EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
October 4, 2004
SG COWEN & CO., LLC
THOMAS WEISEL PARTNERS LLC
c/o SG Cowen & Co., LLC
1221 Avenue of the Americas
New York, New York 10020
Dear Ladies and Gentlemen:
Lions Gate Entertainment Inc., a Delaware corporation (the
"Issuer"), proposes to issue and sell to you (the "Initial Purchasers"), upon
the terms set forth in a purchase agreement dated September 29, 2004 (the
"Purchase Agreement"), $150,000,000 principal amount of its 2.9375% Convertible
Senior Subordinated Notes due 2024 (the "Notes"). Payment of principal and
interest on the Notes will be unconditionally guaranteed on a senior
subordinated basis by Lions Gate Entertainment Corp., a British Columbia
corporation. Capitalized terms used but not specifically defined herein have the
respective meanings ascribed thereto in the Purchase Agreement. The Company has
agreed to contribute to the Issuer, upon any conversion, the number of Common
Shares of the Company required to satisfy the conversion rights under the Notes.
As an inducement to the Initial Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, each of the
Issuer and the Company agrees with each of the Initial Purchasers, for the
benefit of the holders (including the Initial Purchasers) of the Notes
(collectively, the "Holders"), as follows:
1. Definitions. Unless the context otherwise requires, the terms
defined in this Section 1 shall have the meanings herein specified for all
purposes of this Registration Rights Agreement, applicable to both the singular
and plural forms of any of the terms herein defined.
"Acquiror" means, in a transaction that is a Change in Control, the
entity that acquires the Issuer or the Company, as the case may be.
"Additional Interest Accrual Period" has the meaning set forth in
Section 3 hereof.
"Additional Interest Amount" has the meaning set forth in Section 3
hereof.
"Additional Interest Payment Date" means each April 15 and October
15.
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d)(i) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in Toronto or The City of
New York are authorized or obligated by law or executive order to close.
"Change in Control" has the meaning assigned such term in the
Indenture.
"Closing Date" means the original issuance date of the Notes
pursuant to the Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the common shares, no par value, of the
Company, and any other common shares as may constitute "Common Shares" for the
purposes of the Indenture, including the Underlying Common Shares and including
the common shares of any Public Entity.
"Company" means Lions Gate Entertainment Corp., a British Columbia
corporation, until a successor corporation shall have become such pursuant to
the applicable provisions of the Indenture, and thereafter "Company" shall mean
such successor corporation.
"Conversion Price" has the meaning assigned such term in the
Indenture.
"Deferral Notice" has the meaning set forth in Section 4(h)(ii)
hereof.
"Deferral Period" has the meaning set forth in Section 4(h)(ii)
hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Effectiveness Period" means the period commencing on the date the
Initial Registration Statement is declared effective and ending on the date that
(A) is the earliest to occur of:
(i) the date when all of the Registrable Securities have been
sold pursuant to the Shelf Registration Statement or Rule 144, or any similar
provision then in force, but not Rule 144A;
(ii) the expiration of the holding period under Rule 144(k)
under the Securities Act applicable to Holders that are not Affiliates of the
Company or the Issuer;
(iii) the date when all of the Registrable Securities have
ceased to be outstanding (whether as a result of the repurchase and
cancellation, conversion or otherwise); and
(iv) October 4, 2006; and
(B) as a result of the event or circumstance described in any of the foregoing
clauses (i) or (ii), the legend with respect to transfer restrictions required
under the Indenture is removed or removable from all the Registrable Securities
in accordance with the terms of the Indenture or such legend, as the case may
be.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" means a Person who owns, beneficially or otherwise,
Registrable Securities.
"Holders' Information" has the meaning set forth in Section 7(a)
hereof.
"Indenture" means the Indenture, dated as of October 4, 2004, among
the Issuer, the Company and J.P. Morgan, National Association, as Trustee,
pursuant to which the Notes are being issued, as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental thereto entered into pursuant to the applicable provisions thereof.
"Initial Purchasers" has the meaning set forth in the preamble
hereof.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Inspector" has the meaning set forth in Section 4(p) hereof.
"Issuer" means Lions Gate Entertainment Inc., a Delaware corporation
until a successor corporation shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter "Issuer" shall mean such successor
corporation..
"Material Event" has the meaning set forth in Section 4(h) hereof.
"Notes" means the 2.9375% Convertible Senior Subordinated Notes due
2024 of the Issuer to be purchased pursuant to the Indenture.
"Notice and Questionnaire" means a written notice delivered to the
Company and the Issuer containing substantially the information called for by
the Notice of Registration Statement and Selling Securityholder Questionnaire
attached as Annex A to the Offering Circular, as such notice may be amended by
the Company and the Issuer upon the advice of counsel experienced in such
matters, to the extent reasonably necessary to ensure compliance with applicable
law.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company and the Issuer on or prior to such date.
"Offering Circular" means that certain confidential offering
circular of the Issuer, dated September 29, 2004, related to the Notes, and any
amendments or supplements thereto.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Public Entity" means, in a Change in Control transaction, the
Acquiror or a direct or indirect parent of the Acquiror with, in each case,
publicly-traded equity securities that are listed on a United States national
securities exchange, on the National Association of
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Securities Dealers Automated Quotation National Market System or any successor
national securities exchange or automated over-the-counter trading market in the
United States, or any similar United States system of automated dissemination of
quotations of securities prices.
"Record Holder" means with respect to any Additional Interest
Payment Date relating to any Notes or Underlying Common Shares as to which any
Additional Interest Amount has accrued, the registered holder of such Note or
Underlying Common Shares on the April 1 immediately preceding an Additional
Interest Payment Date occurring on an April 15, and on the October 1 immediately
preceding an Additional Interest Payment Date occurring on an October 15.
"Registrable Securities" means the Notes until such Notes have been
converted into the Underlying Common Shares and, at all times subsequent to any
such conversion, the Underlying Common Shares and any securities into or for
which such Underlying Common Shares have been converted or exchanged (or into
which such Notes may be converted or exchanged in accordance with the
Indenture), and any security issued with respect thereto upon any share
dividend, split or similar event, until, in the case of any such security, the
earliest of (i) its effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) expiration of
the holding period that would be applicable thereto for non-Affiliates of the
Company and the Issuer, as the case may be, under Rule 144(k), (iii) its sale to
the public pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iv) it ceases to be outstanding, or (v)
October 4, 2006.
"Registration Default" has the meaning set forth in Section 3
hereof.
"Registration Rights Agreement" means this Registration Rights
Agreement.
"Registration Statement" means any registration statement of the
Issuer under the Securities Act that covers any of the Notes and/or any
registration statement of the Company (or any successor to the Company pursuant
to a supplemental indenture entered into in accordance with the Indenture) under
the Securities Act that covers any of the Underlying Common Shares, pursuant to
the provisions of the Indenture; including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all materials incorporated by reference or explicitly deemed to
be incorporated by reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(b) hereof.
"Special Counsel" means one counsel as shall be specified in writing
to the Company by the Holders of a majority of the Registrable Securities, but
which may, with the
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written consent of the Holders of a majority of the Registrable Securities
(which shall not be unreasonably withheld, delayed or conditioned), be another
law firm experienced in securities law matters designated by the Company and the
Issuer. For purposes of determining the Holders of a majority of the Registrable
Securities in this definition, Holders of Notes shall be deemed to be the
Holders of the number of Underlying Common Shares into which such Notes are or
would be convertible as of the date the consent is requested.
"Subsequent Shelf Registration Statement" means any additional Shelf
Registration Statement filed by the Company and the Issuer pursuant to the first
sentence of Section 2(b) hereof, and any Shelf Registration Statement filed by
any Successor Company.
"Successor Company" means, with respect to any Shelf Registration
Statement filed in connection with a Change in Control transaction, the Public
Entity and, if applicable, any subsidiary of the Public Entity which also files
such Shelf Registration Statement.
"Trustee" means J.P. Morgan Trust Company, National Association, the
trustee under the Indenture.
"Underlying Common Shares" means the Common Shares into which the
Notes are convertible, or which are issuable upon a conversion, repurchase or
redemption in accordance with the Indenture, or that are issued upon any such
conversion, repurchase or redemption, including any Common Shares of a Public
Entity into which the Notes may become convertible in accordance with the
Indenture.
2. Shelf Registration.
(a) The Company and the Issuer shall as promptly as practicable (but
in no event more than one hundred twenty (120) days after the Closing Date, such
120th day being the "Filing Deadline Date") file with the Commission, and
thereafter shall use their commercially reasonable efforts to cause to be
declared effective no later than two hundred ten (210) days after the Closing
Date (such 210th day being the "Effectiveness Deadline Date"), a Registration
Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration Statement") registering
the resale from time to time by Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration Statement"). The Initial Shelf
Registration Statement shall be on Form S-3 or, if unavailable, another
appropriate form permitting registration of such Registrable Securities for
resale by the Holders in accordance with the methods of distribution reasonably
requested by the Holders and set forth in the Initial Shelf Registration
Statement. The Company and the Issuer shall use their respective commercially
reasonable efforts to keep the Initial Shelf Registration Statement (or any
Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date five (5) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period, the Company and the Issuer shall use their
respective commercially reasonable efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof including, if
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reasonably necessary, by amending the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities. If a Subsequent Shelf Registration Statement is filed,
the Company and the Issuer shall use their respective commercially reasonable
efforts to cause the Subsequent Shelf Registration Statement to become effective
as promptly as is practicable after such filing and to keep such Subsequent
Shelf Registration Statement continuously effective until the end of the
Effectiveness Period. In the event of a Subsequent Shelf Registration Statement
that is filed by any Successor Company pursuant to a Change in Control, the
Company, the Issuer and the Successor Company shall use their respective
commercially reasonable efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as practicable after such filing and
to keep such Subsequent Shelf Registration Statement continuously effective
until the end of the Effectiveness Period; provided, however, that it shall be a
condition to a closing of the Change in Control in which the Company has elected
that the Notes be convertible into Common Shares of the Public Entity that such
Subsequent Shelf Registration Statement shall have been declared effective.
(c) The Company and the Issuer shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company and the Issuer for such
Shelf Registration Statement, if required by the Securities Act or as necessary
to name a Notice Holder as a selling securityholder pursuant to Section (d)
below.
(d) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and with
Section 4(h) hereof. Each Holder who elects to sell Registrable Securities
pursuant to a Shelf Registration Statement agrees to complete and deliver a
Notice and Questionnaire to the Company and the Issuer and that it will be bound
by the terms and conditions of the Notice and Questionnaire and this
Registration Rights Agreement. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company and the Issuer shall,
upon the later of (x) ten (10) Business Days after the date a properly completed
and executed Notice and Questionnaire is delivered pursuant to Section 10(b)
hereof and any information reasonably requested by the Company or the Issuer in
addition to the Notice and Questionnaire has been received or (y) ten (10)
Business Days after the expiration of any Deferral Period in effect when such
Notice and Questionnaire is delivered or put into effect within ten (10)
Business Days of such delivery date, if required by applicable law, file with
the Commission a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company and the Issuer
shall file a post-effective amendment to the Shelf Registration Statement, shall
use their respective commercially reasonable efforts to cause such
post-effective amendment to be declared effective under the Securities Act as
promptly as practicable, but in no event more than 45 days after the date such
post-effective amendment is required by this clause to be filed (the "Amendment
Effectiveness Deadline Date"); provided, however, that if such Notice and
Questionnaire is delivered during a Deferral Period, the Company or the Issuer
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in this clause (i) upon expiration of the Deferral
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Period in accordance with Section 4(h) hereof. Notwithstanding anything
contained herein to the contrary, (x) the Company and the Issuer shall be under
no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus and (y) the
Amendment Effectiveness Deadline Date shall be extended by up to ten (10)
Business Days from the expiration of a Deferral Period (and the Company and the
Issuer shall incur no obligation to pay any Additional Interest Amount during
such extension) if such Deferral Period shall be in effect on the Amendment
Effectiveness Deadline Date; provided, further, that the Company and the Issuer
will not be obligated to file more than one such post-effective amendment to the
Registration Statement or supplement to the related Prospectus or a supplement
or amendment to any document incorporated therein by reference or file any other
required document in any 20-day period following the date the Shelf Registration
Statement is declared effective for the purpose of naming Holders as selling
securityholders who were not named in the Shelf Registration Statement at the
times of its effectiveness.
3. Additional Interest. The Company and the Issuer agree that the
Holders will suffer damages, and that it would not be feasible to ascertain the
extent of such damages with precision, if, other than as permitted hereunder,
(a) the Initial Shelf Registration Statement has not been filed on
or prior to the Filing Deadline Date,
(b) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness Deadline
Date, or
(c) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section 4(h)
hereof.
Each event described in any of the foregoing clauses (a) through (c)
is individually referred to herein as a "Registration Default." For purposes of
this Registration Rights Agreement, each Registration Default set forth above
shall begin on the dates set forth in the table below and shall end on the
ending dates set forth in the table below:
Type of
Registration
Default by
Clause Beginning Date Ending Date
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(a) Filing Deadline Date the date the Initial Shelf
Registration Statement is filed
(b) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes
effective under the Securities
Act
(c) the date on which the termination of the Deferral
aggregate duration of Deferral Period that caused the limit
Periods in any period exceeds on the aggregate duration of
the number of days permitted Deferral Periods to be exceeded
by Section 4(h)
Commencing on (and including) any date that a Registration Default has begun and
ending on (but excluding) the next date on which there are no Registration
Defaults that have occurred and are continuing (an "Additional Interest Accrual
Period"), the Company and the Issuer, jointly
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and severally, shall pay, as additional interest over and above the interest set
forth in title of the Notes and not as a penalty, to Record Holders of
Registrable Securities an amount (the "Additional Interest Amount") accruing,
(1) for each day to and including the 90th day in the Additional Interest
Accrual Period, (i) in respect of any Note, at a rate per annum equal to 0.25%
of the aggregate principal amount of such Note and (ii) in respect of each
outstanding Underlying Common Share that is a Registrable Security at a rate per
annum equal to 0.25% on the Conversion Price on such date, as the case may be,
and (2) for each day from and after the 91st day in the Additional Interest
Accrual Period, (i) in respect of any Note, at a rate per annum equal to 0.50%
of the aggregate principal amount of such Note and (ii) in respect of each
outstanding Underlying Common Share that is a Registrable Security at a rate per
annum equal to 0.50% on the Conversion Price on such date, as the case may be;
provided, however, that in the case of an Additional Interest Accrual Period
that is in effect solely as a result of a Registration Default of the type
described in clause (c) of the preceding paragraph, such Additional Interest
Amount shall be paid only to the Holders (as set forth in the succeeding
paragraph) that have delivered Notices and Questionnaires that caused the
Company or the Issuer, as the case may be, to incur the obligations set forth in
Section 2(d) the non-performance of which is the basis of such Registration
Default. Notwithstanding the foregoing, no Additional Interest Amount shall
accrue as to any Registrable Security from and after the earlier of (x) the date
such security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Additional Interest Amount with
respect to any period shall not exceed 0.50% per annum notwithstanding the
occurrence of multiple concurrent Registration Defaults.
The Additional Interest Amount shall accrue from the first day of
the applicable Additional Interest Accrual Period, and shall be payable on each
Additional Interest Payment Date during the Additional Interest Accrual Period
(and, without duplication, on the Additional Interest Payment Date next
succeeding the end of the Additional Interest Accrual Period if the Additional
Interest Accrual Period does not end on an Additional Interest Payment Date) to
the Record Holders of the Registrable Securities entitled thereto; provided,
however, that any Additional Interest Amount accrued with respect to any Note or
portion thereof redeemed or repurchased by the Issuer on a redemption date or
repurchase date prior to the Additional Interest Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Note or portion
thereof for redemption or repurchase on the applicable redemption date or
repurchase date, as the case may be, on such date; provided, further, that, in
the case of a Registration Default of the type described in clause (c) of the
first paragraph of this Section 3, such Additional Interest Amount shall be paid
only to the Holders entitled thereto pursuant to such first paragraph by check
mailed to the address set forth in the Notice and Questionnaire delivered by
such Holder. The Trustee shall be entitled, on behalf of registered holders of
Notes or Underlying Common Shares, to seek any available remedy for the
enforcement of the registration rights set forth in the Indenture, including for
the payment of such Additional Interest Amount. Notwithstanding the foregoing,
the Company, the Issuer and the Initial Purchasers agree that the sole damages
payable for a violation of the terms of the registration rights set forth in the
Indenture with respect to which an Additional Interest Amount is expressly
provided shall be such Additional Interest Amount. Nothing shall preclude any
Holder from pursuing or obtaining specific performance or other equitable relief
with respect to the registration rights granted under the Indenture.
All of the Company's and the Issuer's, as the case may be,
obligations set forth in this Section 3 that are outstanding with respect to any
Registrable Security at the time such security ceases to be a Registrable
Security shall survive until such time as all such obligations
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with respect to such security have been satisfied in full (notwithstanding
termination of the registration rights granted under the Indenture).
The parties hereto agree that the Additional Interest Amount
provided for in this Section 3 constitutes a reasonable estimate of the damages
that may be incurred by Holders of Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared effective or
available for effecting resales of Registrable Securities in accordance with the
provisions hereof.
4. Registration Procedures. In connection with the
registration obligations of the Company and the Issuer under Section 2
hereof, during the Effectiveness Period, the Company and the Issuer shall:
(a) Prepare and file with the Commission a Registration Statement or
Registration Statements on Form S-3, or, if unavailable, on another appropriate
form under the Securities Act available for the sale of the Registrable
Securities by the Holders thereof in accordance with the reasonably requested
method or methods of distribution thereof, and use their respective commercially
reasonable efforts to cause each such Registration Statement to become effective
and remain effective as provided herein; provided, however, that before filing
of the Initial Registration Statement with the Commission, the Company and the
Issuer shall furnish to Special Counsel of such offering, if any, and each
Notice Holder copies of the Initial Registration Statement proposed to be filed
at least two (2) Business Days prior to the filing of the Initial Registration
Statement. The Company and the Issuer shall use their respective commercially
reasonable efforts to reflect in the Initial Registration Statement, when so
filed with the Commission, such comments as such Notice Holders and the Special
Counsel may propose.
(b) Subject to Section 4(h) hereof, prepare and file with the
Commission such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2(a); cause the related
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and use their respective commercially
reasonable efforts to comply with the provisions of the Securities Act
applicable to each of them with respect to the disposition of all securities
covered by such Registration Statement during the Effectiveness Period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or such Prospectus as so
supplemented.
(c) As promptly as practicable, give notice to the Notice Holders
and the Special Counsel, if any, (i) when any Prospectus, Registration Statement
or post-effective amendment to a Registration Statement has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the Commission or any other
federal or state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of any
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iv) of the receipt by the Company or the Issuer, as the case may
be, of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (v) of the occurrence of, but not the nature of or details
concerning, a Material Event.
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(d) Use their respective commercially reasonable efforts to obtain
the withdrawal of any order suspending the effectiveness of a Registration
Statement or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case as
promptly as practicable, and provide prompt notice to each Notice Holder of the
withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder and the
Special Counsel, upon request and without charge, at least one (1) conformed
copy of the Registration Statement and any amendment thereto, including exhibits
and if requested, all documents incorporated or deemed to be incorporated
therein by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder,
in connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Company and the Issuer hereby consent (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to the
use of such Prospectus or each amendment or supplement thereto by each Notice
Holder in connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in the manner
set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use their respective commercially
reasonable efforts to register or qualify or cooperate with the Notice Holders
and the Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any Notice Holder reasonably requests
in writing (which request may be included in the Notice and Questionnaire);
prior to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use their respective commercially reasonable efforts to
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period in connection with such Notice Holder's offer
and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts reasonably
necessary to legally permit the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided, however, that neither the
Company nor the Issuer will be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where they would not otherwise
be required to qualify but for the registration rights granted under the
Indenture or (ii) take any action that would subject either of them to general
service of process in suits or to taxation in any such jurisdiction where they
are not then so subject.
(h) Upon (A) the issuance by the Commission of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or
the existence of any fact as a result of which any Registration Statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (each a "Material Event") or (C) the
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occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company and the Issuer makes it appropriate to
suspend the availability of the Shelf Registration Statement and the related
Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary pursuant to
applicable law, a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Registration Statement and Prospectus so that such
Registration Statement does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use their respective commercially
reasonable efforts to cause it to be declared effective as promptly as is
practicable; and
(ii) give notice to the Notice Holders that the availability
of the Shelf Registration Statement is suspended (a "Deferral Notice") and upon
receipt of any Deferral Notice, each Notice Holder agrees not to sell any
Registrable Securities pursuant to the Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus provided
for in clause (i) above or it is advised in writing by the Company and the
Issuer that the Prospectus may be used.
The Company and the Issuer will use their respective
commercially reasonable efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as practicable, (y) in
the case of clause (B) above, as soon as, in the reasonable judgment of the
Company and the Issuer, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or the Issuer and (z)
in the case of clause (C) above, as soon as in the reasonable discretion of the
Company and the Issuer such suspension is no longer appropriate. The Company and
the Issuer shall be entitled to exercise their right under this Section 4(h) to
suspend the availability of the Shelf Registration Statement or any Prospectus
for a reasonable period of time, and any such period during which the
availability of the Registration Statement and any Prospectus is suspended (the
"Deferral Period") shall, without incurring any obligation to pay any Additional
Interest Amount pursuant to Section 3, not exceed an aggregate of thirty (30)
days in any three-month period or an aggregate of ninety (90) days in any
twelve-month period.
(i) Comply with all applicable rules and regulations of the
Commission and make generally available to its securityholders earnings
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) for a twelve-month period commencing on
the first day of the first fiscal quarter of the Company or the Issuer, as the
case may be, commencing after the effective date of a Registration Statement,
which statements shall be made available no later than forty-five (45) days
after the end of the twelve-month period or ninety (90) days if the twelve-month
period coincides with the fiscal year of the Company or the Issuer, as the case
may be.
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(j) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends (unless required by applicable law), and
cause such Registrable Securities to be in such denominations as are permitted
by the Indenture and registered in such names as such Notice Holder may request
in writing at least two (2) Business Days prior to any sale of such Registrable
Securities.
(k) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Shares with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(l) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc., the New York Stock Exchange or
the Toronto Stock Exchange or any other stock exchange on which the Company's or
the Issuer's securities are publicly traded.
(m) Upon (i) the filing of the Initial Shelf Registration Statement
and (ii) the effectiveness of the Initial Shelf Registration Statement, announce
the same, in each case by release to Business Wire.
(n) The Company will cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, as required by applicable law in a
timely manner.
(o) In connection with any Shelf Registration Statement, the Company
and the Issuer shall enter into such customary agreements (including, if
requested, an underwriting agreement in customary form) and take all such other
action, if any, as Holders of a majority of the Registrable Securities being
sold or the managing underwriters (if any) shall reasonably request in order to
facilitate any disposition of the Registrable Securities pursuant to such Shelf
Registration Statement.
(p) In connection with any Shelf Registration Statement, the Company
and the Issuer shall (i) make reasonably available for inspection during normal
business hours by a representative of, and Special Counsel acting for, Holders
of a majority of the Registrable Securities being sold and any underwriter
participating in any disposition of the Registrable Securities pursuant to such
Shelf Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Company or the Issuer, as
the case may be, and its subsidiaries and (ii) use their respective commercially
reasonable efforts to have their officers, directors, employees, accountants and
counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter (an "Inspector") in
connection with such Shelf Registration Statement; provided, however, that the
Inspector shall first agree in writing with the Company and the Issuer that any
information that is reasonably and in good faith designated by the Company and
the Issuer in writing as confidential at the time of delivery of such
information shall be kept confidential by the Inspector and shall be used solely
for the purposes of exercising rights under this Registration Rights Agreement,
unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities;
provided, however, that the Inspector shall as promptly as reasonably
practicable, provide written notice to the Company and the Issuer of any request
by any such regulatory authority for any such confidential information of the
Company or the Issuer in order to allow the Company and the Issuer a reasonable
amount of time
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to seek an appropriate protective order to prevent the disclosure of such
information, (ii) disclosure of such information is required by law (including
any disclosure requirements pursuant to federal securities laws in connection
with the filing of any Shelf Registration Statement or the use of any Prospectus
referred to in this Registration Rights Agreement) or is necessary to defend a
claim brought against any such persons (e.g., to establish a "due diligence"
defense), (iii) such information becomes generally available to the public other
than as a result of a disclosure or failure to safeguard by any such person or
(iv) such information becomes available to any such person from a source other
than the Company or the Issuer and such source is not bound by a confidentiality
agreement or otherwise obligated to keep such information confidential.
(q) In connection with any Shelf Registration Statement, the Company
and the Issuer shall, if requested by Holders of a majority of the Registrable
Securities being sold, their Special Counsel or the managing underwriters (if
any) in connection with such Shelf Registration Statement, use their respective
commercially reasonable efforts to cause (i) their counsel to deliver an opinion
relating to the Shelf Registration Statement and the Registrable Securities in
customary form, (ii) their officers to execute and deliver all customary
documents and certificates requested by Holders of a majority of the Registrable
Securities being sold, their Special Counsel or the managing underwriters (if
any) and (iii) their independent public accountants to provide a comfort letter
in customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
For purposes of determining the holders of a majority of the Registrable
Securities in this paragraph (q) and in paragraphs (o) and (p) above, Holders of
Notes shall be deemed to be the Holders of the number of Underlying Common
Shares into which such Notes are or would be convertible as of the relevant
date.
5. Holder's Obligations. Each Holder agrees, by acquisition of the
Registrable Securities, that such Holder shall not be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company and
the Issuer with a properly completed and executed Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence. Each Notice Holder agrees promptly to furnish to the Company
and the Issuer all information required to be disclosed in order to make the
information previously furnished to the Company and the Issuer by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as the Company or the Issuer may
from time to time reasonably request.
6. Registration Expenses. The Company and the Issuer, jointly and
severally, will bear all expenses incurred in connection with the performance of
their obligations under Sections 2, 3 and 4 hereof and the Company and the
Issuer, jointly and severally, will reimburse the Holders for the reasonable
fees and disbursements, as and when incurred, of the Special Counsel acting for
the Holders in connection with the Notes and the securities to be sold pursuant
to each Registration Statement.
7. Indemnification.
(a) Indemnification of Holders. The Company and the Issuer, jointly
and severally, shall indemnify and hold harmless each Holder (including the
Initial Purchasers) and each person, if any, who controls such Holder within the
meaning of the Securities Act (collectively referred to for the purposes of this
Section 7 as a Holder) against any loss, claim,
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damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of Registrable Securities), to which that Holder
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state in any Registration Statement
or any Prospectus or in any amendment or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Holder for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or preparing
to defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the foregoing indemnification
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim,
damage or liability purchased Notes, if (i) a copy of the preliminary prospectus
(as then amended or supplemented) was required by law to be delivered to such
person at or prior to the written confirmation of the sale of Notes to such
person, (ii) a copy of the final prospectus (as then amended or supplemented)
was not sent or given to such person by or on behalf of such Holder and (iii)
the final prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability; and provided, further,
that the Company and the Issuer shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus or Registration Statement or
any such amendment or supplement in reliance upon and in conformity with any
information included therein in reliance upon or in conformity with written
information furnished to the Company or the Issuer by or on behalf of any Holder
specifically for use therein (the "Holders' Information").
(b) Indemnification of the Company and the Issuer and their
Respective Directors and Officers. Each Holder, severally and not jointly,
agrees to indemnify and hold harmless the Company and the Issuer and their
respective directors, and each person, if any, who controls the Company or the
Issuer within the meaning of the Securities Act (collectively referred to for
the purposes of this Section 7 as the Company or the Issuer), against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or the Issuer may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in a Prospectus or Registration Statement or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Holders' Information
furnished to the Company or the Issuer by or on behalf of that Holder
specifically for use therein, and shall reimburse the Company and the Issuer for
any legal or other expenses reasonably incurred by the Company and the Issuer in
connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided however,
that no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement.
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(c) Actions; Notification. Promptly after receipt by an indemnified
party under this Section 7 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure; and, provided, further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Holders of a majority in aggregate principal amount of the Registrable
Securities, if the indemnified parties under this Section 7 consist of any
Holder or any of their respective officers, employees or controlling persons, or
by the Company, if the indemnified parties under this Section 7 consist of the
Company or the Issuer or any of their respective directors, officers, employees
or controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an indemnified party
under Section 7(a) or Section 7(b), then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, (i) in such proportion as shall be
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appropriate to reflect the relative benefits received by the Company and the
Issuer, on the one hand, and a Holder with respect to the sale by such Holder,
on the other hand, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Issuer, on the one hand, and such Holder, on the
other hand, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Issuer, on the one hand, and a Holder, on the other hand, with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Registrable Securities (before
deducting expenses) received by the Company and the Issuer as set forth on the
cover of the Offering Circular bear to the total proceeds received by such
Holder with respect to its sale of Registrable Securities. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Issuer, on the one hand, or to any Holders' Information supplied by such Holder,
on the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company, the Issuer and the Holders agree that it
would not be just and equitable if contributions pursuant to this Section 7(d)
were to be determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 7(d) shall be deemed to include, for purposes of this Section 7(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such Holder to any purchaser exceeds
the amount of any damages which such Holder has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Any Holder's obligations to contribute as provided in this Section
7(d) are several and not joint.
The obligations of the Company, the Issuer and the Holders in this
Section 7 are in addition to any other liability which the Company, the Issuer
or the Holders as the case may be, may otherwise have.
8. Rules 144 and 144A. The Company and the Issuer shall use their
respective commercially reasonable efforts to file the reports required to be
filed by each of them under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company or the Issuer is not required to file
such reports, such entity will, upon the written request of any Holder, make
publicly available other information so long as necessary to permit sales of
such Holder's securities pursuant to Rules 144 and 144A. Each of the Company and
the Issuer covenants that it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rules 144 and 144A
(including, without limitation, the requirements of Rule 144A(d)(4)). Upon
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the written request of any Holder, the Company and the Issuer shall deliver to
such Holder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require the Company or the Issuer to register any of their respective
securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of such Registrable Securities included in such
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Registration
Rights Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the then outstanding Underlying Common Shares constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section 10(a), of the number of outstanding Underlying Common
Shares into which such Notes are or would be convertible as of the date on which
such consent is requested). Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of the Holders whose Registrable Securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company and the Issuer in accordance with the provisions of this
Section 10(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Trustee under the Indenture, with a
copy in like manner to SG Cowen & Co., LLC, Attention: General Counsel, 1221
Avenue of the Americas, New York, New York 10020 (Fax: 212-278-7995); and
(ii) if to the Company and the Issuer, to Lions Gate
Entertainment Corp., Attention: Wayne Levin, 2700 Colorado Avenue, Suite
200, Santa Monica, CA 90404 (Fax: 310-255-3860).
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one (1) Business Day after
being delivered to a next-day air courier; three (3) Business Days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
-17-
(c) Successors and Assigns. This Registration Rights Agreement shall
be binding upon the Company and the Issuer and their respective successors and
assigns.
(d) Counterparts. This Registration Rights Agreement may be executed
in any number of counterparts (which may be delivered in original form or by
telecopies) and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Registration Rights Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law; Submission to Jurisdiction. THIS REGISTRATION
RIGHTS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) No Inconsistent Agreements. Each of the Company and the Issuer
has not and shall not, on or after the date of this Registration Rights
Agreement, enter into any agreement that is inconsistent with the rights granted
to the Holders of Registrable Securities in this Registration Rights Agreement
or otherwise conflicts with the provisions hereof. Each of the Company and the
Issuer has not previously entered into any agreement which remains in effect
granting any registration rights with respect to any of its securities to any
person. Without limiting the generality of the foregoing, without the written
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Registrable Securities, neither the Company nor the Issuer shall
grant to any person the right to request the Company or the Issuer to register
any securities of the Company under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the provisions of the
Agreement.
(h) No Piggyback on Registrations. Neither the Company nor the
Issuer, nor any of their respective securityholders (other than the Holders in
such capacity) shall have the right to include any securities of the Company in
any Shelf Registration other than Registrable Securities unless otherwise agreed
to by SG Cowen & Co., LLC.
(i) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Registration Rights Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Remedies. In the event of a breach by the Company or the Issuer,
or by any Holder, of any of their obligations under this Registration Rights
Agreement, each Holder or the Company and the Issuer, as the case may be, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages (other than the recovery of damages for a breach by the
Company of its obligations under Section 2 or Section 4 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Registration Rights
Agreement. The Company, the Issuer and each Holder
-18-
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this
Registration Rights Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(k) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company, the Issuer or their Affiliates
(other than the Initial Purchasers or subsequent Holders if such subsequent
Holders are deemed to be such Affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the agreement among the
Company, the Issuer and you.
Very truly yours,
LIONS GATE ENTERTAINMENT CORP.
By: _______________________________
Name:
Title:
LIONS GATE ENTERTAINMENT INC.
By: _______________________________
Name:
Title:
Accepted in New York, New York
SG COWEN & CO., LLC
By: _________________________
Name:
Title:
THOMAS WEISEL PARTNERS LLC
By: _________________________
Name:
Title: