EXHIBIT 10.26
REPURCHASE AGREEMENT AND WAIVER
This Repurchase Agreement and Waiver (this "Agreement"), dated as of May__,
2003, is by and among Lions Gate Entertainment Corp., a British Columbia
corporation, (the "Company") and those Holders of 5.25% Convertible Redeemable
Preferred Shares, Series A (the "Series A Preferred Shares") listed on the
signature pages of this Agreement (the Holders"). The Parties acknowledge that
the sole Holders shall be Telemunchen Fernseh GmbH &Co and SBS Broadcasting SA.
RECITALS
A. The Company has filed a registration statement to register the
issuance and sale of up to 20,000,000 of its common shares (the
"Offering").
B. Pursuant to Article 26.7 of the Articles, the Series A Preferred
Conversion Price (as defined therein, the "Conversion Price")
will, absent a waiver, be adjusted upon consummation of the
Offering if the sale price of the common shares in the Offering
is less than the Conversion Price then in effect (a "Conversion
Price Adjustment").
In consideration of the mutual promises, covenants and agreements contained in
this Agreement, the parties agrees as follows:
1. REPURCHASE.
(a) Holder and the Company agrees that within 10 business days after
consummation of the Offering, to the extent net proceeds to the Company in the
Offering exceed US$5 million (i.e. in all events on a net basis, $5,000,000 from
the proceeds of the offering must remain in the Company and no more than
$20,000,000 may be used to repurchase the Series A), the Company will repurchase
pro rata as between the Holders only the Series A Preferred held by the Holders
in cash by wire transfer for a per share purchase price of (i) US$2200 plus (ii)
if a positive number, an amount equal to one thousand multiplied by the
difference between (x) the per share price to the public and (y) US$2.00. (For
example, if the per share Offering price is US$2.05, the per share purchase
price for the Holders' Series A Preferred will be US$2250 --- i.e. US$2200 plus
US$50)
(b) Notwithstanding the repurchase set forth in sub-paragraph (a),
above, Holders shall be entitled to retain ownership of the those certain
warrants owned by Holders as of the date written above pursuant to that certain
Warrant Indenture Agreement dated as of December 30, 1999 between Lions Gate
Entertainment Corp and the CIBC Mellon Trust Company.
2. NEW CONVERSION PRICE. The Company agrees that if the Offering is
consummated and the Holders continue to hold any Series A Preferred, the Company
will:
(a) Promptly after consummation of the Offering authorize
amendment of Article 26.7 of the Articles so that the initial Conversion
Price (as defined in the Articles) is US$2.30 rather than US$2.55 (the
"Adjustment"); and
(b) Include the Adjustment in its next shareholder meeting proxy
statement as an item to be voted upon by any required classes of
shareholders ("Shareholder Approval") at the Company's next
shareholders' meeting. The Board of Directors will recommend that
shareholders approve the adjustment.
3. WAIVER OF CONVERSION PRICE ADJUSTMENT Conditioned upon the
irrevocable effectiveness of the Adjustment, each Holder waives with respect to
the Offering (i) any requirement that the conversion price of any Series A
Preferred Share be adjusted pursuant to Article 26.7 of the Articles and (ii)
any notice period required by Article 26.7 of the Articles, provided however
that if the Shareholder Approval is not obtained, then the Conversion Price
shall be adjusted as if Article 26.7 had applied to the Offering. The Adjustment
shall not be effective until the Shareholder Approval has been properly
obtained. If Shareholder Approval is not obtained, then the waiver shall be
null, void, and of no legal effect.
4. MISCELLANEOUS.
(a) Authorization. Each Holder agrees that such Holder is the
beneficial owner of the Series A Preferred listed next to its signature
to this Agreement on and that such Holder has the power and authority to
execute, deliver and perform this Agreement.
(b) No Assignment. No party to this Agreement will assign,
transfer, or encumber all or any part of its rights, duties, or other
interests in or under this Agreement without the prior written consent
of the other parties. Despite such consent, no assignment will release
the assignor of any of its obligations or alter any of its primary
obligations to be performed under this Agreement.
(c) No Third Party Beneficiaries. This Agreement is binding on
and benefits only the parties. Nothing in this Agreement gives any
rights or remedies to any other person, nor does anything in this
Agreement relieve or discharge any obligation or liability of any third
person to any party. This Agreement does not give any third person any
right of subrogation or action over or against any party.
(d) Specific Performance. It might be impossible to measure in
money the damage to a party if another party breaches this Agreement. If
any such breach occurs, the party damaged might not have an adequate
remedy at law. Accordingly, each party consents to the issuance of an
injunction or other appropriate interim or provisional relief, and the
enforcement of other equitable remedies, against it to prevent breaches
by it and compel its performance of this Agreement.
(e) Amendments. This Agreement may not be amended or modified
other than by an agreement in writing signed by all parties.
(f) Counterparts. This Agreement may be signed in one or more
counterparts and by facsimile transmission. Each of them is deemed an
original and all of them
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constitute one agreement. This Agreement will not be effective until the
execution and delivery by all parties of at least one set of
counterparts.
(g) Lock- Ups. Holder agrees to execute the Lock-Up Agreement
attached hereto as Exhibit 1 and incorporated by this reference, and
that Holder, any successors and assigns shall be bound to the terms of
the Lock-Up Agreement.
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This Agreement is entered into as of the date set forth above by:
COMPANY
Lions Gate Entertainment Corp.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
_________________________
Title: Exec VP
___________________________
Suite 3123 Three Bentall Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
HOLDERS
By: SBS Broadcasting SA
Name: /s/ Xxxxx Xxxxx
_________________________
Title: Exec Chairman
___________________________
Address:
Number of Series A Preferred Shares Owned: __________
By: Telemunchen Fernseh GmbH &Co
Name: /s/
_________________________
Title:___________________________
Address:
Number of Series A Preferred Shares Owned: 4028
__________
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