As filed with the Securities and Exchange Commission on November 16, 2017
Registration No. __________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LIONS GATE ENTERTAINMENT CORP.
(Exact name of registrant as specified in its charter)
| British Columbia, Canada | N/A | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
250 Howe Street, 20 th Floor
Vancouver, British Columbia V6C 3R8
and
2700 Colorado Avenue, Suite 200
Santa Monica, California 90404
(Address, including zip code, of Principal Executive Offices)
Lions Gate Entertainment Corp.
2017 Performance Incentive Plan
(Full title of the plan)
Adrian Kuzycz
Executive Vice President and Associate General Counsel
Lions Gate Entertainment Corp.
2700 Colorado Avenue, Suite 200
Santa Monica, California 90404
(877) 848-3866
(Name, address and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | þ | Accelerated filer | o | ||
| Non-accelerated filer | o | (Do not check if a smaller reporting company) | Smaller reporting company | o | |
| Emerging growth company | o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
|
Title of
Securities To Be Registered |
Amount
To Be Registered |
Proposed
Maximum Offering Price Per Share |
Proposed
Maximum Aggregate Offering Price |
Amount Of
Registration Fee |
||||||||||
| Common Shares, no par value per share (1) |
12,973,816
(2)
|
$ | 30.43 | (3) | $ | 394,793,221 | (3) | $ | 49,152 | (3) | ||||
| (1) | For purposes of this Registration Statement, “Common Shares” refers to both Class A Voting Shares (“Class A Shares”) of Lions Gate Entertainment Corp., a company continued under the laws of the Province of British Columbia (the “Company” or the “Registrant”), and Class B Non-Voting Shares (“Class B Shares”) of the Company. The shares offered pursuant to the Lions Gate Entertainment Corp. 2017 Performance Incentive Plan (the “Plan”) may be Class A Shares or Class B Shares, as the Company may determine from time to time, and each share issued (whether a Class A Share or a Class B Share) will reduce the number of Common Shares remaining available for issuance under the Plan. As indicated in footnote (3) below, the registration fee for this Registration Statement was calculating using the average of the high and low prices of the Class A Shares on the date indicated below. Such high and low prices of the Class A Shares on that date were greater than the high and low prices, respectively, of the Class B Shares on that same date. |
| (2) | This Registration Statement covers, in addition to the number of Common Shares stated above, options and other rights to purchase or acquire the Common Shares covered by this Registration Statement and, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Plan as a result of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions. |
| (3) | Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Class A Shares on November 15, 2017, as quoted on the New York Stock Exchange. |
The Exhibit Index for this Registration Statement is at page 8.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).
2
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
| Item 3. | Incorporation of Certain Documents by Reference |
The following documents of the Company filed with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:
| (a) | The Company’s Annual Report on Form 10-K for its fiscal year ended March 31, 2017, filed with the Commission on May 25, 2017 (Commission File No. 001-14880); |
| (b) | The Company’s Quarterly Reports on Form 10-Q for its fiscal quarters ended June 30, 2017 and September 30, 2017, filed with the Commission on August 8, 2017 and November 9, 2017, respectively (each, Commission File No. 001-14880); |
| (c) | The Company’s Current Reports on Form 8-K, filed with the Commission on April 5, 2017 (as to Item 1.01 only), May 15, 2017 and September 15, 2017 (each, Commission File No. 001-14880); and |
| (d) | The description of the Company’s Common Shares contained in its Registration Statement on Form 8-A filed with the Commission on November 29, 2016 (Commission File No. 001-14880), and any other amendment or report filed for the purpose of updating such description. |
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
3
| Item 6. | Indemnification of Directors and Officers |
Under the Business Corporations Act (British Columbia) (the “BCBCA”), the Company may indemnify a present or former director or officer of the Company or a person who acts or acted at the Company’s request as a director or officer of another corporation, or for an affiliate, of the Company, and his heirs and personal or other legal representatives, against all costs, charges and expenses, including legal and other fees, and amounts 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 legal proceeding or investigative action, whether current, threatened, pending or completed, to which he is made a party by reason of his position with the Company 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 the Company or such other corporation, and, in the case of a proceeding other than a civil proceeding, had reasonable grounds for believing that his conduct in respect of which the proceeding was brought was lawful. Other forms of indemnification may be made only with court approval.
In accordance with the Articles of the Company, subject to the BCBCA, the Company must indemnify a director, officer, former director and former officer of the Company and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and the Company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. In addition, subject to the BCBCA, indemnify any other person. The Company entered into indemnity agreements with its directors, executive officers, and certain other key employees whereby the Company has agreed to indemnify the directors and officers to the extent permitted by the Company’s Articles and the BCBCA.
At the special meeting of the Company’s shareholders held in December 2016 to consider the proposed reclassification of the Company’s common shares as Class A Shares, the creation of the Class B Share and the merger of a subsidiary of the Company with and into Starz, the holders of the Company’s common shares approved an amendment to the Company’s Articles in effect as of such date to provide that the Company would afford the same indemnifications to the current and former officers of the Company as were previously provided to the current and former directors of the Company.
The Company’s Articles permit the Company, subject to the limitations contained in the BCBCA, to purchase and maintain insurance on behalf of any person (or his or her heirs or legal personal representatives) who: (a) is or was a director, officer, employee or agent of the Company; (b) is or was a director, officer, employee or agent of a corporation at a time when the corporation is or was an affiliate of the Company; (c) at the request of the Company, is or was a director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; or (d) at the request of the Company, holds or held a position equivalent to that of a director or officer of a partnership, trust, joint venture or other unincorporated entity, against any liability incurred by him or her as such director, officer, employee or agent or person who holds or held such equivalent position. The Company, however, only maintains directors and officers liability insurance and corporate reimbursement insurance.
The foregoing summaries are necessarily subject to the complete text of the BCBCA, the Company’s Articles, and the arrangements referred to above are qualified in their entirety by reference thereto.
The Company has entered into indemnity agreements with its directors and officers that are in compliance with the BCBCA.
A directors’ and officers’ insurance policy insures each of the Company’s directors and officers against liabilities incurred in their capacity as such for which they are not otherwise indemnified, subject to certain exclusions. This is in addition to the insurance coverage that the Company maintains in the event it is required to indemnify a director or officer for indemnifiable claims.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
4
| Item 8. | Exhibits |
See the attached Exhibit Index at page 8, which is incorporated herein by reference.
| Item 9. | Undertakings |
| (a) | The undersigned Registrant 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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
(h) 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 provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Monica, State of California, on November 16, 2017.
| LIONS GATE ENTERTAINMENT CORP. | |||
| By: | /s/ James W. Barge | ||
| James W. Barge | |||
| Chief Financial Officer | |||
Each person whose signature appears below constitutes and appoints Jon Feltheimer, Michael Burns and James W. Barge, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Jon Feltheimer | Chief Executive Officer and Director | November 16, 2017 | ||
| Jon Feltheimer | (Principal Executive Officer) | |||
| /s/ James W. Barge |
Chief Financial Officer |
November 16, 2017 | ||
| James W. Barge | (Principal Financial and Accounting Officer) | |||
| /s/ Michael Burns | Director | November 16, 2017 | ||
| Michael Burns |
6
| Signature | Title | Date | ||
| /s/ Gordon Crawford | Director | November 16, 2017 | ||
| Gordon Crawford | ||||
| /s/ Arthur Evrensel | Director | November 16, 2017 | ||
| Arthur Evrensel | ||||
| /s/ Emily Fine | Director | November 16, 2017 | ||
| Emily Fine | ||||
| /s/ Michael T. Fries | Director | November 16, 2017 | ||
| Michael T. Fries | ||||
| /s/ Sir Lucian Grainge | Director | November 16, 2017 | ||
| Sir Lucian Grainge | ||||
| /s/ Dr. John C. Malone | Director | November 16, 2017 | ||
| Dr. John C. Malone | ||||
| /s/ G. Scott Paterson | Director | November 16, 2017 | ||
| G. Scott Paterson | ||||
| /s/ Mark H. Rachesky, M.D. | Director | November 16, 2017 | ||
| Mark H. Rachesky, M.D. | ||||
| /s/ Daryl Simm | Director | November 16, 2017 | ||
| Daryl Simm | ||||
| /s/ Hardwick Simmons | Director | November 16, 2017 | ||
| Hardwick Simmons | ||||
| /s/ David M. Zaslav | Director | November 16, 2017 | ||
| David M. Zaslav |
7
EXHIBIT INDEX
8
EXHIBIT 5
|
Dentons Canada LLP 77 King Street West, Suite 400 Toronto, Ontario, Canada M5K 0A1 T +1 416 863-4511 F +1 416 863-4592 |
| November 15, 2017 |
| Lions Gate Entertainment Corp. |
| Re: | Registration of Class A Voting Shares and Class B Non-Voting Shares of Lions Gate Entertainment Corp. |
We have acted as Canadian counsel to Lions Gate Entertainment Corp., a company existing under the laws of British Columbia (the “ Company ”). At your request, we have examined the Registration Statement of the Company on Form S-8 dated November 16, 2017 (the “ Registration Statement ”) in connection with the registration under the United States Securities Act of 1933 of Class A Voting Shares of the Company and Class B Non-Voting Shares of the Company (the " Common Shares "). The registration under the Registration Statement relates to the offering and sale by the Company of up to 12,973,816 Common Shares (the " Offered Shares ") issuable pursuant to the Lions Gate Entertainment Corp. 2017 Performance Incentive Pan (the “ 2017 Plan ”).
In our capacity as such counsel, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate and other records and documents as we considered appropriate including, without limitation:
| a) | the Registration Statement; |
| b) | the 2017 Plan; |
| c) | the Notice of Articles of the Company, as currently in effect; |
| d) | the Articles of the Company, as currently in effect; |
| e) | certified unanimous written consent resolutions executed by each of the directors comprising the Company’s board of directors dated July 14, 2017 approving the adoption of the 2017 Plan and related matters; and |
| f) | Form 8-K of the Company filed under the United States Securities Act of 1933 on September 15, 2017, related inter alia to shareholder approval of the 2017 Plan. |
Our opinions expressed herein are limited to the current laws of the Province of British Columbia and those federal laws of Canada applicable therein and should not be relied upon, nor are they given, in respect of the laws of any other jurisdiction.
In connection with the opinions expressed herein, we have considered such questions of law and examined such statutes, public and corporate records, certificates of governmental authorities and officers of the Company, other documents and conducted such other examinations as we have considered necessary for the purpose of our opinion.
For the purposes of the opinions expressed herein, we have assumed, with respect to all documents examined by us, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, telecopied or photostatic copies. We have also assumed that the Company reserves under the 2017 Plan an adequate number of authorized and unissued Common Shares and that the consideration required to be paid in connection with the issuance of the Offered Shares is actually received by the Company as provided in the 2017 Plan and is determined by the directors of the Company to be at least equal to the issue price established by the directors for the Offered Shares.
On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of these questions of law we considered relevant and subject to the limitations and qualifications in this opinion, we are of the opinion that the Offered Shares to be issued under the 2017 Plan will be validly issued, fully paid and non-assessable.
This opinion is rendered only to you and is solely for your benefit in connection with the transactions covered hereby. This opinion may not be relied upon by you for any other purpose, or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement.
Yours truly,
/s/ Dentons Canada LLP
Dentons Canada LLP
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2017 Performance Incentive Plan of Lions Gate Entertainment Corp. of our reports dated May 25, 2017, with respect to the consolidated financial statements and schedule of Lions Gate Entertainment Corp. and the effectiveness of internal control over financial reporting of Lions Gate Entertainment Corp. included in its Annual Report (Form 10-K) for the year ended March 31, 2017, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Los Angeles, California
November 14, 2017
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2017 Performance Incentive Plan of Lions Gate Entertainment Corp. of our report dated May 24, 2017, with respect to the consolidated financial statements of Pop Media Group, LLC, included in Lions Gate Entertainment Corp.’s Annual Report (Form 10-K) for the year ended March 31, 2017, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Los Angeles, California
November 14, 2017
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Lions Gate Entertainment Corp. of our report dated December 22, 2016, relating to the financial statements of Studio 3 Partners LLC, which appears in Lions Gate Entertainment Corp.’s Annual Report on Form 10-K for the year ended March 31, 2017.
/s/PricewaterhouseCoopers
LLP
New York, New York
November 16, 2017