Form of Voting And Exchange Trust Agreement

Exhibit 10.9


VOTING AND EXCHANGE TRUST AGREEMENT


MEMORANDUM OF AGREEMENT made as of the _______ day of _______, 2002, among Loews Cineplex Entertainment Corporation, a corporation existing under the laws of Delaware ("LCE"), Loews Cineplex Entertainment Corporation Canada, a corporation existing under the laws of Ontario (the "CORPORATION") and _______, a trust company incorporated under the laws of Canada (hereinafter referred to as "TRUSTEE").


RECITALS:


(a) pursuant to a prospectus dated on or around _______, 2002, the
Corporation is effecting an initial public offering of the
Exchangeable Shares (the "OFFERING");


(b) in connection with the Offering, LCE, the Corporation and the
Trustee have agreed to execute a voting and exchange trust agreement
substantially in the form of this agreement; and


(c) the foregoing recitals are made as representations and statements of
fact by LCE and the Corporation and not by the Trustee.


In consideration of the foregoing and the mutual agreements contained herein (the receipt and sufficiency of which are acknowledged), the parties agree as follows:


ARTICLE I
DEFINITIONS AND INTERPRETATION


1.1 DEFINITIONS


In this agreement, each initially capitalized term and the terms "affiliate", "business day", "holder", "Nullified Shares" and "person" used and not otherwise defined herein shall have the meaning ascribed thereto in the rights, privileges, restrictions and conditions (collectively, the "SHARE PROVISIONS") attaching to the Exchangeable Shares as set out in the articles of the Corporation and the following terms shall have the following meanings:


"AGENCY" means any domestic or foreign court, tribunal, federal,
state, provincial or local government or governmental agency or
authority or other regulatory authority (including the Toronto Stock
Exchange and the New York Stock Exchange) or administrative agency
or commission (including the Ontario Securities Commission and the
Securities and Exchange Commission) or any elected or appointed
public official.


"AUTHORIZED INVESTMENTS" means short term interest bearing or
discount debt obligations issued or guaranteed by the Government of
Canada or any province thereof or a Canadian chartered bank (which
may include an affiliate or related party of the Trustee), maturing
not more than one year from the date of
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investment, provided that each such obligation is rated at least R1
(middle) by DBRS Inc. or any equivalent rating by Canadian Bond
Rating Service.


"AUTOMATIC EXCHANGE RIGHT" means the benefit of the obligation of
LCE, in the event of a Liquidation Event, to purchase all of the
outstanding Exchangeable Shares (other than Nullified Shares) from
the holders thereof on the fifth business day prior to the effective
date of any such Liquidation Event in exchange for shares of LCE
Stock, plus the aggregate Dividend Amount, pursuant to this
agreement.


"BENEFICIARIES" means the registered holders from time to time of
Exchangeable Shares, other than holders of Nullified Shares.


"BENEFICIARY VOTES" has the meaning ascribed thereto in Section 4.2.


"BOARD OF DIRECTORS" means the board of directors of the
Corporation.


"EXCHANGE RIGHT" means the exchange right, granted by LCE to the
Trustee as trustee for and on behalf of the benefit of the
Beneficiaries pursuant to this agreement, to require LCE to purchase
all or any part of the Exchangeable Shares from the holders thereof
in exchange for shares of LCE Stock, plus an amount per share equal
to the Dividend Amount, upon the occurrence and during the
continuance of an Insolvency Event.


"EXCHANGEABLE SHARES" means the non-voting exchangeable shares in
the capital of the Corporation as more particularly described in the
Share Provisions of the Corporation.


"INCLUDING" means "including without limitation" and "INCLUDES"
means "includes without limitation".


"INDEMNIFIED PARTIES" has the meaning ascribed thereto in Section
9.1.


"INSOLVENCY EVENT" means the consent of the Corporation to the
institution of bankruptcy, insolvency or winding-up proceedings
against it, or the filing of a petition, answer or consent seeking
dissolution or winding-up under any bankruptcy, insolvency or
analogous laws, including without limitation, the Companies
Creditors' Arrangement Act Canada and the Bankruptcy and Insolvency
Act Canada, where the Corporation fails to contest in good faith any
such proceedings commenced in respect of it within 30 days of
becoming aware thereof, or the consent by the Corporation to the
filing of any such petition or to the appointment of a receiver, or
the institution by the Corporation of any such proceeding, or the
making by the Corporation of a general assignment for the benefit of
creditors, or the admission in writing by the Corporation of its
inability to pay its debts generally as they become due, or the
Corporation not being permitted, pursuant to solvency requirements
of applicable law, to redeem any Retracted Shares.


"LCE MEETING" has the meaning ascribed thereto in Section 4.2.
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"LCE SPECIAL VOTING SHARE" means the special voting share in the
capital of LCE which entitles the holder of record to a number of
votes at meetings of holders of shares of LCE Stock equal to the
number of Exchangeable Shares outstanding from time to time (other
than Nullified Shares) which share is to be issued to and voted by,
the Trustee as described herein.


"LCE SUCCESSOR" has the meaning ascribed thereto in Section 11.1(a).


"LIQUIDATION EVENT" has the meaning ascribed thereto in Section
5.7(2).


"LIQUIDATION EVENT EFFECTIVE DATE" has the meaning ascribed thereto
in Section 5.7(3).


"LIST" has the meaning ascribed thereto in Section 4.6.


"OFFICER'S CERTIFICATE" means, with respect to LCE or the
Corporation, as the case may be, a certificate signed by any officer
or director of LCE or the Corporation, as the case may be.


"SUPPORT AGREEMENT" means that certain support agreement of even
date herewith between the Corporation, Callco ULC, Callco LLC and
LCE in the form of Appendix A to this Agreement.


"TRUST" means the trust created by this agreement.


"TRUST ESTATE" means the LCE Special Voting Share, any other
securities, the Exchange Right, the Automatic Exchange Right and any
money or other property which may be held by the Trustee from time
to time pursuant to this agreement.


"TRUSTEE" means ______ and, subject to the provisions of Article 10,
includes any successor trustee.


"VOTING RIGHTS" means the voting rights attached to the LCE Special
Voting Share set forth in Article 4.


1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.


The division of this agreement into Articles, sections and other portions and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this agreement. Unless otherwise specified, references to an "Article" or "section" refer to the specified Article or section of this agreement. The terms "this agreement", "hereof", "herein", and "hereunder" and similar expressions refer to this agreement and not to any particular Article, section or other portion hereof.


1.3 NUMBER, GENDER, ETC.


Words importing the singular number only shall include the plural and vice versa. Words importing any gender shall include all genders.
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1.4 DATE FOR ANY ACTION


If any date on which any action is required to be taken under this agreement is not a business day, such action shall be required to be taken on the next succeeding business day.


1.5 CERTIFICATE OF INCUMBENCY


Each of the other parties to this Agreement shall file with the Trustee a certificate of incumbency setting forth the names and titles of the individuals authorized to give instructions, directions or other instruments (including Officer's Certificates) to the Trustee ("AUTHORIZED PERSONS"), together with specimen signatures of such persons, and the Trustee shall be entitled to rely on the latest certificate of incumbency filed with it unless it receives notice, in accordance with this agreement, of a change in Authorized Persons with updated specimen signatures.


ARTICLE II
PURPOSE OF AGREEMENT


2.1 ESTABLISHMENT OF TRUST


The purpose of this agreement is to create the Trust for the benefit of the Beneficiaries, as herein provided. The Trustee will hold the LCE Special Voting Share in order to enable the Trustee to exercise the Voting Rights and will hold the Exchange Right and the Automatic Exchange Right in order to enable the Trustee to exercise or enforce such rights, in each case as trustee for and on behalf of the Beneficiaries as provided in this agreement.


ARTICLE III
LCE SPECIAL VOTING SHARE


3.1 ISSUE AND OWNERSHIP OF THE LCE SPECIAL VOTING SHARE


Upon the execution of this agreement, LCE shall issue to and deposit with the Trustee the LCE Special Voting Share (and shall deliver the certificate representing such share to the Trustee) to be hereafter held of record by the Trustee as trustee for and on behalf of, and for the use and benefit of, the Beneficiaries and in accordance with the provisions of this agreement. LCE hereby acknowledges receipt from the Trustee as trustee for and on behalf of the Beneficiaries of good and valuable consideration (and the adequacy thereof) for the issuance of the LCE Special Voting Share by LCE to the Trustee. During the term of the Trust and subject to the terms and conditions of this agreement, the Trustee shall possess and be vested with full legal ownership of the LCE Special Voting Share and shall be entitled to exercise all of the rights and powers of an owner with respect to the LCE Special Voting Share provided that the Trustee shall:


(a) hold the LCE Special Voting Share and the legal title thereto as
trustee solely for the use and benefit of the Beneficiaries in
accordance with the provisions of this agreement; and
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(b) except as specifically authorized by this agreement, have no power
or authority to sell, transfer, vote or otherwise deal in or with
the LCE Special Voting Share and the LCE Special Voting Share shall
not be used or disposed of by the Trustee for any purpose other than
the purposes for which this Trust is created pursuant to this
agreement.


3.2 LEGENDED SHARE CERTIFICATES


The Corporation will cause each certificate representing Exchangeable Shares to bear an appropriate legend notifying the Beneficiaries of their right to instruct the Trustee with respect to the exercise of the Voting Rights in respect of the Exchangeable Shares of the Beneficiaries.


3.3 SAFE KEEPING OF CERTIFICATE


The certificate representing the LCE Special Voting Share shall at all times be held in safe keeping by the Trustee or its duly authorized agent.


ARTICLE IV
EXERCISE OF VOTING RIGHTS


4.1 VOTING RIGHTS


The Trustee, as the holder of record of the LCE Special Voting Share, shall be entitled to all of the Voting Rights, including the right to vote in person or by proxy attaching to the LCE Special Voting Share on any matters, questions, proposals or propositions whatsoever that may properly come before the stockholders of LCE at an LCE Meeting. The Voting Rights shall be and remain vested in and exercised by the Trustee subject to the terms of this agreement. Subject to Section 7.15:


(a) the Trustee shall exercise the Voting Rights only on the basis of
instructions received pursuant to this Article 4 from Beneficiaries
on the record date established by LCE or by applicable law who are
entitled to instruct the Trustee as to the voting thereof at the
time at which the LCE Meeting is held; and


(b) to the extent that no instructions are received from a Beneficiary
with respect to the Voting Rights to which such Beneficiary is
entitled, the Trustee shall not exercise or permit the exercise of
such Voting Rights.


4.2 NUMBER OF VOTES


(1) With respect to all meetings of stockholders of LCE at which holders
of shares of LCE Stock are entitled to vote (each, an "LCE
MEETING"), each Beneficiary shall be entitled to instruct the
Trustee to cast and exercise one vote comprised in the Voting Rights
for each Exchangeable Share owned of record by a Beneficiary on the
record date established by LCE or by applicable law for such LCE
Meeting (the "BENEFICIARY VOTES"), in respect of each matter,
question, proposal or proposition to be voted on at such LCE
Meeting. LCE shall provide the Trustee notice by the close of
business on the third business day prior to an LCE Meeting
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that no holders of Nullified Shares have exercised any votes in
respect of the Exchangeable Shares.


(2) The aggregate Voting Rights on a poll at an LCE Meeting shall
consist of a number of votes equal to one vote for each outstanding
Exchangeable Share other than Nullified Shares and for which the
Trustee has received voting instructions from the Beneficiaries. Any
Beneficiary who chooses to attend an LCE Meeting in person, and who
is entitled to vote in accordance with Section 4.8(2), shall be
entitled to one vote by any means available to holders of shares of
LCE Stock including by way of ballot.


The Trustee shall have no duty under this agreement to determine or
ascertain the aggregate number of Voting Rights attached to the
Exchangeable Shares that are issued and outstanding at any relevant time
and the aggregate Voting Rights shall be determined by LCE at or prior to
an LCE Meeting.


4.3 MAILINGS TO STOCKHOLDERS


(1) With respect to each LCE Meeting, the Trustee will mail or cause to
be mailed (or otherwise communicate in the same manner as LCE
utilizes in communications to holders of shares of LCE Stock subject
to applicable regulatory requirements and the Trustee being advised
in writing of such manner and provided that such manner of
communications is available to the Trustee) the following materials
to each of the Beneficiaries named in the List at the Beneficiaries'
respective addresses as set forth in the List, such mailing or
communication to commence wherever practicable on the same day as
the mailing or notice (or other communication) with respect thereto
is commenced by LCE to its stockholders:


(a) a copy of such notice, together with any related materials,
including any circular or information statement or listing
particulars, to be provided to stockholders of LCE but
excluding proxies to vote shares of LCE Stock;


(b) a statement that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with
respect to such LCE Meeting or, pursuant and subject to
Section 4.7, to attend such LCE Meeting and to exercise
personally the Beneficiary Votes thereat;


(c) a statement as to the manner in which such instructions may be
given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:


(i) a proxy to such Beneficiary or his, her or its designee
to exercise personally the Beneficiary Votes; or


(ii) a proxy to a designated agent or other representative of
LCE to exercise such Beneficiary Votes;
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(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary
is entitled will not be exercised;


(e) a form of direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and


(f) a statement of the time and date by which such instructions
must be received by the Trustee in order to be binding upon
it, which in the case of an LCE Meeting shall not be earlier
than the close of business on the fourth business day prior to
such meeting, and of the method for revoking or amending such
instructions.


(2) The materials referred to in this Section 4.3 are to be provided to
the Trustee by LCE and LCE shall ensure that such materials are
provided in sufficient time to permit the Trustee to comment as
aforesaid and to send all materials to each Beneficiary at the same
time as such materials are first sent to holders of shares of LCE
Stock and in compliance with the time limits imposed under Canadian
securities laws. If the methods of communication available to the
Trustee for communications with the Beneficiaries does not conform
with the method of communication LCE employs with holders of shares
of LCE Stock with respect to the materials referred to in this
Section 4.3, then


(a) the Trustee shall use any other available method of
communication permitted by law, provided that communication by
mail shall always be an approved method of communication; and


(b) if the Trustee determines to employ mail as a method of
communication, LCE will provide all materials referred to in
this Section 4.3 to the Trustee in a form permitting them to
be mailed.


(3) For the purpose of determining Beneficiary Votes to which a
Beneficiary is entitled in respect of any LCE Meeting, the number of
Exchangeable Shares owned of record by the Beneficiary shall be
determined at the close of business on the record date established
by LCE or by applicable law for purposes of determining stockholders
entitled to vote at such LCE Meeting. LCE will notify the Trustee of
any decision of the board of directors of LCE with respect to the
calling of any LCE Meeting and shall provide all necessary
information and materials to the Trustee in each case promptly and
in any event in sufficient time to enable the Trustee to perform its
obligations contemplated by this Section 4.3.


4.4 COPIES OF STOCKHOLDER INFORMATION


LCE will deliver to the Trustee copies of all proxy materials (including notices of LCE Meetings but excluding proxies to vote shares of LCE Stock), information statements, reports (including all interim and annual financial statements) and other written communications that, in each case, are to be distributed by LCE from time to time to holders of shares of LCE Stock in sufficient quantities and in sufficient time so as to enable the Trustee to send or cause to be sent those materials to each Beneficiary, wherever practicable, at the same time as such
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materials are first sent to holders of shares of LCE Stock and in compliance with the time limits imposed under Canadian securities laws. Subject to the foregoing, the Trustee will mail or otherwise send, or cause to be mailed or otherwise sent, to each Beneficiary, at the expense of LCE, copies of all such materials (and all materials specifically directed to the Beneficiaries or to the Trustee for the benefit of the Beneficiaries by LCE) received by the Trustee from LCE, wherever practicable, contemporaneously with the sending of such materials to holders of shares of LCE Stock. The Trustee will also make available for inspection by any Beneficiary at the Trustee's principal office in Toronto during its regular business hours all proxy materials, information statements, reports and other written communications that are:


(a) received by the Trustee as the registered holder of the LCE Special
Voting Share and made available by LCE generally to the holders of
shares of LCE Stock; or


(b) specifically directed to the Beneficiaries or to the Trustee for the
benefit of the Beneficiaries by LCE


4.5 OTHER MATERIALS


As soon as reasonably practicable after receipt by LCE or stockholders of LCE (if such receipt is known by LCE) of any material sent or given by or on behalf of a third party to holders of shares of LCE Stock generally, including dissident proxy and information circulars (and related information and material) and take-over bid and securities exchange take-over bid circulars (and related information and material), provided such material has not been sent to the Beneficiaries by or on behalf of such third party, LCE shall use its reasonable efforts to obtain and deliver to the Trustee copies thereof in sufficient quantities so as to enable the Trustee to forward or cause to be forwarded such material (unless the same has been provided directly to Beneficiaries by such third party) to each Beneficiary as soon as possible thereafter, subject to applicable securities laws. As soon as reasonably practicable after receipt thereof, the Trustee will mail or otherwise send, or cause to be mailed or otherwise sent, to each Beneficiary, at the expense of LCE, copies of all such materials received by the Trustee from LCE. The Trustee will also make available for inspection by any Beneficiary, at the Trustee's principal office in Toronto during its regular business hours, copies of all such materials.


4.6 LIST OF PERSONS ENTITLED TO VOTE


The Corporation shall, (a) prior to each annual, general and extraordinary LCE Meeting, and (b) forthwith upon each request made at any time by the Trustee in writing, prepare or cause to be prepared a list (a "LIST") of the names and addresses of the Beneficiaries arranged in alphabetical order and showing the number of Exchangeable Shares held of record by each such Beneficiary, in each case at the close of business on the date specified by the Trustee in such request or, in the case of a List prepared in connection with an LCE Meeting, at the close of business on the record date established by LCE or pursuant to applicable law for determining the holders of shares of LCE Stock entitled to receive notice of and/or to vote at such LCE Meeting. Each such List shall be delivered to the Trustee promptly after receipt by the Corporation of such request or the record date for such meeting and in any event within sufficient time as to permit the Trustee to perform its obligations under this agreement. LCE agrees to give the Corporation notice (with a copy to the Trustee) of the calling of any LCE Meeting together with the record
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date therefor, sufficiently prior to the date of the calling of such meeting so as to enable the Corporation to perform its obligations under this Section 4.6.


4.7 ENTITLEMENT TO DIRECT VOTES


Subject to Section 4.8 and Section 4.11, any Beneficiary named in a List prepared in connection with any LCE Meeting will be entitled to (a) instruct the Trustee in the manner described in Section 4.3 with respect to the exercise of the Beneficiary Votes to which such Beneficiary is entitled, or (b) attend such meeting and personally exercise thereat, as the proxy of the Trustee, the Beneficiary Votes to which such Beneficiary is entitled.


4.8 VOTING BY TRUSTEE AND ATTENDANCE OF TRUSTEE REPRESENTATIVE AT MEETING


(1) In connection with each LCE Meeting, the Trustee shall exercise,
either in person or by proxy, in accordance with the instructions
received from a Beneficiary pursuant to Section 4.3, the Beneficiary
Votes as to which such Beneficiary is entitled to direct the vote
(or any lesser number thereof as may be set forth in the
instructions) other than any Beneficiary Votes that are the subject
of Section 4.8(2); provided, however, that such written instructions
are received by the Trustee from the Beneficiary prior to the time
and date fixed by the Trustee for receipt of such instruction in the
notice sent or caused to be sent by the Trustee to the Beneficiary
pursuant to Section 4.3.


(2) The Trustee shall cause a representative who is empowered by it to
sign and deliver, on behalf of the Trustee, proxies for Voting
Rights to attend each LCE Meeting. Upon submission by a Beneficiary
(or its designee) named in the List prepared in connection with the
relevant meeting of identification satisfactory to the Trustee's
representative, and at the Beneficiary's request, such
representative shall sign and deliver to such Beneficiary (or its
designee) a proxy to exercise personally the Beneficiary Votes as to
which such Beneficiary is otherwise entitled hereunder to direct the
vote, if such Beneficiary either (i) has not previously given the
Trustee instructions pursuant to Section 4.3 in respect of such
meeting or (ii) submits to such representative written revocation of
any such previous instructions. At such meeting, the Beneficiary (or
its ...