EX-10.12(1) 4 d684853dex10121.htm EX-10.12(1) EX-10.12(1)

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.,

JOHN C. MALONE,

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”), John C. Malone (“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/ Jeremy Evans

  Name:   Jeremy Evans
  Title:   Authorized Signatory

LIBERTY GLOBAL

INCORPORATED LIMITED

By:  

/s/ Jeremy Evans

  Name:   Jeremy Evans
  Title:   Authorized Signatory

 

For Notices:
Leopard
Griffin House
161 Hammersmith Road
London W6 8BS
United Kingdom
Attention: General Counsel, Legal
Department
Fax: +44 20 8483 6400
E-mail: As Provided Previously
with a copy to:
Leopard
12300 Liberty Boulevard
Englewood, CO 80112
Attention: General Counsel, Legal
Department
Facsimile No.: (303) 220-6691
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

599 Lexington Avenue

New York, NY 10022
Attention: Robert Katz
Facsimile No.: (646) 848-8008
E-mail: rkatz@shearman.com

Signature Page to Amendment to Standstill and Voting Agreement

DISCOVERY LIGHTNING

INVESTMENTS LTD.

By:  

/s/ Bruce Campbell

  Name:   Bruce Campbell
  Title:   Chief Development, Distribution and Legal Officer

 

For Notices:
Discovery Lightning Investments, Ltd
Chiswick Park Building 2
566 Chiswick High Road
London W4 5YB

Attention: Roanne Weekes, SVP

DNI Finance and Director

Facsimile: +44 20 8811 3310
E-mail: As Provided Previously
with a copy to:
Discovery Communications, LLC
850 Third Avenue
New York, NY 10022
Attention:   Bruce Campbell, Chief
  Development,
 

Distribution and Legal

Officer

Facsimile No.: (212) 548-5848
E-mail: As Provided Previously

with a copy (which shall not

constitute notice) to:

Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: Jonathan Levitsky
Facsimile No.: (212) 909-6836
E-mail: jelevitsky@debevoise.com

Signature Page to Amendment to Standstill and Voting Agreement

 

/s/ John C. Malone

John C. Malone

For Notices:
John C. Malone
12300 Liberty Blvd., 2nd Floor
Englewood, CO 80112
Facsimile No.: (720) 875-5394
Email: As Provided Previously

with a copy (which shall not

constitute notice) to:

Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
Attention: Steven D. Miller
Facsimile No.: (303) 298-0940
Email: smiller@shermanhoward.com

Signature Page to Amendment to Standstill and Voting Agreement

MHR FUND MANAGEMENT, LLC
By:  

/s/ Janet Yeung

  Name:   Janet Yeung
  Title:   Authorized Signatory

 

For Notices:

 

MHR Fund Management LLC

1345 Avenue of the Americas, Floor 42
New York, NY 10105
Attention: Janet Yeung
Facsimile No.: (212) 262-9356
Email: jyeung@mhrfund.com
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention:   Phillip Mills
  Brian Wolfe
Facsimile No.: (212) 701-5800
E-mail:   phillip.mills@davispolk.com
  brian.wolfe@davispolk.com

Signature Page to Amendment to Standstill and Voting Agreement

DISCOVERY COMMUNICATIONS, INC.
By:  

/s/ Bruce Campbell

  Name:   Bruce Campbell
  Title:   Chief Development, Distribution and Legal Officer

 

For Notices:
Discovery Communications, LLC
850 Third Avenue
New York, NY 10022
Attention:   Bruce Campbell, Chief
  Development,
  Distribution and Legal
  Officer
Facsimile No.: (212) 548-5848
E-mail:
bruce_campbell@discovery.com
with a copy (which shall not
constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: Jonathan Levitsky
Facsimile No.: (212) 909-6836
E-mail: jelevitsky@debevoise.com

Signature Page to Amendment to Standstill and Voting Agreement

MHR Capital Partners Master Account LP
By: MHR Advisors LLC, its general partner
By:  

/s/ Janet Yeung

  Name:   Janet Yeung
  Title:   Authorized Signatory
MHR Capital Partners (100) LP
By: MHR Advisors LLC, its general partner
By:  

/s/ Janet Yeung

  Name:   Janet Yeung
  Title:   Authorized Signatory
MHR Institutional Partners II LP
By: MHR Institutional Advisors II LLC,

its general partner

By:  

/s/ Janet Yeung

  Name:   Janet Yeung
  Title:   Authorized Signatory
MHR Institutional Partners IIA LP
By: MHR Institutional Advisors II LLC,

its general partner

By:  

/s/ Janet Yeung

  Name:   Janet Yeung
  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/ Janet Yeung

  Name:   Janet Yeung
  Title:   Authorized Signatory

Signature Page to Amendment to Standstill and Voting Agreement

Lions Gate Entertainment Corp.
By:  

/s/ Wayne Levin

  Name:   Wayne Levin
  Title:   General Counsel and Chief Strategy Officer

 

For Notices:

Lions Gate Entertainment Corp.

2700 Colorado Avenue

Santa Monica, CA 90404

Attention: Wayne Levin, General Counsel

and Chief Strategic Officer

Facsimile No.: (310) 496-1359

Email: wlevin@lionsgate.com

with a copy (which shall not constitute notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

NY, NY 10019
Attention: David E. Shapiro
Facsimile No.: 212-403-2000
Email: DEShapiro@wlrk.com

Signature Page to Amendment to Standstill and Voting Agreement