SHAREHOLDER RIGHTS PLAN AGREEMENT
Dated as of March 12,
2010
BETWEEN
LIONS GATE ENTERTAINMENT
CORP.
- and -
CIBC MELLON
TRUST COMPANY
as Rights Agent
TABLE OF
CONTENTS
ARTICLE 1 INTERPRETATION
|
2 | |||||
1.1
|
Certain Definitions | 2 | ||||
1.2
|
Percentage of Voting Shares Beneficially Owned | 11 | ||||
1.3
|
Currency | 12 | ||||
1.4
|
Number and Gender | 12 | ||||
1.5
|
Descriptive Headings and References | 12 | ||||
1.6
|
Acting Jointly or in Concert | 12 | ||||
ARTICLE 2 THE RIGHTS
|
12 | |||||
2.1
|
Evidence of Holdings of Rights | 12 | ||||
2.2
|
Initial Exercise Price; Exercise of Rights; Detachment of Rights | 13 | ||||
2.3
|
Adjustments to Exercise Price; Number of Rights | 15 | ||||
2.4
|
Date on Which Exercise is Effective | 17 | ||||
2.5
|
Execution. Authentication. Delivery and Dating of Rights Certificates | 17 | ||||
2.6
|
Registration, Registration of Transfer and Exchange | 17 | ||||
2.7
|
Mutilated. Destroyed. Lost and Stolen Rights Certificates | 18 | ||||
2.8
|
Persons Deemed Owners | 18 | ||||
2.9
|
Delivery and Cancellation of Certificates | 18 | ||||
2.10
|
Agreement of Rights Holders | 19 | ||||
19 | ||||||
3.1
|
Flip-in Event | 19 | ||||
ARTICLE 4 THE RIGHTS AGENT
|
20 | |||||
4.1
|
General | 20 | ||||
4.2
|
Merger or Consolidation or Change of Name of Rights Agent | 21 | ||||
4.3
|
Duties of Rights Agent | 21 | ||||
4.4
|
Change of Rights Agent | 22 | ||||
ARTICLE 5 MISCELLANEOUS
|
23 | |||||
5.1
|
Redemption of Rights | 23 | ||||
5.2
|
Waiver of Flip-In Events | 24 | ||||
5.3
|
Expiration | 24 | ||||
5.4
|
Issuance of New Rights Certificates | 24 | ||||
5.5
|
Supplements and Amendments | 25 | ||||
5.6
|
Fractional Rights and Fractional Shares | 26 | ||||
5.7
|
Rights of Action | 26 | ||||
5.8
|
Holder of Rights Not Deemed a Shareholder | 26 | ||||
5.9
|
Notice of Proposed Actions | 26 | ||||
5.10
|
Notices | 27 | ||||
5.11
|
Costs of Enforcement | 27 | ||||
5.12
|
Successors | 27 | ||||
5.13
|
Benefits of this Agreement | 27 | ||||
5.14
|
Governing Law | 27 | ||||
5.15
|
Severability | 28 | ||||
5.16
|
Determinations and Actions by the Board of Directors | 28 | ||||
5.17
|
Regulatory Approvals | 28 | ||||
5.18
|
Declaration as to Non-Canadian Holders | 28 | ||||
5.19
|
Effective Time | 28 | ||||
5.20
|
Termination Prior to Shareholder Approval | 28 | ||||
5.21
|
Time of the Essence | 28 | ||||
5.22
|
Counterparts | 28 |
SHAREHOLDER RIGHTS PLAN AGREEMENT dated as of
March 12, 2010 between LIONS GATE ENTERTAINMENT CORP., a
corporation existing under laws of British Columbia, (the
“Corporation”), and CIBC MELLON
TRUST COMPANY, a trust company existing under the laws of
Canada, as rights agent (the “Rights Agent”,
which term shall include any successor Rights Agent hereunder).
A. The Board of Directors has determined that it is
advisable and in the best interests of the Corporation to adopt
a shareholder rights plan (the “Rights Plan”);
B. In order to implement the Rights Plan, the Board of
Directors has:
(i) authorized and declared the issuance of one right (a
“Right”), effective as of the Record Time, in
respect of each Common Share outstanding at the Record
Time; and
(ii) authorized the issuance of one Right in respect of
each Common Share issued after the Record Time and prior to the
earlier of the Separation Time and the Expiration Time;
C. Each Right entitles the holder thereof, after the
Separation Time, to purchase securities of the Corporation
pursuant to the terms and subject to the conditions set forth
herein; and
D. The Corporation desires to appoint the Rights Agent to
act on behalf of the Corporation and the holders of Rights, and
the Rights Agent has agreed to act on behalf of the Corporation
and the holders of Rights, in connection with the issuance,
transfer, exchange and replacement of Rights Certificates, the
exercise of Rights and other matters referred to herein.
NOW THEREFORE, in consideration of the premises and the
respective agreements set forth herein, the Corporation and the
Rights Agent hereby agree as follows:
ARTICLE 1
For purposes of this Agreement, the following terms have the
meanings indicated:
“Acquiring Person” means any Person who is the
Beneficial Owner of a Significant Interest; provided, however,
that the term “Acquiring Person” shall not include:
(a) the Corporation or any Subsidiary of the Corporation;
(b) any Person who becomes the Beneficial Owner of a
Significant Interest as a result of one or any combination of:
(A) a Voting Share Reduction,
(B) a Pro Rata Acquisition,
(C) a Permitted Bid Acquisition,
(D) an Exempt Acquisition, or
(E) a Convertible Security Acquisition;
provided further, however, that if a Person shall become the
Beneficial Owner of a Significant Interest by reason of any one
or a combination of a Voting Share Reduction, a Pro Rata
Acquisition, a Permitted Bid Acquisition, an Exempt Acquisition,
or a Convertible Security Acquisition and thereafter becomes the
Beneficial Owner of more than an additional 1% of the
outstanding Voting Shares (other than pursuant to a Voting Share
Reduction, a Pro Rata Acquisition, a Permitted Bid
2
Acquisition, an Exempt Acquisition, or a Convertible Security
Acquisition), then as of the date that such Person becomes the
Beneficial Owner of such additional Voting Shares, such Person
shall become an Acquiring Person;
(c) for a period of 10 days after the Disqualification
Date (as hereinafter defined), any Person who becomes the
Beneficial Owner of a Significant Interest as a result of such
Person becoming disqualified from relying on Clause (B) of
the definition of “Beneficial Owner” solely because
such Person makes or proposes to make a Take-over Bid (excluding
an Offer to Acquire Voting Shares or other securities made by a
Manager, Trust Company, Crown Agent, Statutory Body,
Administrator or Plan referred to in Clause (B) of the
definition of “Beneficial Owner” pursuant to a
distribution by the Corporation or by means of ordinary market
transactions (including pre-arranged trades entered into in the
ordinary course of business of such Person) in the circumstances
contemplated in said Clause (B)) alone or by acting jointly
or in concert with any other Person (the first date of public
announcement (which, for the purposes of this definition, shall
include, without limitation, a report filed pursuant to
Section 13(d) of the U.S. Exchange Act) of facts
indicating the making of or the intent to make such a Take-over
Bid being herein referred to as the “Disqualification
Date”);
(d) a Person (a “Grandfathered Person”)
who is the Beneficial Owner of a Significant Interest determined
as at 12:01 a.m. (Pacific time) on the date of this
Agreement; provided, however, that this exemption shall not be,
and shall cease to be, applicable to a Grandfathered Person in
the event that such Grandfathered Person shall, after the date
of this Agreement, (i) cease to own a Significant Interest,
or (ii) become the Beneficial Owner of any Voting Shares
not Beneficially Owned by such Person as at the date of this
Agreement (other than through any one or any combination of a
Voting Share Reduction, a Pro Rata Acquisition, a Permitted Bid
Acquisition, an Exempt Acquisition, or a Convertible Security
Acquisition); or
(e) an underwriter or member of a banking or selling group
that acquires Voting Shares from the Corporation in connection
with a distribution of securities pursuant to a prospectus or by
way of private placement.
“Affiliate”, when used to indicate a
relationship with a specified Person, shall mean a Person that
directly, or indirectly through one or more controlled
intermediaries, controls, or is controlled by, or is under
common control with, such specified Person.
“Agreement” means this shareholder rights plan
agreement between the Corporation and the Rights Agent, as may
be amended
and/or
supplemented or restated from time to time.
“Associate”, when used to indicate a
relationship with a specified Person, shall mean (i) a
spouse of such specified Person, (ii) any Person of either
sex with whom such specified Person is living in a conjugal
relationship outside marriage or (iii) any relative of such
specified Person or of a Person mentioned in Clauses (i) or
(ii) of this definition if that relative has the same
residence as the specified Person.
A Person shall be deemed to be the “Beneficial
Owner” and to have “Beneficial
Ownership” of and to “Beneficially
Own”:
(a) any securities of which such Person or any of such
Person’s Affiliates or Associates is the owner at law or in
equity;
(b) any securities as to which such Person or any of such
Person’s Affiliates or Associates has the right to become
the owner at law or in equity, where such right is exercisable
immediately or within 60 days of the date of the
determination of Beneficial Ownership and whether or not on
condition or the occurrence of any contingency or payment of
installments, upon the exercise of any conversion right,
exchange right or purchase right attaching to Convertible
Securities, or pursuant to any agreement, arrangement, pledge or
understanding, written or oral (other than customary agreements
with and between underwriters
and/or
banking group
and/or
selling group members with respect to a distribution of
securities pursuant to a prospectus or by way of private
placement and other than pursuant to pledges of securities in
the ordinary course of the pledgee’s business);
(c) any securities which are beneficially owned, directly
or indirectly, by a Counterparty (or any of such
Counterparty’s Affiliates or Associates) under any
Derivatives Contract (without regard to any short or similar
position under the same or any other Derivatives Contract) to
which such Person or any of such Person’s
3
Affiliates or Associates is a Receiving Party; provided, however
that the number of Common Shares that a Person is deemed to
Beneficially Own pursuant to this Clause (c) in connection
with a particular Derivatives Contract shall not exceed the
number of Notional Securities with respect to such Derivatives
Contract; provided, further, that the number of securities
beneficially owned by each Counterparty (including their
respective Affiliates and Associates) under a Derivatives
Contract shall for purposes of this Clause (c) be deemed to
include all securities that are beneficially owned, directly or
indirectly, by any other Counterparty (or any of such other
Counterparty’s Affiliates or Associates) under any
Derivatives Contract to which such first Counterparty (or any of
such first Counterparty’s Affiliates or Associates) is a
Receiving Party and this proviso shall be applied to successive
Counterparties as appropriate; and
(d) any securities which are Beneficially Owned within the
meaning of Clauses (a), (b) or (c) of this definition
by any other Person with whom such Person or any of such
Person’s Affiliates or Associates is acting jointly or in
concert;
provided, however, that a Person shall not be deemed the
“Beneficial Owner” of, or to have “Beneficial
Ownership” of, or to “Beneficially Own”, any
security:
(A) by reason of:
(1) such security having been deposited or tendered
pursuant to a Take-over Bid made by such Person or any of such
Person’s Affiliates or Associates or any other Person
referred to in Clause (d) of this definition until the
earlier of such deposited or tendered security being accepted
unconditionally for payment or exchange or being taken up and
paid for, or
(2) the holder of such security having agreed pursuant to a
Permitted
Lock-up
Agreement to deposit or tender such security pursuant to a
Take-over Bid made by any such Person or any of such Persons
Affiliates or Associates or any other Person referred to in
Clause (d) of this definition;
(B) by reason of such Person, any of such Persons
Affiliates or Associates or any other Person referred to in
Clause (d) of this definition holding such security,
provided that:
(1) the ordinary business of the Person (in this
definition, a “Manager”) includes the
management of investment funds for others and such security is
held by the Manager in the ordinary course of such business in
the performance of such Manager’s duties for the account of
any other Person (in this definition, a
“Client”) including non-discretionary accounts
held on behalf of a Client by a broker or dealer registered
under applicable law;
(2) the Person (in this definition, a
“Trust Company”) is licensed to carry on
the business of a trust company under applicable law and, as
such, acts as a trustee or administrator or in a similar
capacity in relation to the estates of deceased or incompetent
Persons (each, in this definition, an “Estate
Account”) or in relation to other accounts (each, in
this definition, an “Other Account”) and holds such
security and is acting in the ordinary course of such duties for
the Estate Account or for such Other Accounts;
(3) such Person is a Crown agent or agency (in this
definition, the “Crown Agent”);
(4) the Person is established by statute for purposes that
include, and the ordinary business or activity of such Person
(in this definition, a “Statutory Body”)
includes, the management of investment funds for employee
benefit plans, pension plans, insurance plans of various public
bodies and the Statutory Body holds such security for the
purposes of its activities as such; or
(5) the person (in this definition, an
“Administrator”) is the administrator or
trustee of one or more pension funds or plans (each, in this
definition, a “Plan”) registered under the laws
of Canada or any province thereof or the corresponding laws of
the jurisdiction by which such Plan is governed or is such a
Plan and the Administrator or Plan holds such security for the
purposes of its activities as such;
but only if the Manager, the Trust Company, the Crown
Agent, the Statutory Body, the Administrator or the Plan, as the
case may be, is not then making and has not announced a current
intention to make a Take-over
4
Bid, other than an Offer to Acquire Voting Shares or other
securities pursuant to a distribution by the Corporation, or by
means of ordinary market transactions (including prearranged
trades entered into in the ordinary course of business of such
Person) executed through the facilities of a stock exchange or
an organized over-the-counter market, alone or by acting jointly
or in concert with any other Person;
(C) because such Person:
(1) is a Client of the same Manager as another Person on
whose account the Manager holds such security,
(2) has an Estate Account or an Other Account with the same
Trust Company as another Person on whose account the
Trust Corporation holds such security, or
(3) is a Plan with the same Administrator as another Plan
on whose account the Administrator holds such security,
(D) because such Person:
(1) is a Client of a Manager and such security is owned at
law or in equity by the Manager,
(2) has an Estate Account or an Other Account with a
Trust Company and such security is owned at law or in
equity by the Trust Company, or
(3) is a Plan and such security is owned at law or in
equity by the Administrator of the Plan; or
(E) because such Person is the registered holder of
securities as a result of carrying on the business of, or acting
as nominee for, a securities depositary.
“Board of Directors” shall mean the board of
directors of the Corporation [or a duly constituted committee
thereof].
“Business Day” shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
Vancouver are authorized or obligated by law to close.
“Canadian Dollar Equivalent” of any amount
which is expressed in United States dollars shall mean, on any
date, the Canadian dollar equivalent of such amount determined
by multiplying such amount by the U.S. – Canadian
Exchange Rate in effect on such date.
“Close of Business” on any given date shall
mean the time on such date (or, if such date is not a Business
Day, the time on the next succeeding Business Day) at which the
office of the transfer agent for the Common Shares in the City
of Vancouver (or, after the Separation Time, the office of the
Rights Agent in the City of Vancouver) is closed to the public.
“Common Shares” shall mean the common shares in
the capital of the Corporation.
“Competing Permitted Bid” shall mean a
Take-over Bid which is made by an Offeror by means of a
take-over bid circular and which also complies with the
following additional provisions:
(a) the Take-over Bid is made after a Permitted Bid or
another Competing Permitted Bid has been made and prior to the
expiry of that Permitted Bid or Competing Permitted Bid (in this
definition, the “Prior Bid”);
(b) the Take-over Bid satisfies all the provisions of the
definition of a Permitted Bid, other than the requirement set
out in Clause (b)(A) and (D) of the definition of Permitted
Bid; and
(c) the Take-over Bid shall contain and the
take-up and
payment for securities tendered or deposited thereunder shall be
subject to, irrevocable and unqualified conditions that:
(A) no Voting Shares shall be taken up or paid for pursuant
to such Take-over Bid (x) prior to the Close of Business on
a date that is not earlier than the later of the last day on
which the Take-over Bid must be open for acceptance after the
date of such Take-over Bid under applicable Canadian provincial
securities legislation and the earliest date on which Voting
Shares may be taken up or paid for under any Prior Bid in
existence at the date of such Take-over Bid, and (y) then
only if, at the Close of Business on
5
the date Voting Shares are first taken up or paid for under the
Take-over Bid, more than 50% of the then outstanding Voting
Shares held by Independent Shareholders have been deposited or
tendered pursuant to such Take-over Bid and not
withdrawn; and
(B) in the event that the requirement set forth in
Subclause (c)(A)(y) of this definition is satisfied, the Offeror
will make a public announcement of that fact and the Take-over
Bid will remain open for deposits and tenders of Voting Shares
for not less than 10 days from the date of such public
announcement,
provided always that a Competing Permitted Bid will cease to be
a Competing Permitted Bid at any time when such Take-over Bid
ceases to meet any of the provisions of this definition and
provided further that, at such time, any acquisition of Voting
Shares made pursuant to such Take-over Bid, including any
acquisitions of Voting Shares theretofore made, will cease to be
a Permitted Bid Acquisition.
“controlled” a specified Person is
“controlled” by another Person if:
(a) securities entitled to vote in the election of
directors carrying more than 50% of the votes for the election
of directors of the specified Person are held, directly or
indirectly, by or on behalf of the other Person, and the votes
carried by such securities are entitled, if exercised, to elect
a majority of the board of directors of such specified Person;
(b) in the case of a specified Person that is a partnership
that does not have directors, other than a limited partnership,
the other Person holds more than 50 percent of the
interests in the partnership; or
(c) in the case of a specified Person that is a limited
partnership, the other Person is the general partner of the
limited partnership
and “controls”, “controlling” and
“under common control with” shall be interpreted
accordingly.
“Convertible Securities” shall mean, at any
time, any securities (including rights, warrants and options but
other than the Rights) carrying any purchase, exercise,
conversion or exchange right, pursuant to which the holder
thereof may acquire Voting Shares or other securities
convertible into or exercisable or exchangeable for Voting
Shares (in each case, whether such right is exercisable
immediately or after a specified period and whether or not on
condition or the occurrence of any contingency or payment of
installments).
“Convertible Security Acquisition” shall mean
the acquisition of Voting Shares upon the exercise of
Convertible Securities acquired by a Person pursuant to a
Permitted Bid Acquisition, an Exempt Acquisition or a Pro Rata
Acquisition.
“Co-Rights Agent” shall have the meaning
ascribed thereto in Subsection 4.1(a).
“Corporations Act” shall mean the Business
Corporations Act (British Columbia), as it may be amended
from time to time, and the regulations made thereunder and any
comparable or successor laws or regulations thereto.
“Derivatives Contract” shall mean a contract
between two parties (the “Receiving Party” and
the “Counterparty”) that is designed to expose
the Receiving Party to economic benefits and risks that
correspond substantially to the ownership by the Receiving Party
of a number of Voting Shares or Convertible Securities specified
or referenced in such contract (the number corresponding to such
economic benefits and risks, the “Notional
Securities”), regardless of whether obligations under
such contract are required or permitted to be settled through
the delivery of cash, Voting Shares, Convertible Securities or
other property, without regard to any short position under the
same or any other Derivatives Contract. For the avoidance of
doubt, interests in broad-based index options, broad-based index
futures and broad-based publicly traded market baskets of stocks
approved for trading by the appropriate federal governmental
authority shall not be deemed to be Derivatives Contracts.
“Election to Exercise” shall have the meaning
attributed thereto in Subsection 2.2(d).
“Exempt Acquisition” shall mean an acquisition
of Voting Shares or Convertible Securities (i) in respect
of which the Board of Directors has waived the application of
Section 3.1 pursuant to the provisions of Section 5.2
hereof, or (ii) pursuant to a distribution of Voting Shares or
Convertible Securities made by the Corporation pursuant to a
prospectus or private placement provided that the Person does
not acquire a greater percentage of the
6
securities offered in the distribution than the percentage of
Voting Shares Beneficially Owned by that Person immediately
prior to the distribution, or (iii) pursuant to an amalgamation,
merger or other statutory procedure having similar effect which
has been approved by the Board of Directors and the holders of
Voting Shares by the requisite majority or majorities of the
holders of Voting Shares at a meeting duly called and held for
such purpose in accordance with the provisions of the
Corporations Act, the by-laws of the Corporation and any other
applicable legal requirements.
“Exercise Price” shall mean, as of any date
from and after the Separation Time, the price at which a holder
of a Right may purchase the securities issuable upon exercise of
one whole Right which, subject to adjustment in accordance with
the terms hereof, shall be an amount equal to four times the
Market Price per Common Share determined as at the Separation
Time.
“Expansion Factor” shall have the meaning
ascribed thereto in Clause 2.3(b)(E).
“Expiration Time” shall mean the earlier of
(i) the Termination Time, and (ii) the close of the
third annual meeting of holders of Voting Shares of the
Corporation following the meeting of such holders at which this
Agreement is first approved in accordance with
Section 5.19, unless the term of this Agreement is extended
in accordance with Section 5.5.
“Flip-in Event” shall mean a transaction in or
pursuant to which any Person becomes an Acquiring Person.
“Independent Shareholders” shall mean holders
of Voting Shares other than voting shares Beneficially owned by
(i) any Acquiring Person, (ii) any Offeror,
(iii) any Affiliate or Associate of any Acquiring Person or
Offeror, (iv) any Person acting jointly or in concert with
any Acquiring Person or Offeror or any of their respective
Affiliates or Associates and (v) any employee benefit plan,
deferred profit sharing plan, stock participation plan and any
similar plan or trust for the benefit of employees of the
Corporation or a wholly-owned Subsidiary of the Corporation,
unless the beneficiaries of such plan or trust direct the manner
in which such Voting Shares are to be voted or withheld from
voting or direct whether the Voting Shares are to be tendered to
a Take-over Bid.
“Market Price” per security of any securities
on any date of determination shall mean the average of the daily
closing prices per security of such securities (determined as
described below) on each of the 20 consecutive Trading Days
through and including the Trading Day immediately preceding such
date; provided, however, that if an event of a type analogous to
any of the events described in Section 2.3 hereof shall
have caused the closing prices used to determine the Market
Price on any Trading Day not to be fully comparable with the
closing price on such date of determination (or, if the date of
determination is not a Trading Day, on the immediately preceding
Trading Day), each such closing price so used shall be
appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3 hereof in order to
make it fully comparable with the closing price on such date of
determination (or, if the date of determination is not a Trading
Day, on the immediately preceding Trading Day). The closing
price per security of any securities on any date shall be:
(a) closing board lot sale price per security or, in case
no such sale takes place on such date, the average of the
closing bid and asked prices for each of such securities as
reported by the principal stock exchange in the United States
(as determined by volume of trading) on which such securities
are listed or admitted to trading,
(b) if for any reason none of such prices described in
Clause (a) of this definition is available for such day or
the securities are not listed or admitted to trading on a United
States stock exchange, the last sale price or, if such price is
not available, the average of the closing bid and asked prices,
for each such security on such date as reported by such other
securities exchange on which such securities are listed or
admitted to trading,
(c) if for any reason none of such prices described in
Clause (b) of this definition is available for such day or
the securities are not listed or admitted to trading on a United
States stock exchange or other securities exchange, the last
sale price, or if no sale takes place, the average of the high
bid and low asked prices for each such security on such date in
the over-the-counter market, as quoted by any reporting system
then in use (as determined by the Board of Directors), or
(d) if for any such date none of such prices described in
Clause (c) of this definition is available or the
securities are not listed or admitted to trading on a United
States stock exchange or any other securities exchange or not
quoted by any such reporting system, the average of the closing
bid and asked prices for such
7
date as furnished by a professional market maker making a market
in the securities selected in good faith by the Board of
Directors;
provided, however, that if on any such date none of such prices
is available, the closing price per security of such securities
on such date shall mean the fair value per security of such
securities on such date as determined by a nationally or
internationally recognized firm of investment dealers or
investment bankers selected by the Board of Directors and
provided further that if an event of a type analogous to any of
the events described in Section 2.3 hereof shall have
caused any price used to determine the Market Price on any
Trading Day not to be fully comparable with the price as so
determined on the Trading Day immediately preceding such date of
determination, each such price so used shall be appropriately
adjusted in a manner analogous to the applicable adjustment
provided for in Section 2.3 hereof in order to make it
fully comparable with the price on the Trading Day immediately
preceding such date of determination. The Market Price shall be
expressed in Canadian dollars and, if initially determined in
respect of any day forming part of the 20 consecutive Trading
Day period in question in United States dollars, such amount
shall be translated into Canadian dollars on such date at the
Canadian Dollar Equivalent thereof.
“Nominee” shall have the meaning ascribed
thereto in Subsection 2.2(c).
“Offer to Acquire” shall include:
(a) an offer to purchase, or a solicitation of an offer to
sell, Voting Shares or Convertible Securities of any series or
class, and
(b) an acceptance of an offer to sell Voting Shares or
Convertible Securities of any series or class, whether or not
such offer to sell has been solicited,
or any combination thereof, and the Person accepting an offer to
sell shall be deemed to be making an Offer to Acquire to the
Person that made the offer to sell.
“Offeror” shall mean a Person who has announced
an intention to make or who has made a Take-over Bid (including
a Permitted Bid or Competing Permitted Bid but excluding an
Offer to Acquire Voting Shares or other securities made by a
Manager, Trust Company, Crown Agent, Statutory Body,
Administrator or Plan referred to in Clause (B) of the
definition of “Beneficial Owner” pursuant to a
distribution by the Corporation or by means of ordinary market
transactions (including pre-arranged trades entered into in the
ordinary course of business of such Person) in the circumstances
contemplated in said Clause (B)), but only so long as the
Take-over Bid so announced or made has not been withdrawn or
terminated or has not expired.
“Offeror’s Securities” shall mean the
aggregate of the Voting Shares Beneficially Owned on the date of
an Offer to Acquire by an Offeror.
“Permitted Bid” shall mean a Take-over Bid
which is made by an Offeror by means of a take-over bid circular
and which also complies with the following additional provisions:
(a) the Take-over Bid is made to all holders of Voting
Shares, other than the Offeror, for all Voting Shares held by
them; and
(b) the Take-over Bid shall contain, and the
take-up and
payment for securities tendered or deposited thereunder shall be
subject to, irrevocable and unqualified conditions that:
(A) no Voting Shares shall be taken up or paid for pursuant
to the Take-over Bid (x) prior to the Close of Business on
a date which is not earlier than 60 days following the date
the take-over bid circular is sent to holders of Voting Shares
and (y) then only if, at the Close of Business on the date
Voting Shares are first taken up or paid for under the Take-over
Bid, more than 50% of the then outstanding Voting Shares held by
Independent Shareholders have been deposited or tendered
pursuant to the Take-over Bid and not withdrawn;
(B) Voting Shares may be deposited pursuant to such
Take-over Bid, unless such Take-over Bid is withdrawn, at any
time prior to the Close of Business on the date Voting Shares
are first taken up or paid for under the Take-over Bid;
8
(C) any Voting Shares deposited pursuant to the Take-over
Bid may be withdrawn until taken up and paid for; and
(D) in the event that the requirement set forth in
Subclause (b)(A)(y) of this definition is satisfied, the Offeror
will make a public announcement of that fact and the Take-over
Bid will remain open for deposits and tender of Voting Shares
for not less than 10 Business Days from the date of such public
announcement;
provided always that a Take-over Bid will cease to be a
Permitted Bid at any time when such Take-over Bid ceases to meet
any of the provisions of this definition and provided further
that, at such time, any acquisition of Voting Shares made
pursuant to such Take-over Bid, including any acquisition of
Voting Shares theretofore made, will cease to be a Permitted Bid
Acquisition;
“Permitted Bid Acquisition” shall mean an
acquisition of Voting Shares made pursuant to a Permitted Bid or
a Competing Permitted Bid.
“Permitted
Lock-Up
Agreement” means an agreement between a Person and one
or more holders of Voting Shares or Convertible Securities (each
a
“Locked-up
Person”) (the terms of which are publicly disclosed and
a copy of which is made available to the public (including the
Corporation) not later than the date the
Lock-up Bid
(as defined below) is publicly announced or, if the
Lock-up Bid
has been made prior to the date on which such agreement is
entered into, forthwith, and in any event not later than the
date of such agreement), pursuant to which each such
Locked-up
Person agrees to deposit or tender Voting Shares or Convertible
Securities (or both) (the
“Locked-up
Securities”) to a Take-over Bid (the
“Lock-up
Bid”) made or to be made by the Person or any of such
Person’s Affiliates or Associates or any other Person
referred to in Clause (d) of the definition of Beneficial
Owner; provided that:
(a) the agreement:
(A) permits the
Locked-up
Person to withdraw Locked-up Securities from the
Lock-up Bid
in order to tender or deposit such securities to another
Take-over Bid or to support another transaction that provides
for a consideration for such securities that exceeds the
consideration contained in or proposed to be contained in the
Lock-up Bid
and that is made for at least the same number of Locked-up
Securities as, the
Lock-up
Bid; or
(B) (1) permits the
Locked-up
Person to withdraw Locked-up Securities from the
Lock-up Bid
in order to tender or deposit such securities to another
Take-over Bid, or to support another transaction that provides
for a consideration for such securities that exceeds by as much
as or more than a specified amount (the “Specified
Amount”) the consideration contained in or proposed to
be contained in the Lock-up Bid and that is made for at least
the same number of Locked-up Securities as the
Lock-up
Bid; and
(2) does not by its terms provide for a Specified Amount
that is greater than 7% over the consideration for Locked-up
Securities contained in or proposed to be contained in the
Lock-up Bid;
and, for greater clarity, the agreement may contain a right of
first refusal or permit a period of delay of not more than five
Business Days to give such Person an opportunity to at least
match a higher price or value in another Take-over Bid or
transaction and may provide for any other similar limitation on
a Locked-up
Person’s right to withdraw Locked-up Securities from the
Lock-up Bid,
as long as the
Locked-Up
Person can tender or deposit Locked-up Securities to another
Take-over Bid or support to another transaction; and
(b) no
“break-up”
fees,
“top-up”
fees, penalties, expenses or other amounts that exceed in the
aggregate the greater of:
(A) the cash equivalent of 2.5% of the price or value
payable under the
Lock-up Bid
to a
Locked-up
Person; and
9
(B) 50% of the amount by which the price or value payable
under another Take-over Bid or transaction to a
Locked-up
Person exceeds the price or value of the consideration that such
Locked-up
Person would have received under the
Lock-up Bid,
shall be payable by a
Locked-up
Person pursuant to the agreement in the event a
Locked-up
Person fails to deposit or tender
Locked-up
Securities to the
Lock-up Bid,
withdraws
Locked-up
Securities previously tendered thereto or supports another
transaction.
“Person” shall include any individual, firm,
partnership, syndicate, association, trust, trustee, executor,
administrator, legal personal representative, government,
governmental body or authority, corporation or other
incorporated or unincorporated organization.
“Pro Rata Acquisition” shall mean an
acquisition by a Person of Voting Shares or Convertible
Securities (i) as a result of a stock dividend, a stock
split or other event pursuant to which such Person receives or
acquires Voting Shares or Convertible Securities on the same pro
rata basis as all other holders of securities of the same class
or series of the Corporation, or (ii) pursuant to a regular
dividend reinvestment or other plan of the Corporation made
available by the Corporation to the holders of Voting Shares,
where such plan permits the holder to direct that the dividends
paid in respect of such Voting Shares be applied to the purchase
from the Corporation of Voting Shares or Convertible Securities,
or (iii) pursuant to the receipt
and/or
exercise of rights (other than the Rights) issued by the
Corporation to all of the holders of a series or class of Voting
Shares on a pro rata basis to subscribe for or purchase Voting
Shares or Convertible Securities, provided that the Person does
not acquire a greater percentage of the Voting Shares or
Convertible Securities, as applicable, than the percentage of
the series or class of Voting Shares Beneficially Owned by that
Person immediately prior to such receipt or exercise and that
such rights are acquired directly from the Corporation as part
of a rights offering and not from any other Person.
“Record Time” shall mean the Close of Business
on the tenth day following the date of this Agreement.
“Redemption Price” shall have the meaning
attributed thereto in Section 5.1.
“Rights” shall mean the herein described rights
to purchase securities pursuant to the terms and subject to the
conditions set forth herein.
“Rights Certificate” shall mean the
certificates representing the Rights after the Separation Time
which shall be substantially in the form attached hereto as
Exhibit A or such other form as the Corporation and the
Rights Agent may agree.
“Rights Register” shall have the meaning
ascribed thereto in Subsection 2.6(a).
“Securities Act” shall mean the Securities
Act (British Columbia), as it may be amended from time to
time, and the rules and regulations made thereunder and any
comparable or successor laws or regulations thereto.
“Separation Time” shall mean the later of:
(a) the Close of Business on the tenth Business Day after
the earliest of:
(A) the Stock Acquisition Date;
(B) the date of the commencement of, or first public
announcement (which, for the purposes of this definition, shall
include, without limitation, a report filed pursuant to
Section 13(d) of the U.S. Exchange Act) of the intent
of any Person (other than the Corporation or any Subsidiary of
the Corporation) to commence, a Take-over Bid (other than a
Permitted Bid or Competing Permitted Bid); provided that if any
such Take-over Bid expires, is cancelled, terminated or
otherwise withdrawn prior to the Separation Time, such Take-Over
Bid shall be deemed, for the purposes of this provision, never
to have been made; and
(C) the date upon which a Permitted Bid or Competing
Permitted Bid ceases to be such; or
(b) the Record Time, if any of the circumstances in
Clause (a) of this definition have occurred more than ten
Business Days prior to such time,
or, in each case, such later date as may be determined by
the Board of Directors.
10
“Significant Interest” a Person has a
Significant Interest where that Person Beneficially Owns:
(a) 20% or more of the outstanding Voting Shares; or
(b) if the Corporation has completed an offering of its
securities (other than securities issued pursuant to the
Corporation’s incentive stock option plans) after the date
hereof and in connection with that offering the Board of
Directors has so determined, 24.9% or more of the outstanding
Voting Shares.
“Stock Acquisition Date” shall mean the first
date of public announcement (which, for the purposes of this
definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the U.S. Exchange Act) by
the Corporation or an Acquiring Person of facts indicating that
an Acquiring Person has become such.
“Subsidiary” a specified Person is a Subsidiary
of another Person if:
(a) it is controlled by (A) that other, or
(B) that other and one more or Persons, each of which is
controlled by that other, or (C) two or more Persons, each
of which is controlled by that other; or
(b) it is a Subsidiary of a Person that is that
other’s Subsidiary.
“Take-over Bid” means an Offer to Acquire where
the Voting Shares that would be Beneficially Owned upon
completion of the Offer to Acquire, together with the
Offeror’s Securities at the date of the Offer to Acquire,
constitute a Significant Interest.
“Termination Time” shall mean the time at which
the right to exercise Rights shall terminate pursuant to
Subsection 5.1(d) hereof.
“Trading Day” when used with respect to any
securities, shall mean a day on which the principal United
States securities exchange (as determined by trading volume) on
which such securities are listed or admitted to trading is open
for the transaction of business or, if the securities are not
listed or admitted to trading on any United States securities
exchange, a Business Day.
“U.S. – Canadian Exchange Rate” shall
mean, on any date:
(a) if, on such date, the Bank of Canada sets an average
noon spot rate of exchange for the conversion of one United
States dollar into Canadian dollars, such rate; or
(b) in any other case, the rate for such date for the
conversion of one United States dollar into Canadian dollars
calculated in such manner as may be determined by the Board of
Directors from time to time in good faith.
“U.S. Exchange Act” shall mean the United
States Securities Exchange Act of 1934, as it may be amended
from time to time, and the rules and regulations made thereunder
and any comparable or successor laws or regulations thereto.
“U.S. Securities Act” shall mean the
United States Securities Act of 1933, as it may be amended from
time to time, and the rules and regulations made thereunder and
any comparable or successor laws or regulations thereto.
“Voting Share Reduction” means an acquisition
or a redemption by the Corporation of Voting Shares.
“Voting Shares” shall mean collectively the
Common Shares of the Corporation and any other shares in the
capital stock or voting interests of the Corporation entitled to
vote generally in the election of directors.
For the purposes of this Agreement, the percentage of Voting
Shares Beneficially Owned by any Person shall be and be deemed
to be the quotient (expressed as a percentage) determined by the
formula:
100
|
× | A | ||
B
|
11
where
A = | the number of votes for the election of all directors on the Board of Directors generally attaching to the Voting Shares Beneficially Owned by such Person; and |
B = | the number of votes for the election of all directors on the Board of Directors generally attaching to all outstanding Voting Shares. |
Where any Person is deemed to Beneficially Own unissued Voting
Shares, such Voting Shares shall be deemed to be outstanding for
the purposes of both A and B above, but no other unissued Voting
Shares shall, for the purposes of such calculation, be deemed to
be outstanding.
1.3 Currency
All sums of money which are referred to in this Agreement are
expressed in lawful money of Canada, unless otherwise specified.
Wherever the context so requires, terms used herein importing
the singular number only shall include the plural and vice versa
and words importing any one gender shall include all others.
Descriptive headings and the Table of Contents appear herein for
convenience of reference only and shall not affect the meaning
or construction of any of the provisions hereof. All references
to Articles, Sections, Subsections, Clauses and Exhibits are to
the articles, sections, subsections, clauses and exhibits
forming part of this Agreement. The words “hereto”,
“herein”, “hereof, “hereunder”,
“this Agreement” and similar expressions refer to this
Agreement including the Exhibits, as the same may be amended,
modified or supplemented from time to time.
For purposes of this Agreement, a Person is acting jointly or in
concert with every other Person (and such Person’s
Affiliates and Associates) who is a party to any agreement,
commitment or understanding (whether formal or informal and
whether or not in writing) with the first mentioned Person to
acquire or offer to acquire Voting Shares (other than customary
agreements with and between underwriters
and/or
banking group
and/or
selling group members with respect to a distribution of
securities pursuant to a prospectus or by way of private
placement and other than pursuant to pledges of securities in
the ordinary course of business).
As used in this Agreement, unless the context otherwise
requires, the term “holder” of any Rights shall mean
the registered holder of such Rights (or, prior to the
Separation Time, of the associated Common Shares).
ARTICLE 2
(a) Common Share certificates issued prior to the Close of
Business on the earlier of the Separation Time and the
Expiration Time shall evidence, in addition to the Common Shares
represented thereby, one Right for each Common Share represented
thereby and shall have impressed on, printed on, written on or
otherwise affixed to them a legend, substantially in the
following form:
“Until the Separation Time (as such term is defined in the
Rights Agreement referred to below), this certificate also
evidences and entitles the holder hereof to certain Rights as
set forth in the Shareholder Rights Plan Agreement dated as of
March 12, 2010, as amended from time to time (the
“Rights Agreement”), between Lions Gate
Entertainment Corp. and CIBC Mellon Trust Company, as
Rights Agent (“CIBC Mellon”), the terms of
which are hereby incorporated herein by reference and a copy
each of which is on
12
file and may be inspected during normal business hours at the
principal executive office of the Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
may be amended, redeemed, may expire, may become void or may be
evidenced by separate certificates and may no longer be
evidenced by this certificate. The Corporation will mail or
arrange for the mailing of a copy of the Rights Agreement to the
holder of this certificate without charge as soon as practicable
after the receipt of a written request therefor.”
Certificates representing Common Shares that are issued and
outstanding shall also evidence one Right for each Common Share
evidenced thereby, notwithstanding the absence of the foregoing
legend, until the earlier of the Separation Time and the
Expiration Time.
(b) Registered holders of Common Shares who have not
received a share certificate and are entitled to do so on the
earlier of the Separation Time and the Expiration Time shall be
entitled to Rights as if such certificates had been issued and
such Rights shall for all purposes hereof be evidenced by the
corresponding entries on the Corporation’s securities
register for common shares.
(a) Subject to adjustment as herein set forth, each Right
will entitle the holder thereof, from and after the Separation
Time and prior to the Expiration Time, to purchase, for the
Exercise Price, one Common Share (which Exercise Price and
number of Common Shares are subject to adjustment as set forth
below). Notwithstanding any other provision of this Agreement,
any Rights held by the Corporation or any of its Subsidiaries
shall be void.
(b) Until the Separation Time, (i) the Rights shall
not be exercisable and no Right may be exercised, and
(ii) each Right will be evidenced by the certificate for
the associated Common Share registered in the name of the holder
thereof (which certificate shall also be deemed to represent a
Rights Certificate) and will be transferable only together with,
and will be transferred by a transfer of, such associated Common
Share.
(c) From and after the Separation Time and prior to the
Expiration Time, the Rights may be exercised and the
registration and transfer of the Rights shall be separate from
and independent of Common Shares. Promptly following the
Separation Time, the Corporation will prepare and the Rights
Agent will mail to each holder of record of Common Shares as of
the Separation Time (other than an Acquiring Person, any other
Person whose Rights are or become void pursuant to the
provisions of Section 3.1(b) hereof and, in respect of any
Rights Beneficially Owned by such Acquiring Person which are not
held of record by such Acquiring Person, the holder of record of
such Rights (a “Nominee”)), at such
holder’s address as shown by the records of the Corporation
(the Corporation hereby agreeing to furnish copies of such
records to the Rights Agent for this purpose),
(A) a Rights Certificate, in substantially the form set out
in Exhibit “A” hereto, appropriately completed,
representing the number of Rights held by such holder at the
Separation Time and having such marks of identification or
designation and such legends, summaries or endorsements printed
thereon as the Corporation may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation
or judicial or administrative order made pursuant thereto or
with any rule or regulation of any self-regulatory organization,
stock exchange or quotation system on which the Rights may from
time to time be listed or traded, or to conform to standard
usage, and
(B) a disclosure statement prepared by the Corporation
describing the Rights;
provided that a Nominee shall be sent the materials provided for
in Clauses (A) and (B) in respect of all Common Shares
held of record by it which are not Beneficially Owned by an
Acquiring Person. In order for the Corporation to determine
whether any Person is holding Common Shares which are
Beneficially Owned by another Person, the Corporation may
require such first mentioned Person to furnish such information
and documentation as the Corporation deems necessary or
appropriate in order to make such determination.
(d) Rights may be exercised in whole or in part on any
Business Day after the Separation Time and prior to the
Expiration Time by submitting to the Rights Agent at its office
in the City of Vancouver, Canada or at any other
13
office of the Rights Agent in the cities designated (with the
approval of the Rights Agent) from time to time for that purpose
by the Corporation:
(A) the Rights Certificate evidencing such Rights with an
Election to Exercise (an “Election to
Exercise”) substantially in the form attached to the
Rights Certificate appropriately completed and duly executed by
the holder or his or their executors or administrators or other
personal representatives or his legal attorney duly appointed by
an instrument in writing in form and executed in a manner
satisfactory to the Rights Agent; and
(B) payment by certified cheque or money order payable to
the Rights Agent for credit to or to the order of the
Corporation, of a sum equal to the Exercise Price multiplied by
the number of Rights being exercised and a sum sufficient to
cover any transfer tax or charge which may be payable in respect
of the transfer or delivery of Rights Certificates or the
issuance or delivery of certificates for Common Shares in a name
other than that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with a completed
Election to Exercise appropriately completed and duly executed
which does not indicate that such Right is null and void as
provided by Subsection 3.1(b), accompanied by payment as set
forth in Clause 2.2(d)(B), the Rights Agent (unless otherwise
instructed in writing by the Corporation) will thereupon
promptly:
(A) register the number of Common Shares to be purchased in
the securities register of the Corporation in such name or names
as may be designated by such holder of a Rights Certificate or,
upon written request of such holder, requisition from the
transfer agent of the Corporation certificates for the number of
Common Shares to be purchased (the Corporation hereby
irrevocably agreeing to authorize its transfer agent to comply
with all such requisitions),
(B) after receipt of any certificates referred to in
Clause 2.2(e)(A), deliver such certificates to or upon the
order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder,
(C) when appropriate, requisition from the Corporation the
amount of cash to be paid in lieu of issuing fractional Common
Shares,
(D) after receipt, deliver such cash referred to in
Clause 2.2(e)(C) to or to the order of the registered
holder of the Rights Certificate, and
(E) tender to the Corporation all payments received on the
exercise of the Rights.
(f) In case the holder of any Rights shall exercise less
than all the Rights evidenced by such holder’s Rights
Certificate, a new Rights Certificate evidencing the Rights
remaining unexercised will be issued by the Rights Agent to such
holder or to such holder’s duly authorized assigns.
(g) The Corporation covenants and agrees that it will:
(A) take all such action as may be necessary and within its
power to ensure that all Common Shares delivered upon exercise
of Rights shall, at the time of delivery of the certificates for
or registration in the Corporation’s securities register of
such Common Shares (subject to payment of the Exercise Price),
be duly and validly authorized, executed, issued and delivered
as fully paid and non-assessable;
(B) cause to be reserved and kept available out of its
authorized and unissued Common Shares, the number of Common
Shares that, as provided in this Agreement, will from time to
time be sufficient to permit the exercise in full of all
outstanding Rights;
(C) take all such action as may be necessary and within its
power to comply with any applicable requirements of the
Corporations Act, the Securities Act, the U.S. Securities
Act, the U.S. Exchange Act and the securities statute or
comparable legislation of each of the other provinces and
territories of Canada, and other applicable securities laws in
other applicable jurisdictions and the rules and regulations
thereunder, and any other applicable law, rule or regulation, in
connection with the issuance and delivery of the Rights
Certificates and the issuance of any Common Shares upon exercise
of Rights;
14
(D) use reasonable efforts to cause all Common Shares
issued upon the exercise of Rights to be listed upon issuance on
the New York Stock Exchange and each other stock exchange on
which the Common Shares were traded immediately prior to the
Stock Acquisition Date;
(E) pay when due and payable any and all Canadian, United
States or foreign federal, provincial, state or other transfer
taxes (not in the nature of income or withholding taxes) and
charges which may be payable in respect of the original issuance
or delivery of the Rights Certificates or certificates for
Common Shares to be issued upon the exercise of any Rights or
registration of the Common Shares in the securities register of
the Corporation upon the exercise of any Rights; provided that
the Corporation shall not be required to pay any transfer tax or
charge which may be payable in respect of the transfer or
delivery of Rights Certificates or the issuance or delivery of
certificates for Common Shares or registration of the Common
Shares in the securities register of the Corporation in a name
other than that of the holder of the Rights being transferred or
exercised; and
(F) after the Separation Time, except as permitted by
Section 5.1, not take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or
otherwise eliminate the benefits to be afforded by the Rights.
(a) The Exercise Price, the number and kind of securities
subject to purchase upon exercise of each Right and the number
of Rights outstanding are subject to adjustment from time to
time as provided in this Section 2.3.
(b) In the event the Corporation shall at any time after
the Separation Time and prior to the Expiration Time:
(A) declare or pay a dividend on the Common Shares of the
Corporation payable in Common Shares (or securities exchangeable
for or convertible into or giving a right to acquire Common
Shares) other than pursuant to any optional stock dividend
program;
(B) subdivide or change the then outstanding Common Shares
into a greater number of Common Shares;
(C) consolidate or change the then outstanding Common
Shares into a smaller number of Common Shares; or
(D) issue any Common Shares (or securities exchangeable for
or convertible into or giving a right to acquire Common Shares)
in respect of, in lieu of, or in exchange for existing Common
Shares,
the Exercise Price and the number of Rights outstanding, or, if
the payment or effective date therefor shall occur after the
Separation Time, the securities issuable upon exercise of
Rights, shall be adjusted as follows:
(E) the Exercise Price in effect after such adjustment will
be equal to the Exercise Price in effect immediately prior to
such adjustment divided by the number of Common Shares (the
“Expansion Factor”) that a holder of one Common
Share immediately prior to such dividend, subdivision, change,
consolidation or issuance would hold thereafter as a result
thereof (assuming the exercise of all such exchange, conversion
or acquisition rights, if any); and
(F) each Right held prior to such adjustment will become
that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among
the Common Shares with respect to which the original Rights were
associated (if they remain outstanding) and the shares issued in
respect of such dividend, subdivision, change, consolidation or
issuance, so that each such Common Share will have exactly one
Right associated with it.
(c) If the Corporation shall, at any time after the Record
Time and prior to the Separation Time, issue any Common Shares
otherwise than in a transaction referred to in Subsection
2.3(b), each such Common Share so issued shall automatically
have one new Right associated with it, which Right shall be
evidenced by the certificate representing such Common Share.
(d) If, after the Separation Time and prior to the
Expiration Time, the Corporation shall issue any shares of
capital stock other than Common Shares (or other securities
exchangeable for or convertible into or giving a right to
15
acquire shares of any such capital stock) in a transaction of a
type described in Clause 2.3(b)(A) or 2.3(b)(D), the shares of
such capital stock shall be treated herein as nearly equivalent
to Common Shares to the extent practicable and appropriate under
the circumstances and the shares purchasable upon exercise of
Rights shall be adjusted as necessary such that the shares
purchasable upon exercise of each Right after such adjustment
will be the shares that a holder of the shares purchasable upon
exercise of one Right immediately prior to such issuance would
hold thereafter as a result of such issuance.
Notwithstanding Section 5.5, the Corporation and the Rights
Agent are authorized and agree to amend this Agreement in order
to give effect to the foregoing.
(e) If an event occurs which would require an adjustment
under both this Section 2.3 and Section 3.1 hereof,
the adjustment provided for in this Section 2.3 shall be in
addition to, and shall be made prior to, any adjustment required
pursuant to Section 3.1 hereof.
(f) Notwithstanding anything herein to the contrary, no
adjustment of the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent in such Exercise Price; provided, however, that any
adjustments which by reason of this Subsection 2.3(f) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All adjustments made
pursuant to this Section 2.3 shall be made to the nearest
cent or to the nearest ten-thousandth of a Common Share, as the
case may be.
(g) If as a result of an adjustment made pursuant to this
Section 2.3, the holder of any Right thereafter exercised shall
become entitled to receive any securities other than Common
Shares, thereafter the number of such other securities so
receivable upon exercise of any Right and the applicable
Exercise Price thereof shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Shares
contained in this Section 2.3 and the provisions of this
Agreement with respect to the Common Shares shall apply on like
terms to any such other securities.
(h) All Rights issued by the Corporation subsequent to any
adjustment made to the Exercise Price hereunder shall evidence
the right to purchase, at the adjusted Exercise Price, the
number of Common Shares purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment
as provided herein.
(i) Irrespective of any adjustment or change in the
securities purchasable upon exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to
express the securities so purchasable which were expressed in
the initial Rights Certificates issued hereunder.
(j) In any case in which this Section 2.3 shall
require that an adjustment in the Exercise Price be made
effective as of a record date for a specified event, the
Corporation may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after
such record date of the number of Common Shares and other
securities of the Corporation, if any, issuable upon such
exercise over and above the number of Common Shares and other
securities of the Corporation, if any, issuable upon such
exercise on the basis of the relevant Exercise Price in effect
prior to such adjustment; provided, however, that the
Corporation shall deliver to such holder an appropriate
instrument evidencing such holder’s right to receive such
additional Common Shares (fractional or otherwise) or other
securities upon the occurrence of the event requiring such
adjustment.
(k) Notwithstanding anything in this Section 2.3 to
the contrary, the Corporation shall be entitled to make such
reductions in the Exercise Price, in addition to those
adjustments expressly required by this Section 2.3, as and
to the extent that in their good faith judgment the Board of
Directors shall determine to be advisable in order that any
(i) subdivision or consolidation of the Common Shares,
(ii) issuance (wholly or in part for cash) of any Common
Shares or securities that by their terms are exchangeable for or
convertible into or give a right to acquire Common Shares,
(iii) stock dividends or (iv) issuance of rights,
options or warrants referred to in this Section 2.3,
hereafter made by the Corporation to holders of its Common
Shares, subject to applicable taxation laws, shall not be
taxable to such shareholders.
(l) The Corporation covenants and agrees that, after the
Separation Time, it will not, except as permitted by the
provisions hereof, take (or permit any Subsidiary of the
Corporation to take) any action if at the time such action is
16
taken it is reasonably foreseeable that such action will
diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(m) Whenever an adjustment to the Exercise Price or the
securities purchasable upon exercise of the Rights is made
pursuant to this Section 2.3, the Corporation shall
promptly:
(A) file with the Rights Agent and with the transfer agent
for the Common Shares (if different than the Rights Agent) a
certificate specifying the particulars of such
adjustment, and
(B) cause notice of the particulars of such adjustment to
be given to the holders of the Rights.
Failure to file such certificate or to cause such notice to be
given as aforesaid, or any defect therein, shall not affect the
validity of any such adjustment.
Each Person in whose name any certificate for Common Shares is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Common Shares
represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights
was duly surrendered in accordance with Subsection 2.2(e)
(together with a duly completed Election to Exercise) and
payment of the Exercise Price for such Rights (and any
applicable transfer taxes and other governmental charges payable
by the exercising holder hereunder) was made; provided, however,
that if the date of such surrender and payment is a date upon
which the Common Share transfer books of the Corporation are
closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the Common Share
transfer books of the Corporation are open.
(a) The Rights Certificates shall be executed on behalf of
the Corporation by its Chief Executive Officer or its Chief
Financial Officer, under its corporate seal reproduced thereon
attested by its Secretary. The signature of any of these
officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures
of individuals holding the above offices of the Corporation
shall bind the Corporation, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the countersignature and delivery of such Rights
Certificates.
(b) Promptly after the Corporation learns of the Separation
Time, the Corporation will notify the Rights Agent of such
Separation Time and will deliver Rights Certificates executed by
the Corporation to the Rights Agent for countersignature and a
statement describing the Rights, and the Rights Agent shall
countersign (manually or by facsimile signature in a manner
reasonably satisfactory to the Corporation) and deliver such
Rights Certificates and statement to the holders of the Rights
pursuant to Subsection 2.2(c). No Rights Certificate shall be
valid for any purpose until countersigned by the Rights Agent as
aforesaid.
(c) Each Rights Certificate shall be dated the date of
countersignature thereof.
(a) Following the Separation Time, the Corporation will
cause to be kept a register (the “Rights
Register”) in which, subject to such reasonable
regulations as it may prescribe, the Corporation will provide
for the registration and transfer of Rights. The Rights Agent is
hereby appointed “Rights Registrar” for the purpose of
maintaining the Rights Register for the Corporation and
registering Rights and transfers of Rights as herein provided.
In the event that the Rights Agent shall cease to be the Rights
Registrar, the Rights Agent will have the right to examine the
Rights Register at all reasonable times.
(b) After the Separation Time and prior to the Expiration
Time, upon surrender for registration of transfer or exchange of
any Rights Certificate, and subject to the provisions of
Subsection 2.6(d), the Corporation will execute, and the Rights
Agent will countersign and deliver, in the name of the holder or
the designated transferee or transferees, as required pursuant
to the holder’s instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as
did the Rights Certificates so surrendered.
17
(c) All Rights issued upon any registration of transfer or
exchange of Rights Certificates shall be the valid obligations
of the Corporation, and such Rights shall be entitled to the
same benefits under this Agreement as the Rights surrendered
upon such registration of transfer or exchange.
(d) Every Rights Certificate surrendered for registration
of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Corporation or the Rights Agent as the case
may be, duly executed by the holder thereof or such
holder’s attorney duly authorized in writing. As a
condition to the issuance of any new Rights Certificate under
this Section 2.6, the Corporation may require the payment
of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Rights Agent)
connected therewith.
(a) If any mutilated Rights Certificate is surrendered to
the Rights Agent prior to the Expiration Time, the Corporation
shall execute and the Rights Agent shall countersign and deliver
in exchange therefor a new Rights Certificate evidencing the
same number of Rights as did the Rights Certificate so
surrendered.
(b) If there shall be delivered to the Corporation and the
Rights Agent prior to the Expiration Time (i) evidence to
their satisfaction of the destruction, loss or theft of any
Rights Certificate and (ii) such security or indemnity as
may be required by them to save each of them and any of their
agents harmless, then, in the absence of notice to the
Corporation or the Rights Agent that such Rights Certificate has
been acquired by a bona fide purchaser, the Corporation shall
execute and upon its request the Rights Agent shall countersign
and deliver, in lieu of any such destroyed, lost or stolen
Rights Certificate, a new Rights Certificate evidencing the same
number of Rights as did the Rights Certificate so destroyed,
lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Corporation may
require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this
Section 2.7 in lieu of any destroyed, lost or stolen Rights
Certificate shall evidence a contractual obligation of the
Corporation, whether or not the destroyed, lost or stolen Rights
Certificate shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Rights duly issued
hereunder.
Prior to due presentment of a Rights Certificate (or, prior to
the Separation Time, the associated Common Share certificate)
for registration of transfer, the Corporation, the Rights Agent
and any agent of the Corporation or the Rights Agent may deem
and treat the Person in whose name such Rights Certificate (or,
prior to the Separation Time, such Common Share certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever. As used in this
Agreement, unless the context otherwise requires, the term
“holder” of any Rights shall mean the registered
holder of such Rights (or, prior to the Separation Time, of the
associated Common Shares).
All Rights Certificates surrendered upon exercise or for
redemption, registration of transfer or exchange shall, if
surrendered to any Person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be
promptly cancelled by the Rights Agent. The Corporation may at
any time deliver to the Rights Agent for cancellation any Rights
Certificates previously countersigned and delivered hereunder
which the Corporation may have acquired in any manner
whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificate
shall be countersigned in lieu of or in exchange for any Rights
Certificates cancelled as provided in this Section 2.9,
except as expressly permitted by this Agreement. The Rights
Agent shall destroy all cancelled Rights Certificates and
deliver a certificate of destruction to the Corporation.
18
Every holder of Rights, by accepting such Rights, consents and
agrees with the Corporation and the Rights Agent and with every
other holder of Rights that:
(a) such holder shall be bound by and subject to the
provisions of this Agreement, as amended from time to time in
accordance with the terms hereof, in respect of all Rights held;
(b) prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a
transfer of, the associated Common Share certificate
representing such Right;
(c) after the Separation Time, the Rights will be
transferable only on the Rights Register as provided herein;
(d) prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Share
certificate) for registration of transfer, the Corporation, the
Rights Agent and any agent of the Corporation or the Rights
Agent may deem and treat the person in whose name the Rights
Certificate (or, prior to the Separation Time, the associated
Common Share certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on such Rights Certificate or
the associated Common Share certificate made by anyone other
than the Corporation or the Rights Agent) for all purposes
whatsoever, and neither the Corporation nor the Rights Agent
shall be affected by any notice to the contrary;
(e) such holder is not entitled to receive any fractional
Rights or fractional Common Shares upon the exercise of
Rights; and
(f) notwithstanding anything in this Agreement to the
contrary, neither the Corporation nor the Rights Agent shall
have any liability to any holder of a Right or any other Person
as a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation.
ARTICLE 3
3.1 Flip-in
Event
(a) Subject to Section 3.1(b) and Section 5.2, in
the event that prior to the Expiration Time a Flip-in Event
shall occur, each Right shall constitute, effective from and
after the Close of Business on the tenth Business Day following
the Stock Acquisition Date, the right to purchase from the
Corporation, upon exercise thereof in accordance with the terms
hereof, that number of Common Shares of the Corporation having
an aggregate Market Price on the date of consummation or
occurrence of such Flip-in Event equal to twice the Exercise
Price for an amount in cash equal to the Exercise Price (such
right to be appropriately adjusted in a manner analogous to the
applicable adjustment provided for in Section 2.3 in the
event that after such date of consummation or occurrence an
event of a type analogous to any of the events described in
Section 2.3 shall have occurred with respect to such Common
Shares).
(b) Notwithstanding anything in this Agreement to the
contrary, upon the occurrence of a Flip-in Event, any Rights
that are or were Beneficially Owned on or after the earlier of
the Separation Time or the Stock Acquisition Date by:
(A) an Acquiring Person, or any Affiliate or Associate of
an Acquiring Person, or any Person acting jointly or in concert
with an Acquiring Person or with any Associate or Affiliate of
an Acquiring Person; or
(B) a transferee or other successor in title, direct or
indirect, of an Acquiring Person (or of any Affiliate or
Associate of an Acquiring Person or any Person acting jointly or
in concert with an Acquiring Person or any
19
Associate or Affiliate of an Acquiring Person), where such
transferee becomes a transferee concurrently with or subsequent
to the Acquiring Person becoming such, in a transfer of Rights,
whether or not for consideration, that the Board of Directors
has determined is part of an agreement, arrangement or
understanding of an Acquiring Person (or of any Affiliate or
Associate of an Acquiring Person or any Person acting jointly or
in concert with an Acquiring Person or any Affiliate or
Associate of an Acquiring Person) that would otherwise have the
purpose or effect of avoiding the provisions of this Subsection
3.1(b), shall become null and void without any further action
and any holder of such Rights (including transferees or other
successors in title) shall thereafter have no right to exercise
or transfer such Rights under any provision of this Agreement
and shall have no other rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or
otherwise. The holder of any Rights represented by a Rights
Certificate which is submitted to the Rights Agent upon exercise
or for registration of transfer or exchange which does not
contain the necessary certifications set forth in the Rights
Certificate establishing that such Rights are not void under
this Subsection 3.1(b) shall be deemed to be an Acquiring Person
for the purposes of this Subsection 3.1(b) and such rights shall
be null and void.
(c) Any Rights Certificate that would represent Rights
Beneficially Owned by a Person described in either
Clause 3.1(b)(A) or Clause 3.1(b)(B) or transferred to
any nominee of any such Person, and any Rights Certificate that
would be issued upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in this
sentence, shall either not be issued upon the instruction of the
Corporation in writing to the Rights Agent or contain the
following legend:
“The Rights represented by this Rights Certificate were
issued to a Person who was an Acquiring Person, or an Affiliate
or an Associate of an Acquiring Person, or a Person acting
jointly or in concert with any of them (as such terms are
defined in the Rights Agreement). This Rights Certificate and
the Rights represented hereby are void or shall become void in
the circumstances specified in Subsection 3.1(b) of the Rights
Agreement.”
provided, however, that the Rights Agent shall not be under any
responsibility to ascertain the existence of facts that would
require the imposition of such legend but shall be required to
impose such legend only if instructed to do so in writing by the
Corporation or if a holder fails to certify upon transfer or
exchange in the space provided on the Rights Certificate that
such holder is not a Person described in such legend. The
issuance of a Rights Certificate without the legend referred to
in this Subsection 3.1(c) shall not affect the provisions of
Subsection 3.1(b).
ARTICLE 4
4.1 General
(a) The Corporation hereby appoints the Rights Agent to act
as agent for the Corporation and the holders of Rights in
accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Corporation may from
time to time appoint one or more co-rights agents (each a
“Co-Rights Agent”) as it may deem necessary or
desirable, subject to the approval of the Rights Agent. In the
event the Corporation appoints one or more Co-Rights Agents, the
respective duties of the Rights Agents and Co-Rights Agents
shall be as the Corporation may determine with the approval of
the Rights Agent and the Co-Rights Agents. The Corporation
agrees to pay to the Rights Agent reasonable compensation for
all services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of
its duties hereunder (including the reasonable fees and other
disbursements of any expert retained by the Rights Agent with
the approval of the Corporation, such approval not to be
unreasonably withheld). The Corporation also agrees to indemnify
the Rights Agent and its directors, officers, employees and
agents for, and to hold them harmless against, any loss,
liability, cost, claim, action, suit, damage or expense,
incurred without negligence, bad faith or wilful misconduct on
the part of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim of liability, which
right to indemnification will survive the termination of this
Agreement and the resignation or removal of the Rights Agent.
20
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any certificate for Common Shares,
Rights Certificate, certificate for other securities of the
Corporation, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or document
believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person
or Persons.
(c) The Corporation shall inform the Rights Agent in a
reasonably timely manner of events which may materially affect
the administration of this Agreement by the Rights Agent and, at
any time upon request shall provide to the Rights Agent an
incumbency certificate certifying the then current officers of
the Corporation.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merger or amalgamated or with
which it may be consolidated, or any corporation resulting from
any merger, amalgamation or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any
corporation succeeding to the shareholder services business of
the Rights Agent or any successor Rights Agent, will be the
successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation
would be eligible for appointment as a successor Rights Agent
under the provisions of Section 4.4 hereof. In case at the
time such successor Rights Agent succeeds to the agency created
by this Agreement any of the Rights Certificates have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent
and deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates have not been
countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Rights Certificates will have the full force
provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is
changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name;
and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this
Agreement.
The Rights Agent undertakes the duties and obligations imposed
by this Agreement upon the following terms and conditions, by
all of which the Corporation and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may retain and consult with legal
counsel (who may be legal counsel for the Corporation), and the
opinion of such counsel will be full and complete authorization
and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion
and the Rights Agent may also retain and consult with such other
experts or advisors as the Rights Agent shall consider necessary
or appropriate to properly carry out the duties and obligations
imposed under this Agreement (at the Corporation’s expense)
and the Rights Agent shall be entitled to act and rely in good
faith on the advice of such expert or advisor;
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent deems it necessary or desirable that
any fact or matter be proved or established by the Corporation
prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by a person believed by
the Rights Agent to be the Chief Executive Officer, the Chief
Financial Officer or the Secretary of the Corporation and
delivered to the Rights Agent; and such certificate will be full
authorization to the Rights Agent for any action taken, omitted
or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate;
21
(c) The Rights Agent will be liable hereunder only for its
own negligence, bad faith or wilful misconduct;
(d) The Rights Agent will not be liable for or by reason of
any of the statements of fact or recitals contained in this
Agreement or in the certificates for Common Shares or the Rights
Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and
recitals are and will be deemed to have been made by the
Corporation only;
(e) The Rights Agent will not be under any responsibility
in respect of the validity of this Agreement or the execution
and delivery hereof (except the due authorization, execution and
delivery hereof by the Rights Agent) or in respect of the
validity or execution of any Common Share certificate or Rights
Certificate (except its countersignature thereof); nor will it
be responsible for any breach by the Corporation of any covenant
or condition contained in this Agreement or in any Rights
Certificate; nor will it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void
pursuant to Subsection 3.1(b) or any adjustment required under
the provisions of Section 2.3 or responsible for the
manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any
such adjustment (except with respect to the exercise of Rights
after receipt of the certificate contemplated by
Section 2.3 hereof describing any such adjustment); nor
will it by any act hereunder be deemed to make any
representation or warranty as to the authorization of any Common
Shares to be issued pursuant to this Agreement or any Rights or
as to whether any Common Shares will, when issued, be duly and
validly authorized, executed, issued and delivered and fully
paid and non-assessable;
(f) The Corporation agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement;
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its
duties hereunder from any person believed by the Rights Agent to
be the Chief Executive Officer, the Chief Financial Officer or
the Secretary of the Corporation, and to apply to such persons
for advice or instructions in connection with its duties, and it
shall not be liable for any action taken, omitted or suffered by
it in good faith in accordance with instructions of any such
Person;
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in Common
Shares, Rights or other securities of the Corporation or become
pecuniarily interested in any transaction in which the
Corporation may be interested, or contract with or lend money to
the Corporation or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Corporation or for any other legal
entity; and
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent will not be answerable or
accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Corporation
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in good faith in the
selection and continued employment thereof.
The Rights Agent may resign and be discharged from its duties
under this Agreement upon 60 days’ notice (or such
lesser notice as is acceptable to the Corporation) in writing
mailed to the Corporation and to the transfer agent of Voting
Shares (if different than the Rights Agent) by registered or
certified mail, and to the holders of the Rights in accordance
with Section 5.10, all of which shall be at the expense of
the Corporation. The Corporation may remove the Rights Agent
upon 30 days’ notice in writing, mailed to the Rights
Agent and to the transfer agent of the Common Shares by
registered or certified mail, and to the holders of the Rights
in accordance with Section 5.10. If the Rights Agent should
resign or be removed or otherwise become incapable of acting,
the Corporation will appoint a successor to the Rights Agent. If
the Corporation fails to make such appointment within a period
of 30 days after such removal or after it has been notified
in writing of such resignation or incapacity by the resigning
22
or incapacitated Rights Agent (at the Corporation’s
expense) or by the holder of any Rights (which holder shall,
with such notice, submit such holder’s Rights Certificate
for inspection by the Corporation), then the holder of any
Rights may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Corporation or by such a court, shall
be a corporation incorporated under the laws of Canada or a
province thereof authorized to carry on the business of a trust
company in the Province of British Columbia. After appointment,
the successor Rights Agent will be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
predecessor Rights Agent, upon receipt of any and all
outstanding amounts owing pursuant to this Agreement, shall
deliver and transfer to the successor Rights Agent any property
at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Corporation will file notice thereof in writing
with the predecessor Rights Agent and the transfer agent of the
Common Shares, and mail a notice thereof in writing to the
holders of the Rights. Failure to give any notice provided for
in this Section 4.4, however, or any defect therein, shall
not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
ARTICLE 5
(a) Until the occurrence of a Flip-in Event as to which the
application of Section 3.1 has not been waived pursuant to
Section 5.2, the Board of Directors:
(A) may, at any time prior to the Separation Time, with the
prior consent of the holders of Voting Shares given in
accordance with Subsection 5.5(e), or
(B) may, at any time after the Separation Time, with the
prior consent of the holders of Rights given in accordance with
Subsection 5.5(f),
elect to redeem all but not less than all of the then
outstanding Rights at a redemption price of $0.001 per Right,
appropriately adjusted in a manner analogous to the applicable
adjustment provided for in Section 2.3, if an event of the type
analogous to any of the events described in Section 2.3
shall have occurred (such redemption price being herein referred
to as the “Redemption Price”).
(b) If, at any time prior to the occurrence of a Flip-in
Event, a Person acquires, pursuant to a Permitted Bid
Acquisition or an Exempt Acquisition under Subsection 5.2(b)
hereof, outstanding Voting Shares, the Board of Directors of the
Corporation shall, immediately upon such acquisition and without
further formality, be deemed to have elected to redeem the
Rights at the Redemption Price.
(c) Where a Take-over Bid that is not a Permitted Bid or a
Competing Permitted Bid expires, is withdrawn or otherwise
terminated after the Separation Time has occurred and prior to
the occurrence of a Flip-in Event, the Board of Directors may
elect to redeem all of the outstanding Rights at the
Redemption Price.
(d) If the Board of Directors elects to or is deemed to
have elected to redeem the Rights (i) the right to exercise
the Rights will thereupon, without further action and without
notice, terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price, and
(ii) subject to Subsection 5.1(f), no further Rights shall
thereafter be issued.
(e) Within 10 Business Days of the Board of Directors
electing or having been deemed to have elected to redeem the
Rights, the Corporation shall give notice of redemption to the
holders of the then outstanding Rights by mailing such notice to
each such holder at his last address as it appears upon the
Rights Register of the Rights Agent, or, prior to the Separation
Time, on the share register maintained by the Corporation’s
transfer agent or transfer agents. Each such notice of
redemption shall state the method by which the payment of the
Redemption Price shall be made.
23
(f) Upon the Rights being redeemed pursuant to Subsection
5.1(c), all the provisions of this Agreement shall continue to
apply as if the Separation Time had not occurred and Rights
Certificates representing the number of Rights held by each
holder of record of Common Shares as of the Separation Time had
not been mailed to each such holder and for all purposes of this
Agreement, the Separation Time shall be deemed not to have
occurred.
(a) With the prior consent of the holders of Voting Shares
obtained in accordance with Subsection 5.5(c), the Board of
Directors may, at any time prior to the occurrence of a Flip-in
Event that would occur by reason of an acquisition of Voting
Shares otherwise than pursuant to a Take-over Bid made by means
of a take-over bid circular to all holders of Voting Shares or
convertible securities or otherwise than in the circumstances
set forth in Subsection 5.2(c), waive the application of
Section 3.1 to such Flip-in Event by written notice
delivered to the Rights Agent. In such event, the Board of
Directors shall extend the Separation Time to a date at least 10
Business Days subsequent to the meeting of shareholders called
to approve such waiver.
(b) The Board of Directors may, at any time prior to the
occurrence of a Flip-in Event that would occur as a result of a
Take-over Bid made by way of a take-over bid circular sent to
all holders of Voting Shares, waive the application of
Section 3.1 to such Flip-in Event by written notice
delivered to the Rights Agent; provided, however, that if the
Board of Directors waives the application of Section 3.1 to
such a Flip-in Event, the Board of Directors shall be deemed to
have waived the application of Section 3.1 to any other Flip-in
Event occurring by reason of any Take-over Bid which is made by
means of a take-over bid circular to all holders of Voting
Shares prior to the expiry of any Take-over Bid in respect of
which a waiver is, or is deemed to have been, granted under this
Subsection 5.2(b).
(c) The Board of Directors may waive the application of
Section 3.1 to a Flip-in Event provided that the following
conditions are satisfied:
(A) the Board of Directors has determined that the
Acquiring Person became an Acquiring Person by inadvertence and
without any intention to become, or knowledge that it would
become, an Acquiring Person; and
(B) such Acquiring Person has reduced its Beneficial
Ownership of Voting Shares such that at the time of the waiver
pursuant to this Subsection 5.2(c), it is no longer an Acquiring
Person.
(d) The Board of Directors may, prior to the close of
business on the tenth Trading Day following a Stock Acquisition
Date or such later Business Day as they may from time to time
determine, upon prior written notice delivered to the Rights
Agent, waive the application of Section 3.1 to the related
Flip-in Event, provided that the Acquiring Person has reduced
its Beneficial Ownership of Voting Shares (or has entered into a
contractual arrangement with the Corporation, acceptable to the
Board of Directors, to do so within 10 calendar days of the date
on which such contractual arrangement is entered into or such
other date as the Board of Directors may have determined) such
that at the time the waiver becomes effective pursuant to this
Section 5.2(d) such Person is no longer an Acquiring
Person. In the event of such a waiver becoming effective prior
to the Separation Time, for the purposes of this Agreement, such
Flip-in Event shall be deemed not to have occurred.
5.3 Expiration
No Person shall have any rights pursuant to this Agreement or in
respect of any Right after the Expiration Time, except the
Rights Agent as specified in Subsection 4.1(a) hereof.
Notwithstanding any of the provisions of this Agreement or of
the Rights to the contrary, the Corporation may, at its option,
issue new Rights Certificates evidencing Rights in such form as
may be approved by the Board of Directors to reflect any
adjustment or change in the number or kind or class of shares
purchasable upon exercise of Rights made in accordance with the
provisions of this Agreement.
24
(a) The Corporation may from time to time prior to or after
the Separation Time supplement or amend this Agreement without
the approval of any holders of Rights or Voting Shares in order
to correct any clerical or typographical error or to maintain
the validity and effectiveness of this Agreement as a result of
any change in applicable laws, rules or regulatory requirements.
The Corporation may, prior to the date of the shareholders
meeting referred to in Section 5.19, amend, vary or rescind
any of the provisions of this Agreement without the approval of
any holders of Voting Shares. Notwithstanding anything in this
Section 5.5 to the contrary, no such amendment, variation or
rescission shall be made to the provisions of Article 4
except with the written concurrence of the Rights Agent to such
amendment, variation or rescission.
(b) Subject to Subsection 5.5(a), the Corporation may, with
the prior consent of the holders of Rights or Voting Shares,
obtained as set forth below, at any time prior to the Separation
Time, amend, vary or rescind any of the provisions of this
Agreement and the Rights (whether or not such action would
materially adversely affect the interest of the holders of
Rights generally), in order to effect any amendments, variations
or rescissions of any of the provisions of this Agreement which
the Board of Directors considers necessary or desirable.
(c) Subject to Subsection 5.5(a), the Corporation may, with
the prior consent of the holders of Rights obtained as set forth
below, at any time after the Separation Time and before the
Expiration Time, amend, vary or rescind any of the provisions of
this Agreement and the Rights (whether or not such action would
materially adversely affect the interest of the holders of
Rights generally), in order to effect any amendments, variations
or rescissions of any of the provisions of this Agreement which
the Board of Directors considers necessary or desirable.
(d) Any amendments made by the Corporation to this
Agreement pursuant to Subsection 5.5(a) which are required to
maintain the validity and effectiveness of this Agreement as a
result of any change in any applicable laws, rules or regulatory
requirements shall:
(A) if made before the Separation Time, be submitted to the
holders of Voting Shares at the next meeting of holders of
Voting Shares and the holders of Voting Shares may, voting as
set forth below, confirm or reject such amendment; and
(B) if made after the Separation Time, be submitted to the
holders of Rights (voting as set forth below) for confirmation
or rejection.
provided that any such amendment shall, unless the Board of
Directors otherwise stipulates, be effective from the date of
the resolution of the Board of Directors adopting such
amendment, until it is confirmed or rejected or until it ceases
to be effective (as described in the next sentence) and, where
such amendment is confirmed, it shall continue in effect in the
form so confirmed. If such amendment is rejected by the holders
of Voting Shares or the holders of Rights or is not submitted to
the holders of Voting Shares or holders of Rights as required,
then such amendment shall cease to be effective from and after
the termination of the meeting at which it was rejected or to
which it should have been but was not submitted or if such a
meeting of the holders of Rights is not called within
90 days, at the end of such period, and no subsequent
resolution of the Board of Directors to amend this Agreement to
substantially the same effect shall be effective until confirmed
by the holders of Voting Shares or holders of Rights as the case
may be.
(e) Any approval of the holders of Voting Shares required
under this Agreement shall be deemed to have been given if the
action requiring such approval is approved by (i) a
majority of the votes cast in respect thereof by Independent
Shareholders present or represented in person or by proxy and
entitled to vote at a meeting of such holders duly held in
accordance with applicable laws and the by-laws of the
Corporation or (ii) a written instrument signed by holders
of over 50% of the outstanding Voting Shares that are held by
Independent Shareholders.
(f) Any approval of the holders of Rights required under
this Agreement shall be deemed to have been given if the action
requiring such approval is approved by (i) a majority of
the votes cast in respect thereof by holders of Rights present
or represented in person or by proxy and entitled to vote at a
meeting such holders (for which purposes each outstanding Right
(other than Rights which are void pursuant to the provisions
hereof) shall be entitled to one vote, and the procedures for
the calling, holding and conduct of the meeting shall be those,
as nearly as may be, which are provided in the
Corporation’s by-laws, the Corporations Act and any other
applicable law, rule
25
or regulation with respect to meetings of shareholders of the
Corporation), or (ii) a written instrument signed by
holders of over 50% of the outstanding Rights (other than Rights
which are void pursuant to the provisions hereof).
(a) The Corporation shall not be required to issue
fractions of Rights or to distribute Rights Certificates which
evidence fractional Rights and the Corporation shall not be
required to pay any amount to a holder of record of Rights
Certificates in lieu of such fractional Rights.
(b) Share certificates for Common Shares shall only be
issued upon written request to the Corporation and the
Corporation shall not be required in any circumstances to issue
fractional Common Shares upon exercise of the Rights or to
distribute certificates which evidence fractional Common Shares.
In lieu of issuing fractional Common Shares, the Corporation
shall pay to the registered holder of Rights Certificates at the
time such Rights are exercised as herein provided, an amount in
cash equal to the same fraction of the Market Value of one
Common Share. The Rights Agent shall have no obligation to make
any payments in lieu of fractional Common Shares unless the
Corporation shall have provided the Rights Agent with the
necessary funds to pay in full all amounts payable in accordance
with this subsection 5.6(b).
5.7 Rights
of Action
Subject to the terms of this Agreement, rights of action in
respect of this Agreement, other than rights of action vested
solely in the Rights Agent, are vested in the respective holders
of the Rights; and any holder of any Rights, without the consent
of the Rights Agent or of the holder of any other Rights, may,
on such holders own behalf and for such holders own benefit and
the benefit of other holders of Rights, enforce, and may
institute and maintain any suit, action or proceeding against
the Corporation to enforce, or otherwise act in respect of, such
holder’s right to exercise such holder’s Rights in the
manner provided in such holder’s Rights Certificate and in
this Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will
be entitled to specific performance of the obligations under,
and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
No holder, as such, of any Rights shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of
Common Shares or any other securities which may at any time be
issuable on the exercise of such Rights, nor shall anything
contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights, as such, any of the rights
of a shareholder of the Corporation or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as
provided in Section 5.9 hereof), or to receive dividends or
subscription rights or otherwise, until such Rights shall have
been exercised in accordance with the provisions hereof.
If after the Separation Time and prior to the Expiration Time:
(A) there shall occur an adjustment in the rights attaching
to the Rights pursuant to Section 3.1 as a result of the
occurrence of a Flip-in Event, or
(B) the Corporation proposes to effect the liquidation,
dissolution or winding up of the Corporation or the sale of all
or substantially all of the Corporation’s assets,
then, in each such case, the Corporation shall give to each
holder of a Right, in accordance with Section 5.10, a
notice of such event or proposed action, which shall specify the
date on which such change to the Rights, liquidation,
dissolution or winding up occurred or is to take place, and such
notice shall be so given within 10 Business Days after the
occurrence of a change to the Rights and not less than 20
Business Days prior to the date of taking such proposed action
by the Corporation.
26
5.10 Notices
Notices or demands authorized or required by this Agreement to
be given or made by the Rights Agent or by the holder of any
Rights to or on the Corporation shall be sufficiently given or
made if delivered or sent by first class mail, postage prepaid
or sent by fax, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Lions Gate Entertainment Corp.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax No.: 000.000.0000
Fax No.: 000.000.0000
Any notice or demand authorized or required by this Agreement to
be given or made by the Corporation or by the holder of any
Rights to or on the Rights Agent shall be sufficiently given or
made if delivered or sent by first-class mail, postage prepaid
or sent by fax, addressed (until another address is filed in
writing with the Corporation) as follows:
CIBC Mellon Trust Company
0000-0000 Xxxx Xxxxxxxx Xx
Xxxxxxxxx, XX
X0X 0XX
0000-0000 Xxxx Xxxxxxxx Xx
Xxxxxxxxx, XX
X0X 0XX
Attention: Van Bot
Fax No.: 000-000-0000
Fax No.: 000-000-0000
Notices or demands authorized or required by this Agreement to
be given or made by the Corporation or the Rights Agent to or on
the holder of any Rights shall be sufficiently given or made if
delivered or sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as it
appears upon the Rights Register (as defined in Subsection
2.6(a)) or, prior to the Separation Time, on the registry books
of the Corporation for the Common Shares. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice.
5.11 Costs
of Enforcement
The Corporation agrees that if the Corporation fails to fulfil
any of its obligations pursuant to this Agreement, then the
Corporation will reimburse the holder of any Rights for the
costs and expenses (including legal fees) reasonably incurred by
such holder in actions to enforce his rights pursuant to any
Rights or this Agreement.
5.12 Successors
All the covenants and provisions of this Agreement by or for the
benefit of the Corporation or the Rights Agent shall bind and
inure to the benefit of their respective successors and assigns
hereunder.
Nothing in this Agreement shall be construed to give to any
Person other than the Corporation, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Corporation, the Rights Agent
and the holders of the Rights.
5.14 Governing
Law
This Agreement and each Right issued hereunder shall be deemed
to be a contract made under the laws of the Province of British
Columbia and for all purposes shall be governed by and construed
in accordance with the laws of such province applicable to
contracts to be made and performed entirely within such
province.
27
5.15 Severability
If any term or provision hereof or the application thereof to
any circumstance shall, in any jurisdiction and to any extent,
be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such
invalidity or unenforceability without invalidating or rendering
unenforceable the remaining terms and provisions hereof or the
application of such term or provision to circumstances other
than those as to which it is held invalid or unenforceable.
All actions, calculations and determinations (including all
omissions with respect to the foregoing) which are done or made
by the Board of Directors in good faith pursuant to this
Agreement, shall not subject the Board of Directors to any
liability to the holders of the Rights.
5.17 Regulatory
Approvals
Any obligation of the Corporation or action or event
contemplated by this Agreement, or any amendment or supplement
to this Agreement, shall be subject to receipt of any requisite
approval or consent from any governmental or regulatory
authority having jurisdiction including, while any securities of
the Corporation are listed and admitted to trading thereon, the
New York Stock Exchange.
If, in the opinion of the Board of Directors (who may rely upon
the advice of counsel), any action or event contemplated by this
Agreement would require compliance by the Corporation with the
securities laws or comparable legislation of a jurisdiction
outside Canada or the United States, the Board of Directors
acting in good faith shall take such actions as it may deem
appropriate to ensure such compliance. In no event shall the
Corporation or the Rights Agent be required to issue or deliver
Rights or securities issuable on exercise of Rights to persons
who are citizens, residents or nationals of any jurisdiction
other than Canada or the United States, in which such issue or
delivery would be unlawful without registration of the relevant
Persons or securities for such purposes.
5.19 Effective
Time
This Agreement is effective and in full force and effect in
accordance with its terms from and after the date hereof. At the
first annual or special meeting of holders of Voting Shares of
the Corporation following the date hereof, the Corporation shall
request confirmation of this Agreement by the holders of its
Voting Shares. If this Agreement is not confirmed by a majority
of the votes cast by Independent Shareholders who vote in
respect of confirmation of this Agreement at such meeting, then
this Agreement and all outstanding Rights shall terminate and be
void and of no further force and effect on and from the close of
business on the date of termination of such meeting.
Notwithstanding anything in this Agreement to the contrary, at
any time before this Agreement is confirmed by the shareholders
of the Corporation in accordance with Section 5.19, the
Board of Directors may in its absolute discretion terminate the
Agreement by adopting a resolution to such effect and all
outstanding Rights shall terminate and shall be void and of no
further force and effect from the date specified in such
resolution.
5.21 Time
of the Essence
Time shall be of the essence in this Agreement.
5.22 Counterparts
This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute
one and the same instrument.
28
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
LIONS GATE ENTERTAINMENT CORP.
Per: |
/s/
|
Per: |
/s/
|
CIBC MELLON TRUST COMPANY
Per: |
/s/
|
Per: |
/s/
|
EXHIBIT
“A”
(Form of Rights Certificate)
(Form of Rights Certificate)
Certificate No. | Rights |
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
CORPORATION, ON THE TERMS SET FORTH IN THE SHAREHOLDER RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SUBSECTION
3.1(b) OF THE SHAREHOLDER RIGHTS AGREEMENT), RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON OR ITS AFFILIATES OR ASSOCIATES OR
ANY PERSON ACTING JOINTLY OR IN CONCERT WITH ANY OF THEM (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES
OF ANY OF THE FOREGOING WILL BECOME NULL AND VOID WITHOUT
FURTHER ACTION.
This certifies that
,
or registered assigns, is the registered holder of the number of
Rights set forth above, each of which entitles the registered
holder thereof, subject to the terms, provisions and conditions
of the Shareholder Rights Plan Agreement dated as of
March 12, 2010 (the “Rights Agreement”) between
Lions Gate Entertainment Corp., a corporation existing under the
laws of British Columbia (the “Corporation”) and CIBC
Mellon Trust Company, a trust company existing under the
laws of Canada, as Rights Agent (the “Rights Agent”,
which term shall include any successor Rights Agent under the
Rights Agreement), to purchase from the Corporation at any time
after the Separation Time and prior to the Expiration Time (as
such terms are defined in the Rights Agreement), one fully paid
common share of the Corporation (a “Common Share”) at
the Exercise Price referred to below, upon presentation and
surrender of this Rights Certificate with the Form of Election
to Exercise duly executed and submitted to the Rights Agent at
its office in the City of Vancouver or at any other office of
the Rights Agent in the cities designated from time to time for
that purpose by the Corporation. Until adjustment thereof in
certain events as provided in the Rights Agreement, the Exercise
Price shall be an amount equal to four times the Market Price
Per Common Shares (as such term is defined in the Rights
Agreement) determined as at the Separation Time.
In certain circumstances described in the Rights Agreement, each
Right evidenced hereby may entitle the registered holder thereof
to purchase more or less than one Common Share, all as provided
in the Rights Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Rights Agent, the Corporation and the holders
of the Rights. Copies of the Rights Agreement are on file at the
head office of the Corporation and are available upon written
request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at any of the offices of the Rights
Agent designated for such purpose, may be exchanged for another
Rights Certificate or Rights Certificates of like tenor and date
evidencing an aggregate number of Rights equal to the aggregate
number of Rights evidenced by the Rights Certificate or Rights
Certificates surrendered. If this Rights Certificate shall be
exercised in part, the registered holder shall be entitled to
receive, upon surrender hereof, another Rights Certificate or
Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be, and under certain
circumstances are required to be, redeemed by the Corporation at
a redemption price of C$0.001 per Right, subject to adjustment
in certain events.
No fractional Common Shares will be issued upon the exercise of
any Right or Rights evidenced hereby, but in lieu thereof, a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of Common Shares or any other securities which may at any
time be issuable upon the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the
election of directors
or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action,
or to receive notice of meeting or other actions affecting
shareholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until
the Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officer of the
Corporation and its corporate seal.
Date:
LIONS GATE ENTERTAINMENT CORP.
Per: |
Authorized Signing Officer
Per: |
Authorized Signing Officer
Countersigned:
CIBC MELLON TRUST COMPANY
Per: |
Authorized Signing Officer
Per: |
Authorized Signing Officer
(To be
attached to each Rights Certificate)
TO:
The undersigned hereby irrevocably elects to exercise whole
Rights represented by the attached Rights Certificate to
purchase the Common Shares issuable upon the exercise of such
Rights and requests that such shares be registered in the name
of:
Name: |
Address: |
Social Insurance, Social Security or Other Taxpayer Identification Number: |
DATED:
Signature: |
(Signature must correspond to name as written upon the face of
this Rights Certificate in every particular, without alteration
or enlargement or any change whatsoever)
Signature
Guaranteed
Signature must be guaranteed by a major Schedule I Canadian
chartered bank, a major Canadian trust company or a member of a
recognized Medallion Guarantee Program.
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and Common Shares, that the Rights evidenced
by this Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring
Person or an Affiliate or Associate thereof or by any Person
acting jointly or in concert with any of the foregoing (all as
defined in the Rights Agreement).
Signature: |
In the event the certification set forth above is not completed,
the Corporation will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person
(as defined in the Rights Agreement) and, accordingly, such
Rights shall be null and void and not transferable or
exercisable.
(To be executed by the registered holder if such holder
desires to transfer the Rights evidenced by
this Certificate.)
FOR VALUE
RECEIVED
hereby sells, assigns and transfers
unto
(please print name and address of transferee) the Rights
evidenced by this Rights Certificate, together with all right,
title and interest therein, and does hereby irrevocably
constitute and
appoint
attorney, to transfer the within Rights on the books of the
within-named Corporation, with full power of substitution.
DATED:
Signature: |
(Signature must correspond to name as written upon the face of
this Rights Certificate in every particular, without alteration
or enlargement or any change whatsoever)
Signature
Guaranteed
Signature must be guaranteed by a major Schedule I Canadian
chartered bank or a member of a recognized Medallion Guarantee
Program.
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and Common Shares, that the Rights evidenced
by this Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring
Person or an Affiliate or Associate thereof or by any Person
acting jointly or in concert with any of the foregoing (as
defined in the Rights Agreement).
Signature: |
In the event the certification set forth above is not completed,
the Corporation will deem the Beneficial Owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person
(as defined in the Rights Agreement) and, accordingly, such
Rights shall be null and void and not transferable or
exercisable.
2