To the beneficial owners, or authorized representatives acting on behalf of the beneficial owners, of any
of the following securities:
Lions Gate Capital Holdings LLC (“LGCH”), a Delaware limited liability company, is offering to
exchange (the “Exchange Offer”), in a private exchange offer exempt from the registration requirements
of the Securities Act of 1933, as amended (the “Securities Act”), the outstanding Lions Gate
Entertainment Corp. (“LGEC”) notes listed above (the “LGEC 2024 Notes”) for newly-issued notes (the
“New 2024 Notes”) of LGCH. If you are a beneficial owner, or an authorized representative acting on
behalf of a beneficial owner, of LGEC 2024 Notes that is an “Eligible Holder” (as defined below), please
complete the attached certification (the “Eligibility Certification”) and return it to D.F. King & Co., Inc.
at the address set forth in the Eligibility Certification or submit it online on the next page. If you are a
beneficial owner of LGEC 2024 Notes that is not an Eligible Holder, you may not participate in the
Exchange Offer, and you should not complete the attached Eligibility Certification. If you do not submit
a valid Eligibility Certification, you will not be entitled to receive any documents or materials relating to
the Exchange Offers.
An “Eligible Holder” is a beneficial owner of LGEC 2024 Notes that certifies that it is:
a) a “qualified institutional buyer,” as defined in Rule 144A under the Securities Act; or
b) (x) a person outside the United States who is:
i. not a “U.S. person” (as defined in Rule 902 under the Securities Act)
ii. not acting for the account or benefit of a U.S. person; and
iii. a “non-U.S. qualified offeree” (as defined below); and
(y) with respect to holders of LGEC 2024 Notes located in Canada:
i. other than holders in the Province of Ontario, that it meets one or more of the
criteria to be classified as an “accredited investor” as defined in National
Instrument 45-106 – Prospectus Exemptions; or
ii. as to holders in the Province of Ontario, that it meets one or more of the
criteria to be classified an “accredited investor” as defined in Section 73.3(1) of the Securities Act (Ontario); and
iii. in the case of each of clauses (y)(i) and (y)(ii) above, such holder meets one or
more of the criteria to be classified as National Instrument 31-103 – Registration Requirements, Exemptions and
Ongoing Registrant Obligations.
The definitions of “qualified institutional buyer,” “U.S. person” and “non-U.S. qualified offeree” are
set forth in Annex A. The definitions of “accredited investor” as defined in each of National
Instrument 45-106 and the Securities Act (Ontario) and the definition of “permitted client” as defined in
National Instrument 31-103 – Registration Requirements, Exemptions and Ongoing Registrant
Obligations are set forth in Annex B.
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Please submit your responses as soon as possible in order to allow sufficient time for you to review and submit the relevant paperwork to participate in the transaction. This letter does not constitute an offer or a solicitation of an offer with respect to the LGEC 2024 Notes. This letter does not create any obligations whatsoever on the part of LGEC or any of its subsidiaries to make any offer or on the part of the recipient to participate if an offer is made. The New 2024 Notes that LGCH proposes to offer pursuant to the Exchange Offer referenced above will not be registered under the Securities Act, or applicable state securities laws, and may not be offered or sold in the United States absent registration or an applicable exemption from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state laws. You may direct any questions to D.F. King & Co., Inc., Attn: Andrew Beck, at 48 Wall Street, 22nd Floor, New York, New York 10005, telephone number: (866) 620-9554 (toll-free) or (212) 269-5550 (banks and brokers) or email lgf@dfking.com.
Very truly yours,
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ANNEX A “qualified institutional buyer”
means:
(1) Any of the following entities, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary
basis at least $100 million in securities of issuers that are not affiliated with the entity:
(a) Any insurance company as defined in Section 2(a)(13) of the U.S. Securities Act of 1933, as amended (the “Securities Act”);
(b)
Any investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”)
or any business development company as defined in Section 2(a)(48) of the Investment Company Act;
(c) Any small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; (d) Any
plan established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees; (e) Any
employee benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974; (f) Any
trust fund whose trustee is a bank or trust company and whose participants are
exclusively plans of the types identified in subparagraph (1)(D) or (E) above,
except trust funds that include as participants individual retirement accounts
or H.R. 10 plans; (g) Any
business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940 (the “Investment Advisers
Act”); (h) Any
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation (other than a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or other institution referenced in
Section 3(a)(5)(A) of the Securities Act or a foreign bank or savings and loan
association or equivalent institution), partnership, or Massachusetts or
similar business trust; and (i) Any
investment adviser registered under the Investment Advisers Act. (2) Any dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934 (the “Exchange Act”), acting for its own account or the accounts of
other qualified institutional buyers, that in the aggregate owns and invests on
a discretionary basis at least $10 million of securities of issuers that are
not affiliated with the dealer, provided,
that securities constituting the whole or a part of an unsold allotment to or
subscription by a dealer as a participant in a public offering shall not be
deemed to be owned by such dealer; (3) Any dealer
registered pursuant to Section 15 of the Exchange Act acting in a riskless
principal transaction on behalf of a qualified institutional buyer; (4) Any
investment company registered under the Investment Company Act, acting for its
own account or for the accounts of other qualified institutional buyers, that
is part of a family of investment companies which own in aggregate at least
$100 million in securities of issuers, other than issuers that are affiliated
with the investment company or are part of such family of investment companies. “Family of investment companies” means any
two or more investment companies registered under the Investment Company Act,
except for a unit investment trust whose assets consist solely of shares of one
or more registered investment companies, that have the same investment adviser
(or, in the case of unit investment trusts, the same depositor),
provided that: (a) Each
series of a series company (as defined in Rule 18f-2 under the Investment
Company Act) shall be deemed to be a separate investment company; and (b) Investment
companies shall be deemed to have the same adviser (or depositor) if their
advisers (or depositors) are majority-owned subsidiaries of the same parent, or
if one investment company's adviser (or depositor) is a majority-owned
subsidiary of the other investment company's adviser (or depositor); (5) Any entity,
all of the equity owners of which are qualified institutional buyers, acting
for its own account or the accounts of other qualified institutional buyers;
and (6) Any bank as
defined in Section 3(a)(2) of the Securities Act, any savings and loan
association or other institution as referenced in Section 3(a)(5)(A) of the
Securities Act, or any foreign bank or savings and loan association or
equivalent institution, acting for its own account or the accounts of other
qualified institutional buyers, that in the aggregate owns and invests on a
discretionary basis at least $100 million in securities of issuers that are not
affiliated with it and that has an audited net worth of at least $25 million as
demonstrated in its latest annual financial statements, as of a date not more
than 16 months preceding the date of sale under the rule in the case of a U.S.
bank or savings and loan association, and not more than 18 months preceding
such date of sale for a foreign bank or savings and loan association or
equivalent institution. For purposes of the foregoing definition of “ qualified institutional buyer”: (1)
In
determining the aggregate amount of securities owned and invested on a
discretionary basis by an entity, the following instruments and interests shall
be excluded: bank deposit notes and certificates of deposit; loan
participations; repurchase agreements; securities owned but subject to a
repurchase agreement; and currency, interest rate and commodity swaps. (2) The aggregate value of securities owned and invested on a discretionary basis by an entity shall be the cost of such securities, except where the entity reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published. In the latter event, the securities may be valued at market for purposes of this section. (3)
In
determining the aggregate amount of securities owned by an entity and invested
on a discretionary basis, securities owned by subsidiaries of the entity that
are consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of the entity,
except that, unless the entity is a reporting company under Section 13 or 15(d)
of the Exchange Act, securities owned by such subsidiaries may not be included
if the entity itself is a majority-owned subsidiary that would be included in
the consolidated financial statements of another enterprise. (4) “Riskless principal transaction” means a transaction in which a dealer buys a security from any person and makes a simultaneous offsetting sale of such security
to a qualified institutional buyer, including another dealer acting as riskless principal for a qualified institutional buyer.
“U.S. person” means: (1) Any
natural person resident in the United States; (2) Any
partnership or corporation organized or incorporated under the laws of the United
States; (3) Any
estate of which any executor or administrator is a U.S. person; (4) Any
trust of which any trustee is a U.S. person; (5) Any
agency or branch of a foreign entity located in the United States; (6) Any
non-discretionary account or similar account (other than an estate or trust) held
by a dealer or other fiduciary for the benefit or account of a U.S. person; (7) Any
discretionary account or similar account (other than an estate or trust) held
by a dealer or other fiduciary organized, incorporated, or (if an individual)
resident in the United States; and (8) Any
partnership or corporation if: (a) Organized or incorporated under the laws of any foreign
jurisdiction; and (b) Formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act, unless it is
organized or incorporated, and owned, by accredited investors (as defined in
Rule 501(a) under the Securities Act) who are not natural persons, estates or
trusts. None of the following is
a “U.S.
person”: (1) Any
discretionary account or similar account (other than an estate or trust) held
for the benefit or account of a non-U.S. person by a dealer or other
professional fiduciary organized, incorporated, or (if an individual) resident
in the United States; (2) Any
estate of which any professional fiduciary acting as executor or administrator
is a U.S. person if: (a) An executor or administrator
of the estate who is not a U.S. person has sole or shared investment discretion
with respect to the assets of the estate; and (b) The estate is governed by
foreign law; (3) Any
trust of which any professional fiduciary acting as trustee is a U.S. person,
if a trustee who is not a U.S. person has sole or shared investment discretion
with respect to the trust assets, and no beneficiary of the trust (and no
settlor if the trust is revocable) is a U.S. person; (4) An
employee benefit plan established and administered in accordance with the law
of a country other than the United States and customary practices and
documentation of such country; (5) Any
agency or branch of a U.S. person located outside the United States if: (a) The agency or branch operates for valid business reasons; and (b) The agency or branch is engaged in the business of insurance
or banking and is subject to substantive insurance or banking regulation,
respectively, in the jurisdiction where located; and (6) The
International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the United Nations, and their agencies,
affiliates and pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans. “non-U.S. qualified offeree” means: (1)
In relation to each Member State of the European Economic Area (each, a “Relevant Member
State”) which has implemented Directive 2003/71/EC (as amended, including by Directive
2010/73/EU and including any relevant implementing measure in a Relevant Member State, the
“Prospectus Directive”), with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State, any legal entity which is a Qualified Investor as
defined in the Prospectus Directive; or
(2)
Any entity or person outside the United States and the European Economic Area to whom the offers
related to the New Notes may be made in compliance with all other applicable laws and regulations
of any applicable jurisdiction, other than an entity or person resident in any Restricted Jurisdiction,
provided that a discretionary account held for the benefit or account of a person or company resident
in Canada by an investment manager or a similar fiduciary outside Canada is not a resident of
Canada for this purpose.
States;
For purposes of the foregoing definition of non-U.S. qualified offeree: (1)
“Qualified Investor” means a “qualified investor” as defined in the Prospective Directive, and
includes:
(a)
persons or entities that are described in points (1) to (4) of Section I of Annex II to Directive
2004/39/EC of the European Parliament and of the Council of April 21, 2004 on markets in
financial instruments; and
(b)
persons or entities who are, on request, treated as professional clients in accordance with Annex
II to Directive 2004/39/EC, or recognized as eligible counterparties in accordance with Article 24
of Directive 2004/39/EC unless they have requested that they be treated as non-professional
clients.
(2)
“Restricted Jurisdiction” means each of Angola, Bahamas, Bahrain, Canada, Colombia, Curaçao,
Gibraltar, Lebanon, Liechtenstein, the People’s Republic of China and the Russian Federation.
ANNEX B 1. “accredited investor” as defined under National Instrument 45-106 – Prospectus Exemptions means: (a) except in Ontario, a Canadian financial institution, or a Schedule III bank, (b) except in Ontario, the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada), (c) except in Ontario, a subsidiary of any person referred to in paragraphs (a) or (b), if the person owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary, (d) except in Ontario, a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer, (e) an individual registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (d), (e.1) an individual formerly registered under the securities legislation of a jurisdiction of Canada, other than an individual formerly registered solely as a representative of a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador), (f) except in Ontario, the Government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction of Canada, (g) except in Ontario, a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’île de Montréal or an intermunicipal management board in Québec, (h) except in Ontario, any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government, (i) except in Ontario, a pension fund that is regulated by the Office of the Superintendent of Financial Institutions (Canada), a pension commission or similar regulatory authority of a jurisdiction of Canada, (j) an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $1 000 000, (j.1) an individual who beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $5 000 000, (k) an individual whose net income before k. taxes exceeded $200 000 in each of the 2 most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300 000 in each of the 2 most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year, (l) an individual who, either alone or with a spouse, has net assets of at least $5 000 000,
(m)
a person, other than an individual or investment fund, that has net assets of at least $5
000 000 as shown on its most recently prepared financial statements,
(n)
an investment fund that distributes or has distributed its securities only to: (i) a person
that is or was an accredited investor at the time of the distribution, (ii) a person that
acquires or acquired securities in the circumstances referred to in sections 2.10
[Minimum amount investment], or 2.19 [Additional investment in investment funds], or
(iii) a person described in paragraph (i) or (ii) that acquires or acquired securities under
section 2.18 [Investment fund reinvestment],
(o)
an investment fund that distributes or has distributed securities under a prospectus in a
jurisdiction of Canada for which the regulator or, in Québec, the securities regulatory
authority, has issued a receipt,
(p)
a trust company or trust corporation registered or authorized to carry on business under
the Trust and Loan Companies Act (Canada) or under comparable legislation in a
jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed
account managed by the trust company or trust corporation, as the case may be,
(q)
a person acting on behalf of a fully managed account managed by that person, if that
person is registered or authorized to carry on business as an adviser or the equivalent
under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction,
(r)
a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has
obtained advice from an eligibility adviser or an adviser registered under the securities
legislation of the jurisdiction of the registered charity to give advice on the securities
being traded,
(s)
an entity organized in a foreign jurisdiction that is analogous to any of the entities
referred to in paragraphs (a) to (d) or paragraph (i) in form and function,
(t)
a person in respect of which all of the owners of interests, direct, indirect or beneficial,
except the voting securities required by law to be owned by directors, are persons that
are accredited investors,
(u)
an investment fund that is advised by a person registered as an adviser or a person that is
exempt from registration as an adviser,
(v)
a person that is recognized or designated by the securities regulatory authority or, except
in Ontario and Québec, the regulator as an accredited investor; or
(w)
a trust established by an accredited investor for the benefit of the accredited investor’s
family members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor’s spouse, a former spouse of the accredited
investor or a parent, grandparent, brother, sister, child or grandchild of that accredited
investor, of that accredited investor’s spouse or of that accredited investor’s former
spouse;
2. An “accredited investor” as defined in Section 73.3(1) of the Securities Act (Ontario) means:
(a)
a financial institution described in paragraph 1, 2 or 3 of subsection 73.1 (1),
(b)
the Business Development Bank of Canada,
(c)
a subsidiary of any person or company referred to in clause (a) or (b), if the person or
company owns all of the voting securities of the subsidiary, except the voting securities
required by law to be owned by directors of that subsidiary,
(d)
a person or company registered under the securities legislation of a province or territory
of Canada as an adviser or dealer, except as otherwise prescribed by the regulations,
(e)
the Government of Canada, the government of a province or territory of Canada, or any
Crown corporation, agency or wholly owned entity of the Government of Canada or of
the government of a province or territory of Canada,
(f)
a municipality, public board or commission in Canada and a metropolitan community,
school board, the Comité de gestion de la taxe scolaire de l’Île de Montréal or an
intermunicipal management board in Quebec,
(g)
any national, federal, state, provincial, territorial or municipal government of or in any
foreign jurisdiction, or any agency of that government,
(h)
a pension fund that is regulated by either the Office of the Superintendent of Financial
Institutions (Canada) or a pension commission or similar regulatory authority of a
province or territory of Canada,
(i)
a person or company that is recognized or designated by the Commission as an
accredited investor, or
(j)
such other persons or companies as may be prescribed by the regulations. 2009, c. 18,
Sched. 26, s. 12 (2).
3. A “permitted client” as defined under National Instrument 31-103 - Registration Requirements,
Exemptions And Ongoing Registrant Obligations means:
(a)
a Canadian financial institution or a Schedule III bank;
(b)
the Business Development Bank of Canada incorporated under the Business
Development Bank of Canada Act (Canada);
(c)
a subsidiary of any person or company referred to in clause (a) or (b), if the person or
company owns all of the voting securities of the subsidiary, except the voting securities
required by law to be owned by directors of that subsidiary,
(d)
a person or company registered under the securities legislation of a jurisdiction of
Canada as an adviser, investment dealer, mutual fund dealer or exempt market dealer;
(e)
a pension fund that is regulated by either the federal Office of the Superintendent of
Financial Institutions or a pension commission or similar regulatory authority of a
jurisdiction of Canada or a wholly-owned subsidiary of such a pension fund;
(f)
an entity organized in a foreign jurisdiction that is analogous to any of the entities
referred to in paragraphs (a) to (e);
(g)
the Government of Canada or a jurisdiction of Canada, or any Crown corporation,
agency or wholly-owned entity of the Government of Canada or a jurisdiction of Canada;
(h)
any national, federal, state, provincial, territorial or municipal government of or in any
foreign jurisdiction, or any agency of that government;
(i)
a municipality, public board or commission in Canada and a metropolitan community,
school board, the Comité de gestion de la taxe scolaire de l’île de Montréal or an
intermunicipal management board in Québec;
(j)
a trust company or trust corporation registered or authorized to carry on business under
the Trust and Loan Companies Act (Canada) or under comparable legislation in a
jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a managed account
managed by the trust company or trust corporation, as the case may be;
(k)
a person or company acting on behalf of a managed account managed by the person or
company, if the person or company is registered or authorized to carry on business as an
adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a
foreign jurisdiction;
(l)
an investment fund if one or both of the following apply: (i) the fund is managed by a
person or company registered as an investment fund manager under the securities
legislation of a jurisdiction of Canada; (ii) the fund is advised by a person or company
authorized to act as an adviser under the securities legislation of a jurisdiction of Canada;
(m)
in respect of a dealer, a registered charity under the Income Tax Act (Canada) that
obtains advice on the securities to be traded from an eligibility adviser, as defined in
section 1.1 of National Instrument 45-106 - Prospectus Exemptions, or an adviser
registered under the securities legislation of the jurisdiction of the registered charity;
(n)
in respect of an adviser, a registered charity under the Income Tax Act (Canada) that is
advised by an eligibility adviser, as defined in section 1.1 of National Instrument 45-106
Prospectus Exemptions, or an adviser registered under the securities legislation of the
jurisdiction of the registered charity;
(o) an individual who beneficially owns financial assets, as defined in section 1.1 of
National Instrument 45-106 Prospectus Exemptions, having an aggregate realizable value
that, before taxes but net of any related liabilities, exceeds $5 million;
(p)
a person or company that is entirely owned by an individual or individuals referred to in
paragraph (o), who holds the beneficial ownership interest in the person or company
directly or through a trust, the trustee of which is a trust company or trust corporation
registered or authorized to carry on business under the Trust and Loan Companies Act
(Canada) or under comparable legislation in a jurisdiction of Canada or a foreign
jurisdiction;
(q)
a person or company, other than an individual or an investment fund, that has net assets
of at least $25 million as shown on its most recently prepared financial statements; or
(r)
a person or company that distributes securities of its own issue in Canada only to persons
or companies referred to in paragraphs (a) to (q).
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