UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant ¨ Filed by a Party other than the Registrant x
Check the appropriate box:
| x | Preliminary Proxy Statement |
| ¨ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ¨ | Definitive Proxy Statement |
| ¨ | Definitive Additional Materials |
| ¨ | Soliciting Material Pursuant to § 240.14a-12 |
Lions Gate Entertainment Corp.
(Name of Registrant as Specified In Its Charter)
Carl C. Icahn
Brett Icahn
Jesse Lynn
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
Icahn Fund S.à r.l.
Daazi Holding B.V.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
| ¨ | Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11. |
| | 1) | Title of each class of securities to which transaction applies: |
| | 2) | Aggregate number of securities to which transaction applies: |
| | 3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
| | 4) | Proposed maximum aggregate value of transaction: |
| ¨ | Fee paid previously with preliminary materials. |
| ¨ | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| | 1) | Amount Previously Paid: |
| | 2) | Form, Schedule or Registration Statement No.: |
Preliminary Copy
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THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION |
DISSIDENT PROXY CIRCULAR
SOLICITATION OF PROXIES BY AND ON BEHALF OF
CARL C. ICAHN
BRETT ICAHN
JESSE LYNN
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
HIGH RIVER LIMITED PARTNERSHIP
ICAHN FUND S.À R.L.
DAAZI HOLDING B.V.
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
ICAHN CAPITAL LP
IPH GP LLC
ICAHN ENTERPRISES HOLDINGS L.P.
ICAHN ENTERPRISES G.P. INC.
BECKTON CORP.
IN CONNECTION WITH THE SPECIAL MEETING OF SHAREHOLDERS OF
LIONS GATE ENTERTAINMENT CORP.
TO BE HELD ON MAY 4, 2010
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RECOMMENDING SHAREHOLDERS OF LIONS GATE ENTERTAINMENT CORP. VOTE AGAINST THE RESOLUTION APPROVING, RATIFYING AND CONFIRMING THE ADOPTION OF THE SHAREHOLDER RIGHTS PLAN (POISON PILL) |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
Dear Fellow Lions Gate Shareholder:
This dissident proxy circular (“Dissident Circular”) has been prepared by Carl C. Icahn, Brett Icahn, Jesse Lynn, Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP, High River Limited Partnership, Icahn Fund S.à r.l., Daazi Holding B.V., Hopper Investments LLC, Barberry Corp., Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings L.P., Icahn Enterprises G.P. Inc. and Beckton Corp. (collectively, the “Icahn Group”). It solicits proxies AGAINST the resolution (the “Poison Pill Resolution”) proposed by the board and management of Lions Gate Entertainment Corp. (“Lions Gate”) to approve, ratify and confirm the adoption of the shareholder rights plan adopted by the board of directors of Lions Gate on March 11, 2010 (the “Poison Pill”) described in greater detail in the Lions Gate management information circular and proxy statement dated March 26, 2010 (the “Lions Gate Circular”). This Dissident Circular and gold form of proxy are being mailed or furnished to shareholders of Lions Gate commencing on or about April [ ], 2010. Each member of the Icahn Group is a participant in this proxy solicitation. For additional information regarding the Icahn Group and the participants in this proxy solicitation, see the Schedule TO (as defined below). This Dissident Circular, as well as the other proxy materials distributed by the Icahn Group, is also available free of charge at www.[ ].
To ensure that the Poison Pill is not approved, ratified and confirmed, fill out and return the gold form of proxy that accompanies this Dissident Circular or use the gold form of proxy to vote by telephone or internet as soon as possible. Please follow the instructions set forth under “General Proxy Information – Appointment of Proxies” in this Dissident Circular.
YOU CAN VOTE AGAINST THE POISON PILL RESOLUTION EVEN IF YOU HAVE PREVIOUSLY DEPOSITED A PROXY TO LIONSGATE MANAGEMENT OR GIVEN VOTING INSTRUCTIONS IN SUPPORT THEREOF.
APRIL [ ], 2010
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. ii |
FORWARD-LOOKING STATEMENTS
Certain statements contained in this Dissident Circular are “forward-looking statements” and are prospective. These statements may be identified by their use of forward-looking terminology such as the words “expects”, “projects”, “believes”, “anticipates”, “intends” or other similar words. Forward-looking statements are not based on historical facts, but rather on current expectations and projections about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements. These statements are subject to inherent risks and uncertainties surrounding future expectations. Important factors that could cause actual results to differ materially from the expectations set forth in this Dissident Circular include, among other things, the failure to meet conditions of the Icahn Offer (as defined below), the termination or extension of the Icahn Offer and the occurrence of risk factors as set forth in Lions Gate’s Annual Report on Form 10-K, filed with the U.S. Securities and Exchange Commission on June 1, 2009. Such forward-looking statements should therefore be construed in light of such factors, and the Icahn Group is under no obligation and expressly disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
CURRENCY
Unless otherwise indicated, all amounts in this Dissident Circular are stated in Canadian dollars.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. iii |
DISSIDENT PROXY CIRCULAR
This Dissident Circular and the accompanying gold form of proxy are furnished in connection with the solicitation by and on behalf of the Icahn Group of proxies to be used at the special meeting of holders of common shares of Lions Gate (“Lions Gate Shares”), scheduled to be held on May 4, 2010 at 10:00 a.m. (Toronto time) at the Four Seasons Hotel, Tudor Stuart Orange Room, 21 Avenue Road, Toronto, Ontario, Canada M5R 2G1, and at any and all continuations, adjournments or postponements thereof (the “Meeting”). The information contained in this Dissident Circular is given as of the date of this Dissident Circular, except where otherwise noted.
The Icahn Group strongly recommends that you VOTE AGAINST the Poison Pill Resolution because we believe that the Poison Pill deprives Lions Gate shareholders of the opportunity to participate in the Icahn Group’s offer to purchase up to all of the outstanding Lions Gate Shares for US$6.00 in cash per share. For more details, see “Reasons for and Purposes of this Solicitation”.
This solicitation of proxies is NOT made by or on behalf of management of Lions Gate. You may have recently received the Lions Gate Circular from management of Lions Gate soliciting proxies in respect of the Poison Pill Resolution.
The Poison Pill Resolution is described in more detail in the Lions Gate Circular which is available at www.sec.gov and at www.sedar.com. If the Poison Pill Resolution receives the requisite shareholder approval, Lions Gate shareholders may be deprived of the opportunity to choose for themselves whether or not to participate in the Icahn Group’s offer as described above. See “Reasons for and Purpose of this Solicitation”.
To be passed, the Poison Pill Resolution must be approved by the affirmative vote of a majority of the votes cast by Independent Shareholders (as defined in the Poison Pill) present in person or represented by proxy at the Meeting. Abstentions and broker non-votes will not be counted in determining the number of votes necessary for approval of any matter to be voted upon at the Meeting.
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The Icahn Group is soliciting GOLD proxy forms from Lions Gate shareholders to vote AGAINST the Poison Pill Resolution. You may also use your GOLD proxy form to vote by telephone or internet. |
HOW TO VOTE AGAINST THE POISON PILL RESOLUTION
If, after reading this Dissident Circular, you agree that the Poison Pill Resolution transaction is not in your best interests, please VOTE AGAINST it by following the instructions on page 3 of this Dissident Circular.
How Registered Holders Can Vote
If you are a registered holder of Lions Gate Shares, see “General Proxy Information – Appointment of Proxies” and “– Revocation of Proxies” at page 4 of this Dissident Circular for more information about the appointment and revocation of proxies and for instructions on completing and returning proxy forms.
How Beneficial Owners Can Vote
If you are not the registered holder but beneficially own your Lions Gate Shares, see “General Proxy Information – Non-Registered (Beneficial) Holders of Lions Gate Shares” at page 5 of this Dissident Circular for important information about how to vote your Lions Gate Shares.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
Timing and Deadlines
To ensure that your vote counts, fill out and return your gold form of proxy, or use your gold form of proxy to vote by telephone or internet, as soon as possible so that your vote is received on or before 10:00 a.m. New York City time on April 29, 2010 by D.F. King & Co., Inc. (see page 3 and the form of proxy for instructions on completing and returning your proxy and voting by telephone or internet), or if the Meeting is postponed or adjourned, not later than 48 hours (excluding Saturdays, Sundays and holidays) preceding the date of any adjourned or postponed Meeting. The Icahn Group will also make every effort to deliver proxies received after that time for use at the Meeting. If you have any questions or require any assistance in voting your Lions Gate Shares, contact D.F. King & Co., Inc. at 1-800-[ ] (toll-free) or 212-[ ] (collect).
YOU MAY RETURN A PROXY SOLICITED BY REPRESENTATIVES OF THE ICAHN GROUP EVEN IF YOU HAVE PREVIOUSLY DEPOSITED A FORM OF PROXY FROM LIONS GATE MANAGEMENT.
BACKGROUND TO THIS SOLICITATION
On February 16, 2010, the Icahn Group issued a press release announcing its intention to commence an offer to acquire up to 13,164,420 Lions Gate Shares at a price of US$6.00 per share (as amended from time to time, the “Icahn Offer”). If successful, at the completion of such an offer, the Icahn Group would have held approximately 29.9% of the outstanding Lions Gate Shares.
On March 1, 2010, certain members of the Icahn Group formally commenced the Icahn Offer, filed a Tender Offer Statement on Schedule TO with the U.S. Securities and Exchange Commission (as amended from time to time, the “Schedule TO”) and filed its circular with applicable Canadian provincial securities regulators via the System for Electronic Document Analysis and Retrieval (“SEDAR”), and on March 2, 2010, mailed the Icahn Offer and the accompanying take-over bid circular to Lions Gate shareholders. The Icahn Offer was initially scheduled to expire on April 6, 2010.
On March 12, 2010, Lions Gate filed its Solicitation/Recommendation Statement on Schedule 14D-9 with the U.S. Securities and Exchange Commission and its directors’ circular with the Canadian provincial securities regulators (the “Directors’ Circular”) recommending that Lions Gate shareholders reject the Icahn Offer. On the same date, Lions Gate announced that its board of directors had adopted the Poison Pill on March 11, 2010 in response to the Icahn Offer and that the Meeting would be held to approve, ratify and confirm the Poison Pill.
On March 19, 2010, the Icahn Group filed its Notice of Variation and Extension to amend the Icahn Offer to, among other things, increase the number of Lions Gate Shares offered to be purchased from up to 13,164,420 Lions Gate Shares to UP TO ALL of the issued and outstanding Lions Gate Shares, and extend the Icahn Offer to be open for acceptance until April 30, 2010. It is a condition of the Icahn Offer, among others, that there shall have been properly and validly deposited under the Icahn Offer and not withdrawn at least 40,492,682 Lions Gate Shares, which, when combined with the number of Lions Gate Shares owned by the Icahn Group and its affiliates, represents at least 50.1% of the outstanding Lions Gate Shares, after giving effect to the exercise of outstanding options and the vesting of outstanding restricted share units.
On March 23, 2010, the board of directors of Lions Gate issued a Notice of Change to the Directors’ Circular (the “Notice of Change”) in response to the Icahn Group’s Notice of Variation and Extension. In the Notice of Change, the Lions Gate board of directors continued to recommend that Lions Gate shareholders reject the Icahn Offer.
On March 26, 2010, Lions Gate filed a proxy statement on Schedule 14A with the U.S. Securities and Exchange Commission and a Notice of Special Meeting of Shareholders and a management information circular and proxy statement with the Canadian provincial securities regulators in connection with the Meeting.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 2 |
REASONS FOR AND PURPOSE OF THIS SOLICITATION
Lions Gate’s board of directors adopted the Poison Pill on March 11, 2010 in response to the commencement of the Icahn Offer. Prior to March 11, 2010, Lions Gate had never adopted a shareholder rights plan. The Icahn Group believes that the Poison Pill seriously prejudices the interests of Lions Gate shareholders by precluding them from exercising their fundamental right to decide whether to tender their Lions Gate Shares to the Icahn Offer.
It is a condition of the Icahn Offer that all rights issued or issuable under the Poison Pill shall have been cease traded, found to be illegal or unenforceable, redeemed by the board of directors of Lions Gate or otherwise eliminated (the “Poison Pill Condition”). Although, as described below, the Icahn Group does not intend to extend the Icahn Offer, if the Icahn Group were to elect to extend the Icahn Offer to a date that is after the Meeting, and the Poison Pill is not approved, ratified and confirmed at the Meeting, then the Poison Pill will terminate immediately and the Poison Pill Condition will be satisfied, at which time Lions Gate Shareholders will have the opportunity to freely decide whether to tender their Lions Gate Shares to the Icahn Offer. The Icahn Group believes that Lions Gate shareholders, not Lions Gate management, should ultimately decide whether the Icahn Offer is completed by being free to choose whether or not to tender their Lions Gate Shares to the Icahn Offer. Lions Gate shareholders who choose to vote in favour of the Poison Pill Resolution should not be able to prevent other Lions Gate shareholders from having this choice.
On March 24, 2010, the Icahn Group filed an application (the “Application”) with the British Columbia Securities Commission (the “Commission”) seeking an order pursuant to subsection 161(1) of the Securities Act (British Columbia) cease trading any securities issued, or to be issued, under, or in connection with, the Poison Pill, including, without limitation, any rights issued under the Poison Pill and any Lions Gate Shares to be issued upon the exercise of such rights (the “Cease Trade Order”). The Icahn Group has requested that its Application be heard by the Commission no later than April 27, 2010, three days prior to April 30, 2010, the date on which the Icahn Offer is scheduled to expire. If the Application is heard prior to April 30, 2010 and the Cease Trade Order is granted, then the proposed vote at the Meeting to approve, ratify and confirm the Poison Pill will be moot as the Poison Pill will have been rendered ineffective pursuant to the Cease Trade Order. If the Cease Trade Order is not granted prior to April 30, 2010, it is the intention of the Icahn Group not to extend the Icahn Offer. In such circumstances, the Poison Pill would remain in force if approved, ratified and confirmed at the Meeting by Lions Gate shareholders. If the Icahn Group elects to extend the Icahn Offer, absent a Cease Trade Order, the continued operation of the Poison Pill would continue to frustrate the ability of Lions Gate shareholders to decide for themselves whether to tender their Lions Gate Shares to the Icahn Offer.
We urge you to VOTE AGAINST the Poison Pill Resolution.
HOW THE ICAHN GROUP WILL VOTE
The representatives of the Icahn Group named in the enclosed gold form of proxy intend, unless instructed otherwise, to cast the votes represented by each such proxy AGAINST the Poison Pill Resolution.
GENERAL PROXY INFORMATION
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IF YOU ARE A REGISTERED HOLDER OF LIONS GATE SHARES: There are three ways to authorize the proxy to cast your votes. Your vote by telephone or internet authorizes the named proxy to vote your Lions Gate Shares in the same manner as if you had returned the form of proxy by mail. |
| TELEPHONE VOTING | | INTERNET VOTING | | VOTING BY MAIL |
| On a touch tone telephone, call TOLL FREE [ ], 24 hours a day, 7 days a week. Have the enclosed proxy card ready, then follow the prerecorded instructions. Your vote will be confirmed and cast as you have directed. Available 24 hours a day, 7 days a week until [ ] p.m. Eastern Daylight Time on April 29, 2010. | | Visit the internet voting website at http://[ ]. Have the enclosed proxy card ready and follow the instructions on your screen. You will incur only your usual internet charges. Available 24 hours a day, 7 days a week until [ ] p.m. Eastern Daylight Time on April 29, 2010. | | Simply sign and date your proxy card and return it in the postage-paid envelope to D.F. King and Co. Inc. If you are voting by telephone or internet, please do not mail your proxy card. |
To allow sufficient time for your proxy to be delivered for use at the Meeting, we urge you to sign, date and return your form of proxy, or use your form of proxy to vote by telephone or internet, so that your vote is received on or before 10:00 a.m. New York City time on April 29, 2010, or if the Meeting is postponed or adjourned, not later than 48 hours (excluding Saturdays, Sundays and holidays) preceding the date of any adjourned or postponed Meeting. The Icahn Group will also make every effort to deliver proxies received after that time for use at the Meeting. |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 3 |
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IF YOU ARE A NON-REGISTERED (BENEFICIAL) OWNER: To allow sufficient time for your proxy to be delivered for use at the Meeting, please sign, date and return your proxy or voting instruction form today pursuant to your intermediary’s instructions. Please see the section “– Non-Registered (Beneficial) Holders of Lions Gate Shares” at page 5 of this Dissident Circular for additional details. It is important that you act promptly. |
Appointment of Proxies
The persons named as proxyholders in the accompanying form of proxy are Carl C. Icahn, or failing him, Brett Icahn, or failing him, Jesse Lynn. Mr. Carl C. Icahn is the direct or indirect owner of each of the corporate entities comprising the Icahn Group. Mr. Brett Icahn is an investment analyst for Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP. Mr. Jesse Lynn is Assistant General Counsel of Icahn Enterprises L.P., a limited partnership that is indirectly controlled by Mr. Carl C. Icahn.
A Lions Gate shareholder has the right to appoint a person (who need not be a Lions Gate shareholder) other than the persons designated in the form of proxy provided to the Lions Gate shareholder, to represent the Lions Gate shareholder at the Meeting. You may exercise this right by inserting the name of the person you wish to appoint as your representative in the blank space provided in the form of proxy or by submitting another appropriate form of proxy. If you beneficially own your Lions Gate Shares but are not the registered holder, see “– Non-Registered (Beneficial) Holders of Lions Gate Shares” at page 5 of this Dissident Circular for important information about how to appoint a representative of the Icahn Group as proxyholder for your Lions Gate Shares.
A properly completed form of proxy bearing a later date, or instructing the Icahn Group by telephone or internet as to how you would like your Lions Gate Shares voted, will automatically revoke an earlier form of proxy deposited by you in respect of the Meeting. If you are a registered holder of Lions Gate Shares you may also revoke a proxy you have already given to Lions Gate management or any other proxy previously given by you by attending the Meeting and voting in person. See “– Revocation of Proxies” at page 4 of this Dissident Circular.
Corporate Lions Gate Shareholders
Any Lions Gate shareholder that is a corporation may, by resolution of its directors or other governing body, authorize such person as it determines appropriate to act as its representative at the Meeting. The person so authorized shall be entitled to exercise in respect of and at the Meeting the same powers on behalf of the corporation which he or she represents as that corporation could exercise if it were an individual Lions Gate shareholder personally present, including without limitation, the right, unless restricted by such resolution, to appoint a proxyholder to represent such corporation. Evidence in writing of the appointment of any such representative should accompany your completed proxy.
Revocation of Proxies
If you are a registered holder of Lions Gate Shares and you have previously given a proxy, you may revoke it:
| | 1. | by completing and signing a valid proxy bearing a later date and returning it to D.F. King & Co., Inc. as described above; or |
| | 2. | by instructing the Icahn Group by telephone or internet as to how you would like your Lions Gate Shares voted; or |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 4 |
| | 3. | by depositing a revocation in writing executed by you or by your attorney authorized in writing, as the case may be: (i) at the office of Lions Gate, at any time up to and including the last business day preceding the day the Meeting or any adjournment or postponement of the Meeting is to be held, or (ii) with the chair of the Meeting prior to its commencement on the day of the Meeting or any adjournment or postponement of the Meeting; or |
| | 4. | in any other manner permitted by law. |
If you beneficially own your Lions Gate Shares, see “– Non-Registered (Beneficial) Holders of Lions Gate Shares” at page 5 of this Dissident Circular for instructions on how to revoke any proxies you previously deposited.
Voting of Lions Gate Shares Represented by Proxy
The Icahn Group representatives designated in a proxy deposited by you as provided in this Dissident Circular will vote or withhold from voting your Lions Gate Shares represented by that proxy in accordance with your instructions on any ballot that may be called.
If you specify a choice with respect to voting, your Lions Gate Shares will be voted accordingly. If you do not specify a choice in an otherwise valid proxy, your Lions Gate Shares to which the proxy pertains will be voted AGAINST the Poison Pill Resolution.
The enclosed form of proxy confers discretionary authority upon the persons named therein to vote in the judgment of those persons in respect of amendments or variations, if any, to matters identified in Lions Gate’s notice of meeting dated March 26, 2010 and other matters, if any, which may properly come before the Meeting. The Icahn Group knows of no other matters to come before the Meeting other than as set forth above. Should any other matters properly come before the Meeting, the Lions Gate Shares represented by the relevant proxies will be voted on those matters in accordance with the judgment of the Icahn Group representatives designated in the form of proxy.
Non-Registered (Beneficial) Holders of Lions Gate Shares
Only registered holders of Lions Gate Shares, or the persons they appoint as their proxies, are entitled to vote at the Meeting. However, in many cases, Lions Gate Shares beneficially owned by a holder (a “non-registered holder”) are registered either:
| | 1. | in the name of an intermediary that the non-registered holder deals with in respect of the Lions Gate Shares (intermediaries include banks, trust companies, securities dealers or brokers, and trustees or administrators of self-administered RRSPs, RRIFs, RESPs and similar plans); or |
| | 2. | in the name of a depository (such as CDS Clearing & Depository Services Inc. in Canada or Cede & Co., as nominee for The Depository Trust Company, in the United States). |
The Icahn Group has distributed copies of this Dissident Circular and the gold form of proxy to the intermediaries or their designates for onward distribution to non-registered holders. Intermediaries are required to forward copies of this Dissident Circular and a form of proxy or voting instruction form to non-registered holders. If you are a non-registered holder and have received these materials, please sign and return the form of proxy or voting instruction form, in accordance with the directions provided by your intermediary.
You should carefully and promptly follow the instructions of your intermediary and its service company for returning your form of proxy or voting instruction form. Without specific instructions, intermediaries are prohibited from voting shares for their clients. Therefore, non-registered holders should ensure that instructions respecting the voting of their Lions Gate Shares are communicated to the appropriate person as soon as possible. A non-registered holder cannot use a voting instruction form to vote Lions Gate Shares directly at the Meeting. Voting instructions must be returned sufficiently in advance of the Meeting to intermediaries to have those Lions Gate Shares voted.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 5 |
The purpose of these procedures is to permit non-registered holders to direct the voting of the Lions Gate Shares they beneficially own. If you are a non-registered holder, you have the right to attend and vote Lions Gate Shares directly at the Meeting. If you are a non-registered holder and you wish to attend and vote your Lions Gate Shares at the Meeting (or have a person other than those named in the attached gold form of proxy attend the Meeting and vote on your behalf), you should insert your name (or the name of the person who you wish to designate to attend and vote on your behalf) in the blank space provided in the gold form of proxy or, where a voting instruction form is provided, follow the corresponding instructions on the form. Do not otherwise complete the gold form of proxy or voting instruction form if you plan to attend the Meeting as your vote will be taken at the Meeting. Alternatively, non-registered holders who wish to attend and vote their Lions Gate Shares at the Meeting may request a legal proxy from their intermediary. Instructions for obtaining legal proxies can be found on the voting instruction form.
A non-registered holder may revoke a form of proxy or voting instruction form given to an intermediary at any time by written notice to the intermediary given in accordance with the instructions given to the non-registered holder by its intermediary in sufficient time to enable the intermediary to act on it.
Solicitation of Proxies
This solicitation is made by the Icahn Group. Proxies may be solicited by mail, telephone, telecopier, email or other electronic means and in person by directors, officers and employees of the Icahn Group who will not be specifically remunerated therefor. The Icahn Group estimates that the total expenditures relating to this solicitation of proxies to be incurred by the Icahn Group will be approximately US$[ ], of which approximately US$[ ] has been incurred to date. The costs incurred in the preparation and mailing of this Dissident Circular and the solicitation will be borne by the Icahn Group.
The Icahn Group has retained D.F. King & Co., Inc. to assist in this solicitation of proxies. D.F. King & Co., Inc. will receive a fee of up to US$[ ] in connection with the services rendered for and on behalf of the Icahn Group and will be reimbursed by the Icahn Group for certain out-of pocket expenses incurred by it.
No person is authorized to give information or to make any representations other than those contained in this Dissident Circular and, if given or made, such information or representations must not be relied upon as having been authorized to be given or made.
PARTICULARS OF MATTERS TO BE ACTED UPON AT THE MEETING
Information concerning particulars of all matters to be acted upon at the Meeting is as identified in the Lions Gate Circular, in the sections entitled “MATTERS TO BE ACTED ON – Approval of Rights Plan Resolution”, “MATTERS TO BE ACTED ON – General Description of the Rights Plan” and “MATTERS TO BE ACTED ON – Approval of the Rights Plan Resolution”.
The text of the Poison Pill Resolution, as set forth in the Lions Gate Circular, is as follows:
“BE IT RESOLVED THAT:
(a) The Shareholder Rights Plan Agreement dated March 12, 2010 between Lions Gate Entertainment Corp. and CIBC Mellon Trust Company as submitted to this Special Meeting is hereby approved, ratified and confirmed.
(b) Any director or officer of Lions Gate Entertainment Corp. is authorized to do all such acts and things and to execute and deliver all such instruments, agreements and other documents as in such person’s opinion may be necessary or desirable in connection with the foregoing.”
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 6 |
INTEREST OF ICAHN GROUP IN MATTERS TO BE ACTED UPON AT THE MEETING
If the Cease Trade Order is not granted prior to the expiry of the Icahn Offer, or the Icahn Group elects to extend the Icahn Offer to a date that is after the Meeting and the Poison Pill Resolution is approved at the Meeting, a material condition of the Icahn Offer will not be satisfied and the Icahn Offer may not proceed. If the Cease Trade Order is granted, or the Icahn Group elects to extend the Icahn Offer to a date that is after the Meeting and the Poison Pill Resolution is defeated at the Meeting, the Icahn Group intends to acquire UP TO ALL of the Lions Gate Shares, subject to the satisfaction of the conditions set forth in the Icahn Offer. Accordingly, the Icahn Group has a material interest in the results of the vote regarding the Poison Pill Resolution.
OUTSTANDING LIONS GATE SHARES AND
OWNERSHIP BY PRINCIPAL HOLDERS AND MANAGEMENT
Lions Gate Shareholders Entitled to Vote
Lions Gate has announced that each Lions Gate shareholder of record at the close of business on March 23, 2010, the record date established for notice of the Meeting and for voting in respect of the Meeting, will be entitled to one vote for each Lions Gate Share held on each matter to come before the Meeting. According to the Lions Gate Circular, the votes attached to the Lions Gate Shares held by the Icahn Group will NOT be counted in connection with the Poison Pill Resolution because the Icahn Group is not an “Independent Shareholder” within the meaning of the Poison Pill.
According to the Lions Gate Circular, the number of Lions Gate Shares outstanding and entitled to be voted on each matter to be acted on at the Meeting as of the record date was 117,951,193 Lions Gate Shares.
In determining the number of outstanding Lions Gate Shares, the Icahn Group has relied exclusively on the disclosure relating to outstanding Lions Gate Shares as at March 23, 2010 set out in the Lions Gate Circular.
Principal Holders and Management
Information regarding the beneficial ownership, control or direction over Lions Gate Shares not held by the Icahn Group, including by holders of more than 5% of the Lions Gate Shares and management of Lions Gate, is not within the knowledge of the Icahn Group. Please refer to the Lions Gate Circular for this information.
As of the date of this Dissident Circular, the Icahn Group owns 21,977,189 Lions Share Shares, excluding 130,382 Lions Gate Shares deemed to be owned as a result of ownership of Lions Gate’s convertible senior subordinated notes due 2024 (the “2024 Notes”) and convertible senior subordinated notes due 2025 (the “2025 Notes”, and together with the 2024 Notes, the “Notes”), representing approximately 18.63% of the total Lions Gate Shares outstanding as at the record date. Annex A attached hereto sets forth the beneficial ownership of each member of the Icahn Group in the securities of Lions Gate. As discussed above under “– Lions Gate Shareholders Entitled to Vote”, according to the Lions Gate Circular, the votes attached to the Lions Gate Shares held by the Icahn Group will NOT be counted in connection with the Poison Pill Resolution.
INTEREST IN MATERIAL TRANSACTIONS
To the knowledge of the Icahn Group, neither the Icahn Group nor any of its officers, employees, nor any associate, affiliate, or other “informed person” within the meaning of applicable Canadian securities regulations (except as publicly disclosed by Lions Gate), has:
| | • | | any material interest, direct or indirect, in any transaction since the beginning of Lions Gate’s last completed financial year or in any proposed transaction (other than the Icahn Offer) that has materially affected or will materially affect Lions Gate or any of its affiliates; or |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 7 |
| | • | | except as described herein, any material interest, direct or indirect, by way of beneficial ownership of securities or otherwise, in any matter to be acted on at the Meeting. |
FUTURE SHAREHOLDER PROPOSALS
The following description of the requirements for submitting shareholder proposals has been taken from the Lions Gate Circular:
“Under U.S. laws, for your proposal to be considered for inclusion in our proxy statement for next year’s annual meeting, we must receive your written proposal no later than April 19, 2010. You should also be aware that your proposal must comply with U.S. Securities and Exchange Commission (the “SEC”) regulations regarding inclusion of shareholder proposals in company-sponsored proxy materials. Shareholder proposals submitted as per the Business Corporations Act (British Columbia) (the “BC Act”) to be presented at the next annual general meeting of shareholders must be received by our Corporate Secretary at our registered office no later than June 12, 2010, and must comply with the requirements of the BC Act.
If the date of the 2010 annual meeting is advanced or delayed by more than 30 days from the date of the 2009 annual meeting, under U.S. laws, shareholder proposals intended to be included in the proxy statement for the 2010 annual meeting must be received by us within a reasonable time before we begin to print and mail the proxy statement for the 2010 annual meeting. Upon any determination that the date of the 2010 annual meeting will be advanced or delayed by more than 30 days from the date of the 2009 annual meeting, we will disclose the change in the earliest practicable Quarterly Report on Form 10-Q.
SEC rules also govern a company’s ability to use discretionary proxy authority with respect to shareholder proposals that were not submitted by the shareholders in time to be included in the proxy statement. In the event a shareholder proposal is not submitted to us prior to July 28, 2010, the proxies solicited by our Board for the 2010 annual meeting of shareholders will confer authority on the proxyholders to vote the shares in accordance with the recommendations of our Board if the proposal is presented at the 2010 annual meeting of shareholders without any discussion of the proposal in the proxy statement for such meeting. If the date of the 2010 annual meeting is advanced or delayed more than 30 days from the date of the 2009 annual meeting, then the shareholder proposal must have been submitted to us within a reasonable time before we mail the proxy statement for the 2010 annual meeting.”
INFORMATION CONTAINED IN THIS DISSIDENT CIRCULAR
Certain information concerning Lions Gate contained in this Dissident Circular has been taken from or is based upon publicly available documents or records on file with the U.S. Securities and Exchange Commission and Canadian provincial securities regulatory authorities (including the Lions Gate Circular) and other public sources. Although the Icahn Group has no knowledge that would indicate that any statements contained in this Dissident Circular that are taken from or based upon those documents and records or other public sources are untrue or incomplete, the Icahn Group does not assume and expressly disclaims any responsibility for the accuracy or completeness of the information taken from or based upon those documents, records and other public sources, or for any failure by Lions Gate to disclose publicly events or facts that may have occurred or that may affect the significance or accuracy of any such information, but that are unknown to the Icahn Group.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 8 |
This Dissident Circular does not constitute an offer to sell, or a solicitation of an offer to purchase, any securities, or the solicitation of a proxy, by any person in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such an offer or solicitation of an offer or proxy solicitation. The delivery of this Dissident Circular will not under any circumstances, create an implication that there has been no change in the information set forth herein since the date as of which such information is given in this Dissident Circular.
INFORMATION REGARDING LIONS GATE
The principal executive offices of Lions Gate are located at 1055 West Hastings Street, Suite 2200, Vancouver, British Columbia V6E 2E9, and 2700 Colorado Avenue, Suite 200, Santa Monica, California, 90404. Additional information relating to Lions Gate, including its Annual Report on Form 10-K, the Lions Gate Circular and the Directors’ Circular, is filed with the U.S. Securities and Exchange Commission and Canadian securities regulatory authorities. This information can be accessed on EDGAR at www.sec.gov and through SEDAR at www.sedar.com. Financial information is provided in Lions Gate’s comparative financial statements and Management’s Discussion and Analysis for 2009. Copies of Lions Gate’s financial statements and Management’s Discussion and Analysis may be obtained by any person without charge by contacting Lions Gate. Lions Gate’s auditor is Ernst & Young LLP.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. 9 |
CERTIFICATE
The contents and the sending of this Dissident Circular have been approved by each of the Icahn Group.
April [ ], 2010
| | |
| | |
| | CARL C. ICAHN |
| |
| | |
| | BRETT ICAHN |
| |
| | |
| | JESSE LYNN |
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| ICAHN PARTNERS LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| ICAHN PARTNERS MASTER FUND LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| ICAHN PARTNERS MASTER FUND II LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
|
| ICAHN PARTNERS MASTER FUND III LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
| | |
| HIGH RIVER LIMITED PARTNERSHIP |
| BY: | | Hopper Investments LLC, its general partner |
| BY: | | Barberry Corp., its sole member |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
|
| ICAHN FUND S.À R.L. |
| |
| By: | | |
| Name: | | Keith Cozza |
| Title: | | Chief Executive Officer |
|
| DAAZI HOLDING B.V. |
| |
| By: | | |
| Name: | | Keith Cozza |
| Title: | | Chief Executive Officer |
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| HOPPER INVESTMENTS LLC |
| BY: | | Barberry Corp., its sole member |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| BARBERRY CORP. |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| ICAHN ONSHORE LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| ICAHN OFFSHORE LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
| | |
| ICAHN CAPITAL LP |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| IPH GP LLC |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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| ICAHN ENTERPRISES HOLDINGS L.P. |
| BY: | | Icahn Enterprises G.P. Inc., its general partner |
| |
| By: | | |
| Name: | | Dominick Ragone |
| Title: | | Chief Financial Officer |
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| ICAHN ENTERPRISES G.P. INC. |
| |
| By: | | |
| Name: | | Dominick Ragone |
| Title: | | Chief Financial Officer |
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| BECKTON CORP. |
| |
| By: | | |
| Name: | | Edward Mattner |
| Title: | | Authorized Signatory |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
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TIME IS SHORT! WE URGE YOU TO VOTE AGAINST THE SHAREHOLDER RIGHTS PLAN OF LIONS GATE TODAY! If you have any questions or require assistance in expediting your vote, please call D.F. King & Co., Inc. 48 Wall Street New York, NY 10005 Toll-Free (800) [ ] Collect at (212) [ ] |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
Annex A
SECURITY OWNERSHIP OF THE PARTICIPANTS
Common Shares, no par value per share, of Lions Gate Entertainment Corp.
| | | | | |
Name of Beneficial Owner (1) | | Amount of Beneficial
Ownership (2) | | Percent of Class (3) | |
Icahn Partners LP | | 6,536,231 | | 5.54 | % |
Icahn Partners Master Fund LP | | 7,359,605 | | 6.24 | % |
Icahn Partners Master Fund II LP | | 2,749,372 | | 2.33 | % |
Icahn Partners Master Fund III LP | | 1,040,848 | | 0.88 | % |
High River Limited Partnership | | 4,421,515 | | 3.75 | % |
Total | | 22,107,571 | | 18.74 | % |
| (1) | Each record holder listed in this table is, as of the date of this filing, the direct beneficial owner of the Lions Gate Shares set forth under the column heading “Amount of Beneficial Ownership” and the indirect beneficial ownership of Lions Gate Shares is described below in the text of this Annex A under the heading “Description of Beneficial Ownership and Beneficial Owners”. |
| (2) | Holdings of Lions Gate Shares set forth in this column include 130,382 Lions Gate Shares that may be deemed to be beneficially owned as a result of ownership of US$1,154,000 in aggregate principal amount of 2024 Notes and US$429,000 in aggregate principal amount of 2025 Notes. The indenture governing the 2024 Notes states that such Notes are convertible, at the option of the holder, into 86.9565 Lions Gate Shares per US$1,000 principal amount of 2024 Notes, which is equivalent to a conversion price of approximately US$11.50 per Lions Gate Share, only if certain events specified in the indenture governing such Notes occur. The indenture governing the 2025 Notes states that such Notes are convertible, at the option of the holder, into 70.0133 Lions Gate Shares per US$1,000 principal amount of 2025 Notes, which is equivalent to a conversion price of approximately US$14.28 per Lions Gate Share, at any time. Although (i) the conversion of the 2024 Notes is subject to the occurrence of events specified in the indenture governing such Notes and (ii) the conversion prices of both series of Notes as stated in the applicable indentures are in excess of the current market value of the Lions Gate Shares, under the Rules set forth in Regulation 13D under the U.S. Securities Exchange Act of 1934, as amended, the Icahn Group may be deemed to beneficially own approximately 130,382 Lions Gate Shares that may be acquired by the Icahn Group upon conversion of the Notes held by the Icahn Group. |
| (3) | Percentages of ownership set forth in this column were calculated based on the number of Lions Gate Shares outstanding and entitled to vote on each matter to be acted on at the Meeting of 117,951,193 as of the record date for such Meeting, as reported by Lions Gate in the Lions Gate Circular. If the 130,382 Lions Gate Shares deemed to be owned as a result of ownership of the Notes are excluded, then total percentage ownership would be 18.63%. |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. |
10.25% Senior Secured Second-Priority Notes due 2016 of Lions Gate Entertainment Inc.
| | | | | |
Name of Beneficial Owner (1) | | Amount of Beneficial
Ownership | | Percent of Class (2) | |
Icahn Partners LP | | US$17,557,199
principal amount | | 7.44 | % |
Icahn Partners Master Fund LP | | US$19,749,360
principal amount | | 8.37 | % |
Icahn Partners Master Fund II LP | | US$7,752,604
principal amount | | 3.29 | % |
Icahn Partners Master Fund III LP | | US$2,940,837
principal amount | | 1.25 | % |
High River Limited Partnership | | US$12,000,000
principal amount | | 5.08 | % |
Total | | US$60,000,000
principal amount | | 25.43 | % |
| (1) | Each record holder listed in this table is, as of the date of this filing, the direct beneficial owner of the 10.25% Senior Secured Second-Priority Notes due 2016 (the “2016 Notes”) of Lions Gate Entertainment Inc., a subsidiary of Lions Gate, set forth under the column heading “Amount of Beneficial Ownership”. The 2016 Notes are guaranteed by Lions Gate. |
| (2) | Percentages of ownership set forth in this column were calculated based on the aggregate principal amount of 2016 Notes outstanding of US$236.0 million as of March 19, 2010, as reported by Lions Gate in the Notice of Change. |
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. A-2 |
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Icahn Partners LP is a limited partnership governed by the laws of Delaware. Its general partner is Icahn Onshore LP, a limited partnership governed by the laws of Delaware. The general partner of Icahn Onshore LP is Icahn Capital LP, a limited partnership governed by the laws of Delaware. The general partner of Icahn Capital LP is IPH GP LLC, a limited liability company governed by the laws of Delaware. The sole member of IPH GP LLC is Icahn Enterprises Holdings L.P., a limited partnership governed by the laws of Delaware. The general partner of Icahn Enterprises Holdings L.P. is Icahn Enterprises G.P. Inc., a corporation governed by the laws of Delaware.
Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP are limited partnerships governed by the laws of the Cayman Islands. The general partner of each of Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP is Icahn Offshore LP, a limited partnership governed by the laws of Delaware. The general partner of Icahn Offshore LP is Icahn Capital LP, a limited partnership governed by the laws of Delaware. The general partner of Icahn Capital LP is IPH GP LLC, a limited liability company governed by the laws of Delaware. The sole member of IPH GP LLC is Icahn Enterprises Holdings L.P., a limited partnership governed by the laws of Delaware. The general partner of Icahn Enterprises Holdings L.P. is Icahn Enterprises G.P. Inc., a corporation governed by the laws of Delaware.
High River Limited Partnership is a limited partnership governed by the laws of Delaware. Its general partner is Hopper Investments LLC, a limited liability company governed by the laws of Delaware. The sole member of Hopper Investments LLC is Barberry Corp., a corporation governed by the laws of Delaware.
Icahn Fund S.à r.l. is a limited liability company governed by the laws of Luxembourg. Its three shareholders, each of which owns approximately one-third of Icahn Fund S.à r.l., are Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP.
Daazi Holding B.V. is a limited liability company governed by the laws of The Netherlands. Its sole stockholder is Icahn Fund S.à r.l.
Icahn Enterprises G.P. Inc. is 100% owned by Beckton Corp., a corporation governed by the laws of Delaware. Each of Beckton Corp. and Barberry Corp. is 100% owned by Mr. Carl C. Icahn, a U.S. citizen, and each of Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP, Icahn Fund S.à r.l., Daazi Holding B.V., High River Limited Partnership, Hopper Investments LLC, Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings L.P. and Icahn Enterprises G.P. Inc. is indirectly controlled by Mr. Icahn. The principal business address of each of (i) Icahn Partners LP, High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Icahn Offshore LP, Icahn Onshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings L.P., Icahn Enterprises G.P. Inc. and Beckton Corp. is White Plains Plaza, 445 Hamilton Avenue – Suite 1210, White Plains, NY 10601, where the business phone number is (914) 614-7000; (ii) Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP is c/o Walkers SPV Limited, P.O. Box 908GT, 87 Mary Street, George Town, Grand Cayman, Cayman Islands; (iii) Icahn Fund S.à r.l. is 5 avenue Gaston Diderich, L-1420 Luxembourg; (iv) Daazi Holding B.V. is Strawinskylaan 411 (WTC, Tower A, 4th floor), 1077 XX, Amsterdam, The Netherlands, and (v) Mr. Icahn is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, NY 10153, where the business phone number is (212) 702-4300.
As a result of the relationship of Carl C. Icahn, Beckton Corp., Icahn Enterprises G.P. Inc., Icahn Enterprises Holdings L.P., IPH GP LLC, Icahn Capital LP and Icahn Offshore LP with each of Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP, each of them may be deemed to have shared voting power and shared dispositive power with Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP with regard to the Lions Gate Shares beneficially owned by Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP. As a result of the relationship of Carl C. Icahn, Beckton Corp., Icahn Enterprises G.P. Inc., Icahn Enterprises Holdings L.P., IPH GP LLC, Icahn Capital LP and Icahn Onshore LP with Icahn Partners LP, each of them may be
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. A-3 |
deemed to have shared voting power and shared dispositive power with Icahn Partners LP with regard to the Lions Gate Shares beneficially owned by Icahn Partners LP. As a result of the relationship of Carl C. Icahn, Hopper Investments LLC and Barberry Corp. with High River Limited Partnership, each of them may be deemed to have shared voting power and shared dispositive power with High River Limited Partnership with regard to the Lions Gate Shares beneficially owned by High River Limited Partnership. Each of Carl C. Icahn, Beckton Corp., Icahn Enterprises G.P. Inc., Icahn Enterprises Holdings L.P., IPH GP LLC, Icahn Capital LP, Icahn Offshore LP, Icahn Onshore LP, Hopper Investments LLC and Barberry Corp. disclaims beneficial ownership of such Lions Gate Shares for all other purposes. As of the date of this Dissident Circular, each of Icahn Fund S.à r.l., Daazi Holding B.V., Brett Icahn and Jesse Lynn beneficially owns no Lions Gate Shares.
Each of High River Limited Partnership and Barberry Corp. is primarily engaged in the business of investing in securities. Hopper Investments LLC is primarily engaged in the business of serving as the general partner of High River Limited Partnership. Each of Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP, Icahn Partners LP, Icahn Fund S.à r.l. and Daazi Holding B.V. is primarily engaged in the business of investing in securities. Icahn Offshore LP is primarily engaged in the business of serving as the general partner of each of Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners Master Fund III LP. Icahn Onshore LP is primarily engaged in the business of serving as the general partner of Icahn Partners LP. Icahn Capital LP is primarily engaged in the business of serving as the general partner of each of Icahn Offshore LP and Icahn Onshore LP. IPH GP LLC is primarily engaged in the business of serving as the general partner of Icahn Capital LP. Icahn Enterprises Holdings L.P. is primarily engaged in the business of holding direct or indirect interests in various operating businesses. Icahn Enterprises G.P. Inc. is primarily engaged in the business of serving as the general partner of Icahn Enterprises Holdings L.P. Beckton Corp. is primarily engaged in the business of holding the capital stock of Icahn Enterprises G.P. Inc.
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For questions or assistance, please call D.F. King & Co., Inc. toll-free at 1-800-[ ] or collect at (212) [ ]. YOUR VOTE IS IMPORTANT. PLEASE SUBMIT YOUR GOLD PROXY TODAY. A-4 |
Preliminary Copy
PROXY
THIS PROXY IS SOLICITED BY THE ICAHN GROUP IN OPPOSITION TO
THE BOARD OF DIRECTORS OF LIONS GATE ENTERTAINMENT CORP.
LIONS GATE ENTERTAINMENT CORP.
SPECIAL MEETING OF SHAREHOLDERS
May 4, 2010
Your vote is important. Casting your vote will vote all of the common shares (the “Lions Gate Shares”) of Lions Gate Entertainment Corp. (the “Company”) that you are entitled to vote. Please consider the issues discussed in the proxy statement and cast your vote.
Voting Control Number:
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IF YOU ARE A REGISTERED HOLDER OF LIONS GATE SHARES: |
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| There are three ways to authorize the proxy to cast your votes. Your vote be telephone or internet authorizes the named proxy to vote your Lions Gate Shares in the same manner as if you had returned the form of proxy by mail. |
| | | |
| TELEPHONE VOTING | | INTERNET VOTING | | VOTING BY MAIL |
| On a touch tone telephone, call TOLL FREE [ ], 24 hours a day, 7 days a week. Have this proxy card ready, then follow the prerecorded instructions. Your vote will be confirmed and cast as you have directed. Available 24 hours a day, 7 days a week until [ ] p.m. Eastern Daylight Time on April 29, 2010. | | Visit the internet voting website at http://[ ]. Have this proxy card ready and follow the instructions on your screen. You will incur only your usual internet charges. Available 24 hours a day, 7 days a week until [ ] p.m. Eastern Daylight Time on April 29, 2010. | | Simply sign and date your proxy card and return it in the postage-paid envelope to D.F. King and Co. Inc. If you are voting by telephone or internet, please do not mail your proxy card. |
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| To allow sufficient time for your proxy to be delivered for use at the Meeting (as defined below), we urge you to sign, date and return this proxy, or use this proxy to vote by telephone or internet, so that your vote is received on or before 10:00 a.m. New York City time on April 29, 2010, or if the Meeting is postponed or adjourned, not later than 48 hours (excluding Saturdays, Sundays and holidays) preceding the date of any adjourned or postponed Meeting. The Icahn Group (as defined in the proxy circular provided herewith) will also make every effort to deliver proxies received after that time for use at the Meeting. |
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IF YOU ARE A NON-REGISTERED (BENEFICIAL) OWNER: |
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| To allow sufficient time for your proxy to be delivered for use at the Meeting, please sign, date and return your proxy or voting instruction form today pursuant to your intermediary’s instructions. Please see the section “General Proxy Information – Non-Registered (Beneficial) Holders of Lions Gate Shares” at page 5 of the proxy circular provided herewith for additional details. |
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| It is important that you act promptly. |
Detach Here
PROXY SOLICITED BY THE ICAHN GROUP IN OPPOSITION
TO THE BOARD OF DIRECTORS OF LIONS GATE ENTERTAINMENT CORP.
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GOLD PROXY CARD | | GOLD PROXY CARD |
LIONS GATE ENTERTAINMENT CORP.
SPECIAL MEETING OF SHAREHOLDERS
May 4, 2010
A holder of Lions Gate Shares has the right to appoint a person (who need not be a holder of Lions Gate Shares) other than the persons designated in the form of proxy provided to such holder of Lions Gate Shares by the Company, to represent such holder of Lions Gate Shares at the Meeting. You may exercise this right by inserting the name of the person you wish to appoint as your representative in the blank space provided in the form of proxy or by submitting another appropriate form of proxy.
The undersigned hereby appoints Carl C. Icahn, or failing him, Brett Icahn, or failing him, Jesse Lynn, or instead of either of the foregoing, , as proxy with full power of substitution, to vote in the name of and as proxy for the undersigned at the Special Meeting of Shareholders of Lions Gate Entertainment Corp., to be held on May 4, 2010 at 10:00 a.m. (Toronto time) (the “Meeting”), and at any continuations, adjournments or postponements thereof, according to the number of votes that the undersigned would be entitled to cast if personally present.
This proxy, when properly executed, will be voted or withheld from voting in accordance with your instructions on any ballot that may be called, and if you specify a choice with respect to voting, your Lions Gate Shares will be voted accordingly. Unless otherwise specified, this proxy will be voted “AGAINST” Proposal 1 relating to the shareholder rights plan. This proxy revokes all prior proxies given by the undersigned.
Until the shareholder rights plan is voted upon at the Meeting, you may revoke a prior proxy vote at any time by submitting a new vote, which automatically revokes any previous vote. To allow sufficient time for your proxy, or any revocation thereof, to be delivered for use at the Meeting, we urge you to sign, date and return this proxy, or use this proxy to vote by telephone or internet, so that your vote is received on or before 10:00 a.m. New York City time on April 29, 2010. ONLY YOUR LATEST VOTE WILL COUNT IN THE TABULATION.
In their discretion, the proxies are authorized to vote upon amendments or variations, if any, to matters identified in the Company’s notice of meeting dated March 26, 2010 and other matters, if any, which may properly come before the Meeting, or any continuations, adjournments or postponements thereof, as provided in the proxy circular provided herewith.
Please mark this GOLD proxy card on the reverse side, sign it and date it, and return it promptly in the
envelope provided unless you have voted by telephone or internet.
THANK YOU FOR VOTING
Detach Here
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GOLD PROXY CARD | | GOLD PROXY CARD |
IF YOU HAVE NOT VOTED BY TELEPHONE OR INTERNET, PLEASE DATE, MARK AND SIGN AND RETURN THIS PROXY PROMPTLY. YOUR VOTE, WHETHER BY TELEPHONE, INTERNET OR MAIL, MUST BE RECEIVED ON OR BEFORE 10:00 A.M. NEW YORK CITY TIME ON APRIL 29, 2010 BY D.F. KING & CO., INC. TO BE INCLUDED IN THE VOTING RESULTS.
1. Resolution approving, ratifying and confirming the shareholder rights plan adopted by the board of directors of the Company pursuant to the Shareholder Rights Plan Agreement dated as of March 12, 2010 between the Company and CIBC Mellon Trust Company, as rights agent, pursuant to the resolution included in the proxy statement.
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| ¨ FOR | | ¨ AGAINST | | ¨ ABSTAIN |
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| Signature | | Signature (Joint Owners) | | Date |
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| Please sign exactly as your name appears hereon or on proxy cards previously sent to you by the Company. When Lions Gate Shares are held by joint tenants, both should sign. When signing as an attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporation name by the President or other duly authorized officer. If a partnership, please sign in partnership name by authorized person. This proxy card votes all shares held in all capacities. | | Title |
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