EXECUTION COPY
AGREEMENT
Agreement dated as of August 30, 2011 (this "Agreement"), by and among Xxxx X.
Icahn, Xxxxx Xxxxx and their affiliated funds ("Icahn") and Xxxx X. Xxxxxxxx and
his affiliated funds ("Rachesky"). The parties hereby agree as follows:
1. Simultaneously with the execution and delivery of this Agreement, Rachesky
irrevocably purchases from Icahn and Icahn irrevocably sells to Rachesky
11,040,493 common shares, no par value per share ( "Shares") of Lions Gate
Entertainment Corp. ("Lions Gate"), free and clear of all Encumbrances at $7.00
per Share in cash for aggregate cash consideration of $77,283,451.00. Rachesky
and Icahn shall use best efforts to cause such transaction to settle as soon as
possible, but in no event shall such transaction settle later than September 2,
2011. Icahn shall deliver such Shares to or as directed by Rachesky (via DTC
book entry transfer, by delivering stock certificates or through a combination
of the foregoing) immediately following confirmation of receipt of a wire
transfer, to an account designated by Icahn, of the purchase price set forth
above.
2. The parties acknowledge and agree that the 1,236,938 Shares purchased by
Icahn in February 2010 shall not be sold pursuant to this Agreement. Rachesky
represents, warrants, covenants and agrees that: (i) Icahn shall have no
obligation or liability for any brokerage fees, commissions, underwriting
discounts or other similar fees or expenses relating to the transactions
contemplated by this Agreement incurred by any Person ; and (ii) all amounts
payable to Icahn hereunder shall be delivered to Icahn without any deductions or
withholdings by any Person for brokerage fees, commissions, underwriting
discounts, taxes or otherwise.
3. The parties will cooperate to make all filings in all courts and tribunals of
Canada, the United States and New York State, and will take all other actions,
as are necessary to cause all currently pending litigation between or among the
parties to be dismissed with prejudice as soon as possible following the
settlement of the transactions contemplated by paragraph 1 above and paragraph 1
of that certain agreement dated as of the date hereof, among Icahn, Lions Gate
and two of Lions Gate's wholly owned subsidiaries (the "Settlement Time").
4. Effective as of the Settlement Time, each party shall, and hereby does,
release each of the other parties and each of their present and former officers,
directors, shareholders, partners (limited or general), members, managers,
investment advisors, investment managers and their employees, employees, agents,
attorneys, successors and assigns from any and all liability, actions, charges,
causes of action, demands, damages, or claims, of any kind or character, in any
way relating to Lions Gate, any securities of Lions Gate, any disclosures made
by Lions Gate, Rachesky or any of their respective affiliates, any actions,
decisions, or deliberations of Lions Gate or its officers or directors or any of
its affiliates, any purchase or sale of Lions Gate securities, any filing,
statement, action, discussion or activity relating to or concerning Lions Gate,
or any matter relating to or arising from or in connection with any investment
in Lions Gate (any of the foregoing, "Claims"), including but not limited to all
Claims for relief, remuneration, sums of money, accounts or expenses of any kind
whatsoever, whether known or unknown, accrued or unaccrued or contingent or
absolute (the foregoing, including, without limitation, attorneys' fees and
costs, including any award of costs made in any proceeding in favor of any
party, referred to herein as "Expenses"), which heretofore has been or which
hereafter may be suffered or sustained, directly or indirectly, by the releasing
party by reason of any matter, fact or cause whatsoever relating to Lions Gate,
any securities of Lions Gate, any disclosures made by Lions Gate, Rachesky or
any of their respective affiliates, any actions, decisions, or deliberations of
Lions Gate or its officers or directors or any of its affiliates, any purchase
or sale of Lions Gate securities, any filing, statement, action, discussion or
activity relating to or concerning Lions Gate, or any matter relating to or
arising from or in connection with any investment in Lions Gate, from the
beginning of time to the date of this Agreement (but, subject to paragraph 7
hereof, this paragraph 4 does not apply to any Claims arising under this
Agreement). The release contemplated by this paragraph 4 is intended to be as
broad as permitted by law and is intended to, and does, extinguish all Claims
and Expenses of any kind whatsoever, whether in law or equity or otherwise, that
are based on facts or conditions or actions that have existed or occurred at any
time from the beginning of time to the date of this Agreement. It is the
intention of the parties to extinguish all Claims and Expenses and, consistent
with such intention, the parties waive any and all rights, to the extent
permitted by law, under Section 1542 of the California Civil Code, if
applicable, or any other applicable similar state law, federal law or principle
of common law, which may have the effect of limiting the releases set forth in
Sections 1 and 2 above. Section 1542 of the California Code provides: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
5. Effective as of the date hereof and ending on the last day of the Specified
Period (as such term is defined in that certain agreement dated as of the date
hereof among Icahn, Lions Gate and two of Lions Gate's wholly owned
subsidiaries), each party hereby agrees that it shall not, directly or
indirectly, make, or cause to be made, any statement or announcement that
relates to and constitutes an ad hominem attack on, or relates to and
disparages, any of the other parties or their directors, officers, employees or
affiliates, on or following the date of this Agreement with respect to any
matter directly or indirectly relating to Lions Gate: (A) in any document or
report filed with or furnished to the SEC or any other governmental agency, (B)
in any press release or other publicly available format, or (C) to any
journalist or member of the media (including without limitation, in a
television, radio, newspaper or magazine interview).
6. The parties will reasonably cooperate and consult with one another with
respect to regulatory and other filings in connection with this Agreement and
the transactions contemplated hereby. Each party shall execute such other
documents and take such other actions as are reasonably requested by another
party hereto to carry out the provisions hereof and the transactions
contemplated hereby. Each party acknowledges that the other parties are
obligated to disclose and file a copy of this Agreement pursuant to US and
Canadian securities laws and agrees that nothing in this Agreement shall
restrict the parties' ability to make such disclosures or filings. Rachesky
acknowledges and reasonably believes that the Claims and Expenses it is
releasing and the cases it is dismissing are no more valuable than those Icahn
is releasing and dismissing, and Icahn acknowledges and reasonably believes that
the Claims and Expenses it is releasing and the cases it is dismissing are no
more valuable than those Rachesky is releasing and dismissing.
7. Each party has conducted its own investigation with respect to the Shares,
acknowledges that the other parties may be in possession of material, nonpublic
information regarding Lions Gate and agrees that no other party shall have any
obligation to disclose such information to such party.
8. Representations and Warranties. The parties hereby represent and warrant as
follows:
(a) Neither Icahn nor, if applicable, any fund, account or other Person on
behalf of which it is selling, is Canadian. Icahn is not a nominee, agent,
trustee, executor, administrator or other legal representative for one or more
other Canadian Persons having a direct beneficial interest in the Shares.
Icahn did not acquire the Shares, including from an Affiliated fund or account
of Icahn, in order to sell such Shares to Rachesky. "Canadian" shall mean any
Person who is a resident of or otherwise in Canada or is, to Icahn's knowledge,
shown on the books of Lions Gate as having an address in Canada. "Person" shall
mean any individual, corporation, company, association, partnership, limited
liability company, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
(b) Neither Rachesky nor, if applicable, any fund, account or other Person on
behalf of which it is purchasing, is Canadian. Rachesky is not a nominee, agent,
trustee, executor, administrator or other legal representative for one or more
other Canadian Persons seeking to acquire a beneficial interest in the Shares.
Rachesky is not acquiring the Shares in order to sell such Shares to another
Person. "Canadian" shall mean any Person who is a resident of or otherwise in
Canada or is, to Rachesky's knowledge, shown on the books of Lions Gate as
having an address in Canada. "Person" shall mean any individual, corporation,
company, association, partnership, limited liability company, joint venture,
trust or unincorporated organization, or a government or any agency or political
subdivision thereof.
(c) Icahn has good, valid and marketable title to all of the Shares, free and
clear of any and all Encumbrances. Icahn has the sole right to dispose or direct
the disposition of the Shares. "Encumbrance" shall mean any security interest,
claim, pledge, lien, charge, voting agreement, proxy, mortgage, conditional sale
agreement, title retention agreement, option, adverse claim of ownership or use,
any restriction on ownership, use, voting or transfer, or any other encumbrance
of any kind, character or description whatsoever.
(d) Icahn is not as of the date hereof, and will not become, a party to any
agreement, arrangement or understanding with any Person which could result in
Rachesky having any obligation or liability for any brokerage fees, commissions,
underwriting discounts or other similar fees or expenses relating to the
transactions contemplated by this Agreement.
9. Icahn will cause all common shares of Lions Gate as to which Icahn has voting
rights to be present at the annual general meeting of shareholders to be held
September 13, 2011, or any adjournment or postponement thereof (provided that
Icahn shall have no obligations under this Section 9 after October 1, 2011) and
will abstain from voting in the election of directors and may vote his shares or
abstain from voting in his discretion on any other matter before such meeting.
For the avoidance of doubt, Icahn agrees not to propose any business to such
meeting.
10. Each party agrees that, in the event that any of them were to violate any
provision of this Agreement or fail to perform any obligation under this
Agreement in accordance with its specific terms, the other parties would suffer
irreparable injury, for which there may be no adequate remedy at law.
Consequently, each party agrees that, in the event of a breach or threatened
breach of this Agreement by any party, the other parties shall be entitled, in
addition to any other remedies to which they may be entitled at law, to
equitable relief, including an injunction, to prevent any breaches and to
enforce specifically this Agreement's terms and provisions. Each party also
agrees that any such equitable relief may be sought without the obligation of
posting any bond or surety. This Agreement shall be governed by the laws of the
State of New York and applicable federal United States laws. Each party agrees
to submit to personal and exclusive jurisdiction of the courts located in New
York County, New York.
__________________________________
XXXX X. ICAHN, individually and on
behalf of his affiliated funds
__________________________________
XXXXX XXXXX, individually and on
behalf of his affiliated funds
__________________________________
XXXX X. XXXXXXXX, individually and
on behalf of his affiliated funds
