------------------------------------
Name:
Title:
LOEWS CINEPLEX ENTERTAINMENT CORPORATION CANADA
By:
------------------------------------------
Name:
Title:
LOEWS CINEPLEX CANADA CALLCO, ULC
By:
------------------------------------------
Name:
LOEWS CINEPLEX U.S. CALLCO, LLC
By:
------------------------------------------
Name:
