Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
February 24, 2005
XX XXXXX & CO., LLC
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXX PARTNERS LLC
JEFFERIES & CO.
XXXXXXXXXXX & CO.
XXXXX PARTNERS
XXXXXXX XXXXXX XXXXXX
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Lions Gate Entertainment Inc., a Delaware corporation (the "Issuer"),
proposes to issue and sell to you (the "Initial Purchasers"), upon the terms set
forth in a purchase agreement dated February 18, 2005 (the "Purchase
Agreement"), $150,000,000 aggregate principal amount (plus an option to purchase
up to an additional $25,000,000 agreement principal amount) of its 3.625%
Convertible Senior Subordinated Notes due 2025 (the "Notes"). Payment of
principal and interest on the Notes will be unconditionally guaranteed on a
senior subordinated basis by Lions Gate Entertainment Corp., a British Columbia
corporation. Capitalized terms used but not specifically defined herein have the
respective meanings ascribed thereto in the Purchase Agreement. The Company has
agreed to contribute to the Issuer, upon any conversion, the number of Common
Shares of the Company required to satisfy the conversion rights under the Notes.
As an inducement to the Initial Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, each of the
Issuer and the Company agrees with each of the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Notes
(collectively, the "Holders"), as follows:
1. Definitions. Unless the context otherwise requires, the terms defined
in this Section 1 shall have the meanings herein specified for all purposes of
this Registration Rights Agreement, applicable to both the singular and plural
forms of any of the terms herein defined.
"Acquiror" means, in a transaction that is a Change in Control, the entity
that acquires the Issuer or the Company, as the case may be.
"Additional Interest Accrual Period" has the meaning set forth in Section
3 hereof.
"Additional Interest Amount" has the meaning set forth in Section 3
hereof.
"Additional Interest Payment Date" means each March 15 and September 15.
"Affiliate" means with respect to any specified person, an "affiliate," as
defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in Toronto or The City of New
York are authorized or obligated by law or executive order to close.
"Change in Control" has the meaning assigned such term in the Indenture.
"Closing Date" means the original issuance date of the Notes pursuant to
the Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the common shares, no par value, of the Company, and
any other common shares as may constitute "Common Shares" for the purposes of
the Indenture, including the Underlying Common Shares.
"Company" means Lions Gate Entertainment Corp., a British Columbia
corporation, until a successor corporation shall have become such pursuant to
the applicable provisions of the Indenture, and thereafter "Company" shall mean
such successor corporation.
"Conversion Price" has the meaning assigned such term in the Indenture.
"Deferral Notice" has the meaning set forth in Section 4(h)(ii) hereof.
"Deferral Period" has the meaning set forth in Section 4(h)(ii) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the date the Initial
Registration Statement is declared effective and ending on the date that is the
earliest to occur of:
(i) the date when: (A) all of the Registrable Securities have been
sold pursuant to the Shelf Registration Statement or Rule 144, or any similar
provision then in force, but not Rule 144A and (B) the legend with respect to
transfer restrictions required under the Indenture is removed or removable from
all the Registrable Securities in accordance with the terms of the Indenture or
such legend, as the case may be ;
(ii) the date when: (A) the holding period under Rule 144(k) under
the Securities Act applicable to Holders that are not Affiliates of the Company
or the Issuer has expired and (B) the legend with respect to transfer
restrictions required under the Indenture is removed or removable from all the
Registrable Securities in accordance with the terms of the Indenture or such
legend, as the case may be;
(iii) the date when all of the Registrable Securities have ceased to
be outstanding (whether as a result of the repurchase and cancellation,
conversion or otherwise); and
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(iv) February 24, 2007.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Holder" means a Person who owns, beneficially or otherwise, Registrable
Securities.
"Holders' Information" has the meaning set forth in Section 7(a) hereof.
"Indenture" means the Indenture, dated as of February 24, 2005, among the
Issuer, the Company and X.X. Xxxxxx Trust Company, National Association, as
Trustee, pursuant to which the Notes are being issued, as originally executed or
as it may from time to time be supplemented or amended by one or more indentures
supplemental thereto entered into pursuant to the applicable provisions thereof.
"Initial Purchasers" has the meaning set forth in the preamble hereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Inspector" has the meaning set forth in Section 4(p) hereof.
"Issuer" means Lions Gate Entertainment Inc., a Delaware corporation until
a successor corporation shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter "Issuer" shall mean such successor
corporation..
"Material Event" has the meaning set forth in Section 4(h) hereof.
"Notes" means the 3.625% Convertible Senior Subordinated Notes due 2025 of
the Issuer to be purchased pursuant to the Indenture.
"Notice and Questionnaire" means a written notice delivered to the Company
and the Issuer containing substantially the information called for by the Notice
of Registration Statement and Selling Securityholder Questionnaire attached as
Appendix A to the Offering Circular, as such notice may be amended by the
Company and the Issuer upon the advice of counsel experienced in such matters,
to the extent reasonably necessary to ensure compliance with applicable law.
"Notice Holder" means, on any date, any Holder that has delivered a Notice
and Questionnaire to the Company and the Issuer on or prior to such date.
"Offering Circular" means that certain confidential offering circular of
the Issuer, dated February 18, 2005, related to the Notes, and any amendments or
supplements thereto.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or
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prospectus supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such Prospectus.
"Public Entity" means, in a Change in Control transaction, the Acquiror or
a direct or indirect parent of the Acquiror with, in each case, publicly-traded
equity securities that are listed on a United States national securities
exchange, on the National Association of Securities Dealers Automated Quotation
National Market System or any successor national securities exchange or
automated over-the-counter trading market in the United States, or any similar
United States system of automated dissemination of quotations of securities
prices.
"Record Holder" means with respect to any Additional Interest Payment Date
relating to any Notes or Underlying Common Shares as to which any Additional
Interest Amount has accrued, the registered holder of such Note or Underlying
Common Shares on the March 1 immediately preceding an Additional Interest
Payment Date occurring on a March 15, and on the September 1 immediately
preceding an Additional Interest Payment Date occurring on a September 15.
"Registrable Securities" means the Notes until such Notes have been
converted into the Underlying Common Shares and, at all times subsequent to any
such conversion, the Underlying Common Shares and any securities into or for
which such Underlying Common Shares have been converted or exchanged (or into
which such Notes may be converted or exchanged in accordance with the
Indenture), and any security issued with respect thereto upon any share
dividend, split or similar event, until, in the case of any such security, the
earliest of (i) its effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) expiration of
the holding period that would be applicable thereto for non-Affiliates of the
Company and the Issuer, as the case may be, under Rule 144(k), (iii) its sale to
the public pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iv) it ceases to be outstanding, or (v)
February 24, 2007.
"Registration Default" has the meaning set forth in Section 3 hereof.
"Registration Rights Agreement" means this Registration Rights Agreement.
"Registration Statement" means any registration statement of the Issuer
under the Securities Act that covers any of the Notes and/or any registration
statement of the Company (or any successor to the Company pursuant to a
supplemental indenture entered into in accordance with the Indenture) under the
Securities Act that covers any of the Underlying Common Shares, pursuant to the
provisions of the Indenture; including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all materials incorporated by reference or explicitly deemed to
be incorporated by reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"Shelf Registration Statement" has the meaning set forth in Section 2(b)
hereof.
"Special Counsel" means one counsel as shall be specified in writing to
the Company by the Holders of a majority of the Registrable Securities, but
which may, with the written consent of the Holders of a majority of the
Registrable Securities (which shall not be unreasonably withheld, delayed or
conditioned), be another law firm experienced in securities law matters
designated by the Company and the Issuer. For purposes of determining the
Holders of a majority of the Registrable Securities in this definition, Holders
of Notes shall be deemed to be the Holders of the number of Underlying Common
Shares into which such Notes are or would be convertible as of the date the
consent is requested.
"Subsequent Shelf Registration Statement" means any additional Shelf
Registration Statement filed by the Company and the Issuer after the filing of
the Initial Shelf Registration Statement, and any Shelf Registration Statement
filed by any Successor Company.
"Successor Company" means, with respect to any Shelf Registration
Statement filed in connection with a Change in Control transaction, the Public
Entity and, if applicable, any subsidiary of the Public Entity which also files
such Shelf Registration Statement.
"Trustee" means X.X. Xxxxxx Trust Company, National Association, the
trustee under the Indenture.
"Underlying Common Shares" means the Common Shares into which the Notes
are convertible, or which are issuable upon a conversion, repurchase or
redemption of the Notes in accordance with the Indenture, or that are issued
upon any such conversion, repurchase or redemption of the Notes, including any
Common Shares of a Public Entity into which the Notes may become convertible in
accordance with the Indenture.
2. Shelf Registration.
(a) The Company and the Issuer shall as promptly as practicable (but in no
event more than one hundred twenty (120) days after the Closing Date, such 120th
day being the "Filing Deadline Date") file with the Commission, and thereafter
shall use their commercially reasonable efforts to cause to be declared
effective no later than two hundred ten (210) days after the Closing Date (210th
day being the "Effectiveness Deadline Date"), a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act registering the resale from time to time by Holders thereof of
all of the Registrable Securities that are duly authorized at the time of the
filing of the Initial Shelf Registration Statement (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-3 or, if unavailable, another appropriate form permitting registration of
such Registrable Securities for resale by the Holders in accordance with the
methods of distribution reasonably requested by the Holders and set forth in the
Initial Shelf Registration Statement. The Company and the Issuer shall use their
respective commercially reasonable efforts to keep the Initial Shelf
Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement is
declared effective, each Holder that became a Notice Holder on or prior to the
date five (5) Business Days prior to such time of effectiveness shall be named
as a selling securityholder in the Initial Shelf Registration
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Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of Registrable Securities in accordance
with applicable law.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement (with such Initial Shelf Registration or any Subsequent
Shelf Registration Statement in effect at any time being referred to as the
"Shelf Registration Statement") ceases to be effective for any reason at any
time during the Effectiveness Period, the Company and the Issuer shall use their
respective commercially reasonable efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof including, if reasonably
necessary, by amending the Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Registrable Securities. If a
Subsequent Shelf Registration Statement is filed, the Company and the Issuer
shall use their respective commercially reasonable efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as is
practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective until the end of the Effectiveness Period. In
the event of a Subsequent Shelf Registration Statement that is filed by any
Successor Company pursuant to a Change in Control, the Company, the Issuer and
the Successor Company shall use their respective commercially reasonable efforts
to cause the Subsequent Shelf Registration Statement to become effective as
promptly as practicable after such filing and to keep such Subsequent Shelf
Registration Statement continuously effective until the end of the Effectiveness
Period; provided, however, that it shall be a condition to a closing of the
Change in Control in which the Company has elected that the Notes be convertible
into Common Shares of the Public Entity that such Subsequent Shelf Registration
Statement shall have been declared effective.
(c) The Company and the Issuer shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company and the Issuer for such
Shelf Registration Statement, if required by the Securities Act or as necessary
to name a Notice Holder as a selling securityholder pursuant to Section (d)
below.
(d) Each Holder agrees that if such Holder wishes to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so only in accordance with this Section 2(d) and with Section 4(h)
hereof. Each Holder who elects to sell Registrable Securities pursuant to a
Shelf Registration Statement agrees to complete and deliver a Notice and
Questionnaire to the Company and the Issuer and that it will be bound by the
terms and conditions of the Notice and Questionnaire and this Registration
Rights Agreement. From and after the date the Initial Shelf Registration
Statement is declared effective, the Company and the Issuer shall, upon the
later of (x) ten (10) Business Days after the date a properly completed and
executed Notice and Questionnaire is delivered pursuant to Section 10(b) hereof
and any information reasonably requested by the Company or the Issuer in
addition to the Notice and Questionnaire has been received or (y) ten (10)
Business Days after the expiration of any Deferral Period in effect when such
Notice and Questionnaire is delivered or put into effect within ten (10)
Business Days of such delivery date, if required by applicable law, file with
the Commission a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as
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to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the Company and
the Issuer shall file a post-effective amendment to the Shelf Registration
Statement, shall use their respective commercially reasonable efforts to cause
such post-effective amendment to be declared effective under the Securities Act
as promptly as practicable, but in no event more than 45 days after the date
such post-effective amendment is required by this clause to be filed (the
"Amendment Effectiveness Deadline Date"); provided, however, that if such Notice
and Questionnaire is delivered during a Deferral Period, the Company or the
Issuer shall so inform the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in this Section 2(d) upon expiration of the
Deferral Period in accordance with Section 4(h) hereof. Notwithstanding anything
contained herein to the contrary, (x) the Company and the Issuer shall be under
no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus and (y) the
Amendment Effectiveness Deadline Date shall be extended by up to ten (10)
Business Days from the expiration of a Deferral Period (and the Company and the
Issuer shall incur no obligation to pay any Additional Interest Amount during
such extension) if such Deferral Period shall be in effect on the Amendment
Effectiveness Deadline Date; provided, further, that the Company and the Issuer
will not be obligated to file more than one such post-effective amendment to the
Registration Statement or supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document in any twenty (20) day period following the date the Shelf
Registration Statement is declared effective for the purpose of naming Holders
as selling securityholders who were not named in such Shelf Registration
Statement at the times of its effectiveness.
3. Additional Interest.
(a) The Company and the Issuer agree that the Holders will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with
precision, if, other than as permitted hereunder,
(i) the Initial Shelf Registration Statement has not been filed on
or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness Deadline
Date, or
(iii) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant to
Section 4(h) hereof.
(b) Each event described in any of Section 3(a)(i) through (iii) is
individually referred to herein as a "Registration Default." For purposes of
this Registration Rights Agreement, each Registration Default set forth above
shall begin on the dates set forth in the table below and shall end on the
ending dates set forth in the table below:
Type of
Registration
Default by
Clause_____ Beginning Date Ending Date
----------- -------------- -----------
(i) Filing Deadline Date the date the Initial Shelf
Registration Statement is filed
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(ii) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes
effective under the Securities Act
(iii) the date on which the termination of the Deferral Period
aggregate duration of that the caused the limit on the
Deferral Periods in any aggregate duration of Deferral
period exceeds the number Periods to be exceeded
of days permitted by
Section 4(h)
(c) Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (an "Additional
Interest Accrual Period"), the Company and the Issuer, jointly and severally,
shall pay, as additional interest over and above the interest set forth in title
of the Notes and not as a penalty, to Record Holders of Registrable Securities
an amount (the "Additional Interest Amount") accruing, (1) for each day to and
including the 90th day in the Additional Interest Accrual Period, in respect of
any Note, at a rate per annum equal to 0.25% of the aggregate principal amount
of such Note, and (2) for each day from and after the 91st day in the Additional
Interest Accrual Period, in respect of any Note, at a rate per annum equal to
0.50% of the aggregate principal amount of such Note; provided, however, that in
the case of an Additional Interest Accrual Period that is in effect solely as a
result of a Registration Default of the type described in clause (c) of the
preceding paragraph, such Additional Interest Amount shall be paid only to the
Holders (as set forth in the succeeding paragraph) that have delivered Notices
and Questionnaires that caused the Company or the Issuer, as the case may be, to
incur the obligations set forth in Section 2(d) the non-performance of which is
the basis of such Registration Default. Notwithstanding the foregoing, no
Additional Interest Amount shall accrue as to any Registrable Security from and
after the earlier of (x) the date such security is no longer a Registrable
Security and (y) expiration of the Effectiveness Period. The rate of accrual of
the Additional Interest Amount with respect to any period shall not exceed 0.50%
per annum notwithstanding the occurrence of multiple concurrent Registration
Defaults.
(d) The Additional Interest Amount shall accrue from the first day of the
applicable Additional Interest Accrual Period, and shall be payable on each
Additional Interest Payment Date during the Additional Interest Accrual Period
(and, without duplication, on the Additional Interest Payment Date next
succeeding the end of the Additional Interest Accrual Period if the Additional
Interest Accrual Period does not end on an Additional Interest Payment Date) to
the Record Holders of the Registrable Securities entitled thereto; provided,
however, that any Additional Interest Amount accrued with respect to any Note or
portion thereof redeemed or repurchased by the Issuer on a redemption date or
repurchase date prior to the Additional Interest Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Note or portion
thereof for redemption or repurchase on the applicable redemption date or
repurchase date, as the case may be, on such date; provided, further, that, in
the case of a Registration Default of the type described in clause (iii) of
Section 3(a), such Additional Interest Amount shall be paid only to the Holders
entitled thereto pursuant to Section 3(a) by check mailed to the address set
forth in the Notice and Questionnaire delivered by such Holder. The Trustee
shall be entitled, on behalf of registered holders of Notes or Underlying Common
Shares, to seek any available remedy for the enforcement of the registration
rights set forth in the Indenture, including for the payment of such Additional
Interest Amount. Notwithstanding the foregoing, the Company, the Issuer and the
Initial Purchasers agree that the sole damages payable for a violation of the
terms of the registration rights set forth in the Indenture with respect to
which an Additional Interest Amount is expressly provided shall be such
Additional Interest Amount. Nothing shall preclude any Holder from
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pursuing or obtaining specific performance or other equitable relief with
respect to the registration rights granted under the Indenture.
(e) All of the Company's and the Issuer's, as the case may be, obligations
set forth in this Section 3 that are outstanding with respect to any Registrable
Security at the time such security ceases to be a Registrable Security shall
survive until such time as all such obligations with respect to such security
have been satisfied in full (notwithstanding termination of the registration
rights granted under the Indenture).
(f) The parties hereto agree that the Additional Interest Amount provided
for in this Section 3 constitutes a reasonable estimate of the damages that may
be incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
4. Registration Procedures. In connection with the registration
obligations of the Company and the Issuer under Section 2 hereof, during the
Effectiveness Period, the Company and the Issuer shall:
(a) Prepare and file with the Commission a Registration Statement or
Registration Statements on Form S-3, or, if unavailable, on another appropriate
form under the Securities Act available for the sale of the Registrable
Securities by the Holders thereof in accordance with the reasonably requested
method or methods of distribution thereof, and use their respective commercially
reasonable efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided, however, that before filing
of the Initial Registration Statement with the Commission, the Company and the
Issuer shall furnish to Special Counsel of such offering, if any, and each
Notice Holder copies of the Initial Registration Statement proposed to be filed
at least two (2) Business Days prior to the filing of the Initial Registration
Statement. The Company and the Issuer shall use their respective commercially
reasonable efforts to reflect in the Initial Registration Statement, when so
filed with the Commission, such comments as such Notice Holders and the Special
Counsel may propose.
(b) Subject to Section 4(h) hereof, prepare and file with the Commission
such amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously effective for
the applicable period specified in Section 2(a); cause the related Prospectus to
be supplemented by any required prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and use their respective commercially reasonable efforts to
comply with the provisions of the Securities Act applicable to each of them with
respect to the disposition of all securities covered by such Registration
Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable, give notice to the Notice Holders and the
Special Counsel, if any, (i) when any Prospectus, Registration Statement or
post-effective amendment to a Registration Statement has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the Commission or any other
federal or state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the Commission or any other federal or state
governmental authority of any stop
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order suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) of the
receipt by the Company or the Issuer, as the case may be, of any notification
with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and (v) of
the occurrence of, but not the nature of or details concerning, a Material
Event.
(d) Use their respective commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction
in which they have been qualified for sale, in either case as promptly as
practicable, and provide prompt notice to each Notice Holder of the withdrawal
of any such order.
(e) As promptly as practicable furnish to each Notice Holder and the
Special Counsel, upon request and without charge, at least one (1) conformed
copy of the Registration Statement and any amendment thereto, including exhibits
and if requested, all documents incorporated or deemed to be incorporated
therein by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder, in
connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Company and the Issuer hereby consent (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to the
use of such Prospectus or each amendment or supplement thereto by each Notice
Holder in connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in the manner
set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to
a Registration Statement, use their respective commercially reasonable efforts
to register or qualify or cooperate with the Notice Holders and the Special
Counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for offer and
sale under the securities or blue sky laws of such jurisdictions within the
United States as any Notice Holder reasonably requests in writing (which request
may be included in the Notice and Questionnaire); prior to any public offering
of the Registrable Securities pursuant to the Shelf Registration Statement, use
their respective commercially reasonable efforts to keep each such registration
or qualification (or exemption therefrom) effective during the Effectiveness
Period in connection with such Notice Holder's offer and sale of Registrable
Securities pursuant to such registration or qualification (or exemption
therefrom) and do any and all other acts reasonably necessary to legally permit
the disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the relevant Registration Statement and the related
Prospectus; provided, however, that neither the Company nor the Issuer will be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where they would not otherwise be required to qualify but for
the registration rights granted under the Indenture or (ii) take any action that
would subject either of them to general service of process in suits or to
taxation in any such jurisdiction where they are not then so subject.
(h) Upon (A) the issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to
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the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act, (B) the occurrence of any event or the existence of any fact as a result of
which any Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (each a "Material Event") or (C) the occurrence or existence of any
pending corporate development that, in the reasonable discretion of the Company
and the Issuer makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next sentence,
as promptly as practicable prepare and file, if necessary pursuant to applicable
law, a post-effective amendment to such Registration Statement or a supplement
to the related Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into
such Registration Statement and Prospectus so that such Registration Statement
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement,
subject to the next sentence, use their respective commercially reasonable
efforts to cause it to be declared effective as promptly as is practicable; and
(ii) give notice to the Notice Holders that the availability of the
Shelf Registration Statement is suspended (a "Deferral Notice") and upon receipt
of any Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice Holder's
receipt of copies of the supplemented or amended Prospectus provided for in
clause (i) above or it is advised in writing by the Company and the Issuer that
the Prospectus may be used. The Company and the Issuer will use their respective
commercially reasonable efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as practicable, (y) in
the case of clause (B) above, as soon as, in the reasonable judgment of the
Company and the Issuer, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or the Issuer and (z)
in the case of clause (C) above, as soon as in the reasonable discretion of the
Company and the Issuer such suspension is no longer appropriate. The Company and
the Issuer shall be entitled to exercise their right under this Section 4(h) to
suspend the availability of the Shelf Registration Statement or any Prospectus
for a reasonable period of time, and any such period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall, without incurring any obligation to pay any Additional
Interest Amount pursuant to Section 3, not exceed an aggregate of thirty (30)
days in any three-month period or an aggregate of ninety (90) days in any
twelve-month period.
(i) Comply with all applicable rules and regulations of the Commission and
make generally available to its securityholders earnings statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) for a twelve-month period commencing on the first day of the first fiscal
quarter of the Company or the Issuer, as the case may be, commencing
-11-
after the effective date of a Registration Statement, which statements shall be
made available no later than forty-five (45) days after the end of the
twelve-month period or ninety (90) days if the twelve-month period coincides
with the fiscal year of the Company or the Issuer, as the case may be.
(j) Cooperate with each Notice Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities sold or to be
sold pursuant to a Registration Statement, which certificates shall not bear any
restrictive legends (unless required by applicable law), and cause such
Registrable Securities to be in such denominations as are permitted by the
Indenture and registered in such names as such Notice Holder may request in
writing at least two (2) Business Days prior to any sale of such Registrable
Securities.
(k) Provide a CUSIP number for all Registrable Securities covered by each
Registration Statement not later than the effective date of such Registration
Statement and provide the Trustee and the transfer agent for the Common Shares
with printed certificates for the Registrable Securities that are in a form
eligible for deposit with The Depository Trust Company.
(l) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc., the New York Stock Exchange or
the Toronto Stock Exchange or any other stock exchange on which the Company's or
the Issuer's securities are publicly traded.
(m) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, announce the
same, in each case by release to Business Wire.
(n) The Company will cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, as required by applicable law in a timely
manner.
(o) In connection with any Shelf Registration Statement, the Company and
the Issuer shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority of the Registrable Securities being sold or the
managing underwriters (if any) shall reasonably request in order to facilitate
any disposition of the Registrable Securities pursuant to such Shelf
Registration Statement.
(p) In connection with any Shelf Registration Statement, the Company and
the Issuer shall (i) make reasonably available for inspection during normal
business hours by a representative of, and Special Counsel acting for, Holders
of a majority of the Registrable Securities being sold and any underwriter
participating in any disposition of the Registrable Securities pursuant to such
Shelf Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company or the Issuer, as
the case may be, and its subsidiaries and (ii) use their respective commercially
reasonable efforts to have their officers, directors, employees, accountants and
counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter (an "Inspector") in
connection with such Shelf Registration Statement; provided, however, that the
Inspector shall first agree in writing with the Company and the Issuer that any
information that is reasonably and in good faith designated by the Company and
the Issuer in writing as confidential at the time of delivery of such
information shall be kept confidential by the Inspector and shall be used solely
for the purposes of exercising rights under this Registration Rights Agreement,
-12-
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities;
provided, however, that the Inspector shall as promptly as reasonably
practicable, provide written notice to the Company and the Issuer of any request
by any such regulatory authority for any such confidential information of the
Company or the Issuer in order to allow the Company and the Issuer a reasonable
amount of time to seek an appropriate protective order to prevent the disclosure
of such information, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws in
connection with the filing of any Shelf Registration Statement or the use of any
Prospectus referred to in this Registration Rights Agreement) or is necessary to
defend a claim brought against any such persons (e.g., to establish a "due
diligence" defense), (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by any
such person or (iv) such information becomes available to any such person from a
source other than the Company or the Issuer and such source is not bound by a
confidentiality agreement or otherwise obligated to keep such information
confidential.
(q) In connection with any Shelf Registration Statement, the Company and
the Issuer shall, if requested by Holders of a majority of the Registrable
Securities being sold, their Special Counsel or the managing underwriters (if
any) in connection with such Shelf Registration Statement, use their respective
commercially reasonable efforts to cause (i) their counsel to deliver an opinion
relating to the Shelf Registration Statement and the Registrable Securities in
customary form, (ii) their officers to execute and deliver all customary
documents and certificates requested by Holders of a majority of the Registrable
Securities being sold, their Special Counsel or the managing underwriters (if
any) and (iii) their independent public accountants to provide a comfort letter
in customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
For purposes of determining the holders of a majority of the Registrable
Securities in this paragraph (q) and in paragraphs (o) and (p) above, Holders of
Notes shall be deemed to be the Holders of the number of Underlying Common
Shares into which such Notes are or would be convertible as of the relevant
date.
5. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that such Holder shall not be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company and
the Issuer with a properly completed and executed Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence. Each Notice Holder agrees promptly to furnish to the Company
and the Issuer all information required to be disclosed in order to make the
information previously furnished to the Company and the Issuer by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as the Company or the Issuer may
from time to time reasonably request.
6. Registration Expenses. The Company and the Issuer, jointly and
severally, will bear all expenses incurred in connection with the performance of
their obligations under Sections 2, 3 and 4 hereof and the Company and the
Issuer, jointly and severally, will reimburse the Holders for the reasonable
fees and disbursements, as and when incurred, of the Special Counsel acting for
the Holders in connection with the Notes and the securities to be sold pursuant
to each Registration Statement.
-13-
7. Indemnification.
(a) Indemnification of Holders. The Company and the Issuer, jointly and
severally, shall indemnify and hold harmless each Holder (including the Initial
Purchasers) and each person, if any, who controls such Holder within the meaning
of the Securities Act (collectively referred to for the purposes of this Section
7 as a Holder) against any loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, without limitation, any loss,
claim, damage, liability or action relating to purchases and sales of
Registrable Securities), to which that Holder may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Registration Statement or any Prospectus or in
any amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Holder for any legal or other expenses reasonably incurred by
that Holder in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the foregoing indemnification agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Holder from whom
the person asserting any such loss, claim, damage or liability purchased Notes,
if (i) a copy of the preliminary prospectus (as then amended or supplemented)
was required by law to be delivered to such person at or prior to the written
confirmation of the sale of Notes to such person, (ii) a copy of the final
Prospectus (as then amended or supplemented) was not sent or given to such
person by or on behalf of such Holder and (iii) the final Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability; and provided, further, that the Company and the
Issuer shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus or Registration Statement or any such amendment or
supplement in reliance upon and in conformity with any information included
therein in reliance upon or in conformity with written information furnished to
the Company or the Issuer by or on behalf of any Holder specifically for use
therein (the "Holders' Information").
(b) Indemnification of the Company and the Issuer and their Respective
Directors and Officers. Each Holder, severally and not jointly, agrees to
indemnify and hold harmless the Company and the Issuer and their respective
directors, and each person, if any, who controls the Company or the Issuer
within the meaning of the Securities Act (collectively referred to for the
purposes of this Section 7 as the Company or the Issuer), against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or the Issuer may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in a Prospectus or Registration Statement or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Holders' Information
furnished to the Company or the Issuer by or on behalf of that Holder
specifically for use therein, and shall reimburse the Company and the Issuer for
any legal or other expenses reasonably incurred by the Company and the Issuer in
connection with
-14-
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; provided however, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement.
(c) Actions; Notification. Promptly after receipt by an indemnified party
under this Section 7 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Holders of a majority
in aggregate principal amount of the Registrable Securities, if the indemnified
parties under this Section 7 consist of any Holder or any of their respective
officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section 7 consist of the Company or the Issuer or
any of their respective directors, officers, employees or controlling persons.
Each indemnified party, as a condition of the indemnity agreements contained in
Sections 7(a) and 7(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
-15-
(d) Contribution. If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or Section 7(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Issuer, on the one
hand, and a Holder with respect to the sale by such Holder, on the other hand,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Issuer, on the one hand, and such Holder, on the other hand,
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Issuer, on the one hand, and a Holder, on the other hand, with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Registrable Securities (before deducting expenses)
received by the Company and the Issuer as set forth on the cover of the Offering
Circular bear to the total proceeds received by such Holder with respect to its
sale of Registrable Securities. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Issuer, on the one hand,
or to any Holders' Information supplied by such Holder, on the other hand, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Issuer and the Holders agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities sold by such Holder to any purchaser exceeds the amount of any
damages which such Holder has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Any Holder's
obligations to contribute as provided in this Section 7(d) are several and not
joint.
(e) The obligations of the Company, the Issuer and the Holders in this
Section 7 are in addition to any other liability which the Company, the Issuer
or the Holders as the case may be, may otherwise have.
8. Rules 144 and 144A. The Company and the Issuer shall use their
respective commercially reasonable efforts to file the reports required to be
filed by each of them under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company or the Issuer is not required to file
such reports, such entity will, upon the written request of any Holder, make
publicly available other information so long as necessary to permit sales of
such Holder's securities pursuant to Rules 144 and 144A. Each of the Company and
the Issuer covenants that it will take such further action as any Holder may
reasonably request, all to
-16-
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including, without limitation,
the requirements of Rule 144A(d)(4)). Upon the written request of any Holder,
the Company and the Issuer shall deliver to such Holder a written statement as
to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Company or
the Issuer to register any of their respective securities pursuant to the
Exchange Act.
9. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of such Registrable Securities included in such
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Registration Rights
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority in aggregate principal
amount of the then outstanding Underlying Common Shares constituting Registrable
Securities (with Holders of Notes deemed to be the Holders, for purposes of this
Section 10(a), of the number of outstanding Underlying Common Shares into which
such Notes are or would be convertible as of the date on which such consent is
requested). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of the Holders whose Registrable Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder
to the Company and the Issuer in accordance with the provisions of this Section
10(b). The initial address for each Holder shall be the address of such Holder
maintained by the Trustee under the Indenture, with a copy in like manner to XX
Xxxxx & Co., LLC, Attention: General Counsel, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (Fax: 000-000-0000), and X.X. Xxxxxx Securities, Inc.,
Attention: Syndicate Department, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (Fax: 000-000-0000); and
(ii) if to the Company and the Issuer, to Lions Gate Entertainment
Corp., Attention: Xxxxx Xxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX
00000 (Fax: 000-000-0000).
-17-
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one (1) Business Day after
being delivered to a next-day air courier; three (3) Business Days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(c) Successors and Assigns. This Registration Rights Agreement shall be
binding upon the Company and the Issuer and their respective successors and
assigns.
(d) Counterparts. This Registration Rights Agreement may be executed in
any number of counterparts (which may be delivered in original form or by
telecopies) and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Registration Rights Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law; Submission to Jurisdiction. THIS REGISTRATION RIGHTS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
(g) No Inconsistent Agreements. Each of the Company and the Issuer has not
and shall not, on or after the date of this Registration Rights Agreement, enter
into any agreement that is inconsistent with the rights granted to the Holders
of Registrable Securities in this Registration Rights Agreement or otherwise
conflicts with the provisions hereof. Except for the registration rights
agreement dated June 6, 2000, by and among the Company, Xxxx Xxxx and Xxxx Xxxx,
each of the Company and the Issuer has not previously entered into any agreement
which remains in effect granting any registration rights with respect to any of
its securities to any person. Without limiting the generality of the foregoing,
without the written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Registrable Securities, neither the Company nor
the Issuer shall grant to any person the right to request the Company or the
Issuer to register any securities of the Company under the Securities Act unless
the rights so granted are not in conflict or inconsistent with the provisions of
the Agreement.
(h) No Piggyback on Registrations. Neither the Company nor the Issuer, nor
any of their respective securityholders (other than the Holders in such
capacity) shall have the right to include any securities of the Company in any
Shelf Registration other than Registrable Securities unless otherwise agreed to
by XX Xxxxx & Co., LLC and X.X. Xxxxxx Securities Inc.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Registration Rights Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
-18-
(j) Remedies. In the event of a breach by the Company or the Issuer, or by
any Holder, of any of their obligations under this Registration Rights
Agreement, each Holder or the Company and the Issuer, as the case may be, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages (other than the recovery of damages for a breach by the
Company of its obligations under Section 2 or Section 4 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Registration Rights
Agreement. The Company, the Issuer and each Holder agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Registration Rights Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(k) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company, the Issuer or their Affiliates
(other than the Initial Purchasers or subsequent Holders if such subsequent
Holders are deemed to be such Affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
-19-
Please confirm that the foregoing correctly sets forth the agreement among the
Company, the Issuer, the other Initial Purchasers and you.
Very truly yours,
LIONS GATE ENTERTAINMENT CORP.
By: /s/ XXX XXXXXX
-------------------------------
Name: Xxx Xxxxxx
Title: Chief Administrative
Officer, Chief Financial
Officer
LIONS GATE ENTERTAINMENT INC.
By: /s/ XXX XXXXXX
-------------------------------
Name: Xxx Xxxxxx
Title: Treasurer
Accepted in New York, New York
XX XXXXX & CO., LLC
By: /s/ XXXX XXXXXX
--------------------------
Name: Xxxx Xxxxxx
Title: M.D.
J.P. XXXXXX SECURITIES INC.
By: /s/ XXXXX X. XXXX
--------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
XXXXXX XXXXXX PARTNERS LLC
By: /s/ XXXX XXXXXXX
--------------------------
Name: Xxxx Xxxxxxx
Title: Associate General
Counsel
-20-
JEFFERIES & CO.
By: /s/ XXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXXXXXXX & CO.
By: /s/ XXXXX XXXXX
--------------------------
Name: Xxxxx Xxxxx
Title: SVP
XXXXX PARTNERS
By: /s/ XXXX XXXXXXXX
--------------------------
Name: Xxxx Xxxxxxxx
Title: President
XXXXXXX XXXXXX XXXXXX
By: /s/ XXXXXXX XXXXXX
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
-21-
