As filed with the Securities and Exchange Commission on
September 23, 2005
Registration
No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LIONS GATE ENTERTAINMENT CORP.
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British Columbia
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N/A
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(State of Incorporation or Organization)
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(I.R.S. Employer Identification Number)
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555 Brooksbank
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2700 Colorado Avenue, Suite 200
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North Vancouver, British Columbia V7J 3S5
(604) 983-5555
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Santa Monica, California 90404
(310) 449-9200
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(Address, including zip code, of Principal Executive
Offices)
Wayne Levin, General Counsel
Lions Gate Entertainment Corp.
2700 Colorado Avenue, Suite 200
Santa Monica, California 90404
(310) 449-9200
(Name, Address and Telephone Number, Including Area Code, of
Agent For Service)
Copy to:
Allison M. Keller
O’Melveny & Myers LLP
1999 Avenue of the Stars, Suite 700
Los Angeles, California 90067
(310) 553-6700
Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the effective date of
this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 of the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act
of 1933, please check the following box and list the Securities
Act of 1933 registration statement number of the earlier
effective registration statement for the same
offering.
o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act of 1933, check the
following box and list the Securities Act of 1933 registration
statement number of the earlier effective registration statement
for the same
offering.
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If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following
box.
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Amount of
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Securities to be Registered
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Registered
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Price per Unit
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Offering Price
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Registration Fee
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Common shares, no par value
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885,258 shares
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$10.09(1)
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$8,932,253(1)
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$1,051
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(1)
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Estimated solely for purposes of calculating the registration
fee pursuant to Rule 457(c) and based upon the average of
the high and low prices reported for Lions Gate Entertainment
Corp.’s common shares in the consolidated reporting system
of the New York Stock Exchange on September 19, 2005.
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The Registrants hereby amend this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrants file a further amendment that
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until this
Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to such
Section 8(a), may determine.
Information
contained herein is subject to completion or amendment. A
Registration Statement relating to these securities has been
filed to the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted
prior to the time the Registration Statement becomes effective.
This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any state in which such offer, solicitation
or sale would be unlawful prior to the registration or
qualification under the securities laws of any such
state.
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SUBJECT TO COMPLETION, DATED
SEPTEMBER 23, 2005
PROSPECTUS
885,258 Common Shares
This prospectus relates to 885,258 common shares, no par value
of Lions Gate Entertainment Corp. (“Lions Gate”)
issued to certain shareholders of Lions Gate (the “Selling
Securityholders”). The common shares are being registered
for sale by the Selling Securityholders.
Lions Gate common shares are quoted on the New York Stock
Exchange, or the NYSE and on the Toronto Stock Exchange, or the
TSX, under the symbol “LGF.” The last reported sale
price of Lions Gate’s common shares on September 19,
2005 was US$9.96 per share and Cdn$11.69 per share on
the NYSE and the TSX, respectively.
Lions Gate will not receive any proceeds from the sale by the
Selling Securityholders of the common shares. Other than selling
commissions and fees and stock transfer taxes, Lions Gate will
pay all expenses of the registration of the common shares.
Investing in the common shares involves risks that are
described in the “Risk Factors” section beginning on
page 2 of this prospectus as well as the risk factors set
forth in our Current Report on Form 8-K filed with the
Securities and Exchange Commission on June 29, 2005.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2005.
Table of Contents
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. The Selling
Securityholders are not making an offer to sell these securities
in any jurisdiction where the offer or sale is not permitted.
Lions Gate is not making any representation to any purchaser of
the common shares regarding the legality of an investment in the
common shares by such purchaser under any legal investment or
similar laws or regulations.
WHERE YOU CAN FIND MORE INFORMATION
Lions Gate files annual, quarterly and current reports, proxy
statements and other information with the Securities and
Exchange Commission, which we refer to as the SEC, in accordance
with the Securities Exchange Act of 1934, as amended, or the
Exchange Act. You may read and copy any document Lions Gate
files at the SEC’s Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C., 20549. Please call the SEC
at 1-800-SEC-0330 for further information on the public
reference rooms. Lions Gate’s SEC filings are also
available to the public from the SEC’s web site at:
http://www.sec.gov
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Lions Gate is “incorporating by reference” into this
prospectus certain information Lions Gate files with the SEC,
which means that Lions Gate is disclosing important information
to you by referring you to those documents. The information
incorporated by reference is deemed to be part of this
prospectus, except for any information modified or superseded by
information contained directly in this prospectus. This
prospectus incorporates by reference Lion Gate’s Annual
Report on Form 10-K for the year ended March 31, 2005,
Lions Gate’s Quarterly Report on Form 10-Q for
the quarter ended June 30, 2005, Current Reports on
Form 8-K filed April 4, 2005, April 14, 2005,
June 29, 2005 (filed and accepted at 16:58), July 6,
2005 and September 20, 2005, and Lions Gate’s proxy
statement relating to its 2005 annual meeting of shareholders,
each of which Lions Gate previously filed with the SEC. These
reports contain important information about Lions Gate and its
finances.
All documents that Lions Gate files with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus shall also be deemed to be
incorporated herein by reference and will automatically update
information in this prospectus.
Any statements made in this prospectus or in a document
incorporated or deemed to be incorporated by reference into this
prospectus will be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed
document that is
also incorporated or deemed to be incorporated by reference into
this prospectus modifies or supersedes the statement. Any
statement so modified or superseded will not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus.
You may request a copy of these filings, at no cost, by writing
or calling Lions Gate at the following address or telephone
number: Investor Relations Department, Lions Gate Entertainment
Corp., 2700 Colorado Avenue, Suite 200, Santa Monica,
California 90404, (310) 449-9200. Exhibits to the filings
will not be sent, however, unless those exhibits have
specifically been incorporated by reference in this document.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus are forward-looking
statements, as defined in the Private Securities Litigation
Reform Act of 1995, or the PSLRA. Forward-looking statements in
this prospectus are being made pursuant to the PSLRA and with
the intention of obtaining the benefits of the “safe
harbor” provisions of the PSLRA. Forward-looking statements
are those that do not relate solely to historical fact. They
include, but are not limited to, any statement that may predict,
forecast, indicate or imply future results, performance,
achievements or events. You can identify these statements by the
use of words like “intend,” “believe”,
“anticipate,” “may,” “will,”
“could,” and variations of these words or comparable
words or phrases of similar meaning. They may relate to, among
other things:
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our ability to operate profitably;
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our substantial capital requirements and financial risks;
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fluctuations in our revenues and results of operations;
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our ability to manage future growth;
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our ability to maintain effective systems of disclosure controls
and internal controls;
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our ability to exploit our filmed and television content library;
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external factors in the motion picture and television industry;
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our competition;
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protecting and defending against intellectual property claims;
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piracy of motion pictures; and
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our ability to meet certain Canadian regulatory requirements.
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These forward-looking statements reflect our current views with
respect to future events and are based on assumptions and
subject to risks and uncertainties, including, but not limited
to, economic, competitive, governmental and technological
factors outside of our control, that may cause actual results to
differ materially from trends, plans or expectations set forth
in the forward-looking statements. These risks and uncertainties
may include those discussed in “Risk Factors.” We
cannot assess the extent to which any factor, or combination of
factors, may cause actual results to differ from those contained
in forward-looking statements. Given these risks and
uncertainties, we urge you to read this prospectus completely
and with the understanding that actual future results may be
materially different from what we plan or expect. Also, these
forward-looking statements present our estimates and assumptions
only as of the date of this prospectus. Except for our
obligation to disclose material information as and when required
by federal securities laws, we do not intend to update you
concerning any future revisions to any forward-looking
statements to reflect events or circumstances occurring after
the date of this prospectus.
ii
SUMMARY
You should read the following summary together with the more
detailed information regarding Lions Gate and the common
shares offered hereby, including “risk factors” and
our consolidated financial statements and related notes,
included elsewhere and incorporated by reference in this
prospectus. Marks used herein are the property of their
respective owners, which includes us in some instances. This
summary highlights selected information from this prospectus and
does not contain all of the information that may be important to
you.
Throughout this prospectus, the terms “Lions Gate,”
“the Company,” “we,” “us” and
“our” refer to Lions Gate Entertainment Corp., the
issuer of the common shares. Where specifically noted or where
the context requires otherwise, references to “Lions
Gate,” “the Company,” “we,”
“us” and “our” also include its
subsidiaries. All dollar amounts are in United States dollars
unless otherwise indicated. The term “independent,” as
used in this prospectus is used to distinguish us from the term
“major studios” which is generally regarded in the
entertainment industry to mean Universal Pictures, Warner Bros.,
Twentieth Century Fox, Sony Pictures Entertainment, Paramount
Pictures, The Walt Disney Company, Metro-Goldwyn-Mayer and their
respective affiliates.
The Company
We are a diversified independent producer and distributor of
motion pictures, television programming, home entertainment,
family entertainment and video-on-demand content. We also own a
minority interest in CinemaNow, an internet video-on-demand
provider, and own and operate a film and television production
studio.
Our principal executive offices are located at 555 Brooksbank,
North Vancouver, British Columbia V7J 3S5 and at 2700
Colorado Avenue, Suite 200, Santa Monica, California 90404.
Our telephone numbers are (604) 983-5555 in North Vancouver
and (310) 449-9200 in Santa Monica. To find out how to
obtain more information regarding us and our business, you
should read the section of this prospectus entitled “Where
You Can Find More Information.” You may also visit our
website at http://www.lgf.com, although the information on our
website is not part of this prospectus.
Common Shares
This prospectus may be used by the Selling Securityholders to
sell up to 885,258 common shares of Lions Gate that they
acquired pursuant to the Exchange Agreements between each
Selling Securityholder and Lions Gate dated September 9,
2005.
Risk Factors
See “Risk Factors” and other information in this
prospectus for a discussion of factors you should consider
carefully before deciding to invest in our common shares.
1
RISK FACTORS
You should carefully consider the risks described below
together with all of the other information included in this
prospectus before making an investment decision. The risks and
uncertainties described below are not the only ones we face.
Additional risks and uncertainties that we are unaware of, or
that we may currently deem immaterial, may become important
factors that harm our business, results of operations or
financial condition. If any of the following risks actually
occurs, our business, results of operations and financial
condition could suffer materially. In that case, the trading
price of the common shares of Lions Gate could decline, and you
may lose all or part of your investment.
Risks Related to the Offering
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Our shareholders could experience substantial dilution as
a result of the issuance of additional shares, the conversion of
our debentures or the exercise of options.
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We will have approximately 103,347,282 common shares outstanding
after giving effect to this offering. We also have a significant
number of additional authorized shares that when issued will
dilute existing shareholders.
As of September 19, 2005, we had outstanding debentures
convertible into 36,401,466 common shares. In addition, we have
granted, as of September 19, 2005, options to purchase a
total of 5,518,306 common shares. The exercise of the options or
conversion of the debentures would dilute your percentage
ownership interest and reduce your influence on matters on which
our shareholders vote and might also result in a decrease in the
price of our common shares.
Risks Related to our Business
See the “Risk Factors” section set forth in our
Current Report on Form 8-K filed with the Securities and
Exchange Commission on June 29, 2005.
USE OF PROCEEDS
The Selling Securityholders will receive all the proceeds from
the sale of the common shares sold under this prospectus. We
will not receive any proceeds from the sale of these securities.
DESCRIPTION OF SHARE CAPITAL OF LIONS GATE
Lions Gate may issue, from time to time, shares of one or more
series or classes of its common or preferred shares. The
following summary description sets forth some of the general
terms and provisions of the shares. Because this is a summary
description, it does not contain all of the information that may
be important to you. For a more detailed description of the
shares, you should refer to the provisions of Lions Gate’s
Articles.
Lions Gate’s authorized capital consists of 500,000,000
common shares and 200,000,000 preferred shares, 10 of which
preferred shares are outstanding and designated as Series B
Preferred Shares.
Common Shares
At the close of business on September 19, 2005, 103,347,282
of Lions Gate’s common shares were issued and outstanding.
The diluted number of Lions Gate’s common shares issued and
outstanding assuming conversion of the 4.875% Convertible
Senior Subordinated Notes due 2010 issued by Lions Gate
Entertainment Inc., an indirect wholly-owned subsidiary of Lions
Gate (“U.S. Lions Gate”), the
2.9375% Convertible Senior Subordinated Notes due 2024
issued by U.S. Lions Gate, the 3.625% Convertible
Senior Subordinated Notes due 2025 issued by U.S. Lions
Gate, the shares issuable upon exercise of options and upon
vesting of restricted share units, the shares exchangeable for
equity of acquired companies, and the shares issuable upon the
closing of the September 12, 2005 Exchange Agreement would
be 145,851,157. In addition, Lions Gate
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may be obligated to issue within the next 12 months an
additional 275,992 shares if certain conditions are met
pursuant to privately negotiated purchase agreements. Lions
Gate’s common shares are listed on the NYSE and TSX under
the symbol “LGF.” Subject to any preference as to
dividends provided to the holders of other shares ranking senior
or pari passu to Lions Gate’s common shares with respect to
priority in the payment of dividends, the holders of Lions
Gate’s common shares will be entitled to receive dividends
on the common shares, as and when declared by Lions Gate’s
board of directors, out of monies properly applicable to the
payment of dividends, in the manner and form the board of
directors determines. At the present time, given Lions
Gate’s anticipated capital requirements Lions Gate intends
to follow a policy of retaining earnings in order to finance
further development of its business. Lions Gate is also limited
in its ability to pay dividends on its common shares by
restrictions under the
Business Corporations Act
(British
Columbia) relating to the sufficiency of profits from which
dividends may be paid and by the terms of its credit facility.
Holders of common shares have no preemptive, conversion or
redemption rights and are not subject to further assessment by
Lions Gate.
If Lions Gate dissolves or liquidates, or its assets are
distributed among its shareholders for the purpose of winding-up
its affairs, the holders of Lions Gate’s common shares will
be entitled to receive its remaining property and assets,
subject to the rights of holders of any then outstanding
preferred shares ranking senior or pari passu to Lions
Gate’s common shares with respect to priority in the
distribution of assets upon dissolution, liquidation or winding
up.
Except for meetings at which only holders of another specified
class or series of Lions Gate’s shares are entitled to vote
separately as a class or series, the holders of Lions
Gate’s common shares will be entitled to receive notice of
and to attend all meetings of Lions Gate’s shareholders and
will have one vote for each common share held at all meetings of
Lions Gate’s shareholders.
Pursuant to Lions Gate’s charter and the provisions of the
Business Corporations Act
(British Columbia), certain
actions that may be proposed by Lions Gate require the approval
of its shareholders. Lions Gate may, by ordinary resolution,
alter its charter to increase its authorized capital by such
means as creating shares with or without par value or increasing
the number of shares with or without par value. Under the
Business Corporations Act
(British Columbia) and Lions
Gate’s Articles, an ordinary resolution is a resolution
passed at a duly-convened meeting of shareholders by a simple
majority of the votes cast in person or by proxy, or a written
resolution that has been submitted to all shareholders who would
have been entitled to vote on it at a meeting of shareholders
and consented to by shareholders holding shares carrying not
less than two-thirds of the votes entitled to be cast on it.
Lions Gate may, by special resolution, alter its charter to
subdivide, consolidate, change from shares with par value to
shares without par value or from shares without par value to
shares with par value or change the designation of all or any of
its shares. Lions Gate may also, by special resolution, alter
its charter to create, define, attach, vary, or abrogate special
rights or restrictions to any shares. Under the
Business
Corporations Act
(British Columbia) and Lions Gate’s
Articles, a special resolution is a resolution passed at a
duly-convened meeting of shareholders by two-thirds of the votes
cast in person or by proxy, or a written resolution consented to
by all shareholders who would have been entitled to vote at a
meeting of shareholders. In addition, with respect to capital
alterations that apply to any part of a class or, in the case of
any class with more than one series, any series of issued shares
or where rights attached to issued shares are prejudiced or
interfered with, that class or series must consent by separate
resolution requiring two-thirds of the votes cast.
CIBC Mellon Trust Company serves as Lions Gate’s transfer
agent and registrar for the common shares.
Lions Gate may issue, from time to time, without further
shareholder approval (subject to applicable stock exchange
rules), preferred shares in one or more series. Lions Gate
currently has one series of preferred shares issued and
outstanding. Lions Gate’s board is authorized to determine
for each series of preferred shares:
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the designation of such shares and the number of shares that
constitute such series;
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the dividend rate (or the method of calculation thereof), if
any, on the shares of such series and the priority as to payment
of dividends with respect to other classes or series of Lions
Gate’s capital shares;
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the dividend periods (or the method of calculating the dividend
period);
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the voting rights of the shares;
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the liquidation preference and the priority as to payment of
such liquidation preference with respect to the classes or
series of preferred shares and any other rights of the shares of
such series if Lions Gate liquidates or winds up its affairs;
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whether or not and on what terms Lions Gate can redeem or
repurchase the shares;
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whether and on what terms the shares may be converted or
exchanged for other debt or equity securities;
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whether depositary shares representing the shares will be
offered and, if so, the fraction of a share of the series of
preferred shares represented by each depositary share;
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whether the shares will be listed on a securities
exchange; and
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the other material rights, preferences, privileges,
qualifications, limitations and restrictions of the series.
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The preferred shares, when issued, will be fully paid and not
liable to further calls or assessment by Lions Gate. If
Lions Gate should redeem or otherwise reacquire preferred
shares, then these shares will resume the status of authorized
and unissued preferred shares undesignated as to series and will
be available for subsequent issuance. Payment of dividends on
any series of preferred shares may be restricted by loan
agreements, indentures and other transactions entered into by
Lions Gate. The shares of a series of preferred shares will not
have any preferences, voting powers or relative, participating,
optional or other special rights except as specifically set
forth or in Lions Gate’s charter, the applicable
certificate of designation, or as otherwise required by law.
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Series B Preferred Shares
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As a condition of the purchase of Trimark Holdings, Inc., a
company that became Lions Gate’s subsidiary, on
October 13, 2000, Lions Gate issued ten Series B
Preferred Shares at $10 per share to the principal
shareholder of the subsidiary. The Series B Preferred
Shares are non-transferable and are not entitled to dividends.
The Series B Preferred Shares are non-voting except that
the holder, who was a principal of the acquired subsidiary, has
the right to elect himself to Lions Gate’s board of
directors. The Series B Preferred Shares are redeemable by
Lions Gate if certain events occur. The Series B Preferred
Shares have a liquidation preference equal to the stated value
of $10 per share. The Series B Preferred Shares are
the only outstanding preferred shares of the Company.
SELLING SECURITYHOLDERS
The following table sets forth information with respect to the
selling securityholders and the respective common shares
beneficially owned by each selling securityholder that may be
offered under this prospectus. The information is based on
information that has been provided to us by or on behalf of the
selling securityholders. Unless otherwise indicated herein, none
of the selling securityholders currently listed in the following
table has, or within the past three years has had, any position,
office or other material relationship with us or any of our
predecessors or affiliates. Because the selling securityholders
may from time to time use this prospectus to offer all or some
portion of the common shares offered hereby, we cannot provide
an estimate as to the amount or percentage of any such type of
security that will be held by any selling securityholder upon
termination of any particular offering or sale under this
prospectus. In addition, the selling securityholders identified
below may have sold, transferred or otherwise disposed of all or
a portion of any such
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securities since the date on which they provided us information
regarding their holdings, in transactions exempt from the
registration requirements of the Securities Act.
For the purposes of the following table, the number of our
common shares beneficially owned has been determined in
accordance with Rule 13d-3 of the Securities Exchange Act
of 1934, and such information is not necessarily indicative of
beneficial ownership for any other purpose. Under
Rule 13d-3, beneficial ownership includes any shares as to
which a selling securityholder has sole or shared voting power
or investment power and also any shares which that selling
securityholder has the right to acquire within 60 days of
the date of this prospectus through the exercise of any stock
option, warrant or other rights.
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Number of Common Shares
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Beneficially Owned
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Percent of
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Prior to the
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Common Shares
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Selling Securityholder
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Offering
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Outstanding
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Offered Hereby
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Berman Brand & Weiner(1)
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1,130
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1,130
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Mark Cuban
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3,288,666
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3.2
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%
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338,318
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Donaghy Sales, Inc.(1)
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5,073
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5,073
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Lindsay Gruber Dunham
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575
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*
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575
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Gruber & McBaine International(1)
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20,863
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*
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20,863
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Gruber Family Foundation(2)
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3,828
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*
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|
|
|
3,828
|
|
|
Jon D. & Linda W. Gruber Trust(2)
|
|
|
9,916
|
|
|
|
*
|
|
|
|
9,916
|
|
|
Jonathan Wyatt Gruber Trust(2)
|
|
|
766
|
|
|
|
*
|
|
|
|
766
|
|
|
Hamilton College(1)
|
|
|
11,484
|
|
|
|
*
|
|
|
|
11,484
|
|
|
Lagunitas Partners(1)
|
|
|
79,814
|
|
|
|
*
|
|
|
|
79,814
|
|
|
Susan S. McBaine
|
|
|
383
|
|
|
|
*
|
|
|
|
383
|
|
|
Turner H. McBaine Testamentary Trust
|
|
|
1,914
|
|
|
|
*
|
|
|
|
1,914
|
|
|
The Metolius Fund, L.P.
|
|
|
393,296
|
|
|
|
*
|
|
|
|
393,296
|
|
|
J. Patterson McBaine
|
|
|
4,211
|
|
|
|
*
|
|
|
|
4,211
|
|
|
J. Patterson & Susan S. McBaine
|
|
|
766
|
|
|
|
*
|
|
|
|
766
|
|
|
J. Patterson and Susan Swinerton McBaine Foundation(3)
|
|
|
6,030
|
|
|
|
*
|
|
|
|
6,030
|
|
|
Wallace Foundation(1)
|
|
|
6,891
|
|
|
|
*
|
|
|
|
6,891
|
|
|
Total
|
|
|
3,835,606
|
|
|
|
|
|
|
|
885,258
|
|
|
|
|
|
(1)
|
Gruber-McBaine Capital Management has full discretion over
voting and investments with respect to the securities listed for
Berman, Brand & Weiner, Donaghy Sales, Inc.,
Gruber & McBaine International, Hamilton College,
Lagunitas Partners and Wallace Foundation. As managers of
Gruber-McBaine Capital Management, Jon D. Gruber and
J. Patterson McBaine oversee voting and investment activity.
|
|
|
|
(2)
|
Jon D. Gruber has voting and investment power with respect
to the securities listed for Gruber Family Foundation,
Jon D. & Linda W. Gruber Trust, Jonathan Wyatt
Gruber Trust.
|
|
|
|
(3)
|
J. Patterson McBaine has voting and investment power with
respect to the securities listed for J. Patterson and Susan
Swinerton McBaine Foundation.
|
5
PLAN OF DISTRIBUTION
We will not receive any of the proceeds of the sale of our
common shares offered by this prospectus. The common shares
offered by this prospectus may be sold from time to time to
purchasers:
|
|
|
|
|
|
•
|
directly by the Selling Securityholders, or
|
|
|
|
|
•
|
through underwriters, broker-dealers or agents who may receive
compensation in the form of discounts, concessions or
commissions from the Selling Securityholders or the purchasers
of the common shares offered by this prospectus.
|
The aggregate proceeds to the Selling Securityholders from the
sale of the common shares offered by this prospectus will be the
purchase price paid for such securities, less discounts and
commissions, if any. The Selling Securityholders reserve the
right to accept and, together with its agent from time to time,
reject, in whole or in part any proposed purchase of common
shares to be made directly or through agents.
The Selling Securityholders and any such broker-dealers or
agents who participate in the distribution of the common shares
offered by this prospectus may be deemed to be
“underwriters” within the meaning of
Section 2(11) of the Securities Act. As a result, any
profits on the sale of such securities by the Selling
Securityholders and any discounts, commissions or concessions
received by any such broker-dealers or agents might be deemed to
be underwriting discounts and commissions under the Securities
Act. If the Selling Securityholders are deemed to be an
underwriter, the Selling Securityholders may be subject to
certain statutory liabilities, including, but not limited to,
those under Sections 11, 12 and 17 of the Securities Act
and Rule 10b-5 under the Exchange Act. If the Selling
Securityholders are deemed to be an underwriter, the Selling
Securityholders will also be subject to the prospectus delivery
requirements of the Securities Act.
If the common shares are sold through underwriters or
broker-dealers, the Selling Securityholders will be responsible
for underwriting discounts or commissions or agent’s
commissions.
The common shares may be sold in one or more transactions at:
|
|
|
|
|
|
•
|
fixed prices,
|
|
|
|
|
•
|
prevailing market prices at the time of sale or prices related
to prevailing market prices at the time of sale,
|
|
|
|
|
•
|
varying prices determined at the time of sale, or
|
|
|
|
|
•
|
negotiated prices.
|
These sales may be effected in transactions:
|
|
|
|
|
|
•
|
on any national securities exchange or quotation service on
which the common shares may be listed or quoted at the time of
the sale, including the New York Stock Exchange,
|
|
|
|
|
•
|
in the over-the-counter market,
|
|
|
|
|
•
|
in transactions otherwise than on such exchanges or services or
in the over-the-counter market, or
|
|
|
|
|
•
|
through the writing of options.
|
These transactions may include block transactions or crosses.
Crosses are transactions in which the same broker acts as an
agent on both sides of the trade. If any such method of
distribution takes the form of an underwritten offering, the
selection of the underwriter by the Selling Securityholders
shall be subject to the consent of Lions Gate, which consent
shall not be unreasonably withheld.
In connection with sales of the common shares offered by this
prospectus or otherwise, the Selling Securityholders may enter
into hedging transactions with broker-dealers. These
broker-dealers may in turn engage in short sales of the common
shares in the course of hedging their positions. The Selling
Securityholders may also sell the common shares short and
deliver common shares to close out short positions, or loan or
pledge common shares to broker-dealers that in turn may sell the
common shares.
6
To our knowledge, there are currently no plans, arrangements or
understandings between the Selling Securityholders and any
underwriter, broker-dealer or agent regarding the sale of the
common shares offered hereby. The Selling Securityholders might
not sell any or all of the common shares offered by it using
this prospectus. The Selling Securityholders might instead
transfer, devise or gift any common shares by other means not
described in this prospectus. In addition, any common shares
covered by this prospectus that qualify for sale pursuant to
Rule 144 or Rule 144A of the Securities Act may be
sold under Rule 144 or Rule 144A rather than pursuant
to this prospectus.
The Selling Securityholders and any other person participating
in a distribution of common shares offered by this prospectus
will be subject to the Exchange Act. The Exchange Act rules
include, without limitation, Regulation M, which may limit
the timing of purchases and sales of any of the common shares by
the Selling Securityholders and any other such person. In
addition, Regulation M of the Exchange Act may restrict the
ability of any person engaged in the distribution of the common
shares to engage in market-making activities with respect to the
common shares being distributed for a period of time prior to
the commencement of such distribution. This may affect the
marketability of the common shares and the ability of any person
or entity to engage in market-making activities with respect to
the common shares.
Pursuant to the registration rights provisions Lions Gate has
entered into with the Selling Securityholders for the common
shares, each of Lions Gate and the Selling Securityholders will
be indemnified by the other against certain liabilities,
including certain liabilities under the Securities Act, or will
be entitled to contribution in connection with these liabilities.
Other than selling commissions and fees and stock transfer fees,
we have agreed to pay all of the expenses of the registration of
the common shares.
We may suspend the use of this prospectus for any period and at
any time, including, without limitation, in the event of pending
corporate developments, public filings with the SEC, and similar
events.
LEGAL MATTERS
Heenan Blaikie LLP, Vancouver, British Columbia, will pass upon
the validity of the common shares offered hereby as well as
certain other legal matters.
EXPERTS
The consolidated financial statements of Lions Gate
Entertainment Corp. appearing in Lions Gate Entertainment
Corp.’s Annual Report (Form 10-K) for the year ended
March 31, 2005, and Lions Gate Entertainment Corp.
management’s assessment of the effectiveness of internal
control over financial reporting as of March 31, 2005
included therein, have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth
in its reports thereon (which conclude, among other things that
Lions Gate Entertainment Corp. did not maintain effective
internal control over financial reporting as of March 31,
2005, based on
Internal Control — Integrated
Framework
issued by the Committee of Sponsoring
Organizations of the Treadway Commission, because of the effects
of the material weaknesses described therein), included therein,
and incorporated herein by reference. Such financial statements
and management’s assessment have been incorporated herein
by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
|
|
Item 14.
|
Other Expenses of Issuance and Distribution
|
The following are the expenses incurred in connection with the
issuance of the common shares. We will pay all of these
expenses. All amounts are estimates, except the SEC registration
fee.
|
|
|
|
|
|
|
|
SEC registration fee
|
|
$
|
1,051
|
|
|
Printing and engraving costs
|
|
|
5,000
|
|
|
Legal fees and expenses
|
|
|
22,000
|
|
|
Accounting fees and expenses
|
|
|
5,000
|
|
|
Transfer Agent and Registrar
|
|
|
10,000
|
|
|
Miscellaneous expenses
|
|
|
1,949
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
45,000
|
|
|
|
|
|
|
|
|
|
|
Item 15.
|
Indemnification of Directors and Officers
|
Under the
Business Corporations Act
(British Columbia),
Lions Gate may indemnify a present or former director or officer
of Lions Gate or a person who acts or acted at Lions Gate’s
request as a director or officer of another corporation of which
Lions Gate is or was a shareholder, and his heirs and personal
representatives, against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a
judgment, actually and reasonably incurred by him including an
amount paid to settle an action or satisfy a judgment in respect
of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of his position with Lions
Gate or such other corporation including an action brought by
Lions Gate or such other corporation and provided that the
director or officer acted honestly and in good faith with a view
to the best interests of Lions Gate or such other corporation,
and, in the case of a criminal or administrative action or
proceeding, had reasonable grounds for believing that his
conduct was lawful. Such indemnification may be made only with
court approval.
In accordance with the Articles of Lions Gate, Lions Gate shall
indemnify every director or former director and Secretary or any
Assistant Secretary of Lions Gate, or may indemnify every
officer or former officer, and every person who acts or acted at
Lions Gate’s request as a director or officer of a body
corporate of which Lions Gate is or was a shareholder (or a
person who undertakes or has undertaken any liability on behalf
of Lions Gate or any such body corporate) and his heirs and
legal representatives, from and against all costs, charges and
expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him in respect of any
civil, criminal or administrative action or proceeding to which
he is made a party by reason of being or having been a director
or officer of Lions Gate or such body corporate if he acted
honestly and in good faith with a view to the best interests of
Lions Gate.
Lions Gate’s Articles permit Lions Gate, subject to the
limitations contained in the
Business Corporations Act
,
to purchase and maintain insurance on behalf of any person
mentioned in the preceding paragraph, as the board of directors
may from time to time determine. Lions Gate, however, only
maintains directors and officers liability insurance and
corporate reimbursement insurance.
Lions Gate has entered into an indemnity agreement with one
individual who acts as an officer, representative and/or
director of various corporations that are directly or indirectly
owned or controlled by Lions Gate, in which Lions Gate
indemnifies and saves harmless said individual from any and all
claims of any nature whatsoever resulting from the personal
guarantee or endorsement that said individual has made or may in
the future make, with the consent of Lions Gate, on behalf of
the various corporations that are directly or indirectly owned
or controlled by Lions Gate.
II-1
The foregoing summaries are necessarily subject to the complete
text of the statute, Lions Gate’s articles of incorporation
and bylaws, and the arrangements referred to above are qualified
in their entirety by reference thereto.
|
|
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
|
|
|
|
|
|
|
5
|
.1
|
|
Opinion of Heenan Blaikie LLP
|
|
|
23
|
.1
|
|
Consent of Heenan Blaikie LLP (contained in Exhibit 5.1)
|
|
|
23
|
.2
|
|
Consent of Ernst & Young LLP, Independent Registered
Public Accounting Firm
|
|
|
24
|
.1
|
|
Power of Attorney(1)
|
|
|
|
|
(1)
|
Included on signature pages hereto.
|
The undersigned registrants hereby undertakes:
|
|
|
|
|
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
|
|
|
|
|
|
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
|
|
|
|
|
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of
Registration Fee” table in the effective registration
statement;
|
|
|
|
|
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
|
|
|
|
|
|
provided, however
, that paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the SEC by Lions
Gate pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, that are incorporated by
reference in this registration statement.
|
|
|
|
|
|
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
|
|
|
|
|
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
|
II-2
The undersigned registrants undertake that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the SEC such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, Lions Gate
Entertainment Corp. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Monica, State of California, on
September 23, 2005.
|
|
|
|
|
Lions Gate Entertainment
Corp.
|
|
|
|
|
|
|
|
|
James Keegan
|
|
|
Chief Financial Officer
|
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints each of Jon Feltheimer, Michael Burns, Wayne Levin
and James Keegan as such person’s true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in such person’s name,
place and stead, in any and all capacities, to sign any and all
amendments (including any pre-and post-effective amendments) to
this registration statement, and any related registration
statement (including any pre- and post-effective amendments)
that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, and to file the
same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all
intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact
and agent, or a substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities indicated on
September 23, 2005.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
|
|
/s/ Mark Amin
Mark
Amin
|
|
Director
|
|
|
/s/ Norman Bacal
Norman
Bacal
|
|
Director
|
|
|
/s/ Michael Burns
Michael
Burns
|
|
Vice Chairman of the Board of Directors
|
|
|
/s/ Drew Craig
Drew
Craig
|
|
Director
|
|
|
/s/ Arthur Evrensel
Arthur
Evrensel
|
|
Director
|
|
|
/s/ Jon Feltheimer
Jon
Feltheimer
|
|
Chief Executive Officer (Principal Executive Officer) and
Co-Chairman of the Board of Directors
|
II-4
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
|
|
/s/ James Keegan
James
Keegan
|
|
Chief Accounting Officer (Principal Accounting Officer) and
Chief Financial Officer (Principal Financial Officer)
|
|
|
/s/ Morley Koffman
Morley
Koffman
|
|
Director
|
|
|
/s/ Hardwick Simmons
Hardwick
Simmons
|
|
Director
|
|
|
/s/ G. Scott Paterson
G.
Scott Paterson
|
|
Director
|
|
|
/s/ Daryl Simm
Daryl
Simm
|
|
Director
|
|
|
/s/ Harald Ludwig
Harald
Ludwig
|
|
Co-Chairman of the Board of Directors
|
|
|
/s/ Brian V. Tobin
Brian
V. Tobin
|
|
Director
|
II-5
EXHIBIT INDEX
Exhibits
|
|
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
|
|
|
|
|
|
|
5
|
.1
|
|
Opinion of Heenan Blaikie LLP
|
|
|
23
|
.1
|
|
Consent of Heenan Blaikie LLP (contained in Exhibit 5.1)
|
|
|
23
|
.2
|
|
Consent of Ernst & Young LLP, Independent Registered
Public Accounting Firm
|
|
|
24
|
.1
|
|
Power of Attorney(1)
|
|
|
|
|
(1)
|
Included on signature pages hereto.
|
