Exhibit 4.2
LIONS GATE ENTERTAINMENT INC.
Certificate No. 1
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE AND THE COMMON SHARES OF
LIONS GATES ENTERTAINMENT CORP. ISSUABLE UPON CONVERSION HEREOF MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS NOTE AND THE COMMON SHARES OF LIONS GATES ENTERTAINMENT CORP. ISSUABLE
UPON CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THE
SECURITIES EXCEPT AS PERMITTED BY THE SECURITIES ACT.
THIS NOTE, ANY COMMON SHARES OF LIONS GATES ENTERTAINMENT CORP.
ISSUABLE UPON CONVERSION HEREOF AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER
TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE
LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO
THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
NOTE AND SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH
SHARES TO HAVE AGREED TO SUCH AMENDMENT OR SUPPLEMENT.
THIS NOTE IS SUBJECT TO THE TERMS OF AN OPTIONAL REDEMPTION PURSUANT
TO WHICH THE ISSUER MAY REDEEM THE NOTE AT ANY TIME ON OR AFTER MARCH 15, 2012
AT SPECIFIED REDEMPTION PRICES. THIS NOTE IS ALSO SUBJECT TO REPURCHASE AT THE
OPTION OF THE HOLDER PURSUANT TO WHICH THE ISSUER MAY BE OBLIGATED TO REPURCHASE
THIS NOTE ON SPECIFIED DATES OR UPON THE OCCURRENCE OF CERTAIN DESIGNATED
EVENTS. THE OPTIONAL REDEMPTION AND REPURCHASES AT THE OPTION OF THE HOLDER ARE
MORE FULLY DESCRIBED IN THE OFFERING CIRCULAR DATED FEBRUARY 18, 2005, A COPY OF
WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSONS IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
3.625% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2025
CUSIP NO. 535919 AE 4
LIONS GATE ENTERTAINMENT INC., a Delaware corporation (herein called
the "ISSUER"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS
($150,000,000) on March 15, 2025 and interest thereon, as provided on the
reverse hereof, until the principal and any unpaid and accrued interest is paid
or duly provided for. The right to payment of the principal and all other
amounts due with respect hereto is subordinated to the rights of Senior Debt as
set forth in the Indenture referred to on the reverse side hereof.
Interest Payment Dates: March 15 and September 15, with the first
payment to be made on September 15, 2005.
Record Dates: March 1 and September 1.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, LIONS GATE ENTERTAINMENT INC. has caused this
instrument to be duly signed.
LIONS GATE ENTERTAINMENT INC.
By:
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Name:
Title:
Dated: February 24, 2005
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
Dated: February 24, 2005
[REVERSE OF NOTE]
LIONS GATE ENTERTAINMENT INC.
3.625% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2025
1. INTEREST. LIONS GATE ENTERTAINMENT INC., a Delaware corporation (the
"ISSUER"), promises to pay interest on the principal amount of this
Note at the initial rate PER ANNUM shown above. The Issuer will pay
interest semi-annually on March 15 and September 15 of each year,
with the first payment to be made on September 15, 2005. Interest on
the Notes will accrue at a rate of 3.625% per annum on the principal
amount from the most recent date to which interest has been paid or
provided for or, if no interest has been paid, from February 24,
2005, until March 15, 2012 and thereafter interest on the Notes will
accrue at a rate of 3.125% per annum on the principal amount.
Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Holder of this Note is entitled to the benefits of a Note
Guarantee whereby Lions Gate Entertainment Corp., a British Columbia
corporation and parent of the Issuer (the "COMPANY"), has fully and
unconditionally guaranteed, as primary obligor and not merely as
surety, to each Holder and the Trustee, the payment of principal and
interest on this Note on an unsecured senior subordinated basis.
2. MATURITY. The Notes will mature on March 15, 2025 ("MATURITY").
3. METHOD OF PAYMENT. The Issuer will pay interest on the Notes (except
defaulted interest) to the persons who are registered Holders at the
close of business on the record date set forth on the face of this
Note next preceding the applicable interest payment date. Holders
must surrender Notes to the Issuer or its designated agent to
collect the principal, Optional Redemption Price, Special Repurchase
Price or Designated Event Repurchase Price of the Notes. The Issuer
will pay all amounts due with respect to the Notes in money of the
United States that at the time of payment is legal tender for
payment of public and private debts. If this Note is in global form,
the Issuer will pay interest on the Notes by wire transfer of
immediately available funds to The Depository Trust Company. With
respect to Notes held other than in global form, the Issuer will
make payments: (i) by U.S. Dollar check drawn on a bank in The City
of New York mailed to the address of the Holder; or (ii) upon
application to the Registrar not later than the relevant Record Date
by a Holder of an aggregate principal amount in excess of
$5,000,000, by wire transfer in immediately available funds.
4. PAYING AGENT, REGISTRAR, CONVERSION AGENT. Initially, J.P. Morgan
Trust Company, National Association, (the "TRUSTEE") will act as
Paying Agent, Registrar and Conversion Agent. The Issuer may change
any Paying Agent, Registrar or Conversion Agent without notice. The
Issuer or any Affiliate of the Issuer may act as Paying Agent.
5. INDENTURE. The Issuer issued the Notes under an Indenture dated as
of February 24, 2005 (the "INDENTURE") between the Issuer, the
Company and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (the "ACT") as in effect on the date of the Indenture.
The Notes are subject to all such terms, and Holders are referred to
the Indenture and the Act for a statement of such terms. The Notes
are general unsecured senior subordinated obligations of the Issuer
limited to $150,000,000 aggregate principal amount (or $175,000,000
principal amount of Notes if the Initial Purchasers (as defined in
the Indenture) exercise in full their option to purchase an
additional $25,000,000 principal amount of Notes), except as
otherwise provided in the Indenture. Terms used herein which are
defined in the Indenture have the meanings assigned to them in the
Indenture.
6. OPTIONAL REDEMPTION. The Notes shall be redeemable, in whole or from
time to time in part, at the option of the Issuer and subject to the
terms and conditions of the Indenture, on any Trading Day on or
after March 15, 2012 (an "OPTIONAL REDEMPTION DATE"), at a
redemption price equal to 100% of the principal amount of the Notes
to be redeemed plus accrued and unpaid interest on the principal
amount to be redeemed, to, but excluding, the Optional Redemption
Date (the "OPTIONAL REDEMPTION PRICE"). Notice of any such
redemption by the Issuer will be given at least 30, but not more
than 60, days before any Optional Redemption Date to each Holder of
Notes to be redeemed at such Holder's registered address. The Issuer
shall pay or deposit funds with the Paying Agent in the amount of
the Optional Redemption Price on or before the Trading Day
immediately preceding the Optional Redemption Date. If notice of
such a redemption is provided and funds are paid or deposited as
required, interest on and after the Optional Redemption Date will
cease to accrue on the Notes or portions of Notes called for such a
redemption. In the event that any Optional Redemption Date is not a
Business Day, the Issuer will pay the Optional Redemption Price on
the next Business Day without any additional interest or other
payment due. If less than all the Notes are to be redeemed at the
option of the Issuer, the Trustee shall select, by lot, on a pro
rata basis or otherwise in accordance with the applicable procedures
of the DTC, the Notes and portions of Notes to be redeemed. The
Trustee may select for redemption Notes and portions of Notes of
this series in amounts of whole multiples of $1,000 principal
amount. Notes in denominations larger than $1,000 principal amount
may be redeemed in part but only in whole multiples of $1,000
principal amount.
7. REPURCHASE AT OPTION OF HOLDER ON SPECIFIED DATES. On March 15,
2012, March 15, 2015 and March 15, 2020 (each a "SPECIAL REPURCHASE
Date"), each Holder shall have the right, at such Holder's option
and subject to the terms and conditions of the Indenture, to require
the Issuer to purchase any or all of such Holder's Notes or any
portion of the principal amount thereof that is equal to $1,000 or
whole multiples thereof for a repurchase price equal to 100% of the
principal amount of the Notes repurchased plus accrued and unpaid
interest and additional interest, if any, to, but excluding, the
Special Repurchase Date (the
"SPECIAL REPURCHASE PRICE"), provided that such interest will be
paid to the person who was the registered Holder at the close of
business on the record date for the corresponding interest payment
date. Notice of each Special Repurchase Date containing the
information required to be set forth in such notice by the Indenture
shall be given by the Issuer to each Holder at its registered
address not less than 20 Business Days prior to each Special
Repurchase Date. Each Holder electing to require the Issuer to
repurchase the Holder's Notes shall submit such information and
documents as required by the Indenture to the Issuer or its
designated agent on or before the close of business on the Special
Repurchase Date and shall deliver (including by book-entry transfer)
the Notes to be repurchased to the Issuer or its designated agent.
In the event that a Holder submits Notes to be repurchased, the
Issuer shall pay or deposit funds with the Paying Agent in the
amount of the Special Repurchase Price on the Trading Day
immediately following the Special Repurchase Date. If a Holder
submits the required documentation for Notes to be repurchased and
funds are paid or deposited as required, interest on and after the
Special Repurchase Date will cease to accrue on the Notes or
portions of Notes submitted for repurchase.
8. REPURCHASE AT OPTION OF HOLDER UPON A DESIGNATED EVENT. If a
Designated Event (as set forth in the Indenture) shall occur at any
time prior to Maturity, each Holder shall have the right, at such
Holder's option and subject to the terms and conditions of the
Indenture, to require the Issuer to purchase any or all of such
Holder's Notes for cash or any portion of the principal amount
thereof that is equal to $1,000 or whole multiples thereof for a
repurchase price equal to 100% of the principal amount of the Notes
purchased plus accrued and unpaid interest to, but excluding, the
Designated Event Repurchase Date (the "DESIGNATED EVENT REPURCHASE
PRICE"), provided that such interest will be paid to the person who
was the registered Holder at the close of business on the record
date for the corresponding interest payment date. Notice of the
occurrence and type of Designated Event and containing the
information required to be set forth in such notice by the Indenture
(the "DESIGNATED EVENT REPURCHASE NOTICE"), including, without
limitation, the date selected by the Issuer that is not less than 20
nor more than 30 Business Days after the date of the Designated
Event Repurchase Notice (the "DESIGNATED EVENT REPURCHASE DATE"),
shall be given by the Issuer to each Holder at such Holder's
registered address, as well as to the Trustee, not more than 10 days
after the Issuer has become aware of such an occurrence. Each Holder
electing to require the Issuer to repurchase the Holder's Notes
shall submit such information and documents as are required by the
Indenture, to the Issuer or its designated agent on or before the
close of business on the Designated Event Repurchase Date and shall
deliver (including by book-entry transfer) the Notes to be
repurchased to the Issuer or its designated agent. The Issuer shall
pay the Designated Event Repurchase Price in cash. In the event that
a Holder submits Notes to be repurchased, the Issuer shall pay or
deposit funds with the Paying Agent in the amount of the Designated
Event Repurchase Price on the Trading Day immediately following the
Designated Event Repurchase Date. If a Holder submits the required
documentation for Notes to be repurchased and funds are paid or
deposited as required, interest on and after the Designated Event
Repurchase Date will cease to accrue on the Notes or portions of
Notes submitted for repurchase.
9. CONVERSION. Subject to and upon compliance with the provisions of
the Indenture, a Holder is entitled until the close of business on
the Business Day immediately preceding the Maturity Date, at its
option, to convert any Notes that are whole multiples of $1,000
principal amount into Common Shares (or, at the option of the
Issuer, into cash or a combination of cash and Common Shares) at the
Conversion Rate in effect at the time of conversion, subject to the
adjustments described below.
The initial conversion rate is 70.0133 Common Shares per $1,000
principal amount of Notes (subject to adjustment in the event of
certain circumstances as specified in the Indenture, the "CONVERSION
RATE"), or an effective initial conversion price of approximately
$14.28 per share (subject to adjustment in the event of certain
circumstances as specified in the Indenture, the "CONVERSION
PRICE").
If the conversion is in connection with a Change in Control, there
shall, under certain circumstances, be added to the Common Shares
otherwise issuable upon conversion an additional number of Common
Shares as a Make Whole Premium as set forth in the Indenture. In the
event that of a Change of Control occurs that would otherwise
trigger the obligation of the Issuer to pay the Make Whole Premium
and the Acquiror is a Public Entity or is a direct or indirect
subsidiary of a Public Entity, the Issuer may elect instead to
provide that the Notes become convertible into common shares of the
Public Entity, subject to certain conditions as specified in the
Indenture.
Upon conversion, at the option of the Issuer, the Issuer may, in
lieu of delivery of the Common Shares issuable upon conversion,
deliver cash or a combination of cash and Common Shares in
satisfaction of its obligations upon such conversion.
The Issuer will deliver cash in lieu of any fractional share. Upon
conversion, no payment or adjustment for any unpaid and accrued
interest and additional interest, if any, on the Notes will be made,
except in certain circumstances as specified in the Indenture. If a
Holder surrenders a Note for conversion after the record date for
the payment of interest but prior to the corresponding interest
payment date, such Note, when surrendered for conversion, must be
accompanied by payment of an amount equal to the interest and
additional interest, if any, thereon which has accrued and will
accrue and be paid on the Notes being converted on the corresponding
interest payment date, unless (1) the Notes have been called for
redemption as described in the Indenture, (2) the Notes have been
converted in connection with a Designated Event as described in the
Indenture or (3) overdue interest, if any, exists at the time of
conversion with respect to such Note.
To convert a Note, a Holder must (1) with respect to any Note in
certificated form, (A) complete and sign the Conversion Notice, with
appropriate signature
guarantee, on the back of the Note and (B) surrender the Note to the
Conversion Agent, (2) with respect to any interest in a Global Note,
(A) complete, or cause to be completed, the appropriate instruction
form for conversion pursuant to the Depositary's book-entry
conversion program and (B) deliver, or cause to be delivered, to the
Conversion Agent by book-entry delivery the interest in such Global
Note being converted, (3) furnish appropriate endorsements and
transfer documents if required by the Registrar or Conversion Agent,
(4) pay funds equal to the interest payable on the next interest
payment date to which such Holder is not entitled, if any, (as
provided in the last sentence of the above paragraph) and (5) pay
any transfer or similar tax if required. A Holder may convert a
portion of a Note if the portion is $1,000 principal amount or a
positive integral multiple of $1,000 principal amount.
Any shares issued upon conversion of a Note shall bear the
Restrictive Securities Legend until after the second anniversary of
the later of the issue date for the Notes (unless the Issuer
determines otherwise in accordance with applicable law) or the last
date on which the Issuer, the Company or any of their respective
affiliates was the owner of such shares or the Note (or any
predecessor notes) from which such shares were converted (or such
shorter period of time) (the "Resale Restriction Termination Date").
10. SUBORDINATION. The Notes are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Debt. Each Holder by accepting a
Note agrees to such subordination and authorizes the Trustee to give
it effect.
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 principal amount and
positive integral multiples of $1,000 principal amount. The transfer
of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. The Registrar need not exchange or register
the transfer of any Note selected for redemption in whole or in
part, except the unredeemed portion of Notes to be redeemed in part.
Also, it need not exchange or register the transfer of any Notes for
a period of 15 days before the mailing of a notice of redemption of
the Notes selected to be redeemed and in certain other circumstances
provided in the Indenture.
12. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as the owner of such Note for all purposes.
13. MERGER OR CONSOLIDATION. The Issuer and the Company shall not
consolidate with or merge with or into, or convey, transfer or lease
all or substantially all of their assets, whether in a single
transaction or series of related transactions to any
person unless (i) the Issuer or Company is the resulting Successor
Company or the Successor Company is a corporation organized and
existing under the laws of the United States, any State thereof or
the District of Columbia or under the laws of Canada or any province
thereof and such Successor Company assumes by supplemental
indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the Issuer's and the Company's
obligations under the Indenture and the Notes, including the
conversion rights and, in the event that the Successor Company is a
Public Entity and such Public Entity is required to assume the
Company's obligations under the Guarantee, such Public Entity shall
assume the obligations of the Company under that certain
Contribution Agreement or any successor agreement on similar terms
as the Contribution Agreement; (ii) immediately after giving effect
to the transaction, no Default or Event of Default shall exist; and
(iii) the Issuer and the Company deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture,
if any, comply with the Indenture and the Notes.
14. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions,
the Indenture or the Notes may be modified or amended with the
consent or vote of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, and any existing
Default or Event of Default may be waived with the consent or vote
of the Holders of a majority in aggregate principal amount of the
Notes then outstanding. Without notice to or the consent of any
Holder, the Indenture or the Notes may be modified or amended to
cure any ambiguity or inconsistency, to comply with Article VII of
the Indenture, to comply with Section 14.11 of the Indenture, to
reduce the conversion price, to make any changes or modifications to
the Indenture necessary in connection with the registration of the
Notes under the Securities Act and the qualification of the
Indenture under the TIA, to secure the obligations of the Issuer in
respect of the Notes, to add to covenants of the Issuer or the
Company described in the Indenture for the benefit of Holders or to
surrender any right or power conferred upon the Issuer.
15. DEFAULTS AND REMEDIES. An Event of Default includes the occurrence
of any of the following: default in payment of principal and
premium, if any, at maturity, upon redemption or exercise of a
repurchase right or otherwise; default for 30 days in payment of
interest or other amounts due; failure by the Issuer or the Company
for 60 days after notice to it to comply with any of its other
agreements in the Indenture or the Notes; certain payment defaults
or the acceleration of other indebtedness of the Issuer or its
subsidiaries; certain events of bankruptcy or insolvency involving
the Issuer, the Company or any of the Company's subsidiaries; and
failure by the Issuer to provide timely notice of the occurrence of
a Designated Event. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding may declare all the
Notes to be due and payable immediately, except as provided in the
Indenture. If an Event of Default specified in Sections 5.1(e) or
(f) of the Indenture with respect to the Issuer or the Company
occurs, the principal of and accrued interest on all the Notes shall
become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. Holders may not
enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of a majority in principal amount of the Notes
then outstanding may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any
continuing Default or Event of Default (except a Default or Event of
Default in payment) if it determines that withholding notice is in
the interests of the Holders. The Issuer and the Company must
furnish an annual compliance certificate to the Trustee.
16. REGISTRATION RIGHTS. The Holders are entitled to registration rights
as set forth in a Registration Rights Agreement (as defined in the
Indenture). The Holders shall be entitled to receive liquidated
damages in certain circumstances, all as set forth in the
Registration Rights Agreement.
17. TRUSTEE DEALINGS WITH THE ISSUER. The Trustee under the Indenture,
or any banking institution serving as successor Trustee thereunder,
in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Issuer or its
Affiliates, and may otherwise deal with the Issuer or its
Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee or shareholder, as such, of the Company shall have
any liability for any obligations of the Issuer under the Notes or
the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
19. AUTHENTICATION. This Notes shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
20. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entirety), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
Lions Gate Entertainment Corp.
Lions Gate Entertainment Inc.
2700 Colorado Blvd., Suite 200
Santa Monica, CA 90404
Facsimile:
Attention: Chief Financial Officer
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- --------------------------------
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(please print or type name and address)
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the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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Attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:
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NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement or
any change whatsoever and be
guaranteed by a guarantor institution
participating in the Securities
Transfer Agents Medallion Program or
in such other guarantee program
acceptable to the Trustee.
Signature Guarantee:
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In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the Resale Restriction Termination Date, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with transfer:
[Check One]
(1) ____ to the Issuer, the Company or any of their respective subsidiaries;
or
(2) ____ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ____ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(4) ____ pursuant to an effective registration statement under the Securities
Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Issuer or the Company as
defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
[ ] The transferee is an Affiliate of the Issuer or the Company. (If
the Note is transferred to an Affiliate, the restrictive legend must remain on
the Note for two years following the date of the transfer).
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item
(2) or (3) is checked, the Issuer or the Trustee may require, prior to
registering any such transfer of the Notes, in their sole discretion, such
written legal opinions, certifications and other information as the Trustee or
the Issuer have reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
Dated: Signed:
------------------------- ----------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer and the Company as the undersigned has requested pursuant to Rule 144A or
has determined transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:
------------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
CONVERSION NOTICE
To convert this Note into Common Shares of the Company, check the box: [ ]
To convert only part of this Note, state the principal amount to be converted
(must be in multiples of $1,000):
$
------------------
If you want the share certificate made out in another person's name, fill in the
form below:
- --------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
- --------------------------------------------------------------------------------
Date: Signature(s):
--------------- -------------------------------------------
----------------------------------------------
(Sign exactly as your name(s) appear(s) on the
other side of this Note)
Signature(s)guaranteed by:
----------------------------------------------------
(All signatures must be guaranteed by a guarantor institution
participating in the Securities Transfer Agents Medallion Program or
in such other guarantee program acceptable to the Trustee.)
SCHEDULE A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1).
The following exchanges of a part of this Global Notes for an interest in
another Global Note or for Notes in certificated form, have been made:
Principal
Amount of Amount of amount of this Signature or
decrease in increase in Global Note authorized
Principal Principal following such signatory of
amount of this amount of this decrease Trustee or
Date of Exchange Global Note Global Note (or increase) Note Custodian
- ----------
(1) This is included in Global Notes only.