SECURITIES AND EXCHANGE COMMISSION
	Washington, DC 20549
	SCHEDULE 13D/A

(Amendment No. 8)

 

Under the Securities Exchange Act of 1934

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Numbers)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Events Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

 

 

 

(1) The Irrevocable Undertaking, dated as of November 16, 2015 (the “Irrevocable Undertaking”), from John C. Malone (“Mr. Malone”) to Cable & Wireless Communications Plc (“CWC”) contains provisions relating, in certain circumstances, to the voting of the Issuer’s Liberty Global Class A ordinary shares, Liberty Global Class B ordinary shares, LiLAC Class A ordinary shares and LiLAC Class B ordinary shares by Mr. Malone and the transferability of such ordinary shares.  Mr. Malone expressly disclaims the existence of and membership in a group with CWC.  See Item 6 of this Amendment.

 

(2) Subject to certain restrictions contained in the Irrevocable Undertaking.  See Item 6 of this Amendment.

 

(3) Includes (i) 90,303 Liberty Global Class A ordinary shares and (ii) 4,515 LiLAC Class A ordinary shares held by Mr. Malone’s wife, Mrs. Leslie Malone, as to which shares Mr. Malone disclaims beneficial ownership.

 

(4) Includes (i) 8,677,225 Liberty Global Class B ordinary shares and (ii) 433,861 LiLAC Class B ordinary shares held by a trust with respect to which Mr. Malone is a co-trustee and, with his wife, retains a unitrust interest in the trust (the “Malone Trust”).

 

(5) Includes (i) 48,000 Liberty Global Class A ordinary shares and 110,148 Liberty Global Class B ordinary shares and (ii) 2,400 LiLAC Class A ordinary shares and 5,507 LiLAC Class B ordinary shares held by two trusts (the “Trusts”) managed by an independent trustee, of which the beneficiaries are Mr. Malone’s adult children. Mr. Malone has no pecuniary interest in the Trusts, but he retains the right to substitute assets held by the Trusts.  Mr. Malone disclaims beneficial ownership of the shares held in the Trusts.

 

(6) Does not include Liberty Global Class A ordinary shares issuable upon conversion of Liberty Global Class B ordinary shares owned by the Malone Trust and the Trusts noted in notes (4) and (5) above; however, if such Liberty Global Class A ordinary shares were included, Mr. Malone would beneficially own 9,877,853 Liberty Global Class A ordinary shares, and the percent of Liberty Global Class A ordinary shares, as a class, represented by Mr. Malone’s beneficial ownership would be approximately 3.8% of such shares outstanding, in each case subject to the relevant footnotes set forth herein.

 

(7) Does not include LiLAC Class A ordinary shares issuable upon conversion of LiLAC Class B ordinary shares owned by the Malone Trust and the Trusts noted in notes (4) and (5) above; however, if such LiLAC Class A ordinary shares were included, Mr. Malone would beneficially own 493,891 LiLAC Class A ordinary shares, and the percent of LiLAC Class A ordinary shares, as a class, represented by Mr. Malone’s beneficial ownership would be approximately 3.8% of such shares outstanding, in each case subject to the relevant footnotes set forth herein.

 

(8) Based on (i) 252,695,253 Liberty Global Class A ordinary shares and 10,472,517 Liberty Global Class B ordinary shares outstanding and (ii) 12,630,532 LiLAC Class A ordinary shares and 523,423 LiLAC Class B ordinary shares outstanding, in each case, as of October 30, 2015, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015, filed with the SEC on November 5, 2015. Each Liberty Global Class B ordinary share and LiLAC Class B ordinary share is convertible, at the option of the holder, into one Liberty Global Class A ordinary share or one LiLAC Class B ordinary share, respectively.  Each Liberty Global Class A ordinary share and each LiLAC Class A ordinary share is entitled to one vote, whereas each Liberty Global Class B ordinary share and each LiLAC Class B ordinary share is entitled to ten votes. Accordingly, Mr. Malone may be deemed to beneficially own voting equity securities representing approximately 24.9% of the voting power with respect to the general election of directors of the Issuer based on the outstanding shares noted above. See Item 5.

 

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

SCHEDULE 13D/A

(Amendment No. 8)

 

Statement of

 

JOHN C. MALONE

 

Pursuant to Section 13(d) of the
Securities Exchange Act of 1934

 

in respect of

 

LIBERTY GLOBAL plc

 

This Amendment No. 8 to Schedule 13D (this “Amendment”) amends and supplements the Statement on Schedule 13D originally filed by John C. Malone (“Mr. Malone”) with the Securities and Exchange Commission (“SEC”) on June 17, 2004 (the “Original Statement”), as amended by Amendment No. 1 thereto filed with the SEC on July 14, 2004 (“Amendment No. 1”), Amendment No. 2 thereto filed with the SEC on January 18, 2005 (“Amendment No. 2”), Amendment No. 3 thereto filed with the SEC on June 27, 2005 (“Amendment No. 3”), Amendment No. 4 thereto filed with the SEC on September 3, 2009 (“Amendment No. 4”), Amendment No. 5 thereto filed with the SEC on February 22, 2013 (“Amendment No. 5”), Amendment No. 6 thereto filed with the SEC on June 28, 2013 (“Amendment No. 6”) and Amendment No. 7 thereto filed with the SEC on February 18, 2014 (“Amendment No. 7”), and relates to (i) the Liberty Global Class A ordinary shares, nominal value $0.01 per share, of Liberty Global plc, a U.K. public limited company (the “Issuer”), (ii) the Liberty Global Class B ordinary shares, nominal value $0.01 per share, of the Issuer, (iii) the LiLAC Class A ordinary shares, nominal value $0.01 per share, of the Issuer and (iv) the LiLAC Class B ordinary shares, nominal value $0.01, of the Issuer.  The Original Statement, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6 and Amendment No. 7 are collectively referred to as the “Statement.”  Capitalized terms used but not defined herein have the meanings given to such terms in the Statement.  Except as set forth herein, the Statement is unmodified.

 

Item 1.                                                         Security and Issuer.

 

Item 1 of the Statement is hereby amended and restated in its entirety to read as follows:

 

Mr. Malone is filing this Statement with respect to the following classes of ordinary shares of the Issuer, beneficially owned by Mr. Malone:

 

(a)         Liberty Global Class A ordinary shares, nominal value $0.01 per share, of the Issuer;

 

(b)         Liberty Global Class B ordinary shares, nominal value $0.01 per share, of the Issuer;

 

(c)          LiLAC Class A ordinary shares, nominal value $0.01 per share, of the Issuer; and

 

(d)         LiLAC Class B ordinary shares, nominal value $0.01 per share, (together with the Liberty Global Class A ordinary shares, the Liberty Global Class B ordinary shares, and the LiLAC Class A ordinary shares, the “Ordinary Shares”), of the Issuer.

 

The Issuer’s principal executive offices are located at: (i) 38 Hans Crescent, London SW1X 0LZ, United Kingdom, and (ii) 12300 Liberty Boulevard, Englewood, Colorado 80112.

 

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Pursuant to Rule 13d-3 under the Exchange Act, as amended, this Statement also relates to the Liberty Global Class A ordinary shares issuable upon conversion of Liberty Global Class B ordinary shares and the LiLAC Class A ordinary shares issuable upon conversion of LiLAC Class B ordinary shares. At the option of the holder, each Liberty Global Class B ordinary share is convertible into one Liberty Global Class A ordinary share and each LiLAC Class B ordinary share is convertible into one LiLAC Class A ordinary share. The Liberty Global Class A ordinary shares are not convertible into Liberty Global Class B ordinary shares and the LiLAC Class A ordinary shares are not convertible into LiLAC Class B ordinary shares.  Pursuant to Rule 13d-1(i) under the Exchange Act, this Statement does not include information regarding Mr. Malone’s beneficial ownership of Liberty Global Class C ordinary shares, nominal value $0.01 per share, of the Issuer and LiLAC Class C ordinary shares, nominal value $0.01 per share, of the Issuer.  Such ordinary shares do not have any voting rights, other than in limited circumstances.

 

Item 3.                                                         Source and Amount of Funds.

 

Item 3 is hereby amended and supplemented to include the following information:

 

On July 1, 2015, the Issuer completed the approved steps of the “LiLAC Transaction” whereby the Issuer (i) reclassified its then outstanding Class A, Class B and Class C Liberty Global ordinary shares (collectively, the “Old Liberty Global Shares”) into corresponding classes of new Liberty Global ordinary shares (collectively, the “Liberty Global Shares”) and (ii) capitalized a portion of its share premium account and distributed as a dividend (or a “bonus issue” under U.K. law) its LiLAC Class A, Class B and Class C ordinary shares (collectively, the “LiLAC Shares”).  Pursuant to the LiLAC Transaction, each of Mr. Malone, his wife, the Trusts and the Malone Trust, as holders of Class A and Class B Old Liberty Global Shares remained a holder of the same amount and class of Liberty Global Shares and received one share of the corresponding class of LiLAC Shares for each 20 Old Liberty Global Shares held by him, her or it as of the record date for such distribution. Cash was issued in lieu of fractional LiLAC Shares.

 

Item 4.                                                         Purpose of the Transaction.

 

Item 4 is hereby amended and supplemented to include the following information:

 

If the transactions contemplated by the Acquisition (as further described in Item 6) are consummated, Mr. Malone will acquire beneficial ownership of additional Liberty Global Class A ordinary shares, Liberty Global Class C ordinary shares, LiLAC Class A ordinary shares and LiLAC Class C ordinary shares through his ownership interests in Columbus Holding LLC, a Colorado limited liability company and an entity which Mr. Malone controls (“CHLLC”).  CHLLC currently owns 575,096,759 ordinary shares of Cable & Wireless Communications Plc, a public limited company organized under English law (“CWC”), which shares will be exchanged for Liberty Global Class A ordinary shares, Liberty Global Class C ordinary shares, LiLAC Class A ordinary shares and LiLAC Class C ordinary shares in the Acquisition.

 

Because the holders of Liberty Global Class B ordinary shares and LiLAC Class B ordinary shares are entitled to cast ten votes per share and the holders of Liberty Global Class A ordinary shares and LiLAC Class A ordinary shares are entitled to cast one vote per share, Mr. Malone’s beneficial ownership of Ordinary Shares constitutes approximately 24.9% of the combined voting power of the Ordinary Shares.

 

The information included in Item 6 of this Amendment is incorporated by reference herein.

 

Item 5.                                                         Interest in Securities of the Issuer.

 

Item 5 of the Statement is hereby amended and restated in its entirety as follows:

 

(a)                                 Mr. Malone beneficially owns (without giving effect to the conversion of Liberty Global Class B ordinary shares or LiLAC Class B ordinary shares into Liberty Global Class A ordinary shares or LiLAC Class A ordinary shares, respectively) (i) 1,090,480 Liberty Global Class A ordinary shares (including (A) 90,303 shares held by his wife and as to which Mr. Malone disclaims beneficial ownership and (B) 48,000 shares held by two

 

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trusts (the “Trusts”) managed by an independent trustee whose beneficiaries are Mr. Malone’s adult children, in which Mr. Malone has no pecuniary interest but retains the right to substitute the assets held by the Trusts and as to which shares Mr. Malone disclaims beneficial ownership), which represent less than 1% of the outstanding Liberty Global Class A ordinary shares; (ii) 8,787,373 Liberty Global Class B ordinary shares (including (A) 110,148 shares held by the Trusts and as to which Mr. Malone disclaims beneficial ownership and (B) 8,677,225 shares held by a trust with respect to which Mr. Malone is a co-trustee and, with his wife, retains a unitrust interest in the trust (the “Malone Trust”)), which represent approximately 83.9% of the outstanding Liberty Global Class B ordinary shares; (iii) 54,523 LiLAC Class A ordinary shares (including (A) 4,515 shares held by his wife and as to which Mr. Malone disclaims beneficial ownership and (B) 2,400 shares held by the Trusts and as to which Mr. Malone disclaims beneficial ownership), which represent less than 1% of the outstanding LiLAC Class A ordinary shares; and (iv) 439,368 LiLAC Class B ordinary shares (including (A) 5,507 shares held by the Trusts and as to which Mr. Malone disclaims beneficial ownership and (B) 433,861 shares held by the Malone Trust), which represent approximately 83.9% of the outstanding LiLAC Class B ordinary shares.

 

The foregoing percentage interests are based on (i) 252,695,253 Liberty Global Class A ordinary shares and 10,472,517 Liberty Global Class B ordinary shares outstanding and (ii) 12,630,532 LiLAC Class A ordinary shares and 523,423 LiLAC Class B ordinary shares outstanding, in each case, as of October 30, 2015, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2015, filed with the SEC on November 5, 2015.  Accordingly, Mr. Malone may be deemed to beneficially own voting equity securities representing approximately 24.9% of the voting power with respect to the general election of directors of the Issuer. See Item 4.

 

(b)                                 Mr. Malone, and, to his knowledge, his wife, each have the sole power to vote, or to direct the voting of, and the sole power to dispose of, or direct the disposition of, their respective Liberty Global Class A ordinary shares and LiLAC Class A ordinary shares, subject to the terms of the Irrevocable Undertaking, as described in Item 6 of this Amendment.  Mr. Malone, in his capacity as a trustee of the Malone Trust, has the sole power to vote and dispose of the Liberty Global Class B ordinary shares and the LiLAC Class B ordinary shares held by the Malone Trust, subject to the terms of the Irrevocable Undertaking, as described in Item 6 of this Amendment.  The Trusts, which are not subject to the Irrevocable Undertaking, hold 48,000 Liberty Global Class A ordinary shares, 110,148 Liberty Global Class B ordinary shares, 2,400 LiLAC Class A ordinary shares and 5,507 LiLAC Class B ordinary shares; Mr. Malone has no pecuniary interest in and disclaims beneficial ownership of such shares (subject to his right of substitution).  To Mr. Malone’s knowledge, the Trusts have the sole power to vote and to dispose of, or to direct the voting or disposition of, the Ordinary Shares held by the Trusts.

 

(c)                                  Except as reported in this Statement, none of Mr. Malone, the Malone Trust or, to his knowledge, his wife or the Trusts, has executed any transactions in respect of the Ordinary Shares within the last sixty days.

 

(d)                                 Not Applicable.

 

(e)                                  Not Applicable.

 

Item 6.                                                         Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 of the Statement is hereby amended and supplemented to include the following information:

 

On November 16, 2015, the Issuer issued an announcement (the “Rule 2.7 Announcement”) pursuant to Rule 2.7 of the United Kingdom City Code on Takeovers and Mergers (the “Code”) disclosing the terms of a recommended offer (the “Offer”) by the Issuer to acquire all of the outstanding and to be issued share capital of CWC, in exchange for certain classes of the Issuer’s ordinary shares and a special dividend to be paid to the CWC shareholders (the “Acquisition”).  In connection with the Acquisition, the Issuer and CWC also entered into a Co-operation Agreement (the “Co-operation Agreement”), as described in the Rule 2.7 Announcement.  Reference is hereby made to a more complete description of the Rule 2.7 Announcement and the Co-operation Agreement included in the Issuer’s Current Report on Form 8-K, as filed with the SEC on November 16, 2015 (the “Issuer 8-K”),

 

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and the complete text of the Rule 2.7 Announcement which is filed as Exhibit 2.1 to the Issuer 8-K and the complete text of the Co-operation Agreement which is filed as Exhibit 2.2 to the Issuer 8-K..

 

In connection with the issuance of the Rule 2.7 Announcement, on November 16, 2015, Mr. Malone delivered an Irrevocable Undertaking (the “Irrevocable Undertaking”) to CWC.  The Irrevocable Undertaking generally requires that, at any meeting of the Issuer’s stockholders at which the approval of the issuance of Liberty Global Class A ordinary shares, Liberty Global Class C ordinary shares, LiLAC Class A ordinary shares and LiLAC Class C ordinary shares, and the approval of the acquisition by the Issuer of CWC shares from CHLLC, an entity controlled by Mr. Malone, as a substantial property transaction pursuant to the Companies Act 2006 and any other resolution necessary to implement the Acquisition (collectively, the “Liberty Global Resolutions”) is to be voted upon, Mr. Malone will cause the Malone Trust to vote all of the Liberty Global Class B ordinary shares and LiLAC Class B ordinary shares then-owned by it (the “Committed Class B Shares” (currently 8,677,225 Liberty Global Class B ordinary shares and 433,861 LiLAC Class B ordinary shares)), and Mr. Malone will vote, and will cause his wife to vote, any Liberty Global Class A ordinary shares and LiLAC Class A ordinary shares then-owned of record by them (the “Committed Class A Shares” (currently 1,042,480 Liberty Global Class A ordinary shares and 52,123 LiLAC Class A ordinary shares) and, together with the Committed Class B Shares, the “Committed Shares”), in favor of the Liberty Global Resolutions and in a manner so as to procure the implementation of the Acquisition with respect to certain other shareholder resolutions, as specified in the Irrevocable Undertaking.  The aggregate voting power of the Issuer currently represented by the Committed Shares is approximately 24.6%.

 

The Irrevocable Undertaking also generally prohibits Mr. Malone, his wife and the Malone Trust from transferring any of the Committed Shares prior to the general meeting of the Issuer’s shareholders at which the Liberty Global Resolutions will be proposed, subject to certain exceptions, including transfers pursuant to a bona fide pledge, transfers to a Connected Person (as defined in the Irrevocable Undertaking) of Mr. Malone, or transfers pursuant to the letter agreement with Mr. Fries.

 

The Irrevocable Undertaking ceases to have any effect upon certain circumstances, including (i) if the Acquisition is to be implemented by way of a scheme of arrangement under Part 26 of the Companies Act 2006 substantially on the terms set forth in the Rule 2.7 Announcement, if such scheme is not approved by the required majority of the CWC shareholders at CWC’s general meeting of shareholders, (ii) the Issuer announces that it does not intend to proceed with the Acquisition and no new revised or replacement scheme or offer is announced in accordance with Rule 2.7 of the Code, (iii) on the earlier of (A) May 31, 2016 or, if certain regulatory approvals relating to the Acquisition have not been obtained, December 16, 2016 and (B) the date on which the scheme or offer (substantially on the terms set forth in the Rule 2.7 Announcement) lapses or is withdrawn and no new revised or replacement scheme or offer is announced in accordance with Rule 2.7 of the Code, (iv) if the Acquisition is to be implemented by way of a takeover offer, as defined in Section 974 of the Companies Act 2006, substantially on the terms set forth in the Rule 2.7 Announcement, if the board of CWC does not recommend such offer or withdraws or adversely changes a previously issued recommendation or (v) if, without Mr. Malone’s prior written consent, the Issuer proposes, and CWC agrees to, a revised offer or scheme with economic terms that are, in Mr. Malone’s reasonable opinion, less favorable to him or any of his Connected Persons than the terms set forth in the Rule 2.7 Announcement.

 

The foregoing summary of the terms of the Irrevocable Undertaking does not purport to reflect all of the provisions of the Irrevocable Undertaking and is qualified in its entirety by reference to the full text of such document, which is attached hereto as Exhibit 7(b), and is incorporated by reference herein.

 

Item 7.                                                         Material to be Filed as Exhibits.

 

7(a)                          Letter Agreement, dated as of February 13, 2014, among Michael T. Fries, John C. Malone and the Malone LG 2013 Charitable Remainder Unitrust.*

 

7(b)                          Irrevocable Undertaking, dated November 16, 2015, from John C. Malone to Cable & Wireless Communications Plc.

 

* Previously filed.

 

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Signature

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

	November 19, 2015
	Date
	/s/ John C. Malone
	John C. Malone

 

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EXHIBIT INDEX

 

Exhibit No.		Description
7(a)		Letter Agreement, dated as of February 13, 2014, among Michael T. Fries, John C. Malone and the Malone LG 2013 Charitable Remainder Unitrust.*
7(b)		Irrevocable Undertaking, dated November 16, 2015, from John C. Malone to Cable & Wireless Communications Plc.

 

* Previously filed.

 

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Exhibit 7(b)

 

Irrevocable undertaking

 

From:

John C. Malone

12300 Liberty Boulevard

Englewood, CO 80112

United States of America

 

To:                   Cable & Wireless Communications Plc
2nd Floor
62-65 Chandos Place
London, WC2N 4HG
United Kingdom

 

16 November 2015

 

Dear Sirs,

 

Offer for Cable & Wireless Communications Plc (the “Offeree”)

 

I understand that Liberty Global plc (the “Offeror”) intends to make an offer to acquire the entire issued and to be issued ordinary share capital of the Offeree on substantially the terms and subject to the conditions of the near final draft announcement set out in Schedule 2 to this undertaking (the “Announcement”) together with such additional terms and conditions as are required to comply with the Applicable Requirements (the “Transaction”), such Transaction to be implemented by way of a Scheme or an Offer, followed by a cross-border merger.

 

I further understand that, as more particularly described in the Announcement, the issuance of New Liberty Global Ordinary Shares and New Liberty Global LAC Ordinary Shares to CWC Shareholders pursuant to the Transaction requires the approval by Liberty Global Shareholders under applicable NASDAQ listing rules.  Furthermore, the acquisition by the Offeror of CWC Shares from CHLLC, an entity which I control, constitutes a substantial property transaction pursuant to the Companies Act 2006 and therefore also requires approval by Liberty Global Shareholders.  Accordingly, for the purposes of implementing the Transaction, the Liberty Global Resolutions will be proposed at the Liberty Global General Meeting.

 

This undertaking sets out the terms and conditions on which I will vote, or procure voting, in respect of the Liberty Global Resolutions.

 

The Offeree expressly acknowledges that, notwithstanding any other provision of this undertaking, nothing in this undertaking shall require me to take any step to direct or influence the voting of any director of the Offeree.  The Offeree expressly acknowledges that I am entering into this undertaking solely in my capacity as, or on behalf of, the registered

 

 

and/or beneficial owner of the Committed Shares, and this undertaking shall not limit or otherwise affect:

 

(a)                                 my fiduciary duties; or

 

(b)                                 the fiduciary duties of any of my affiliates, trustees, beneficiaries, settlors, employees or designees or any of their respective affiliates (collectively, “Affiliates”),

 

in my or their respective capacities, if applicable, as a director or officer of the Offeror.  The Offeree shall not assert any claim that any action taken by me or any of my Affiliates in my or their capacity as a director or officer of the Offeror (and not, for the avoidance of doubt, in my or their capacity as, or on behalf of, the registered and/or beneficial owner of the Committed Shares) violates any provision of this undertaking.

 

The Offeree expressly acknowledges that nothing in this undertaking shall require me, or any of my Connected Persons, to exercise any of the options, SARs or other equity awards listed in Part B of Schedule 1 to this undertaking.

 

1.                                      Shareholdings

 

I warrant to the Offeree that:

 

(a)                                 as at the date of this undertaking, I and certain of my Connected Persons are, the registered holder and/or beneficial owner of (or otherwise able to control the exercise of) the voting rights attaching to the number of Liberty Global Class A Ordinary Shares and Liberty Global Class B Ordinary Shares, Liberty Global LAC Class A Ordinary Shares and Liberty Global LAC Class B Ordinary Shares set out in Part A of Schedule 1 to this undertaking (the “Covered Holders”) and, save as indicated in Part A of Schedule 1 to this undertaking and as imposed by United States federal or state securities laws (collectively “Encumbrances”), such shares are free of any lien, charge, option, equity, encumbrance or third party rights that would affect the exercise by me (or the other Covered Holders) of the voting rights attaching to such shares;

 

(b)                                 the details of my and my Connected Persons’ interests in securities (as defined in the Code) of the Offeror as of 31 October 2015 are set out in Part B of Schedule 1 to this undertaking;

 

(c)                                  save as set out in Schedule 1 to this undertaking, as of 31 October 2015 I do not, and my Connected Persons do not, have any interests in securities (as defined in the Code) of the Offeror or any rights to subscribe for, purchase or otherwise acquire any securities of the Offeror;

 

(d)                                 the details of the interests in securities of the Offeror set out in Part A of Schedule 1 to this undertaking are complete and accurate as at the date of this undertaking;

 

 

(e)                                  the details of the interests in securities of the Offeror set out in Part B of Schedule 1 to this undertaking are complete and accurate as 31 October 2015; and

 

(f)                                   I have full power and authority and the right (free from any legal or other restrictions) to enter into this undertaking and, subject to the Encumbrances, to perform the obligations under it in accordance with their terms.

 

2.                                      Dealings and undertakings

 

2.1                               I undertake to the Offeree that before the Liberty Global General Meeting is duly held, I shall not (and shall procure that the other Covered Holders shall not):

 

(a)                                 sell, transfer, charge, encumber, grant any option over or otherwise dispose of (a “Transfer”) any of the Committed Shares (other than any as may exist pursuant to an Encumbrance) or enter into any transaction with the same or a substantially similar economic effect as, or agree to do, any of the foregoing, including, without being limited to, entering into or agreeing to enter into any derivative transaction in respect of the Committed Shares, in each case which, in relation to the Committed Shares, would affect the exercise by me (or the relevant Covered Holder) of the voting rights attaching to such Committed Shares; provided that the foregoing restrictions on Transfer will not restrict or prohibit me from taking any of the following actions with respect to the Committed Shares (and the taking of such actions will not constitute a breach of this undertaking):

 

(i)                                     any existing or future bona fide pledge of, or grant of a security interest in respect of, any Liberty Global Class A Ordinary Shares or Liberty Global LAC Class A Ordinary Shares constituting Committed Shares in connection with any financing arrangements with a financial institution that is in the business of engaging in such transactions, including any resulting Transfer of such pledged shares (or shares in which a security interest has been granted) upon any foreclosure under the indebtedness underlying such pledge or security interest, so long as I (or the relevant Covered Holder) retain full control of the exercise of the voting rights attaching to such pledged shares (or shares in which a security interest has been granted) prior to such foreclosure; or

 

(ii)                                  any Transfer of Committed Shares to one or more of my Connected Persons (or to Michael T. Fries in accordance with the Fries Letter (as defined in Schedule 1 to this undertaking)), provided that prior to effecting any such Transfer: (A) the intended transferee or beneficiary enters into an undertaking in favour of the Offeree in terms no less favourable to the Offeree than those set out herein and on terms which prohibit the relevant transferee or beneficiary effecting any Transfer to a person who is not one of my Connected Persons and require such transferee or beneficiary to vote as provided in paragraph 3.1(a), (B) I notify the Offeree no less than three (3) Business Days before such Transfer of those terms, and (C) such undertaking includes a term obliging the intended transferee or beneficiary to send to the Offeree

 

 

an executed and dated version of the undertaking (in any form) on the day that it is executed and dated; or

 

(b)                                 enter into any other agreement or arrangement, or permit any other agreement or arrangement to be entered into, or incur any obligation or permit any obligation to arise:

 

(i)                                     to do any of the acts referred to in paragraph 2.1(a); or

 

(ii)                                  which, in relation to the Committed Shares, would or would reasonably be expected to restrict or impede:

 

(A)                               me (or any other Covered Holder) voting in respect of any of the Liberty Global Resolutions;

 

(B)                               acting in accordance with this undertaking,

 

in each case except as otherwise permitted under paragraph 2.1(a).

 

2.2                               I further undertake to cause the other Covered Holders to comply with the undertakings in paragraph 2.1 in respect of the relevant Committed Shares.

 

3.                                      Voting Rights

 

3.1                               From the time the Announcement is released to the time this undertaking lapses in accordance with paragraph 8 or the Scheme becomes effective (or, if applicable, the Offer becomes or is declared unconditional in all respects):

 

(a)                                 subject to paragraph 2.1(a), I shall exercise, and procure the exercise of, the votes attaching to the Committed Shares:

 

(i)                                     in favour of all Liberty Global Resolutions proposed at the Liberty Global General Meeting; and

 

(ii)                                  in respect of any Relevant Liberty Global Resolution, only so as to procure the implementation of the Transaction; and

 

(b)                                 I shall cause any other Covered Holder to comply with paragraph 3.1(a) in respect of the relevant Committed Share as if they were a party to this undertaking and so obliged.

 

4.                                      Documentation and Information

 

4.1                               I consent to:

 

(a)                                 this undertaking being disclosed to the Panel; and

 

(b)                                 references to me or (if applicable) any of my Connected Persons and the registered holder of any Committed Shares (including the Covered Holders) and particulars of this undertaking and my interests, or (if applicable) those of my Connected Persons, in securities of the Offeror, being included in the Announcement and the Scheme Circular (or the Offer Document, if

 

 

applicable), and any other announcement made, or related or ancillary document issued, by or on behalf of the Offeror or the Offeree in connection with the Transaction, provided that any such reference is required by Applicable Requirements and is in accordance with market practice thereunder; and

 

(c)                                  this undertaking being published as required by Applicable Requirements.

 

4.2                               I shall immediately notify the Offeree, in writing of any change in the accuracy or impact of any information previously given to the Offeree in writing pursuant to this undertaking.

 

5.                                      Secrecy

 

5.1                               I shall keep secret to the extent not already publicly available, the possibility, terms and conditions of the Transaction and the existence of this undertaking until the Announcement is released, provided that I may disclose the same to (a) the Offeror (including, without limitation, its board of directors) and/or the Offeree and its and their advisers and (b) to my attorneys, lenders and other advisers on a need-to-know basis, in which case I shall procure that they observe secrecy in the same terms, and (c) to any United States federal or state regulators if requested or required by applicable law. The obligations in this paragraph 5.1 shall survive termination of this undertaking.

 

5.2                               To the extent any of the information the Offeror and/or Offeree has given to me in relation to the Transaction is inside information for the purposes of the Criminal Justice Act 1993 or the Financial Services and Markets Act 2000 I will comply with the applicable restrictions in those enactments on dealing in securities and disclosing inside information.

 

6.                                      Time of the Essence

 

Any time, date or period mentioned in this undertaking may be extended by mutual agreement but as regards any time, date or period originally fixed or as extended, time shall be of the essence.

 

7.                                      Unconditional and Irrevocable Obligations

 

Except to the extent otherwise specified herein, the undertakings, agreements, warranties, appointments, consents and waivers set out in this undertaking are unconditional and irrevocable.

 

8.                                      Lapse of undertaking

 

8.1                               This undertaking, and the warranties, consents, waivers, appointments, agreements and obligations set out herein, shall lapse and automatically cease to have any effect on the earlier of:

 

(a)                                 if the Announcement has not been issued by 11:59 p.m. (London time) on 17 November 2015;

 

 

(b)                                 if the Transaction to be implemented by way of a Scheme, if the Scheme or any other resolution necessary to implement the Scheme is not approved by the requisite majority of the Scheme Shareholders at the Court Meeting or CWC Shareholders at the Offeree’s General Meeting;

 

(c)                                  the Offeror announces, with the consent of the Panel, that it does not intend to make or proceed with the Transaction and no new, revised or replacement Offer or Scheme is announced in accordance with Rule 2.7 of the Code at the same time;

 

(d)                                 on the earlier of (i) the Long Stop Date and (ii) the date on which the Scheme or Offer lapses or is withdrawn and no new, revised or replacement Scheme or Offer has been announced in accordance with Rule 2.7 of the Code in its place or is announced in accordance with Rule 2.7 of the Code at the same time;

 

(e)                                  if the Transaction is to be implemented by way of an Offer, if the board of the Offeree does not recommend the Offer or withdraws or adversely changes a previously issued recommendation; or

 

(f)                                   unless I consent in writing beforehand, if the Transaction is to be implemented by way of an Offer and any new, increased, renewed or revised offer is made by or on behalf of the Offeror to acquire shares in the Offeree which is consented to or agreed to or recommended by the Offeree, if the economic terms of such offer are, in my reasonable opinion, less favourable to me or to any of my Connected Persons than the terms set out in the Announcement, including, without limitation, an adverse impact on my (or my relevant Connected Person’s) tax treatment, an adverse change in the amount or type of the consideration receivable by me (or any of my Connected Persons) thereunder or the Long Stop Date is extended beyond:

 

(i)                                     if the Long Stop Date is May 31, 2016, July 31, 2016; or

 

(ii)                                  if the Long Stop Date is December 16, 2016, February 16, 2017; or

 

(g)                                  unless I consent in writing beforehand, if the Transaction is to be implemented by way of a Scheme and any new, increased, renewed or revised scheme of arrangement is proposed pursuant to which the Offeror is to acquire the issued share capital of the Offeree which is consented to or agreed to or recommended by the Offeree, if the economic terms of such offer are, in my reasonable opinion, less favourable to me or to any of my Connected Persons than the terms set out in the Announcement, including, without limitation, an adverse impact on my (or my relevant Connected Person’s) tax treatment, an adverse change in the amount or type of the consideration receivable by me (or any of my Connected Persons) thereunder or the Long Stop Date is extended beyond:

 

(i)                                     if the Long Stop Date is May 31, 2016, July 31, 2016; or

 

(ii)                                  if the Long Stop Date is December 16, 2016, February 16, 2017.

 

 

9.                                      Interpretation

 

Save where otherwise defined in this undertaking, capitalised terms set out in this undertaking shall have the same meanings as set out in the Announcement. All references in this undertaking to:

 

(a)                                 “Applicable Requirements” means the Code, any decision, ruling or requirement of the Panel, any decision of the High Court of Justice in England and Wales, the Companies Act 2006, the Listing Rules and the Disclosure and Transparency Rules and Prospectus Rules made by the Financial Conduct Authority in exercise of its functions under the Financial Services and Markets Act 2000 or any decision, ruling or requirement of the Financial Conduct Authority;

 

(b)                                 “Business Day” means a day (other than Saturday or Sunday or public or bank holiday) on which banks in the City of London and New York are generally open for business;

 

(c)                                  “Committed Shares” means those Liberty Global Class A Ordinary Shares, Liberty Global Class B Ordinary Shares, Liberty Global LAC Class A Ordinary Shares and Liberty Global LAC Class B Ordinary Shares held in the manner referred to in paragraph 1 of this undertaking together with any other securities in the Offeror carrying voting rights which are issued or unconditionally allotted to me or any of the holders listed in Part A of Schedule 1, or otherwise acquired by me or any of the holders listed in Part A of Schedule 1 after the date of this undertaking;

 

(d)                                 “Connected Persons” means persons with whom we are “connected” within the meaning given in section 252 of the Companies Act 2006 (and as if, for the purposes of construing that section, I was assumed to be a “director” of Liberty) and including, for the avoidance of any doubt, the Malone LG 2013 Charitable Remainder Unitrust but excluding, for the avoidance of any doubt, Liberty Global;

 

(e)                                  “Liberty Global General Meeting” means the general meeting of Liberty Global Shareholders (including any adjournment thereof) to be convened in connection with the Transaction at which the Liberty Global Resolution will be proposed;

 

(f)                                   “Liberty Global Resolutions” means such shareholder resolutions of Liberty Global, the passing of which is necessary to implement the Transaction (and “Liberty Global Resolution” shall be construed accordingly);

 

(g)                                  “Offer” means a takeover offer, as such term is defined in section 974 of the Companies Act 2006, to be made by or on behalf of the Offeror to acquire all the issued and to be issued ordinary share capital of the Offeree other than those CWC Shares already owned by the Offeror and its associates (as defined in section 988 of the Companies Act 2006) on the terms of the Announcement or on such other terms as may be required to comply with the requirements of the Panel, the Financial Conduct Authority or the London Stock Exchange.  A reference in this undertaking to the Offer also includes any new, increased,

 

 

renewed or revised offer made by or on behalf of the Offer to acquire shares in the Offeree, provided that the terms of such offer are, in the reasonable opinion of the Offeror’s Financial Advisers, no less favourable to acceptors than the terms set out in the Announcement and otherwise represent no diminution in value of the Transaction;

 

(h)                                 “Offeror’s Financial Advisers” means Goldman Sachs International and LionTree Advisors LLC;

 

(i)                                     “Relevant Liberty Global Resolution” means:

 

(i)                                     other than a Liberty Global Resolution, any shareholder resolution (whether or not amended) to be proposed at a general meeting of Liberty Global Shareholders (including any adjournment thereof) the passing of which is necessary to implement the Transaction or which, if passed, might (x) reasonably be expected to result in any Condition of the Transaction not being fulfilled or (y) impede or frustrate the Transaction in any way;

 

(ii)                                  a resolution to adjourn a general meeting of Liberty Global Shareholders whose business includes the consideration of a resolution falling within paragraph 9(i)(i); and

 

(iii)                               a resolution to amend a Liberty Global Resolution or a resolution falling within paragraph 9(i)(i); and

 

(j)                                    “Scheme” means a scheme of arrangement under Part 26 of the Companies Act 2006 substantially on the terms of the Announcement.  A reference in this undertaking to the Scheme also includes any new, increased, renewed or revised scheme of arrangement pursuant to which the Offeror is to acquire the issued share capital of in the Offeree, provided that the terms of such offer are, in the reasonable opinion of the Offeror’s Financial Advisers, no less favourable to acceptors than the terms set out in the Announcement and otherwise represent no diminution in value of the Transaction.

 

10.                               Miscellaneous

 

10.1                        Without prejudice to any other rights or remedies the Offeree may have, I agree that, if I fail to comply with any of the undertakings in paragraph 2 or 3 or breach any of my obligations under this undertaking, damages alone may not be an adequate remedy and accordingly the Offeree shall be entitled to the remedies of an order for specific performance, injunction or other equitable relief which may be an essential element of any adequate remedy for such failure or breach.

 

10.2                        Subject to the terms herein, the obligations and provisions set out in this undertaking apply equally to the persons from whom I am to procure votes in respect of any Liberty Global Resolution and other actions pursuant to this undertaking and I shall procure observance by such persons to the terms hereof as if they were each specifically a party hereto.

 

 

10.3                        A person who is not a party to this undertaking shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this undertaking but this does not affect any right or remedy of a third party that exists or is available apart from that Act.

 

10.4                        I confirm that Offeror’s Financial Advisers are not acting for me in relation to the Transaction and will not be responsible to me for providing protections afforded to their clients or advising me on any matter relating to the Transaction.

 

10.5                        References in this undertaking to times of day are to London time.

 

10.6                        This undertaking may be executed in any number of counterparts, each of which is an original but all of which together shall constitute the same instrument.

 

10.7                        Nothing in this undertaking shall oblige the Offeree to proceed with the Transaction.

 

11.                               Governing Law and Jurisdiction

 

11.1                        This undertaking and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts for all purposes in connection with this undertaking and waive any objection to any proceedings on the ground of venue or on the ground that the proceedings have been brought in an inconvenient forum.

 

11.2                        I irrevocably undertake to appoint, within three (3) Business Days following (but not including) the date of this undertaking, and thereafter at all times to maintain an agent for service of process and any other documents in proceedings in England or any other proceedings in connection with this undertaking. I further irrevocably undertake to advise the Offeree in writing, within the period referred to in the immediately preceding sentence, of the name and address of the agent I appoint. If I fail to appoint an agent in accordance with the requirements of this paragraph 11.2, the Offeree shall be entitled to appoint one on my behalf.

 

11.3                        Any writ, judgment or other notice of legal process shall be sufficiently served on me if delivered to such agent at its address from time to time. I further irrevocably undertake not to revoke the authority of any agent appointed pursuant to paragraph 11.2.

 

 

IN WITNESS WHEREOF this undertaking has been executed and delivered as a deed on the date stated at the beginning of it.

 

EXECUTED and DELIVERED as a DEED by
Signature	/s/ John C. Malone
Name:	John C. Malone
In the presence of:
Signature of witness		/s/ Warren Wright
Name:		Warren Wright
Address:		12300 Liberty Boulevard
		Englewood, CO 80112
EXECUTED and DELIVERED as a DEED by
Cable & Wireless Communications Plc
Acting by a director:
Signature	/s/ Perley McBride
Name:	Perley McBride
Position:	Director
In the presence of:
Signature	/s/ Luke Rowland
Name:	Luke Rowland
Position:	Trainee Solicitor