Exhibit 2.2
LIONS GATE STOCKHOLDERS VOTING AGREEMENT
This Lions Gate Stockholders Voting Agreement (the "Agreement"), dated June
6, 2000, by and among Trimark Holdings, Inc., a Delaware corporation
("Company"), and each of the other parties signatory hereto (each a
"Stockholder" and, collectively, the "Stockholders"), is made with reference to
the following:
A. Concurrently herewith, Lions Gate Entertainment Corp., a British
Columbia corporation, ("Parent") and the Company are entering into an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which Parent will
acquire the Company and its subsidiaries by means of a merger (the "Merger").
Capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement.
B. Each of the Stockholders Beneficially Owns (as defined herein) the
number of shares of Parent Common Stock set forth opposite such Stockholder's
name on Schedule I hereto (the "Shares"); and
C. As an inducement and a condition to entering into the Merger
Agreement, the Company has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. VOTING AGREEMENT. Subject to the provisions of Section 3(a) below,
each Stockholder holding Parent Common Stock hereby agrees that at any meeting
of the holders of Parent Common Stock, however called, or in connection with any
written consent of the holders of Parent Common Stock, such Stockholders shall
vote (in the case of Shares which the Stockholder has exclusive voting and
dispositive power) or cause to be voted (in the case of Shares which the
Stockholder Beneficially Owns but for which the Stockholder does not have
exclusive voting and dispositive power) the Shares held of record or
Beneficially Owned by such Stockholder, whether heretofore owned or hereafter
acquired, (i) in favor of approval of the Merger Agreement and any actions
required in furtherance thereof and hereof; and (ii) except as permitted by the
Merger Agreement or as otherwise agreed to in writing in advance by the Company
against any action or agreement that would result in a breach in respect of any
covenant, representation or warranty or any other obligation or agreement of
Parent under the Merger Agreement (after giving effect to any materiality or
similar qualifications contained therein). Such Stockholder shall not enter into
any written agreement with any Person the effect of which would be inconsistent
or violative of the provisions and agreements contained in this Section 1(b) of
this Agreement. For purposes of this Agreement, "Beneficially Own" or
"Beneficial Ownership" with respect to any securities shall mean having
"beneficial ownership" of such securities (as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
including pursuant to any written agreement or arrangement.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each Stockholder
hereby, severally and not jointly, represents and warrants to the Company, as of
the date of this Agreement, as follows:
(a) OWNERSHIP OF SHARES. On the date hereof, the Shares set forth
opposite such Stockholder's name on Schedule I hereto constitute all of the
Shares Beneficially Owned by such Stockholder. Schedule I discloses the number
of Shares Beneficially Owned by the Stockholder for which the Stockholder shares
voting or dispositive power with another Person and identifies such other Person
or Persons. Except as referenced in the preceding sentence and Schedule I and
subject to (i) any applicable state and Federal securities laws and (ii) any
restrictions set forth in a legend on such Shares, such Stockholder has sole
voting power and sole power to issue instructions with respect to the matters
set forth in Section 1 of this Agreement, sole power of disposition, sole power
to demand appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Shares set
forth opposite such Stockholder's name on Schedule I hereto, with no
limitations, qualifications or restrictions on such rights the effect of which
would materially adversely affect the ability of Stockholder to perform his or
her obligations hereunder.
(b) POWER; BINDING AGREEMENT. (i) Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement; (ii) the execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, stockholder agreement or voting trust, the effect of which
would materially adversely affect the ability of Stockholder to perform his or
her obligations hereunder; (iii) this Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms; (iv) there is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which such Stockholder is
trustee who is not a party to this Agreement and whose consent is required for
the execution and delivery of this Agreement or the consummation by such
Stockholder of the transactions contemplated hereby; and (v) in the case where
such Stockholder is married and such Stockholder's Shares constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, such Stockholder's spouse,
enforceable against such spouse in accordance with its terms.
(c) NO CONFLICTS. Subject to requirements of any premerger
notification laws, the HSR Act, the Securities Act, the Exchange Act, any
relevant national securities exchange laws, (A) no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by such Stockholder
or the consummation by such Stockholder of the transactions contemplated hereby;
and (B) none of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the provisions
hereof shall (i) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which
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such Stockholder is a party or by which such Stockholder or any of such
Stockholder's properties or assets may be bound or (ii) violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to such
Stockholder or any of such Stockholder's properties or assets, except for those
the effect of which, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(d) NO FINDER'S FEES. Other than existing financial advisory and
investment banking agreements disclosed in the Merger Agreement, to the
knowledge of such Stockholder, no broker, investment banker, financial adviser
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
by the Merger Agreement based upon arrangements made by or on behalf of such
Stockholder.
3. CERTAIN COVENANTS OF THE STOCKHOLDERS. During the term of and in
accordance with this Agreement, each Stockholder hereby, severally and not
jointly, agrees with, and covenants to, the Company as follows:
(a) TRANSFER. Such Stockholder shall be free to transfer his or its
Shares, but if such Stockholder is an individual and transfers Shares (A) to
such Stockholder's spouse, (B) to lineal descendants of such Stockholder, (C) to
a trust which is substantially for the benefit of such Stockholder, such
Stockholder's spouse or any lineal descendants of such Stockholder or (D) upon
the death of such Stockholder, then, as a precondition to any such transfer, the
transferee(s) thereof shall agree in a writing delivered to the Company to be
bound by the terms and conditions of this Agreement.
(b) RELIANCE BY THE COMPANY. Such Stockholder understands and
acknowledges that the Company is entering into the Merger Agreement in reliance
upon such Stockholder's execution and delivery of this Agreement.
4. FURTHER ASSURANCES. From time to time during the term of this
Agreement, at the other party's reasonable request, each party hereto shall use
reasonable efforts to execute and deliver such additional documents and take
such further lawful action as may be necessary or desirable to consummate and
make effective, as promptly as practicable, the transactions contemplated by
this Agreement.
5. TERMINATION. The representations, warranties, covenants and agreements
contained in Sections 1 through 4 with respect to the Shares shall terminate at
the earliest to occur of the following: (i) the Effective Time; (ii) upon
termination or expiration of the Merger Agreement; (iii) upon the exercise by
the Board of Directors of the Company and the Company of their respective rights
specified in Sections 6.5(c) and 11.1(c) of the Merger Agreement, at which time
any and all of such representations, warranties, covenants and agreements and
this Agreement shall be void and of no further force and effect.
6. STOCKHOLDER CAPACITY. No person executing this Agreement who is, or
becomes during the term hereof, a director or officer of Parent makes any
representation, warranty, covenant, agreement or understanding herein in his or
her capacity as such director or officer and nothing herein limits such
Stockholder's activities as a director or an officer of Parent. Each
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Stockholder signs and agrees to be bound solely in his or her capacity as the
record and/or beneficial owner of such Stockholder's Shares owned as of the date
hereof.
7. PARENT/STOCKHOLDER. Notwithstanding anything herein to the contrary,
(i) each Stockholder shall not be responsible for, and his or her rights
hereunder shall not be affected by, the performance or nonperformance by Parent
of its obligations under the Merger Agreement, and (ii) Parent shall not be
responsible for, and the Parent's rights hereunder shall not be affected by, the
performance or nonperformance by the Stockholder of his or her obligations
hereunder.
8. Miscellaneous.
(a) ENTIRE AGREEMENT. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) CERTAIN EVENTS. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the Stockholder.
(c) ASSIGNMENT. Except in accordance with the transfer provisions set
forth in Section 3 hereof, this Agreement shall not be assigned by any party
hereto without the prior written consent of all of the parties hereto.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with respect
to any one or more Stockholders, except upon the execution and delivery of a
written agreement executed by the Company and such affected Stockholder.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Company: Trimark Holdings, Inc.
4553 Glencoe Avenue, Suite 200
Marina Del Rey, California 90292
Attention: Mark Amin, CEO
Facsimile: (310) 314-4238
If to any Stockholder: Lions Gate Entertainment Corp.
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Suite 3123, Three Bentall Centre
595 Burrud Street
Vancouver, British Columbia V7X1J1
Attention: Gordon Keep,
Senior Vice President
Facsimile: (604) 609-6145
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of California, without giving effect to
the principles of conflicts of law thereof. In addition, each of the parties
hereto agrees that any action relating to
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this Agreement or any of the transactions contemplated hereunder shall be
exclusively conducted in any Federal or state court sitting in the State of
California.
(l) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Company each Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
TRIMARK HOLDINGS, INC.
By: /s/ Mark Amin
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Its: CEO
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STOCKHOLDER:
/s/ Frank Giustra
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Frank Giustra
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SCHEDULE I
STOCKHOLDERS AGREEMENT
NAME OF STOCKHOLDER NUMBER OF SHARES
- ------------------- ----------------
Frank Giustra Mr. Giustra Beneficially Owns (i) 1,864,767 Shares and
(ii) 692,634 Shares which are owned by a U.K.
individual registered savings plan. Mr. Giustra has
voting power over all the Shares referred to in (i) and
(ii) above. Mr. Giustra also has voting power over
500,000 Shares Beneficially Owned by the Radcliffe
Foundation.