Exhibit 2.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of June 6,
2000, is made and entered into by and among Lions Gate Entertainment Corp., a
corporation incorporated under the laws of British Columbia ("Parent"), and each
other party whose name is set forth on the signature pages hereof beneath the
heading "Holders."
RECITALS
A. The Holders are stockholders of Trimark Holdings, Inc., a Delaware
corporation (the "Company").
B. Parent and Company are parties to an Agreement and Plan of Merger
dated June 6, 2000 (the "Merger Agreement"), among Parent, LGE MERGER SUB, INC.,
a Delaware corporation ("Merger Sub"), and the Company.
C. As further consideration for the transactions contemplated by the
Merger Agreement, Parent has agreed to provide the Holders with the registration
rights set forth herein which shall become effective as of the Closing Date (as
defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS
HAVE THE CORRESPONDING MEANINGS:
AGREEMENT: As defined in the preamble.
AMIN: As defined in Section 2(a).
BUSINESS DAY: Any day other than a Saturday, Sunday or holiday on which
banking institutions in Los Angeles, California are required or authorized to be
closed.
CANADIAN FINAL PROSPECTUS: A final prospectus (including final short form
prospectus) filed under the Canadian Securities Laws which utilizes and is
conducted in accordance with the MJDS for which a receipt has been issued by the
applicable securities regulatory authority.
CANADIAN PRELIMINARY PROSPECTUS: A preliminary prospectus (including
preliminary short form prospectus) filed under the Canadian Securities Laws
which utilizes and is conducted in accordance with the MJDS for which a receipt
has been issued by the applicable securities regulatory authority.
CANADIAN PROSPECTUS: A Canadian Preliminary Prospectus and a Canadian Final
Prospectus, each of which utilize and are conducted in accordance with the MJDS.
CANADIAN SECURITIES LAWS: All applicable securities laws in each of the
provinces of Canada and the respective regulations and rules under such laws
together with applicable published policy statements, notices and orders of the
securities regulatory authorities in such provinces.
COMMISSION: The Securities and Exchange Commission, or any other Federal
agency at the time administering the Securities Act or the Exchange Act, or any
other Federal agency which succeeds to its functions.
COMPANY: As defined in Recital A.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
FORM F-3: Such form under the Securities Act as in effect on the date
hereof or any registration form under the Securities Act subsequently adopted by
the Commission that permits inclusion or incorporation of substantial
information by reference to other documents filed by Parent with the Commission.
HOLDER: A party whose name is set forth on the signature pages hereof
beneath the heading "Holders" or any transferee, successor or assignee of such
party permitted by this Agreement.
INDEMNIFIED PARTY: As defined in Section 7(c).
INDEMNIFYING PARTY: As defined in Section 7(c).
INITIATING HOLDERS: Section 2(a).
PARENT INDEMNIFIED PARTIES: As defined in Section 7(b).
LOSSES: As defined in Section 7(a).
MERGER AGREEMENT: As defined in Recital B.
MJDS: The Multijurisdictional Disclosure System adopted by the Commission
and the Canadian securities regulatory agencies, the effective date of which was
July 1, 1991.
OTHER STOCKHOLDERS: As defined in Section 2(c).
PROSPECTUS: The prospectus (including, without limitation, any preliminary
prospectus, any final prospectus and any prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act) included in the
Registration Statement and, in the case of references to the Prospectus as of a
date subsequent to the effective date of the Registration Statement, as amended
or supplemented as of such date, including all documents incorporated by
reference
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therein, as amended, and each prospectus supplement relating to the offering and
sale of any of the Registrable Shares.
REGISTRABLE SHARES: (i) Any Parent Common Stock owned by Holders and
acquired pursuant to the Merger Agreement (including, but not limited to, the
Parent Common Stock issuable upon the exercise of those certain options granted
by Parent to such Holders); (ii) any shares of capital stock of Parent issued in
respect of such shares as a result of stock splits, stock dividends,
reclassification, recapitalizations, mergers, consolidations or similar events;
and (iii) any shares of capital stock of Parent held as of the date hereof or
acquired hereafter by the Holder or any transferee, successor or assign of the
Holder provided such transferee or assignee is a permitted transferee or
assignee under Section 9. References in this Agreement to amounts or percentages
of Registrable Shares as of or on any particular date shall be deemed to refer
to amounts or percentages after giving effect to any applicable events
contemplated by clause (ii) of the preceding sentence. Any Registrable Share
will cease to be a Registrable Share when (i) a registration statement covering
such Registrable Share has been declared effective by the Commission and such
Registrable Share has been disposed of pursuant to such effective registration
statement, (ii) such Registrable Share has been sold pursuant to a Canadian
Final Prospectus which qualifies the sale of the Registrable Shares; (iii) in
the United States, during such time (and only so long as) such Registrable Share
may be publicly resold without registration under the Securities Act; or (iv) in
Canada, during such time (and only so long as) such Registrable Share may be
publicly resold without registration under Canadian Securities Laws.
REGISTRATION STATEMENT: A registration statement of Parent on any form (to
be selected by Parent) for which Parent then qualifies and which permits the
secondary resale thereunder of the number of Registrable Shares required
pursuant to this Agreement to be included therein. The term "Registration
Statement" shall also include the Prospectus, all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement, including pre- and post-effective amendments, and in the
case of the references to the Registration Statement as of a date subsequent to
the effective date, as amended or supplemented as of such date.
SECURITIES ACT: The Securities Act of 1933, as amended, or any successor
Federal statute, and the rules and regulations of the Commission promulgated
thereunder, as they each may, from time to time, be in effect.
SELLER INDEMNIFIED PARTIES: As defined in Section 7(a).
SELLING STOCKHOLDER: Any Holder whose Registrable Shares are included at
the request of such Holder in any Registration Statement filed pursuant to
Section 3.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Merger Agreement.
2. REQUEST FOR REGISTRATION.
(a) Upon the written request from Holders (the "Initiating Holders")
that Parent file a Registration Statement under the Securities Act covering the
registration in the
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United States of at least twenty-five percent (25%) of the number of Registrable
Shares held of record or Beneficially Owned by Xxxx Xxxx ("Xxxx") as of the
Closing Date after giving effect to the Merger which qualifies the sale of such
Registrable Shares (for the avoidance of doubt, and assuming the Merger
Consideration is not adjusted pursuant to Section 2.7(a)(ii) of the Merger
Agreement, then the number of Registrable Shares required in order to request a
registration pursuant to this Section 2 would be 877,688), then Parent shall:
(i) within ten (10) days of the receipt thereof, give written
notice of such request to all Holders; and
(ii) subject to the limitations of this Section 2, use its
commercially reasonable best efforts to effect as soon as practicable the
registration under the Securities Act of all Registrable Shares that the Holders
request to be registered or qualified in a written request delivered to Parent
within ten (10) days of the mailing of Parent's notice pursuant to Section
2(a)(i).
(b) The registration statement shall be on Form F-3 whenever Parent
is permitted to use such form.
(c) If the Initiating Holders intend to distribute the Registrable
Shares covered by their request by means of an underwriting in accordance with
Section 2(e), they shall so advise Parent as a part of their request made
pursuant to this Section 2 and Parent shall include such information in the
written notice referred to in Section 2(a)(i). In such event, the right of any
Holder to include its Registrable Shares in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Shares in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
Parent and the other holders of Parent Common Stock entitled to participate in
the registration (the "Other Stockholders")) enter into an underwriting
agreement in customary form, and reasonably acceptable to such Initiating
Holders, with the underwriter or underwriters selected for such underwriting in
accordance with Section 2(e). Notwithstanding any other provision of this
Section 2, if the underwriter advises Parent that marketing factors require a
limitation of the number of shares to be underwritten (including Registrable
Shares), then Parent shall so advise all Holders of Registrable Shares that
would otherwise be underwritten pursuant hereto, and the number of shares that
may be included in the underwriting shall be allocated to the Holders of such
Registrable Shares on a pro rata basis based on the number of Registrable Shares
held by all such Holders (including the Initiating Holders); PROVIDED, HOWEVER,
in no event shall any of the securities of the Holders be excluded unless all of
the securities of all Other Stockholders are excluded. Any Registrable Shares
excluded or withdrawn from such underwriting shall be withdrawn from the
registration or qualification.
(d) Upon the written request of each Holder given within ten
(10) days after receipt or deemed receipt of such notice by the Holder in
accordance with Section 2(a)(ii), Parent shall, subject to the provisions of
Section 2(c), include in the Registration Statement to be filed pursuant to
Section 2(a) all of the Registrable Shares that each such Holder has requested
to be registered.
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(e) SELECTION OF UNDERWRITERS. A majority interest of the Holders
shall have the right, with respect to one Registration Statement to be filed
pursuant to this Section 2, to determine whether such registration shall be
underwritten or not and to select any managing underwriter or underwriters to
administer the offering, such selection of underwriters shall be subject to the
reasonable consent of Parent, not be unreasonably withheld. Parent shall have
the right, with respect to one Registration Statement to be filed pursuant to
this Section 2, to determine if such registration shall be underwritten, to
select any managing underwriter or underwriters to administer the offering, such
selection of underwriters shall be subject to the reasonable consent of a
majority in interest of the Holders, not be unreasonably withheld.
(f) Parent shall not be required to effect a registration pursuant to
this Section 2 within 180 days after the Closing Date nor after Parent has
effected two (2) registrations pursuant to this Section 2; PROVIDED, that in
each of such registrations pursuant to this Section 2 the following occurs: (i)
each Registration Statement shall be declared or ordered effective or otherwise
become effective by operation of law, and (ii) there shall be no reduction in
the number of Registrable Shares requested to be included therein. Parent shall
not be required to effect any such registration pursuant to this Section 2 in
Canada, nor shall Parent be required to file a shelf registration pursuant to
this Section 2.
(g) The Holders shall not be entitled to request registration
pursuant to Section 2(a) at any time after Parent gives notice under Section
3(a)(i) of its intention to register Parent Common Stock and for a period of 120
days following the effectiveness of any Registration Statement filed by Parent
pursuant thereto, or until Parent withdraws such Registration Statement or
notifies the Holders of its intention to discontinue the registration process;
provided that any such period during which the Holder's rights pursuant to
Section 2(a) are suspended, the same period of time shall be added to the term
of such rights set forth in the last sentence of Section 2(h) to lengthen the
period during which the Holders may exercise such rights.
(h) Subject to Section 2(g), Parent shall not be obligated to take
any action to effect any registration, qualification or compliance pursuant to
Section 2(a) after the date that is two years after the effective date hereof,
if Parent provides to each Holder, at the sole cost and expense of Parent, an
opinion of counsel (which counsel acceptable to such Holder in its sole
discretion) which specifies that (i) such Holder is not an "affiliate" of Parent
(as such term is used in Rule 144) and (ii) the Registrable Shares held by such
Holder may be sold to the public without restriction under Rule 144(k), any
successor thereto or any similar provisions then in effect. In any event, Parent
shall not be obligated to take any action to effect any such registration,
qualification or compliance pursuant to Section 2(a) after the date that is (i)
five years after the effective date hereof, PLUS (ii) the period of time
calculated in accordance with Section 2(g).
(i) Parent shall be entitled to postpone, for a reasonable period of
time not in excess of 90 days after its receipt of any request for a
registration pursuant to Section 2(a), the filing of any Registration Statement
by Parent, if (i) at any time prior to the filing of such Registration
Statement, Parent determines, in its good faith judgment, that such registration
and offering would materially interfere with or otherwise adversely affect any
financing, acquisition, corporate reorganization or other material transaction
involving Parent or any of its controlled
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affiliates, require Parent to disclose matters that otherwise would not be
required to be disclosed at such time which disclosure would materially
adversely affect Parent or would require that Parent undergo a special interim
audit or file with the Commission financial statements relating to a proposed or
probable transaction which it would not otherwise have to file, and (ii) Parent
gives Holders written notice of such postponement. In the event of such
postponement, Parent shall file such Registration Statement as soon as
practicable (but in no event more than 90 days) after it shall determine, in its
good faith judgment, that such registration and offering will not interfere with
the matters described in the first sentence of this Section 2(i); PROVIDED,
HOWEVER, that Parent shall not defer its obligations in this manner more than
once in any 365 day period. If Parent shall postpone the filing of any
Registration Statement, Holders of fifty percent (50%) or more of the
Registrable Shares requested to be included in such Registration Statement shall
have a right to withdraw their request for such registration by giving notice to
Parent within twenty (20) days of the notice of the postponement. Such
withdrawal request shall be deemed to apply to all Holders who hold Registrable
Shares that had been requested to be included in such Registration Statement. In
the event that the Holders withdraw their request in the foregoing manner, such
request shall not be counted for purposes of determining the number of
registrations to which the Holders are entitled pursuant to this Section 2.
(j) Parent shall not be entitled to include any of its securities
which it proposes to sell in any Registration Statement to be filed pursuant to
this Section 2.
3. PARENT REGISTRATION.
(a) If at any time or from time to time Parent shall determine to
register any Parent Common Stock or file any Canadian Prospectus, other than (i)
a registration relating solely to employee benefit plans, (ii) a registration on
Form F-4 or S-4, or any similar successor forms, or (iii) a registration form
which does not permit secondary sales, Parent will:
(i) promptly give to each Holder written notice thereof and such
notice will offer each Holder the opportunity to register or qualify the sale of
any or all of its Registrable Shares as the Holders may request on the same
terms and conditions as those of the Parent and/or those of the Other
Stockholders); and
(ii) except as set forth in Section 3(b) below, include in such
registration (and any related qualification under blue sky laws or other
compliance) or Canadian Prospectus, as applicable, and in any underwriting
involved therein, all Registrable Shares as are specified in a written request
or requests, delivered by a Holder to the Parent within 10 days after receipt by
such Holder of written notice from Parent pursuant to Section 3(a)(i).
Provided, however, that Parent shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 3(a) after the date that is two years after the effective date hereof,
IF Parent provides to each Holder, at the sole cost and expense of Parent, an
opinion of counsel (which counsel acceptable to such Holder in its sole
discretion) which specifies that (i) such Holder is not an "affiliate" of Parent
(as such term is used in Rule 144) and (ii) the Registrable Shares held by such
Holder may be sold to the public without restriction under Rule 144(k), any
successor thereto or any similar provisions then in effect. In any event, Parent
shall not be obligated to take any action to effect any such
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registration, qualification or compliance pursuant to this Section 3(a) after
the date that is five years after the effective date hereof, PLUS (ii) the
period of time calculated in accordance with Section 2(g).
(b) UNDERWRITING REQUIREMENTS.
(i) GENERAL. If the registration of which Parent gives notice is
for a registered public offering (or a public offering in accordance with MJDS
in Canada) involving an underwriting, Parent shall so advise the Holders as a
part of the written notice given pursuant to Section 3(a)(i). In such event, the
right of any Holder to registration or qualification by Canadian Prospectus
pursuant to Section 3(a) shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Registrable Shares in the
underwriting to the extent provided herein. All Holders proposing to distribute
their shares through such underwriting shall (together with Parent and the Other
Stockholders distributing their shares through such underwriting) enter into an
underwriting agreement (upon the same terms and conditions as the Parent and the
Other Stockholders distributing their shares) in customary form with the
managing underwriter selected for such underwriting by Parent. The foregoing
shall include, without limitation, such powers of attorney and escrow agreements
as the underwriters may require.
(ii) LIMITATION OF THE NUMBER OF SHARES. Notwithstanding any
other provision of Section 3(a), if the managing underwriter determines in a
registration or qualification by Canadian Prospectus pursuant to this Section 3
that marketing factors require a limitation of the number of shares of Parent
Common Stock to be underwritten, the managing underwriter may so limit such
number of shares, it being understood that no Parent Common Stock proposed to be
offered and sold by Parent shall be excluded from such offering and that the
excluded Parent Common Stock shall be apportioned pro rata among Selling
Stockholders according to the total amount of Parent Common Stock entitled to be
included therein owned by each or, in such other proportions as shall mutually
be agreed by them. Parent shall so advise all Selling Stockholders of the number
of shares of Registrable Shares that may be included in the registration or
qualification by Canadian Prospectus in accordance with the foregoing. To
facilitate the allocation of Parent Common Stock in accordance with the above
provisions, Parent may round the number of shares allocated to any Holder to the
nearest 100 shares.
(iii) WITHDRAWAL. If any Holder disapproves of the terms of any
such underwriting, he may elect to withdraw therefrom by written notice to the
Parent and the managing underwriter. The Registrable Shares so excluded or
withdrawn shall also be withdrawn from registration.
(c) Termination of Offering. Parent reserves the right to terminate
any such registration at anytime and for any reason without liability to any
Holder. The expenses of such withdrawn registration shall be borne by Parent in
accordance with Section 6.
4. REGISTRATION PROCEDURES. In connection with Parent's obligation to
file Registration Statements pursuant to Sections 2 and 3, Parent shall use its
commercially reasonable best efforts to effect such registration or
qualification by Canadian Prospectus to
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permit the sale of such Registrable Shares in accordance with the intended
method or methods of disposition thereof, and pursuant thereto Parent shall as
expeditiously as possible:
(a) If requested, prior to filing a Registration Statement,
Prospectus or Canadian Prospectus, furnish to Holders copies of all such
documents proposed to be filed, which documents will be subject to the review of
the Holders, and, in the case of a registration pursuant to Section 2 or a
registration pursuant to Section 3 in which any of the Holders are
participating, Parent shall not file any Registration Statement, any Prospectus,
any Canadian Prospectus or any amendment or supplement thereto (including such
documents incorporated by reference) to which Holders shall reasonably object;
(b) Prepare and file (and promptly notify each participating Holder
of such filing) with the Commission a Registration Statement (or, if applicable
pursuant to Section 3, with the Canadian securities regulatory authority, a
Canadian Preliminary Prospectus) with respect to such Registrable Shares within
a period of not more than 45 calendar days from the date of Parent's receipt of
the Selling Stockholder's request for registration in accordance with Section
3(a)(ii) and, use its commercially reasonable best efforts to cause such
Registration Statement to become effective (or, if applicable pursuant to
Section 3, a receipt for the Canadian Final Prospectus to be issued), and use
its commercially reasonable best efforts to keep such registration statement
effective (or period of distribution in Canada open) for a period of at least
one-hundred twenty (120) days or until the distribution contemplated in the
Registration Statement or Canadian Prospectus has been completed, whichever
first occurs; PROVIDED, HOWEVER, that such 120-day period shall be extended for
a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Parent Common Stock;
(c) Prepare and file with the Commission such amendments and
post-effective amendments to any such Registration Statement or Canadian
Prospectus, and such supplements to the Prospectus, as may be reasonably
requested by Holders or any underwriter of Registrable Shares or as may be
required by the Securities Act, the Canadian Securities Laws or otherwise
necessary to keep the Registration Statement or Canadian Prospectus effective
for the applicable period under Section 4(b);
(d) Furnish to the Holders such number of copies of any such
Registration Statement, Prospectus, Canadian Prospectus and such other documents
as the Holders may reasonably request in order to facilitate the sale of the
Registrable Shares;
(e) Use its commercially reasonable best efforts to (i) register and
qualify the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders; (ii) subject to Section 4(b), keep such registrations
or qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable the Selling Stockholders to complete their distribution of
Registrable Shares pursuant to the Registration Statement or Canadian
Prospectus, as applicable, and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Shares covered by the Registration Statement or Canadian Prospectus; PROVIDED,
that Parent shall
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not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions;
(f) Notify the Selling Stockholders, promptly, at any time when (i) a
Prospectus or Canadian Prospectus relating to the sale of the Registrable Shares
is required by law to be delivered, and/or (ii) of the occurrence of any event
requiring the preparation of a supplement or amendment to such Prospectus or
Canadian Prospectus, so that, as thereafter delivered, such Prospectus or
Canadian Prospectus will not contain an 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, in the light of the circumstances under which they
were made, not misleading. Thereafter, Parent shall as promptly as reasonably
practicable, prepare and file with the Commission or Canadian securities
regulatory authority a supplement to or an amendment of such Prospectus or
Canadian Prospectus as may be necessary so that such Prospectus or Canadian
Prospectus shall not include such untrue statement or fail to omit such material
fact. The Parent shall promptly deliver to the Holders a copy of any supplement
or amendment to such Prospectus or Canadian Prospectus;
(g) If requested by Holders, immediately incorporate in a Prospectus
(or Canadian Prospectus) supplement or post-effective amendment such information
as Holders agree should be included therein relating to the sale of the
Registrable Shares and make all required filings of such Prospectus (or Canadian
Prospectus) supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus (or Canadian Prospectus)
supplement or post-effective amendment;
(h) Notify the Selling Stockholders, promptly, at any time:
(i) when the Prospectus or Canadian Prospectus has been filed
and when the Registration Statement or any post-effective amendment thereof has
become effective;
(ii) of any request by the Commission or Canadian securities
regulatory authority for amendments or supplements to the Registration
Statement, the Prospectus or Canadian Prospectus or for additional information;
(iii) of the issuance by the Commission or Canadian securities
regulatory authority of any stop order suspending the effectiveness of the
Registration Statement or Canadian Prospectus or, to Parent's knowledge,
threatened to be issued by the Commission or Canadian securities regulatory
authority, or the initiation of any proceedings for that purpose; and
(iv) of the receipt by Parent of any notification with respect to
the suspension of the qualification of the Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(i) Use its commercially reasonable best efforts to prevent the
issuance and, if issued, to obtain the withdrawal, of any order suspending the
effectiveness of the Registration Statement or Canadian Prospectus at the
earliest possible time;
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(j) Enter into customary agreements (including an underwriting
agreement, broker-dealer or similar securities industry professional) containing
representations, warranties, indemnities and agreements as are in each case
customarily entered into and made by an issuer and take such other customary
actions as are reasonably required in order to expedite or facilitate the sale
of such Registrable Shares, whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten registration;
(k) Use its commercially reasonable best efforts to cause all such
Registrable Shares registered pursuant hereunder to be listed on each securities
exchange on which similar securities issued by Parent are then listed;
(l) Cooperate with the Selling Stockholders to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to be
sold pursuant to the Registration Statement or Canadian Prospectus, which
certificates, if so required by any securities exchange upon which any
Registrable Shares are listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and
which certificates shall be free of any restrictive legends and in such
denominations and registered in such names as the Selling Stockholders may
request at least two business days prior to the sale of Registrable Shares
pursuant to the Registration Statement or Canadian Prospectus;
(m) Provide a transfer agent and registrar (which may be Parent's
transfer agent and registrar) for all Registrable Shares registered pursuant
hereunder and a CUSIP number for all such Registrable Shares, in each case not
later than the effective date of such registration;
(n) Furnish to each Selling Stockholder on the date that (A) such
Registrable Shares are delivered to the underwriters for sale, if such
securities are being sold through underwriters, or (B) on the date that the
Registration Statement becomes effective or the date of the final receipt of a
Canadian Final Prospectus, if such securities are not being sold through
underwriters, a signed counterpart addressed to the Holder of (1) an opinion,
dated as of such date, of the counsel representing Parent for the purposes of
such registration, and (2) a "comfort" letter or letters dated as of such date,
from Parent's certified independent public accountants, each in customary form
and covering such matters of the type customarily covered by opinions or comfort
letters, as the case may be, and each reasonably satisfactory to the Holders
requesting registration; and
(o) Use its commercially reasonable best efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Shares covered by the Registration Statement or Canadian Prospectus contemplated
hereby.
5. OBLIGATIONS WITH RESPECT TO REGISTRATION. Parent's obligations under
this Agreement to a Selling Stockholder shall be conditioned upon such Selling
Stockholder's compliance with the following:
(a) Furnish to Parent such information regarding such Selling
Stockholder, the plan of distribution of the Registrable Shares as is legally
required to be disclosed in the Prospectus, the Registration Statement or
Canadian Prospectus; and
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(b) Enter into such agreements with Parent and any underwriter,
broker-dealer or similar securities industry professional containing
representations, warranties, indemnities and agreements as are in each case
customarily entered into and made by selling stockholders.
6. EXPENSES OF REGISTRATION. All expenses in connection with any
Registration Statement or Canadian Prospectus, any qualification or compliance
with federal, state or provincial laws required in connection therewith (whether
or not any such Registration Statement becomes effective), and the distribution
of the Registrable Shares shall, as between the Selling Stockholders and Parent,
be borne as follows:
(a) Parent shall pay and be responsible for (i) the registration fee
payable under the Securities Act; (ii) blue sky fees and expenses (including
fees and disbursements of counsel for the underwriters in connection with blue
sky qualifications of the Registrable Shares and determination of their
eligibility for investment under the laws of such jurisdictions as the
underwriters may designate), if applicable; (iii) printing, messenger,
telephone, delivery, distribution and reproduction fees; (iv) all fees and
disbursements of Parent's counsel, accountants, other advisors and special
experts retained by Parent; (v) the internal expenses of Parent (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, rating
agency fees and the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange on which similar
securities issued by Parent are then listed; (vi) fees with respect to filings
and qualifications including, but not limited to, those fees required to be made
with the National Association of Securities Dealers or the filing fees of the
Canadian securities regulatory authorities; and (vii) stock exchange fees. In
its reasonable discretion, Parent may, in lieu of engaging the services of a
financial printing company with respect to the Registration Statement or the
Prospectus, arrange for the photocopying thereof, in which event Parent will
bear the applicable photocopying costs.
(b) The Selling Stockholders shall pay, on a pro rata basis based on
the number of its Registrable Shares included in the registration, all fees and
disbursements of their own counsel and advisers, all stock transfer fees
(including the cost of all transfer tax stamps) or expenses, if any, and all
other expenses (including underwriting or brokerage discounts, commissions and
fees) related to the distribution of the shares that have not expressly been
assumed by Parent as set forth above.
7. INDEMNIFICATION.
(a) Parent shall indemnify and hold harmless each Selling Stockholder
and each person (if any) who controls such Selling Stockholder within the
meaning of either the Securities Act or the Exchange Act and each attorney,
accountant, agent or other representative of each of the foregoing
(collectively, the "Seller Indemnified Parties") from and against any losses,
claims, damages, liabilities or expenses (collectively "Losses"), joint or
several, to which such Seller Indemnified Parties may become subject, insofar as
such Losses (or actions in respect thereof) are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or the Canadian Prospectus, if
applicable, or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which
11
they were made, not misleading, or (iii) any violation of any Federal or state
securities laws, rules or regulations or Canadian Securities Laws committed by
Parent (or any person who controls any of them or any agent, broker-dealer or
underwriter engaged by them), or (iv) the breach by Parent of this Agreement;
and, subject to Section 7(c), Parent shall reimburse such Seller Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses; PROVIDED, HOWEVER,
that Parent will not indemnify or hold harmless any Seller Indemnified Party
from or against any such Losses or settlement payments made by Holders without
the consent of Parent (i) that arise solely out of or are based upon any
violation of any Federal or state securities laws, rules or regulations
committed by such Seller Indemnified Parties (or any person who controls them or
any agent, broker-dealer or underwriter engaged by them) as determined by a
non-appealable decision of a court of competent jurisdiction, or (ii) in the
case of a non-underwritten offering, any failure by such Selling Stockholder to
give any purchaser of Registrable Shares at or prior to the written confirmation
of such sale, a copy of the most recent Prospectus or Canadian Prospectus and
such current copy of the Prospectus or Canadian Prospectus would have cured the
defect giving rise to such Losses, or (iii) if the untrue statement, omission or
allegation thereof upon which such Losses or expenses are based, was made in
reliance upon and in conformity with the written information provided by such
Seller Indemnified Party specifically for use or inclusion in the Registration
Statement, any Prospectus or Canadian Prospectus. Parent shall enter an
indemnification agreement with the Holders substantially in the form of this
Section 7 prior to the filing of the initial Registration Statement or Canadian
Preliminary Prospectus to be filed by Parent pursuant to this Agreement.
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless Parent and each person, if any, who controls Parent
within the meaning of either the Securities Act or the Exchange Act,
underwriter, and each director, officer, attorney, accountant, agent or other
representative of each of the foregoing (the "Parent Indemnified Parties"), from
and against any Losses, joint or several, to which Parent Indemnified Parties
may become subject, insofar as such Losses (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, Prospectus or Canadian
Prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that the statement or omission was
made in reliance upon and in conformity with written information provided to
Parent by such Selling Stockholder specifically for use or inclusion in the
Registration Statement, Prospectus or Canadian Prospectus; PROVIDED, HOWEVER,
that the indemnity agreement contained in this Section 7(b) shall not apply to
amounts paid in settlement of any such Loss if such settlement is effected
without the consent of the Holder; and, subject to Sections 7(c) and 7(e), such
Selling Stockholder will reimburse such Parent Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Losses.
(c) PROCEDURES. Each party entitled to indemnification under this
Section 7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and the Indemnifying Party may participate at its own expense in the
defense, or if it so elects, to assume the defense of any such claim and any
action
12
or proceeding resulting therefrom, including the employment of counsel (which
shall be reasonably acceptable to the Indemnified Party) and the payment of all
expenses. The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party from its obligations to indemnify such
Indemnified Party, except to the extent the Indemnified Party's failure to so
notify actually prejudices the Indemnifying Party's ability to defend against
such claim, action or proceeding. In the event that the Indemnifying Party
elects to assume the defense in any action or proceeding, the Indemnified Party
shall have the right to employ separate counsel in any such action or proceeding
and to participate in the defense thereof, but the fees and expenses of such
separate counsel shall be such Indemnified Party's expense unless (i) the
Indemnifying Party has agreed to pay such fees and expenses or (ii) the named
parties to any such action or proceeding (including any impleaded parties)
include an Indemnified Party and the Indemnifying Party, and such Indemnified
Party shall have been advised by counsel that there may be a conflict of
interest between such Indemnified Party and the Indemnifying Party in the
conduct of the defense of such action (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 assume the defense of such action or proceeding on such Indemnified Party's
behalf, it being understood, however, that the Indemnifying Party shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings 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 Indemnified
Parties, which firm shall be designated in writing by the Selling Stockholder(s)
or Parent as the case may be). No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of the Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written
consent, which shall not be unreasonably withheld or delayed, but if settled
with its written consent, or if there be a final judgment for the plaintiff in
any such action or proceeding, the Indemnifying Party shall indemnify and hold
harmless the Indemnified Party from and against any loss or liability by reason
of such settlement or judgment.
(d) CONTRIBUTION. If the indemnification provided for under this
Section 7 is held by a court of competent jurisdiction to be unavailable to or
insufficient to hold the Indemnified Party harmless under subparagraphs (a) or
(b) above in respect of any Losses referred to therein for any reason other than
as specified therein, then the Indemnifying Party, in lieu of indemnifying the
Indemnified Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. 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 (or omitted to be supplied by) Parent or the
Selling Stockholders, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by an Indemnified Party as a result of the Losses
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably
13
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim.
(e) LIMITATIONS ON CONTRIBUTION. The parties hereto agree that it
would not be just and equitable if contribution pursuant to Section 7(d) were
determined by pro rata allocation (even if Selling Stockholders or any
underwriters, selling agents or other securities professionals or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in Section 7(d). No Selling Stockholder will be required to contribute any
amount in excess of the amount by which the total price at which its Registrable
Shares were sold to the public (less underwriters' discounts and commissions)
exceeds the amount of any damages which such Stockholder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. The obligations of Selling Stockholders and any underwriters, selling
agents or other securities professionals in Section 7(d) to contribute shall be
several in proportion to the percentage of Registrable Shares registered or
underwritten, as the case may be, by them and not joint. 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.
(f) The obligations of Parent under this Section 7 shall be in
addition to any liability which Parent may otherwise have to any Indemnified
Person and the obligations of any Indemnified Person under this Section 7 shall
be in addition to any liability which such Indemnified Person may otherwise have
to Parent. The remedies provided in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to an
Indemnified Party at law or in equity.
8. RULE 144. Parent covenants that it will timely file any and all
reports required to be filed by it under the Securities Act and the Exchange Act
and will take such further action as the Holders may reasonably request all to
the extent required from time to time as necessary to enable the Holders to sell
securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Exchange Act, as such Rule may
be amended from time to time, other appropriate rule or regulation adopted by
the Commission or pursuant to a registration on Form F-3. To that end, Parent
agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(b) Take such action with respect to compliance with the Exchange
Act, including the voluntary registration of Parent Common Stock under Section
12 of the Exchange Act, as is necessary to enable the Holders to utilize Form
F-3 or other legally appropriate form for the sale of their Registrable Shares;
(c) File with the Commission in a timely manner all reports and other
documents required of Parent under the Securities Act, the Exchange Act and the
Canadian Securities Laws; and
14
(d) Furnish to the Holders (i) a written statement by Parent to the
Holders that Parent has complied with the reporting requirements of Rule 144 of
the Exchange Act, the other requirements of the Exchange Act and the Securities
Act, (ii) a copy of the most recent annual or interim report of Parent and such
other reports and documents so filed by Parent, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the Commission that permits the selling of any such securities without
registration or pursuant to such form.
15
9. ASSIGNMENT OF REGISTRATION RIGHTS. The Holders may not assign their
rights hereunder except to (A) each other, (B) such Holder's spouse, (C) lineal
descendants of the Holder, (D) a trust which is substantially for the benefit of
such Holder, Holder's spouse or any lineal descendants of the Holder, (E) to a
charitable trust, or (F) a transfer of Shares upon the death of such Holder.
10. REMEDIES. Each of the Holders, in addition to being entitled to
exercise all rights provided herein and granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Parent agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
11. NO INCONSISTENT AGREEMENTS. Parent hereby covenants that the rights
granted to Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of Parent's securities under
any other agreements. Parent further covenants that it shall not enter into any
agreement with respect to its securities which is inconsistent with or violates
the rights granted to the Holders of Registrable Shares in this Agreement. To
that end, Parent shall not, without the prior written consent of the Holders of
a majority of the Registrable Shares, enter into any agreement with any holder
or prospective holder of any securities of Parent that would allow such holder
or prospective holder to include such securities in any registration filed under
Sections 2 and 3, unless the terms of such agreement provide the following: (i)
such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not
reduce the amount of the Registrable Shares that are included; (ii) the
equivalent of the holdback provisions set forth in Section 3(b)(iii); and (iii)
other terms not inconsistent with the rights granted to the Holders of
Registrable Shares in this Agreement. If Parent, at any time, grants to any
other holder or proposed holder of equity securities of Parent any rights (i) to
request the Company to effect the registration of any such shares of equity
securities, and/or (ii) to participate in any registration of Parent of the kind
referred to in Section 3, either or both of which is (or are) on terms more
favorable to such holders than the terms set forth in Sections 2 and 3, the
terms of Sections 2 and 3 shall be deemed amended or supplemented to the extent
necessary to provide the Holders any and all of such more favorable rights and
benefits.
12. DELIVERIES. During the term of this Agreement, Parent shall give
notice to the Holders of all filings by Parent under any applicable Federal
securities laws and any applicable filings under the Canadian Securities Laws,
promptly after such documents are filed with the Commission or the relevant
officials in Canada, as the case may be.
13. MARKET STANDOFF. For a period of six (6) months after the Closing
Date, Amin will not, directly or indirectly, publicly sell any Parent Common
Stock or exercise any of his rights under Section 2 or 3, without the prior
written consent of Parent; provided, however, that the foregoing limitation
shall not apply: (i) in the event of a registration pursuant to Section 3 in
which Xxxxxxx Xxxxx or Xxx Xxxxxxxxxx are participating; (ii) in the event
Telemunchen or SBS Broadcasting SA sell or convert any of their shares of
preferred stock of Parent; (iii) to a transfer of Registrable Shares (A) to
another Holder, (B) Amin's spouse, (C) lineal descendants of Amin, (D) a trust
which is substantially for the benefit of Amin, Amin's spouse or any lineal
16
descendants of Amin, (E) to a charitable trust, or (F) a transfer of Shares upon
the death of Amin; or (iv) to a transfer of Registrable Shares by operation of
law; provided, further, upon the occurrence of an event set forth in clause (i)
or (ii) of the foregoing sentence, the provisions set forth in this Section 13
shall be void and of no further force or effect.
14. NOTICES. All notices, requests, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed, certified or registered mail with
postage prepaid, or sent by telex, telegram or telecopier, as follows:
(a) if to Parent:
Lions Gate Entertainment Corp.
Suite 3123, Three Bentall Centre
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X0X0
Attention: Xxxxxx Keep,
Senior Vice President
Facsimile: (000) 000-0000
and
Loeb & Loeb, L.L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention:___________________________
Facsimile: (000) 000-0000
(b) if to Holders:
As set forth on Schedule 1
to such other person (including transferees or assignees of a Holder) or address
as any party shall specify by notice in writing to the other party. All notices
and other communications given to a party in accordance with the provisions of
this Agreement shall be deemed to have been given (i) three Business Days after
the same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by telecopy
(answer back received) or (iii) one Business Day after the same are sent by a
reliable overnight courier service, with acknowledgment of receipt requested.
Notwithstanding the preceding sentence, notice of change of address shall be
effective only upon actual receipt thereof.
17
15. AMENDMENT. Any provision of this Agreement may be amended or modified
in whole or in part at any time by an agreement in writing among Parent and the
Holders who hold a majority of the Registrable Shares then outstanding, executed
in the same manner as this Agreement. No consent, waiver or similar act shall be
effective unless in writing.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and understandings,
oral and written, among the parties hereto with respect to the subject matter
hereof.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of California, without giving
effect to principles of conflicts of laws.
19. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LIONS GATE ENTERTAINMENT CORP.
By: /s/ Xxx Xxxxxxxxxx
----------------------------------------
Its: CEO
------------------------------------
HOLDERS
/s/ Xxxx Xxxx
-------------------------------------------
Xxxx Xxxx
/s/ Xxxx Xxxx
-------------------------------------------
Xxxx Xxxx
19
SCHEDULE 1
Names, Addresses and Contact Information for Holders
Xx. Xxxx Xxxx
0000 Xxxxxxx Xxx., Xxxxx 000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xx. Xxxx Xxxx
0000 Xxxxxxx Xxx., Xxxxx 000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
