AMENDMENT TO VOTING AND STANDSTILL AGREEMENT dated as of June 30, 2016 among LIONS GATE ENTERTAINMENT CORP., LIBERTY GLOBAL INCORPORATED LIMITED, DISCOVERY LIGHTNING INVESTMENTS LTD., JOHN C. MALONE, MHR FUND MANAGEMENT, LLC, LIBERTY GLOBAL PLC,...
Exhibit 10.12.1
EXECUTION VERSION
AMENDMENT TO
VOTING AND STANDSTILL AGREEMENT
dated as of
June 30, 2016
among
LIONS GATE ENTERTAINMENT CORP.,
LIBERTY GLOBAL INCORPORATED LIMITED,
DISCOVERY LIGHTNING INVESTMENTS LTD.,
XXXX X. XXXXXX,
MHR FUND MANAGEMENT, LLC,
LIBERTY GLOBAL PLC,
DISCOVERY COMMUNICATIONS, INC.
and
the Mammoth Funds (as defined herein)
VOTING AND STANDSTILL AGREEMENT
This AMENDMENT TO VOTING AND STANDSTILL AGREEMENT (this “Amendment”) dated as of June 30, 2016 among MHR Fund Management, LLC, a Delaware limited liability company (“Mammoth”), the affiliated funds of Mammoth party hereto (the “Mammoth Funds”), Liberty Global Incorporated Limited, a limited company organized under the laws of England and Wales (“Leopard”), Discovery Lightning Investments Ltd., a limited company organized under the laws of England and Wales (“Dragon”), Xxxx X. Xxxxxx (“M”), Lions Gate Entertainment Corp., a corporation organized under the laws of British Columbia, Canada (subject to Section 1.02(b) thereto, the “Company”), Liberty Global plc, a public limited company organized under the laws of England and Wales (“Leopard Parent”), and Discovery Communications, Inc., a Delaware corporation (“Dragon Parent” and, together with Mammoth, Leopard Parent and M, the “Investors” and each, an “Investor”) (collectively the “Parties”).
W I T N E S S E T H :
WHEREAS, the Parties entered into a Voting and Standstill Agreement, dated as of November 10, 2015 (the “Agreement”; capitalized terms used but not defined herein shall have the meanings set forth in the Agreement); and
WHEREAS, the Company, Orion Arm Acquisition Inc., a Delaware corporation and an indirect wholly-owned subsidiary of the Company (“Orion”), and Starz, a Delaware corporation, are entering into an Agreement and Plan of Merger, dated as of June 30, 2016, (the “Merger Agreement”, and the transactions contemplated therein, the “Merger”) upon the terms and subject to the conditions in force on such date; and
WHEREAS, the Company and Orion are entering into a Stock Exchange Agreement, dated as of June 30, 2016, with the stockholders listed on Schedule 1 thereto (the “2016 Exchange Agreement”), upon the terms and subject to the conditions in force on such date; and
WHEREAS, in connection with the Merger Agreement and the 2016 Exchange Agreement, the Parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
1. Initial Excess Securities. The definition of “Initial Excess Securities” is amended to replace the reference to “13.5% of the Total Voting Power” therein with “the greater of (a) 13.5% of the Total Voting Power and (b) if either the Merger (as defined in the Merger Agreement) or the Exchange (as defined in the Stock Exchange Agreement, dated as of June 30, 2016, by and among the Company, Orion Arm Acquisition Inc., a Delaware corporation and an indirect wholly-owned subsidiary of the Company, and the stockholders listed on Schedule 1 thereto) occurs, the lesser of (i) 14.2% of the Total Voting Power and (ii) that percentage of the Total Voting Power that the LDM Investors and their respective Affiliates and any Person that is a member of a group with any such Persons shall have immediately following the consummation of the Merger or the Exchange, as the case may be”.
2. Standstill. The following words shall be added at the end of Section 2.01(a) of the Agreement: “; provided, further, that any LDM Investor shall be permitted to acquire Parent Non-Voting Stock (as defined in the Merger Agreement) pursuant to the transactions contemplated by the Merger Agreement, dated as of June 30, 2016 (the “Merger Agreement”), by and among the Company, Orion Arm Acquisition Inc., a Delaware corporation and an indirect wholly-owned subsidiary of the Company, and Starz, a Delaware corporation.”
3. Definitions.
(a) The definition of Common Share is amended to add the following words at the end: “, including, for the avoidance of doubt, the Parent Voting Stock and the Parent Non-Voting Stock (in each case as defined in the Merger Agreement).”
(b) The definition of Voting Securities is amended to add the following words after “Common Shares”: “entitled to vote in the election of directors of the Company”.
4. No Other Changes. All terms of the Agreement, except as amended by this Amendment, remain in full force and effect.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| LIBERTY GLOBAL INCORPORATED LIMITED | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| LIBERTY GLOBAL INCORPORATED LIMITED | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| For Notices: |
| Leopard |
| Xxxxxxx House |
| 000 Xxxxxxxxxxx Xxxx |
| London W6 8BS |
| United Kingdom |
| Attention: General Counsel, Legal |
| Department |
| Fax: x00 00 0000 0000 |
| E-mail: As Provided Previously |
| with a copy to: |
| Leopard |
| 00000 Xxxxxxx Xxxxxxxxx |
| Englewood, CO 80112 |
| Attention: General Counsel, Legal |
| Department |
| Facsimile No.: (000) 000-0000 |
| E-mail: As Provided Previously |
| with a copy (which shall not |
| constitute notice) to: |
Signature Page to Amendment to Standstill and Voting Agreement
| Shearman & Sterling LLP 000 Xxxxxxxxx Xxxxxx |
| New York, NY 10022 |
| Attention: Xxxxxx Xxxx |
| Facsimile No.: (000) 000-0000 |
| E-mail: xxxxx@xxxxxxxx.xxx |
Signature Page to Amendment to Standstill and Voting Agreement
| DISCOVERY LIGHTNING INVESTMENTS LTD. | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Chief Development, Distribution and Legal Officer | |||
| For Notices: | ||
| Discovery Lightning Investments, Ltd | ||
| Chiswick Park Building 2 | ||
| 000 Xxxxxxxx Xxxx Xxxx | ||
| London W4 5YB | ||
| Attention: Xxxxxx Xxxxxx, SVP DNI Finance and Director | ||
| Facsimile: x00 00 0000 0000 | ||
| E-mail: As Provided Previously | ||
| with a copy to: | ||
| Discovery Communications, LLC | ||
| 000 Xxxxx Xxxxxx | ||
| New York, NY 10022 | ||
| Attention: | Xxxxx Xxxxxxxx, Chief | |
| Development, | ||
| Distribution and Legal Officer | ||
| Facsimile No.: (000) 000-0000 | ||
| E-mail: As Provided Previously | ||
| with a copy (which shall not constitute notice) to: | ||
| Debevoise & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxxx | ||
| New York, NY 10022 | ||
| Attention: Xxxxxxxx Xxxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
| E-mail: xxxxxxxxxx@xxxxxxxxx.xxx | ||
Signature Page to Amendment to Standstill and Voting Agreement
| /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx |
| For Notices: |
| Xxxx X. Xxxxxx |
| 00000 Xxxxxxx Xxxx., 0xx Xxxxx |
| Englewood, CO 80112 |
| Facsimile No.: (000) 000-0000 |
| Email: As Provided Previously |
| with a copy (which shall not constitute notice) to: |
| Xxxxxxx & Xxxxxx L.L.C. |
| 000 00xx Xxxxxx, Xxxxx 0000 |
| Denver, CO 80202 |
| Attention: Xxxxxx X. Xxxxxx |
| Facsimile No.: (000) 000-0000 |
| Email: xxxxxxx@xxxxxxxxxxxxx.xxx |
Signature Page to Amendment to Standstill and Voting Agreement
| MHR FUND MANAGEMENT, LLC | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| For Notices: | ||
|
MHR Fund Management LLC | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 00 | ||
| New York, NY 10105 | ||
| Attention: Xxxxx Xxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
| Email: xxxxxx@xxxxxxx.xxx | ||
| with a copy (which shall not constitute notice) to: | ||
| Xxxxx Xxxx & Xxxxxxxx LLP | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| New York, New York 10017 | ||
| Attention: | Xxxxxxx Xxxxx | |
| Xxxxx Xxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
| E-mail: | xxxxxxx.xxxxx@xxxxxxxxx.xxx | |
| xxxxx.xxxxx@xxxxxxxxx.xxx | ||
Signature Page to Amendment to Standstill and Voting Agreement
| DISCOVERY COMMUNICATIONS, INC. | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Chief Development, Distribution and Legal Officer | |||
| For Notices: | ||
| Discovery Communications, LLC | ||
| 000 Xxxxx Xxxxxx | ||
| New York, NY 10022 | ||
| Attention: | Xxxxx Xxxxxxxx, Chief | |
| Development, | ||
| Distribution and Legal | ||
| Officer | ||
| Facsimile No.: (000) 000-0000 | ||
| E-mail: | ||
| xxxxx_xxxxxxxx@xxxxxxxxx.xxx | ||
| with a copy (which shall not | ||
| constitute notice) to: | ||
| Debevoise & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxxx | ||
| New York, NY 10022 | ||
| Attention: Xxxxxxxx Xxxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
| E-mail: xxxxxxxxxx@xxxxxxxxx.xxx | ||
Signature Page to Amendment to Standstill and Voting Agreement
| MHR Capital Partners Master Account LP | ||||
| By: MHR Advisors LLC, its general partner | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| MHR Capital Partners (100) LP | ||||
| By: MHR Advisors LLC, its general partner | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| MHR Institutional Partners II LP | ||||
| By: MHR Institutional Advisors II LLC, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| MHR Institutional Partners IIA LP | ||||
| By: MHR Institutional Advisors II LLC, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
Signature Page to Amendment to Standstill and Voting Agreement
| MHR Institutional Partners III LP | ||||
| By: MHR Institutional Advisors III LLC, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
Signature Page to Amendment to Standstill and Voting Agreement
| Lions Gate Entertainment Corp. | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | General Counsel and Chief Strategy Officer | |||
| For Notices: |
| Lions Gate Entertainment Corp. 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx, XX 00000 Attention: Xxxxx Xxxxx, General Counsel and Chief Strategic Officer Facsimile No.: (000) 000-0000 Email: xxxxxx@xxxxxxxxx.xxx |
| with a copy (which shall not constitute notice) to: |
| Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx 00 Xxxx 00xx Xxxxxx |
| NY, NY 10019 |
| Attention: Xxxxx X. Xxxxxxx |
| Facsimile No.: 000-000-0000 |
| Email: XXXxxxxxx@xxxx.xxx |
Signature Page to Amendment to Standstill and Voting Agreement
