CUSIP No. 535919203
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13D |
Page 2 of 18 Pages
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1
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NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Liberty Global plc
98-1112770
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|||
2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) o
(b) x
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||
3
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SEC USE ONLY
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|||
4
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SOURCE OF FUNDS (See Instructions)
BK, WC
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o
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||
6
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CITIZENSHIP OR PLACE OF ORGANIZATION
England and Wales
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|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
0
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||
8
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SHARED VOTING POWER
5,000,000 (1)
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|||
9
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SOLE DISPOSITIVE POWER
0
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|||
10
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SHARED DISPOSITIVE POWER
5,000,000
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|||
11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,000,000 (1)
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|||
12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
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x
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4% (1)(2)
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14
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TYPE OF REPORTING PERSON (See Instructions)
HC
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(1)
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This amount does not reflect the (A) 30,269,229 Common Shares, no par value (the “Shares”), of Lions Gate Entertainment Corp. (the “Issuer”) held by various funds affiliated with MHR Fund Management, LLC (“MHR”) and Mark H. Rachesky (“Dr. Rachesky”), (B) 4,967,695 Shares held by various entities affiliated with John C. Malone (“Dr. Malone”), or (C) 5,000,000 Shares held by a subsidiary of Discovery Communications, Inc. (“Discovery”), of which the reporting persons may be deemed to have beneficial ownership as a result of the Voting and Standstill Agreement. See Items 5 and 6 of this Schedule 13D.
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(2)
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The calculation of this percentage is based on the 148,620,773 Shares disclosed as outstanding as of November 11, 2015, by the Issuer in its Form S-3 filed with the SEC on November 12, 2015.
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CUSIP No. 535919203
|
13D |
Page 3 of 18 Pages
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1
|
NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Liberty Global Incorporated Limited
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) o
(b) x
|
|
||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS (See Instructions)
BK, WC
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
England and Wales
|
|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
||
8
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SHARED VOTING POWER
5,000,000 (1)
|
|||
9
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SOLE DISPOSITIVE POWER
0
|
|||
10
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SHARED DISPOSITIVE POWER
5,000,000 (1)
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|||
11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,000,000 (1)
|
|||
12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
|
x
|
||
13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4% (1)(2)
|
|||
14
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TYPE OF REPORTING PERSON (See Instructions)
CO
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(1)
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This amount does not reflect the (A) 30,269,229 Shares held by various funds affiliated with MHR and Dr. Rachesky, (B) 4,967,695 Shares held by various entities affiliated with Dr. Malone, or (C) 5,000,000 Shares held by a subsidiary of Discovery, of which the reporting persons may be deemed to have beneficial ownership as a result of the Voting and Standstill Agreement. See Items 5 and 6 of this Schedule 13D.
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(2)
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The calculation of this percentage is based on the 148,620,773 Shares disclosed as outstanding as of November 11, 2015, by the Issuer in its Form S-3 filed with the SEC on November 12, 2015.
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Item 1.
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Security and Issuer
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Item 2.
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Identity and Background
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Item 3.
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Source and Amount of Funds or Other Considerations
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Item 4.
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Purpose of Transaction
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Item 5.
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Interest in Securities of the Issuer
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Item 6.
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
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(i)
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if the volume weighted average trading price per share on the valuation date for the relevant Component (the “Settlement Price”) is less than or equal to $33.167 (the “Forward Floor Price”), 33,334 Shares (or, in the case of the last Component in each Tranche, 33,317 Shares in the case of Tranche 1 and Tranche 2 and 33,318 Shares in the case of Tranche 3) (the “Number of Shares”);
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(ii)
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if the Settlement Price is greater than the Forward Floor Price but less than or equal to $52.677 (the “Forward Cap Price”), the Number of Shares multiplied by the Forward Floor Price divided by the Settlement Price; and
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(iii)
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if the Settlement Price is greater than the Forward Cap Price, the Number of Shares multiplied by (1 – ((Forward Cap Price – Forward Floor Price), divided by the Settlement Price)).
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Item 7.
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Materials to be Filed as Exhibits
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Exhibit No.
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Description
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1
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Share Purchase Agreement, dated as of November 10, 2015, among LGIL, DLIL, the Seller Funds and, solely for purposes of Section 5.03 thereof, Liberty Global and Discovery (incorporated herein by reference to Exhibit 99.1 to the Amendment No. 20 to Schedule 13D filed by MHR Institutional Partners III LP, MHR Institutional Advisors III LLC, MHR Fund Management LLC, MHR Holdings LLC and Dr. Rachesky with the SEC on November 13, 2015).
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2
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PPV Confirmation, dated as of November 12, 2015, between LGIL and Bank of America.
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3
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Pledge Agreement, dated as of November 12, 2015, between LGIL and Bank of America.
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4
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Underwriting Agreement, dated as of November 12, 2015, among the Issuer, LGIL, DLIL, Bank of America and JPMorgan (incorporated herein by reference to Exhibit 1.1 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 13, 2015).
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5
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Investor Rights Agreement, dated as of November 10, 2015, MHR, LGIL, DLIL, the Issuer, Liberty Global, Discovery and the Seller Funds (incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 10, 2015).
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6
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Voting and Standstill Agreement, dated as of November 10, 2015, among the Issuer, the Seller Funds, LGIL, DLIL, Dr. Malone, MHR, Liberty Global, Discovery (incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 10, 2015).
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7
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Registration Rights Agreement, dated as of November 10, 2015, between the Issuer and LGIL (incorporated herein by reference to Exhibit 10.4 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 10, 2015).
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8
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Joint Filing Agreement, dated as of November 20, 2015, between LGIL and Liberty Global.
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Dated: November 20, 2015 |
Liberty Global plc
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/s/ Bryan H. Hall | |||
Name: |
Bryan H. Hall
|
||
Title: |
Executive Vice President, General Counsel and Secretary
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||
Liberty Global Incorporated Limited
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/s/ Bryan H. Hall | |||
Name: |
Bryan H. Hall
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Title: |
Director
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Name
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Present Principal Occupation
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Business Address
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Citizenship
|
|||
Michael T. Fries
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Chief Executive Officer, President and Vice Chairman of the board of directors of Liberty Global
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Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
Charles H.R. Bracken
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Executive Vice President and Co-Chief Financial Officer (Principal Financial Officer) of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
|
United Kingdom
|
|||
Bernard G. Dvorak
|
Executive Vice President and Co-Chief Financial Officer (Principal Accounting Officer) of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
|
United States
|
|||
Bryan H. Hall
|
Executive Vice President, General Counsel and Secretary of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
Diederik Karsten
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Executive Vice President and Chief Commercial Officer of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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Netherlands
|
|||
Balan Nair
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Executive Vice President and Chief Technology Officer of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
|
United States
|
Name
|
Present Principal Occupation
|
Business Address
|
Citizenship
|
|||
John C. Malone
|
Chairman of the board of directors of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
Andrew J. Cole
|
Chief Executive Officer of Glow Financial Services Ltd., a private company that operates as a full service provider of handset and home device financing for wireless carriers and cable companies
|
Glow Financial Services Ltd.
Lion House
Red Lion Street
London, WC1R 4GB
United Kingdom
|
United Kingdom
|
Name
|
Present Principal Occupation
|
Business Address
|
Citizenship
|
|||
John P. Cole, Jr.
|
Founder and retired Partner of Cole, Raywid and Braverman LLP, a law firm that specialized in aspects of communications and media law prior to its merger with Davis Wright Tremaine LLP
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
Miranda Curtis
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Retired President of Liberty Global Japan
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Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United Kingdom
|
|||
John W. Dick
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Private Investor
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Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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Canada
|
|||
Paul A. Gould
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Managing Director of Allen & Company, LLC, an investment banking and financial advisory firm
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Allen & Company, LLC
711 Fifth Avenue
9th Floor
New York, NY 10022
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United States
|
|||
Richard R. Green
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Retired President and Chief Executive Officer of Cable Television Laboratories, Inc., a not-for-profit research and development consortium
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Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
David E. Rapley
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Retired Executive Vice President, VECO Corp., an engineering services firm
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Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United Kingdom
|
|||
Larry E. Romrell
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Retired Executive Vice President, Tele-Communications, Inc., a telecommunications company that later merged into AT&T
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Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
J.C. Sparkman
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Co-Founder and retired Chairman of the Board of Broadband Services, Inc., a provider of asset management, logistical, installation and repair services for telecommunications service providers and equipment manufacturers
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
|||
J. David Wargo
|
President of Wargo & Company, Inc., a private company specializing in investing in the communications industry
|
Wargo & Company, Inc.
712 Fifth Avenue
22nd Floor
New York, NY 10019
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United States
|
Name
|
Present Principal Occupation
|
Business Address
|
Citizenship
|
|||
Charles H.R. Bracken
|
Executive Vice President and Co-Chief Financial Officer (Principal Financial Officer) of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United Kingdom
|
|||
Jeremy Evans
|
Deputy General Counsel and Assistant Secretary of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United Kingdom
|
|||
Bryan H. Hall
|
Executive Vice President, General Counsel and Secretary of Liberty Global
|
Griffin House
161 Hammersmith Rd,
London W6 8BS
United Kingdom
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United States
|
Exhibit No.
|
Description
|
|
1
|
Share Purchase Agreement, dated as of November 10, 2015, among LGIL, DLIL, the Seller Funds and, solely for purposes of Section 5.03 thereof, Liberty Global and Discovery (incorporated herein by reference to Exhibit 99.1 to the Amendment No. 20 to Schedule 13D filed by MHR Institutional Partners III LP, MHR Institutional Advisors III LLC, MHR Fund Management LLC, MHR Holdings LLC and Dr. Rachesky with the SEC on November 13, 2015).
|
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2
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PPV Confirmation, dated as of November 12, 2015, between LGIL and Bank of America.
|
|
3
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Pledge Agreement, dated as of November 12, 2015, between LGIL and Bank of America.
|
|
4
|
Underwriting Agreement, dated as of November 12, 2015, among the Issuer, LGIL, DLIL, Bank of America and JPMorgan (incorporated herein by reference to Exhibit 1.1 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 13, 2015).
|
|
5
|
Investor Rights Agreement, dated as of November 10, 2015, MHR, LGIL, DLIL, the Issuer, Liberty Global, Discovery and the Seller Funds (incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 10, 2015).
|
|
6
|
Voting and Standstill Agreement, dated as of November 10, 2015, among the Issuer, the Seller Funds, LGIL, DLIL, Dr. Malone, MHR, Liberty Global, Discovery (incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 10, 2015).
|
|
7
|
Registration Rights Agreement, dated as of November 10, 2015, between the Issuer and LGIL (incorporated herein by reference to Exhibit 10.4 to the Current Report on Form 8-K (file number 1-14880) filed by the Issuer with the SEC on November 10, 2015).
|
|
8
|
Joint Filing Agreement, dated as of November 20, 2015, between LGIL and Liberty Global.
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Date:
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12 November 2015
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To:
|
Liberty Global Incorporated Limited, a limited liability company incorporated in England and Wales with registered number 08387396
Attention: Nick Marchant, Matt Read, Ruchi Kaushal, Ian Johnston
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From:
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Bank of America, N.A.
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General Terms:
|
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Trade Date:
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12 November 2015
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Effective Date:
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18 November 2015
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Seller:
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Counterparty
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Buyer:
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Bank
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Components:
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The Transaction will be divided into 3 individual tranches (each a “Tranche” and together the “Tranches”) and each Tranche will be divided into 25 individual components (each a “Component” and together the “Components”), as set forth in Annex 1 hereto, in each case with the terms set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction pursuant to the Settlement Terms below will be determined separately for each Component of each Tranche as if such Component were a separate Transaction under the Agreement, but for all other purposes under the Agreement (including, without limitation, under Sections 5 and 6 of the Agreement) the Components for all Tranches, together, will be treated as one Transaction.
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Shares:
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The common shares, without par value, of Lions Gate Entertainment Corporation (the “Issuer”) (Bloomberg Code: BBG000K1TOM8) or security entitlements in respect thereof.
|
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Number of Shares:
|
As provided in Annex 1 of this Confirmation in relation to each Component.
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Total Number of Shares:
|
2,500,000
|
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Prepayment:
|
Applicable
|
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Prepayment Amount:
|
USD 70,889,585.00 in the aggregate for all Components
|
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Prepayment Date:
|
The Effective Date; provided, however, that Bank may, if later, delay payment of the Prepayment Amount until the Currency Business Day following the date that the Initial Shares (as defined in the Pledge Agreement (as defined below)) to be delivered to Bank pursuant to the Pledge Agreement have been deposited in the Secured Custody Account (as defined below) in unrestricted form through the facilities of the Clearance System.
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Variable Obligation:
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Applicable
|
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Forward Floor Price:
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In respect of each Component, the product of (i) the Forward Floor Percentage set out in Annex 1 hereto and (ii) the Initial Price.
|
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Forward Cap Price:
|
In respect of each Component, the product of (i) the Forward Cap Percentage set out in Annex 1 hereto and (ii) the Initial Price.
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Initial Price:
|
USD 39.02
|
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Exchange:
|
The New York Stock Exchange
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|
Related Exchange(s):
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All Exchanges
|
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Valuation:
|
||
Valuation Time:
|
Scheduled Closing Time
|
Valuation Date:
|
For each Component, as set out in Annex 1 hereto (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already a Valuation Date for another Component); provided that, if that date is a Disrupted Day, the Valuation Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and that is not or is not deemed to be a Valuation Date in respect of any other Component under the Transaction; provided, further, that if the Valuation Date for any Component has not occurred pursuant to the preceding proviso as of the eighth Scheduled Trading Day following the originally scheduled Valuation Date for the last Component of the applicable Tranche under the Transaction, such eighth Scheduled Trading Day shall be the Valuation Date for such Component (irrespective of whether such day is a Valuation Date in respect of any other Component) and, if that eighth Scheduled Trading Day is a Disrupted Day or a Valuation Date for more than one Component, the Calculation Agent shall determine the Settlement Price based on its commercially reasonable and good faith estimate of the value for the Shares as of the Valuation Time on that eighth Scheduled Trading Day.
Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Valuation Date, the Calculation Agent may determine that such Valuation Date is a Disrupted Day only in part, in which case (i) the Calculation Agent shall make adjustments to the number of Shares for the relevant Component for which such day shall be the Valuation Date and shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Valuation Date for the remaining Shares for such Component and (ii) the Settlement Price for such Disrupted Day shall be determined by the Calculation Agent based on transactions in the Shares on such Disrupted Day, taking into account the nature and duration of such Market Disruption Event on such day.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.
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|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof, and by replacing the words “or (iii) an Early Closure” with “(iii) an Early Closure that the Calculation Agent determines is material”.
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
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Settlement Terms:
|
||
Settlement Currency:
|
USD
|
|
Settlement Method Election:
|
Applicable
|
|
Default Settlement Method:
|
Cash
|
|
Electing Party:
|
Counterparty
|
|
Settlement Method Election Date:
|
For each Component, the date that is no later than three Scheduled Trading Days prior to the Scheduled Valuation Date for such Component.
|
Settlement Price:
|
The volume weighted average trading price per Share during the regular trading session on the Exchange, as determined by the Calculation Agent as of the Valuation Time on the relevant Valuation Date for the period of time from 9:30 a.m. New York City time on such Valuation Date to 4:00 p.m. New York City time on such Valuation Date, with reference to Bloomberg page “LGF <Equity> AQR” (or any successor thereto), or if such price is not so reported for any reason on such Valuation Date, such Settlement Price will be as reasonably determined by the Calculation Agent.
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|
Cash Settlement:
|
If Cash Settlement is applicable, then the following provisions shall apply in lieu of the provisions set forth in Section 8.4 of the Equity Definitions.
In respect of each Component, (I) Counterparty shall pay the Preliminary Forward Cash Settlement Amount for such Component to Bank on the applicable Preliminary Cash Settlement Payment Date and (II) (A) if the Preliminary Forward Cash Settlement Amount for such Component exceeds the related Forward Cash Settlement Amount, Bank shall pay to Counterparty the amount of such excess on the applicable Cash Settlement Payment Date and (B) if the Forward Cash Settlement Amount for such Component exceeds the related Preliminary Forward Cash Settlement Amount, Counterparty shall pay to Bank the amount of such excess on the applicable Cash Settlement Payment Date.
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Preliminary Cash Settlement Payment Date:
|
In respect of each Component, the third Currency Business Day immediately preceding the Scheduled Valuation Date for such Component.
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|
Preliminary Forward Cash Settlement Amount:
|
In respect of each Component, 105% of the Forward Cash Settlement Amount that would apply if the Valuation Date for such Component were the Exchange Business Day immediately preceding the Preliminary Cash Settlement Payment Date for such Component.
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Cash Settlement Payment Date:
|
In respect of each Component, one Settlement Cycle immediately following the Valuation Date.
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Forward Cash Settlement Amount:
|
In respect of each Component, an amount equal to the product of the Number of Shares to be Delivered and the Settlement Price.
|
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Number of Shares to be Delivered:
|
In respect of each Component, the product of the Number of Shares and the Delivery Obligation.
|
Delivery Obligation:
|
In respect of each Component:
|
||
|
(i)
|
if the Settlement Price is less than or equal to the Forward Floor Price, 1;
|
|
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(ii)
|
if the Settlement Price is greater than the Forward Floor Price but less than or equal to the Forward Cap Price, the Forward Floor Price divided by the Settlement Price; and
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|
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(iii)
|
if the Settlement Price is greater than the Forward Cap Price, 1 – ((Forward Cap Price – Forward Floor Price), divided by the Settlement Price).
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Distributions:
|
||
Cash Distributions:
|
In respect of any Component, if any cash distribution per Share is declared by the Issuer for which the ex-dividend date falls during the period from and including the Trade Date to and including the Valuation Date for that Component, as determined by the Calculation Agent, then on the relevant cash distribution payment date, even if that date falls after the Valuation Date, Counterparty shall pay to Bank a cash amount in the Settlement Currency equal to the product of (i) the Number of Shares for that Component, (ii) the gross amount per Share of any cash distribution and (iii) the Forward Delta.
In the event that the Issuer declares or announces a cash distribution the gross amount per Share of which is greater than or equal to the product of (x) 4% and (y) the closing price per Share on the Exchange as of the ex-dividend date for such cash distribution, in addition to the payment by Counterparty to Bank referred to in the immediately preceding paragraph, the Calculation Agent shall have the right to adjust any term of the Transaction in accordance with Calculation Agent Adjustment for Share Adjustments taking into consideration such payment.
These provisions shall take precedence and be the only adjustments that would or could be made under this Confirmation in the event of any cash distribution.
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|
Forward Delta:
|
“Forward Delta” shall be a percentage amount determined by Bank acting in good faith as the amount it theoretically would be short in order to hedge the equity price risk in respect of the Component at the close of business on the Exchange Business Day immediately prior to the relevant ex-dividend date (in the case of “Cash Distributions” above or “Non-cash Distributions” below) or on the Exchange Business Day referenced in “Cash Collateral” below, as applicable.
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|
Cash Collateral:
|
In respect of any Component, if the Issuer declares or announces a cash distribution and Bank determines in good faith that the Forward Delta at the close of business on the Exchange Business Day immediately after such declaration or announcement (the “Delta at Announcement”) is higher than the Trigger Percentage, then (A) Bank shall promptly notify Counterparty of its obligation to deliver cash collateral hereunder and (B) unless Bank and Counterparty agree otherwise, Counterparty shall, no later than the fourth Currency Business Day after such notification, deliver to the Secured Custody Account USD cash collateral in an amount equal to the product of (i) the Number of Shares for such Component, (ii) the declared or announced gross amount per Share of such cash distribution and (iii) the lower of (A) (1) the Delta at Announcement minus (2) the Trigger Percentage plus (3) 5% and (B) the Withholding Tax Rate plus 5%.
|
Withholding Tax Rate:
|
The withholding tax rate applicable to the payment or delivery to Counterparty of the relevant cash distribution, non-cash distribution or Spin-off, as determined by the Calculation Agent based on advice of counsel.
|
|
Trigger Percentage:
|
(i) 100% minus (ii) the sum of 5% and the Withholding Tax Rate.
|
|
Non-cash Distributions:
|
In respect of any Component, if any non-cash distribution (which for the avoidance of doubt shall include subscription rights issued pursuant to a rights issue), other than any non-cash distribution of Shares or that constitutes a Spin-off (as defined below), is declared by the Issuer for which the ex-dividend date falls during the period from and including the Trade Date to and including the Valuation Date for that Component, as determined by the Calculation Agent, then (A) on the relevant distribution date, even if that date falls after the Valuation Date, Counterparty shall physically deliver to Bank an amount of such non-cash distribution equal to the product of (i) the Number of Shares for that Component, (ii) the gross amount per Share of such non-cash distribution and (iii) the Forward Delta and (B) the Calculation Agent shall have the right to adjust any term of the Transaction as if Calculation Agent Adjustment for Share Adjustments applied to such non-cash distribution, taking into consideration the delivery referred to in clause (A) hereof and, in connection with such adjustments, the Calculation Agent may reduce Counterparty’s delivery obligation pursuant to clause (A) hereof such that it does not exceed the amount of such non-cash distribution expected to be received by Counterparty on the “Collateral” under the Pledge Agreement, after application of the applicable Withholding Tax Rate, in which case the Calculation Agent shall compensate Bank for its loss by virtue of such reduced delivery obligation through other adjustments to the terms of the Transaction, which adjustments may include, for the avoidance of doubt, requiring a payment by Counterparty.
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|
This provision shall take precedence and be the only adjustment that would or could be made under this Confirmation in the event of any non-cash distribution other than any such non-cash distribution of Shares or that constitutes a Spin-off.
|
||
Extraordinary Dividends:
|
Notwithstanding anything to the contrary in the Equity Definitions, nothing shall constitute an Extraordinary Dividend.
|
|
Share Adjustments:
|
||
Potential Adjustment Events:
|
If an event occurs that constitutes both a Potential Adjustment Event under Section 11.2(e)(ii)(C) of the Equity Definitions and a Spin-off as described below, it shall be treated hereunder as a Spin-off and not as a Potential Adjustment Event.
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|
Method of Adjustment:
|
Calculation Agent Adjustment
|
|
For the purposes of Section 11.2(c) of the Equity Definitions (and in the case of clauses (ii) and (iii) below, Sections 11.2(a) and 11.2(e)(vii) of the Equity Definitions), (i) the words “provided that no adjustment will” in the final paragraph thereof will be replaced with the words “it being understood that adjustments may”, (ii) the words “diluting or concentrative” (in each place where they appear) will be replaced with the word “material”, and (iii) the words “or the Transaction” shall be added after the words “theoretical value of the relevant Shares”.
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Spin-off:
|
A distribution of New Shares (the “Spin-off Shares”) of an issuer, including the Issuer (any such issuer, the “Spin-off Issuer”) to holders of the Shares (the “Original Shares”). Solely for purposes of this paragraph, “New Shares” means ordinary or common shares of the Spin-off Issuer other than Shares, including, for the avoidance of doubt, shares that are issued to separately track and reflect the economic performance of businesses and/or assets of the Spin-off Issuer, which shares are, or as of the ex-dividend date of such Spin-off are scheduled promptly to be, (i) publicly quoted, traded or listed on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors) and (ii) not subject to any currency exchange controls, trading restrictions or other trading limitations.
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|
Bank Spin-off Election:
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Separate Transactions Adjustments shall be applicable to such Spin-off unless the Calculation Agent determines that it cannot make a commercially reasonable adjustment under Separate Transactions Adjustments to preserve the fair value of the Transaction for the parties, in which case Basket Adjustments shall be applicable to such Spin-off.
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Basket Adjustments:
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If Basket Adjustments apply to any Spin-off, as of the ex-dividend date for such Spin-off, (i) “Shares” shall mean the Original Shares and the Spin-off Shares; (ii) the Transaction shall continue but as a Share Basket Forward Transaction with an aggregate Number of Baskets equal to the Total Number of Shares prior to such Spin-off (and a Number of Baskets for each Component equal to the Number of Shares for such Component prior to such Spin-off), and each Basket shall consist of one Original Share and a number of Spin-off Shares that a holder of one Original Share would have been entitled to receive in such Spin-off (and references to Shares herein shall be interpreted as references to Baskets, as the context requires); and (iii) the Calculation Agent shall make such adjustments to the exercise, settlement, payment or any other terms of the Transaction as the Calculation Agent determines appropriate to preserve the fair value of the Transaction for the parties (including, without limitation, adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction), which may, but need not, be determined by reference to the adjustment(s) made in respect of such Spin-off by an options exchange to options on the Shares traded on such options exchange and, in connection with such adjustments, the Calculation Agent may reduce the number of Spin-off Shares underlying the Transaction such that it does not exceed the number of Spin-off Shares expected to be received by Counterparty in respect of the “Collateral” under the Pledge Agreement, after application of the applicable Withholding Tax Rate, in which case the Calculation Agent shall compensate Bank for its loss by virtue of such reduction through other adjustments to the terms of the Transaction, which adjustments may include, for the avoidance of doubt, requiring a payment by Counterparty. As of the ex-dividend date of any subsequent Spin-off, the Calculation Agent shall make adjustments to the composition of the Basket and other terms of the Transaction in accordance with the immediately preceding sentence.
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Separate Transactions Adjustments:
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If Separate Transactions Adjustments apply to any Spin-off, as of the ex-dividend date for such Spin-off, the Transaction shall be considered two separate Transactions, each with terms identical to the original Transaction (the “Original Transaction”), except that: (i) the “Shares” for the Original Transaction (the “Original Shares Transaction”) shall be the Original Shares and the “Shares” for the other transaction (the “Spin-off Shares Transaction”) shall be the Spin-off Shares, (ii) the Number of Shares for each Component of the Original Shares Transaction shall remain unchanged from the Number of Shares for the corresponding Component of the Original Transaction, (iii) the aggregate Number of Shares for all Components of the Spin-off Shares Transaction shall equal the product of (A) the Total Number of Shares for the Original Transaction (as in effect immediately prior to the ex-dividend date for such Spin-off) and (B) the number of Spin-off Shares that a holder of one share of Original Shares would have owned or been entitled to receive in connection with such Spin-Off, (iv) the Number of Shares for each Component of the Spin-off Shares Transaction shall equal the product of (A) the Number of Shares for such Component of the Original Transaction (as in effect immediately prior to the ex-dividend date for such Spin-off) and (B) the number of Spin-off Shares that a holder of one share of Original Shares would have owned or been entitled to receive in connection with such Spin-Off, and (v) the Forward Floor Price and the Forward Cap Price for each of the Original Shares Transaction and the Spin-off Shares Transaction shall be adjusted by the Calculation Agent to reflect the relative market values per share and dividend practices of the Original Shares and the Spin-off Shares immediately following the ex-dividend date for such Spin-off, as determined by the Calculation Agent, and to preserve the fair value of the Transaction for the parties (including, without limitation, adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Original Shares, the Spin-off Shares, the Original Shares Transaction or to the Spin-off Shares Transaction) and, in connection with such adjustments, the Calculation Agent may reduce the number of Spin-off Shares underlying the Transaction such that it does not exceed the number of Spin-off Shares expected to be received by Counterparty in respect of the “Collateral” under the Pledge Agreement, after application of the applicable Withholding Tax Rate, in which case the Calculation Agent shall compensate Bank for its loss by virtue of such reduction through other adjustments to the terms of the Transaction, which adjustments may include, for the avoidance of doubt, requiring a payment by Counterparty. Following a Spin-off to which Separate Transactions Adjustments are applicable, this Confirmation shall apply in all respects (except as provided above) to both the Original Shares Transaction and the Spin-off Shares Transaction as if each were a separate Transaction under the Agreement.
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Extraordinary Events:
|
||
Consequences of Merger Events:
|
||
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
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Share-for-Other:
|
Modified Calculation Agent Adjustment
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Share-for-Combined:
|
Modified Calculation Agent Adjustment
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Tender Offer:
|
Applicable
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Consequences of Tender Offers:
|
||
Share-for-Share:
|
Modified Calculation Agent Adjustment
|
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Share-for-Other:
|
Modified Calculation Agent Adjustment
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Share-for-Combined:
|
Modified Calculation Agent Adjustment
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Amendment in respect of Merger Events and Tender Offers:
|
Section 12.1(l) of the Equity Definitions will be amended (A) by deleting the parenthetical phrase in both the third line thereof and the fifth line thereof and (B) by replacing the word “that” in both the third line thereof and the fifth line thereof with the words “whether or not such announcement”, and (C) by adding immediately after the words “Merger Event” in the third line thereof and after the words “Tender Offer” in the fifth line thereof “, and any publicly announced change or amendment to such an announcement (including the announcement of an abandonment of such intention)” and (ii) Sections 12.2(b), 12.2 (e), 12.3(a) and 12.3(d) of the Equity Definitions will each be amended by replacing each occurrence of the words “Merger Date” and “Tender Offer Date”, as the case may be, with the words “Announcement Date”.
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Composition of Combined Consideration:
|
Not Applicable; provided that, notwithstanding Sections 12.1(f) and 12.5(b) of the Equity Definitions, to the extent that the composition of the consideration for the relevant Shares pursuant to a Tender Offer or Merger Event could be elected by a holder of the Shares, the Calculation Agent will determine such composition.
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Nationalization, Insolvency or Delisting:
|
Cancellation and Payment; provided that it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, retraded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
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Additional Disruption Events:
|
||
Change in Law:
|
Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “or announcement or statement of the formal or informal interpretation”,
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(ii) replacing the word “Shares” with “Hedge Positions” in the sixth line thereof, (iii) adding the words “, or holding, acquiring or disposing of Shares or any Hedge Positions relating to,” after the words “obligations under” in clause (Y) thereof, and (iv) adding the words “provided that, in the case of clause (Y) hereof and any law, regulation or interpretation, (1) such applicable law, regulation or interpretation was not a law, regulation or interpretation either (x) publicly proposed as of the Trade Date and subsequently adopted in the form proposed or (y) publicly adopted (but not yet effective) as of the Trade Date, if not subsequently modified prior to its effectiveness and (2) the consequence of such law, regulation or interpretation is applied equally by the Bank to all of its similarly situated customers” after the semi-colon in the last line thereof.
For the avoidance of doubt, the parties acknowledge and agree that the events referred to in clause (X) of Section 12.9(a)(ii) include Bank’s ability to dispose of the assets to be received by Bank upon a Physical Settlement or otherwise hereunder to close out open borrowings created in the course of Bank’s hedging activities related to its exposure under the Transaction without further registration under the Securities Act.
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||
Failure to Deliver:
|
Not Applicable
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Insolvency Filing:
|
Applicable
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Hedging Disruption:
|
Applicable
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Increased Cost of Hedging:
|
Not Applicable
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Loss of Stock Borrow:
|
Not Applicable
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Increased Cost of Stock Borrow:
|
Applicable; provided that Section 12.9(b)(v) is hereby amended and restated as follows:
“On or promptly following the first Exchange Business Day following the Trade Date or effective delivery of a Borrow Condition Termination Notice on which (x) an Increased Cost of Stock Borrow exists (an “Increased Cost Condition”) or (y) the Hedging Party is unable, after using commercially reasonable efforts, to borrow (or maintain a borrowing of) Shares in an amount equal to the Hedging Shares (not to exceed the number of Shares underlying the Transaction) (a “Non-availability Condition”), the Hedging Party will notify the Non-Hedging Party by e-mail at the following e-mail address(es) (collectively, the “Counterparty Designees”): nmarchant@libertyglobal.com, mread@libertyglobal.com, rkaushal@libertyglobal.com, ijohnston@libertyglobal.com (such notice, a “Borrow Condition Notice”) (which the Non-Hedging Party shall confirm by return e-mail, it being understood that any failure to so confirm shall not affect the remainder of this provision) of (i) the number of Shares for which the Increased Cost Condition or Non-availability Condition, as applicable, exists (any such Shares from time to time, “Affected Shares”) and (ii) in the case of an Increased Cost Condition only,
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(A) the rate that the Hedging Party would incur (or has incurred) to borrow a number of Shares equal to the number of Affected Shares in respect of the Transaction (such rate from time to time, the “Stock Loan Rate”) and (B) the amount by which the costs that would be incurred (or have been incurred) by the Hedging Party to borrow or maintain a borrowing of Shares at the Stock Loan Rate exceed such costs that would have been incurred had the Stock Loan Rate been equal to the Initial Stock Loan Rate (such costs in respect of the number of Affected Shares from time to time, “Stock Loan Excess Costs”). In the event that an Increased Cost Condition or Non-availability Condition, as applicable, described in a Borrow Condition Notice ceases to exist, the Hedging Party will promptly notify the Non-Hedging Party by e-mail to the Counterparty Designees (such notice, a “Borrow Condition Termination Notice”) (which the Non-Hedging Party shall confirm by return e-mail, it being understood that any failure to so confirm shall not affect the remainder of this provision) of such cessation.
In addition, the Hedging Party will notify the Non-Hedging Party by e-mail to the Counterparty Designees (such notice, a “Borrow Condition Update Notice”) (which the Non-Hedging Party shall confirm by return e-mail, it being understood that any failure to so confirm shall not affect the remainder of this provision) in the event of: (i) any increase or decrease in the Stock Loan Rate since the most recent effectively delivered Borrow Condition Update Notice or Borrow Condition Notice that results in the Stock Loan Rate exceeding (or ceasing to exceed) the Maximum Stock Loan Rate, (ii) any increase in the number of Affected Shares since the most recent effectively delivered Borrow Condition Update Notice or Borrow Condition Notice in excess of 50,000 Shares and (iii) any increase or decrease in the expected Monthly Payable Stock Loan Excess Costs (as defined below), as reasonably determined by the Hedging Party, since the most recent effectively delivered Borrow Condition Update Notice or Borrow Condition Notice in excess of $1,000. Each Borrow Condition Update Notice shall specify (i) the then-current number of Affected Shares and (ii) the then-current Stock Loan Rate.
On or promptly following the final Exchange Business Day of each calendar month, the Hedging Party will notify the Non-Hedging Party by e-mail to the Counterparty Designees (which the Non-Hedging Party shall confirm by return e-mail, it being understood that any failure to so confirm shall not affect the remainder of this provision) of the aggregate Stock Loan Excess Costs during such calendar month the incurrence of which has not been avoided through a rehypothecation in accordance with the second succeeding paragraph of this Section 12.9(b)(v) (such non-avoided Stock Loan Excess Costs, “Monthly Payable Stock Loan Excess Costs”) and of a proposed Price Adjustment to account for such Stock Loan Excess Costs which proposed Price Adjustment may, for the avoidance of doubt, include requiring a payment by Counterparty (such notice, the “Monthly Borrow Cost Notice”). The Non-Hedging Party shall, within two Scheduled Trading Days of effective delivery of the Monthly Borrow Cost Notice, notify the Hedging Party that it elects to (A) agree to amend the relevant Transaction per the proposed Price Adjustment,
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(B) pay the Hedging Party such Stock Loan Excess Costs, or (C) terminate the Transaction as of that second Scheduled Trading Day with respect to the then-current number of Affected Shares, and, in the case of (A) or (B), the Non-Hedging Party shall make any related payment within one Scheduled Trading Day of effective delivery of notice of its election. If such notice is not given by the end of that second Scheduled Trading Day, then the Hedging Party may give notice that it elects to terminate the Transaction with respect to the then-current number of Affected Shares, specifying the date of such termination, which may be the same day that the notice of termination is effective. If either party elects to terminate the Transaction with respect to the then-current number of Affected Shares, the Determining Party will determine the Cancellation Amount payable by one party to the other, which Cancellation Amount shall include the Stock Loan Excess Costs incurred through the date the Transaction is terminated with respect to the then-current number of Affected Shares and that have not previously been paid or resulted in a Price Adjustment.
In addition, the Non-Hedging Party shall, within two Scheduled Trading Days of effective delivery of a Borrow Condition Notice indicating the existence of a Non-availability Condition, notify the Hedging Party that it elects to (A) permit the Hedging Party to rehypothecate Shares in accordance with the next succeeding paragraph of this Section 12.9(b)(v) or (B) terminate the Transaction as of that second Scheduled Trading Day with respect to the then-current number of Affected Shares. If such notice is not given by the end of that second Scheduled Trading Day, then the Hedging Party may give notice that it elects to terminate the Transaction with respect to the then-current number of Affected Shares, specifying the date of such termination, which may be the same day that the notice of termination is effective. If either party elects to terminate the Transaction with respect to the then-current number of Affected Shares, the Determining Party will determine the Cancellation Amount payable by one party to the other, which Cancellation Amount shall include any Stock Loan Excess Costs not previously paid by Counterparty nor previously resulting in a Price Adjustment.
Notwithstanding anything to the contrary in this Confirmation, if the most recent Borrow Condition Notice or Borrow Condition Update Notice (x) specifies a Stock Loan Rate that is greater than the Maximum Stock Loan Rate or (y) indicates the occurrence of a Non-availability Condition, the Non-Hedging Party may, in order to avoid paying related Stock Loan Excess Costs or a related Price Adjustment (in the case of clause (x)) or termination of the Transaction with respect to the then-current number of Affected Shares (in the case of clause (x) or (y)), elect to permit the Hedging Party, as the Hedging Party’s sole remedy, to take by rehypothecation Shares then held in the Secured Custody Account in an amount equal to the then-current number of Affected Shares; provided that (i) such Shares shall be in book-entry form and freely tradable without any restrictions under applicable law (other than Excluded Transfer Restrictions, as defined in the Pledge Agreement) and (ii) the Calculation Agent shall compensate the Non-Hedging Party by adjusting the terms of the Transaction to reflect the economic effect of the Hedging Party not incurring costs (based on a stock loan rate no greater than the Initial Stock Loan Rate) related to a market borrow of Shares as a result of such rehypothecation including for the avoidance of doubt any funding benefit received by Hedging Party in respect of collateral that would have otherwise been pledged to a stock lender.
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If any termination pursuant to this provision is for a number of Shares than the full Number of Shares for all outstanding Components, such partial termination shall be allocated pro rata to such outstanding Components.” | ||
If an event or circumstance that would otherwise constitute or give rise to a Hedging Disruption also constitutes an Increased Cost of Stock Borrow, it will be treated as an Increased Cost of Stock Borrow and will not constitute a Hedging Disruption. Section 12.9(b)(viii) of the Equity Definitions is hereby deleted.
|
||
Maximum Stock Loan Rate:
|
150 basis points
|
|
Initial Stock Loan Rate:
|
50 basis points
|
|
Hedging Party:
|
Bank (for all Additional Disruption Events)
|
|
Determining Party:
|
Bank (for all Extraordinary Events and deemed Extraordinary Events)
|
|
Non-Reliance:
|
Applicable
|
|
Agreements and Acknowledgments Regarding Hedging Activities:
|
Applicable
|
|
Additional Acknowledgments:
|
Applicable; provided that, notwithstanding Section 9.11 of the Equity Definitions, Excluded Transfer Restrictions, as defined in the Pledge Agreement, shall be deemed not to be a breach or violation of such Section 9.11. For the avoidance of doubt, Party B does not make the representations in Section 9.11 of the Equity Definitions with respect to the Delivery of Shares pursuant to Section 5(a) of the Pledge Agreement.
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Adjustment and Termination
Consultation:
|
Upon the occurrence of any event that would permit Bank (whether in its capacity as Calculation Agent, Determining Party or Hedging Party) to adjust the terms of the Transaction or terminate the Transaction, prior to making such adjustment or effecting such termination, Bank shall use its reasonable efforts to consult with Counterparty in good faith regarding such adjustment or termination. The foregoing shall not (i) limit the rights of Bank to make such adjustment or effect such termination at any time or (ii) obligate Bank to delay, or continue delaying, making such adjustment or effecting such termination at any time (in each case, whether in Bank’s capacity as Calculation Agent, Determining Party or Hedging Party).
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|
Miscellaneous:
|
||
Calculation of Close-out Amount and Cancellation Amount:
|
In determining a “Close-out Amount” or “Cancellation Amount” pursuant to the Agreement, in respect of any Transaction, the Determining Party may also rely on the price at which Bank unwinds its Hedge Positions acting in good faith and in a commercially reasonable manner as a factor in the calculation of the Close-out Amount or Cancellation Amount.
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ISDA Based Termination:
|
In the event of a cancellation of the Transaction in accordance with “Cancellation and Payment” under the Equity Definitions or a termination following an Additional Disruption Event, the Transaction shall be terminated in one or more Components, as determined by the Determining Party, in order to allow for an orderly unwind of Bank’s Hedge Positions.
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|
Contracts:
|
The Agreement, this Confirmation, the Custodial Services Agreement, the Pledge Agreement and the Account Control Agreement.
|
|
In the event of any inconsistency between this Confirmation and the other Contracts, this Confirmation will govern.
|
||
Payment and Delivery Netting:
|
Any payment and/or delivery obligation of a party under the Contracts shall automatically be netted against any payment (in the same currency) and/or delivery obligation (in respect of the same type of asset) to be performed on the same day by the other party under the Contracts, so that only the party whose payment or delivery obligation is greater than the other party’s payment or delivery obligation shall deliver the excess to the other party, as the case may be.
For any Component, if (x) on the applicable Cash Settlement Payment Date (if Cash Settlement is applicable), Counterparty owes any amount to Bank, (y) on the applicable Settlement Date (if Cash Settlement is not applicable), Counterparty is required to deliver any Shares to Bank or (z) on any date, Counterparty is obligated to pay or deliver to Bank a cash or non-cash distribution, unless Counterparty shall have otherwise timely satisfied such obligations, Counterparty hereby authorizes and directs Bank to (i) pay or cause to be paid to Bank, from the Secured Custody Account, cash for any amount owed pursuant to clause (x) above or cash distribution owed pursuant to clause (z) above or (ii) deliver or cause to be delivered to Bank or an affiliate of Bank designated by Bank, from the Secured Custody Account, Shares or non-cash distributions for any Shares required to be delivered pursuant to clause (y) above or non-cash distributions required to be delivered pursuant to clause (z) above, as applicable, in each case, to the extent of and in satisfaction of Counterparty’s obligations with respect to such Component.
|
|
Calculation Agent:
|
Bank; provided that if an Event of Default under Section 5(a)(vii) of the Agreement has occurred and is continuing in respect of which Bank is the sole Defaulting Party, then the Counterparty may appoint a leading equity derivatives dealer unaffiliated with Counterparty to act as Calculation Agent for so long as such Event of Default in respect of Bank is continuing (unless an Event of Default or Termination Event has occurred and is continuing with respect to Counterparty, in which case Bank will remain or become the Calculation Agent).
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All calculations and determinations made by the Calculation Agent shall be made in good faith and in a commercially reasonable manner and following any calculation, adjustment or determination by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent shall promptly provide to Counterparty a report displaying in reasonable detail the basis for such calculation, adjustment or determination (including any assumptions used in making such calculation, adjustment or determination), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models or proprietary or confidential information used by it for such calculation, adjustment or determination. | ||
Office:
|
For the purposes of the Transaction, neither Party A nor Party B is a Multibranch Party.
|
|
Transfer:
|
Notwithstanding Section 7 of the Agreement, Party A may assign its rights and delegate its obligations under the Transaction, in whole and not in part, to any Affiliate of Party A, with the consent of Party B, such consent not to be unreasonably withheld, conditioned or delayed, it being understood that it is reasonable for Party B to withhold its consent should Party B anticipate suffering material adverse tax or other material consequences from such assignment or delegation.
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|
Settlement Instructions for Party A:
|
To be advised
|
|
Settlement Instructions for Party B:
|
To be advised
|
|
Process Agent:
|
For the purposes of Section 13(c) of the Agreement, Counterparty appoints as its Process Agent: Corporation Service Company, located at 180 Avenue of the Americas, Suite 210, New York, New York 10036-8401.
|
|
Notices:
|
TO PARTY A:
Bank of America, N.A.
c/o Bank of America Merrill Lynch
2 King Edward Street
London, EC1A 1HQ, UK
Attention: Strategic Equity Solutions Group
Facsimile No: +44 20 7996 2030
With mandatory e-mail to all of the following addresses:
E-mail: sambacor.ndiaye@baml.com,
kevin.e.o’sullivan@baml.com, sem.hamzaoui@baml.com,
ekaterina.sidorenko@baml.com, francois.lu@baml.com,
yury.d.mulman@baml.com
|
|
|
TO PARTY B:
Liberty Global Incorporated Limited
c/o Liberty Global
12300 Liberty Boulevard
Englewood, CO 80112
Facsimile: 303-220-6691
Attention: General Counsel / Legal Department
|
With a copy to:
Liberty Global
Griffin House
161 Hammersmith Road
Hammersmith, W6 8BS
United Kingdom
Facsimile: +44 20 8483 6400
Attention: Nick Marchant, Matt Read, Ruchi Kaushal, Ian Johnston
Shearman & Sterling LLP
599 Lexington Avenue,
New York, NY 10022
Facsimile: 646-848-7367
Attention: Patrick Clancy, Donna Parisi, Harald Halbhuber
With mandatory e-mail to all of the following addresses:
E-mail: nmarchant@libertyglobal.com, mread@libertyglobal.com, rkaushal@libertyglobal.com, ijohnston@libertyglobal.com, dparisi@shearman.com, harald.halbhuber@shearman.com, patrick.clancy@shearman.com
|
||
|
Where a notice from Party A (x) relates to termination or cancellation of any part of the Transaction, or to Close-out Amounts or Cancellation Amounts or (y) is an initial Borrow Condition Notice, Party A will telephone the following number with the aim to confirm receipt of the notice by at least one of the above-referenced Liberty Global plc named contacts, it being understood that any failure to reach a contact after telephoning such number shall not invalidate any such notice: +44 20 8483 6300.
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|
Representations, Warranties and Undertakings:
|
Party B represents, warrants and undertakes to Party A that:
(a) Party B is acting for its own account and not as agent for any other person;
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|
|
(b) Party B will make all disclosures required of it and comply in all material respects with all applicable law and regulation including under the EU Directive on insider dealing, market abuse or market manipulation (this representation and warranty shall be made on the Trade Date and repeated on each day Party B delivers a notice of optional early termination or takes any affirmative action hereunder (including, without limitation, the election of Physical Settlement));
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|
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(c) Party B is duly organised and validly existing under the laws of the jurisdiction of its organisation or incorporation and is in good standing and has the power to execute, deliver and perform its obligations under the agreements described herein (and any other related documents) and has taken all necessary action to authorise such execution, delivery and performance;
|
|
(d) Neither Party A nor its Affiliates is acting as a fiduciary for or an adviser to it in respect of the Transaction; and
|
|
|
(e) Party B’s execution, delivery and performance under the Contracts does not conflict with Party B’s constitutional documents, the law of the jurisdiction of Party B’s incorporation or any material contract to which Party B is a party.
|
|
|
Party B acknowledges that Party A is entering into the Transactions in reliance on Party B making the above representations.
|
|
Party B Covenants:
|
Party A and Party B agree that Party B and Party B’s employees, representatives, or other agents are authorized to disclose to any and all persons, without limitation of any kind, the U.S. Federal income tax treatment and U.S. Federal income tax structure of the transaction and all analyses that have been provided to Party B relating to such tax treatment and tax structure.
|
|
Secured Custody Account:
|
The securities (and related cash) custody account opened by Custodian in the name of Party B with account number 602977.1.
|
|
Custodial Services Agreement:
|
The agreement between Party B and Bank of America, N.A., as custodian (“Custodian”) dated November 9, 2015, as amended from time to time, pursuant to which Custodian agrees to provide certain custodial services to Party B, including in relation to the Shares and the Secured Custody Account.
|
|
Pledge Agreement:
|
The pledge agreement between Party A and Party B, dated November 12, 2015, pursuant to which the Shares and the Secured Custody Account are pledged in favor of Party A. The Pledge Agreement shall be a Credit Support Document in respect of Party B.
|
|
Underwriting Agreement:
|
The Underwriting Agreement, dated the date hereof, among the Issuer, Counterparty, Discovery Lightning Investments Limited, Bank and J.P. Morgan Securities, LLC (the “Block Bank”).
|
|
Account Control Agreement:
|
The Account Control Agreement, dated November 9, 2015, among Counterparty, Bank and Custodian.
|
Yours sincerely,
|
||
BANK OF AMERICA, N.A.
|
||
By:
|
/s/ Yury Mulman | |
Name:
|
Yury Mulman
|
|
Title:
|
Director
|
Accepted and agreed to:
|
|||||
LIBERTY GLOBAL INCORPORATED LIMITED
|
|||||
By:
|
/s/ Jeremy Evans | By: | /s/ Charlie Bracken | ||
Name:
|
Jeremy Evans
|
Name: |
Charlie Bracken
|
||
Title:
|
Director
|
Title: |
Director
|
Component
|
Number of Shares
|
Forward Floor Percentage
|
Forward Cap Percentage
|
Valuation Date
|
1.
|
33,334.00
|
85%
|
135%
|
Thu-25-Jul-2019
|
2.
|
33,334.00
|
85%
|
135%
|
Fri-26-Jul-2019
|
3.
|
33,334.00
|
85%
|
135%
|
Mon-29-Jul-2019
|
4.
|
33,334.00
|
85%
|
135%
|
Tue-30-Jul-2019
|
5.
|
33,334.00
|
85%
|
135%
|
Wed-31-Jul-2019
|
6.
|
33,334.00
|
85%
|
135%
|
Thu-1-Aug-2019
|
7.
|
33,334.00
|
85%
|
135%
|
Fri-2-Aug-2019
|
8.
|
33,334.00
|
85%
|
135%
|
Mon-5-Aug-2019
|
9.
|
33,334.00
|
85%
|
135%
|
Tue-6-Aug-2019
|
10.
|
33,334.00
|
85%
|
135%
|
Wed-7-Aug-2019
|
11.
|
33,334.00
|
85%
|
135%
|
Thu-8-Aug-2019
|
12.
|
33,334.00
|
85%
|
135%
|
Fri-9-Aug-2019
|
13.
|
33,334.00
|
85%
|
135%
|
Mon-12-Aug-2019
|
14.
|
33,334.00
|
85%
|
135%
|
Tue-13-Aug-2019
|
15.
|
33,334.00
|
85%
|
135%
|
Wed-14-Aug-2019
|
16.
|
33,334.00
|
85%
|
135%
|
Thu-15-Aug-2019
|
17.
|
33,334.00
|
85%
|
135%
|
Fri-16-Aug-2019
|
18.
|
33,334.00
|
85%
|
135%
|
Mon-19-Aug-2019
|
19.
|
33,334.00
|
85%
|
135%
|
Tue-20-Aug-2019
|
20.
|
33,334.00
|
85%
|
135%
|
Wed-21-Aug-2019
|
21.
|
33,334.00
|
85%
|
135%
|
Thu-22-Aug-2019
|
22.
|
33,334.00
|
85%
|
135%
|
Fri-23-Aug-2019
|
23.
|
33,334.00
|
85%
|
135%
|
Mon-26-Aug-2019
|
24.
|
33,334.00
|
85%
|
135%
|
Tue-27-Aug-2019
|
25.
|
33,317.00
|
85%
|
135%
|
Wed-28-Aug-2019
|
Component
|
Number of Shares
|
Forward Floor Percentage
|
Forward Cap Percentage
|
Valuation Date
|
26.
|
33,334.00
|
85%
|
135%
|
Fri-23-Oct-2020
|
27.
|
33,334.00
|
85%
|
135%
|
Mon-26-Oct-2020
|
28.
|
33,334.00
|
85%
|
135%
|
Tue-27-Oct-2020
|
29.
|
33,334.00
|
85%
|
135%
|
Wed-28-Oct-2020
|
30.
|
33,334.00
|
85%
|
135%
|
Thu-29-Oct-2020
|
31.
|
33,334.00
|
85%
|
135%
|
Fri-30-Oct-2020
|
32.
|
33,334.00
|
85%
|
135%
|
Mon-2-Nov-2020
|
33.
|
33,334.00
|
85%
|
135%
|
Tue-3-Nov-2020
|
34.
|
33,334.00
|
85%
|
135%
|
Wed-4-Nov-2020
|
35.
|
33,334.00
|
85%
|
135%
|
Thu-5-Nov-2020
|
36.
|
33,334.00
|
85%
|
135%
|
Fri-6-Nov-2020
|
37.
|
33,334.00
|
85%
|
135%
|
Mon-9-Nov-2020
|
38.
|
33,334.00
|
85%
|
135%
|
Tue-10-Nov-2020
|
39.
|
33,334.00
|
85%
|
135%
|
Thu-12-Nov-2020
|
40.
|
33,334.00
|
85%
|
135%
|
Fri-13-Nov-2020
|
41.
|
33,334.00
|
85%
|
135%
|
Mon-16-Nov-2020
|
42.
|
33,334.00
|
85%
|
135%
|
Tue-17-Nov-2020
|
43.
|
33,334.00
|
85%
|
135%
|
Wed-18-Nov-2020
|
44.
|
33,334.00
|
85%
|
135%
|
Thu-19-Nov-2020
|
45.
|
33,334.00
|
85%
|
135%
|
Fri-20-Nov-2020
|
46.
|
33,334.00
|
85%
|
135%
|
Mon-23-Nov-2020
|
47.
|
33,334.00
|
85%
|
135%
|
Tue-24-Nov-2020
|
48.
|
33,334.00
|
85%
|
135%
|
Wed-25-Nov-2020
|
49.
|
33,334.00
|
85%
|
135%
|
Fri-27-Nov-2020
|
50.
|
33,317.00
|
85%
|
135%
|
Mon-30-Nov-2020
|
Component
|
Number of Shares
|
Forward Floor Percentage
|
Forward Cap Percentage
|
Valuation Date
|
51.
|
33,334.00
|
85%
|
135%
|
Tue-25-Jan-2022
|
52.
|
33,334.00
|
85%
|
135%
|
Wed-26-Jan-2022
|
53.
|
33,334.00
|
85%
|
135%
|
Thu-27-Jan-2022
|
54.
|
33,334.00
|
85%
|
135%
|
Fri-28-Jan-2022
|
55.
|
33,334.00
|
85%
|
135%
|
Mon-31-Jan-2022
|
56.
|
33,334.00
|
85%
|
135%
|
Tue-1-Feb-2022
|
57.
|
33,334.00
|
85%
|
135%
|
Wed-2-Feb-2022
|
58.
|
33,334.00
|
85%
|
135%
|
Thu-3-Feb-2022
|
59.
|
33,334.00
|
85%
|
135%
|
Fri-4-Feb-2022
|
60.
|
33,334.00
|
85%
|
135%
|
Mon-7-Feb-2022
|
61.
|
33,334.00
|
85%
|
135%
|
Tue-8-Feb-2022
|
62.
|
33,334.00
|
85%
|
135%
|
Wed-9-Feb-2022
|
63.
|
33,334.00
|
85%
|
135%
|
Thu-10-Feb-2022
|
64.
|
33,334.00
|
85%
|
135%
|
Fri-11-Feb-2022
|
65.
|
33,334.00
|
85%
|
135%
|
Mon-14-Feb-2022
|
66.
|
33,334.00
|
85%
|
135%
|
Tue-15-Feb-2022
|
67.
|
33,334.00
|
85%
|
135%
|
Wed-16-Feb-2022
|
68.
|
33,334.00
|
85%
|
135%
|
Thu-17-Feb-2022
|
69.
|
33,334.00
|
85%
|
135%
|
Fri-18-Feb-2022
|
70.
|
33,334.00
|
85%
|
135%
|
Tue-22-Feb-2022
|
71.
|
33,334.00
|
85%
|
135%
|
Wed-23-Feb-2022
|
72.
|
33,334.00
|
85%
|
135%
|
Thu-24-Feb-2022
|
73.
|
33,334.00
|
85%
|
135%
|
Fri-25-Feb-2022
|
74.
|
33,334.00
|
85%
|
135%
|
Mon-28-Feb-2022
|
75.
|
33,318.00
|
85%
|
135%
|
Tue-1-Mar-2022
|
Other documents to be delivered are: | |||
Party required to deliver document
|
Form/Document/ Certificate
|
Date by which to be delivered
|
Covered by Section 3(d)
|
Party B
|
A certified copy of the resolution of Party B’s Board of Directors (i) approving the terms of, the execution of and the entry into of the Confirmation and the other Contracts and (ii) delegating powers to specified individuals to enter into the same.
|
On or prior to the date of execution of the Confirmation and any amendment to the Confirmation.
|
Yes
|
Party B
|
Evidence of authority and specimen signatures of Party B in form and substance satisfactory to Bank.
|
On or prior to the date of execution of the Confirmation and any amendment to the Confirmation.
|
Yes
|
Party B
|
Evidence of appointment of Process Agent of Party B in form and substance satisfactory to Bank.
|
On or prior to the date of execution of the Confirmation and any amendment to the Confirmation.
|
Yes
|
Party B
|
Certified copies of all organizational documents of Party B, together with evidence that Party B is duly formed, validly existing and in good standing (where available) in its jurisdiction of organization.
|
On or prior to the date of execution of the Confirmation and any amendment to the Confirmation.
|
Yes
|
Party B
|
Legal opinions in form of Appendix A hereto.
|
On or prior to the date of execution of the Confirmation.
|
No
|
PLEDGE AGREEMENT
PPV-PREPAID VARIABLE FORWARD
TRANSACTION
|
|
(i)
|
(A) The transactions contemplated by the PPV Transaction Documents and this Pledge Agreement is a “Hedging Transaction” (as defined in the Voting Agreement) in respect of Shares and (B) assuming Secured Party is a “Financial Institution” (as defined in the Voting Agreement), (x) Secured Party is a “Hedging Counterparty” (as defined in the Voting Agreement) in connection with such Hedging Transaction, and (y) neither the entry into or performance of the PPV Transaction Documents and this Pledge Agreement nor any (a) payment or settlement, (b) granting of any lien, pledge, security interest or other encumbrance in or on the Shares to Secured Party, (c) rehypothecation of any Shares by Secured Party, or (d) transfer to, by or at the request of Secured Party in connection with an exercise of remedies by Secured Party, in each case pursuant to the PPV Transaction Documents and this Pledge Agreement, shall constitute a “Transfer” within the meaning of the Voting Agreement.
|
|
(ii)
|
(A) The transactions contemplated by the PPV Transaction Documents and this Pledge Agreement is a “Hedging Transaction” (as defined in the Investor Rights Agreement) in respect of Shares and (B) assuming Secured Party is a “Financial Institution” (as defined in the Investor Rights Agreement), (x) Secured Party is a “Hedging Counterparty” (as defined in the Investor Rights Agreement) in connection with such Hedging Transaction, and (y) neither the entry into or performance of the PPV Transaction Documents and this Pledge Agreement nor any (a) payment or settlement (including, following the first anniversary of the date of the Investor Rights Agreement, physical settlement), (b) granting of any lien, pledge, security interest or other encumbrance in or on the Shares to Secured Party, (c) rehypothecation of any Shares by Secured Party, or (d) transfer to, by or at the request of Secured Party in connection with an exercise of remedies by Secured Party, in each case pursuant to the PPV Transaction Documents and this Pledge Agreement, shall constitute a “Transfer” within the meaning of the Investor Rights Agreement.
|
|
(i)
|
the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon (other than any Permitted Lien) if Pledgor shall not, within one Business Day of Secured Party’s demand, have caused such Lien to be lifted or stayed or bonded, and
|
|
(ii)
|
the amount of any and all out-of-pocket expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party may incur in connection with (A) the enforcement of this Pledge Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Default Event.
|
|
(i)
|
In the event Pledgor permits Secured Party to take by rehypothecation Shares then held in the Collateral Account pursuant to the provisions under the heading “Increased Cost of Stock Borrow” in the PPV Confirmation, Secured Party shall rehypothecate a number of Shares (any Shares so rehypothecated, “Used Shares”) in an amount equal to the lesser of (x) the number of Affected Shares (as defined in the PPV Transaction Documents) and (y) the number of Shares then held in the Collateral Account.
|
|
(ii)
|
At any time and from time to time, Used Shares shall be allocated to Components (each Component to which Used Shares have been allocated, an “Affected Component”) in increasing order of maturity until the aggregate of the Number of Shares (as defined in the PPV Confirmation) in respect of Affected Components is equal to or greater than the aggregate number of Used Shares at such time.
|
|
(iii)
|
Secured Party shall deliver or pay (in each case, by causing to be credited to the Collateral Account) on the distribution date for any cash or non-cash distribution in respect of Used Shares, an amount in respect of such cash or non-cash distribution equal to the Replacement Dividend Amount less the amount (if any) that Secured Party is required by applicable law to deduct or withhold for or on account of any Tax (as defined in the PPV Transaction Documents). “Replacement Dividend Amount” shall mean the sum of (A) the gross amount per Share of any cash or non-cash distribution in respect of Used Shares to the extent the number of Used Shares does not exceed Secured Party’s Theoretical Delta (as defined in the PPV Transaction Documents) and (B) the amount per Share of any cash or non-cash distribution that Secured Party receives (or would have received had it held the Used Shares) in respect of Used Shares, net of any withholding or deduction for or on account of any Tax, on a number of Used Shares equal to the excess (if any) of the number of Used Shares over Secured Party’s Theoretical Delta.
|
|
(iv)
|
Secured Party shall, subject to Section 5(f)(v) of this Pledge Agreement return Used Shares to the Collateral Account on the applicable Settlement Date or Cash Settlement Payment Date (each as defined in the PPV Confirmation) for the Affected Component to which such Used Shares have been allocated in accordance with Section 5(f)(ii) of this Pledge Agreement. For the avoidance of doubt, Pledgor shall not have the right to demand the return of any Used Shares prior to the applicable Settlement Date, Cash Settlement Payment Date or Unwind Amount Payment Date (as defined in the PPV Transaction Documents).
|
|
(v)
|
If Physical Settlement (as defined in the PPV Confirmation) is applicable to any Affected Component, (A) Pledgor hereby authorizes Secured Party to retain the Used Shares allocated to such Affected Component in satisfaction of Pledgor’s obligation to deliver the Number of Shares to be Delivered (as defined in the PPV Confirmation) in respect such Affected Component (and the Number of Shares to be Delivered in respect such Affected Component shall be reduced by the number of Used Shares so retained) and (B) if the Number of Shares to Be Delivered in respect of an Affected Component exceeds the number of Used Shares so retained, Secured Party shall be entitled to direct the Custodian to deliver or cause to be delivered to Secured Party or an affiliate of Secured Party designated by Secured Party, a number of Shares in the Collateral Account corresponding to such excess in satisfaction of Pledgor’s obligation to deliver Shares to the Secured Party. If the Used Shares allocated to an Affected Component exceeds the Number of Shares to be Delivered in respect of such Affected Component to which Physical Settlement applies or if Cash Settlement applies to such Affected Component or if such Affected Component is terminated (in whole or in part) pursuant to an Optional Early Termination (as defined in the PPV Transaction Documents), Secured Party shall return such excess Used Shares (in the case of Physical Settlement),
|
|
(vi)
|
Following a Default Event, Secured Party shall be entitled to rehypothecate any Collateral not already rehypothecated, but only in accordance with the limitations set forth below in Section 7(b).
|
|
(i)
|
purchase or cause to be purchased by an affiliate from the Collateral Account, Collateral consisting of Shares or other securities with a market value, as reasonably determined by the Secured Party, up to the value sufficient to satisfy in full all Secured Obligations then due and payable, and set off against or apply to the Secured Party’s obligation to pay the purchase price, the Secured Obligations then due and payable, whereupon Secured Party shall hold such Shares or other securities absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted;
|
|
(ii)
|
sell or cause the sale of any Collateral as may be necessary to generate proceeds up to the amount sufficient to satisfy in full all Secured Obligations, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory;
|
|
(iii)
|
apply any Cash on deposit in the Collateral Account to any Secured Obligation; and
|
|
(iv)
|
take any combination of the actions described in clauses (i) through (iii) above;
|
|
(i)
|
to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof;
|
|
(ii)
|
to settle, compromise, compound, prosecute or defend any action or proceeding in respect thereof;
|
|
(iii)
|
to sell, transfer, assign or otherwise deal in or with the same or the proceeds thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof); and
|
|
(iv)
|
to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto.
|
|
(i)
|
The parties hereto intend (but Pledgor does not represent or warrant or covenant) that (A) Secured Party is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code, (B) the PPV Confirmation is a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery thereunder or in connection therewith is a “settlement payment” and/or “margin payment” and a “transfer” within the meaning of Sections 546(e) and 548(d) of the Bankruptcy Code,
|
|
|
(C) the PPV Confirmation is a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery thereunder or in connection therewith is a “transfer” within the meaning of Section 546(g) of the Bankruptcy Code, (D) this Pledge Agreement is a “security agreement or arrangement” or other “credit enhancement” that forms a part of and is related to such “securities contract” and such “swap agreement,” within the meaning of Section 362(b) of the Bankruptcy Code, (E) the rights given to Secured Party hereunder and under the PPV Confirmation and the Master Agreement upon the occurrence of an Event of Default with respect to the other party constitute “contractual rights” to cause the liquidation, termination or acceleration of, and to offset or net out termination values, payment amounts and other transfer obligations under or in connection with a “securities contract” and a “swap agreement” and “contractual rights” under a security agreement or arrangement forming a part of or related to a “securities contract” and a “swap agreement,” as such terms are used in Sections 555, 560, 561, 362(b)(6) and 362(b)(17) of the Bankruptcy Code, and (F) Secured Party is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(o), 546(e), 546(g), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.
|
|
(ii)
|
The parties hereto intend (but neither Secured Party nor Pledgor represent or warrant or covenant) that this Pledge Agreement, together with the Custodial Services Agreement and the Account Control Agreement, shall constitute a “security financial collateral agreement” for purposes of the Financial Collateral Arrangements (No. 2) Regulations 2003 (as amended) and Section 17 thereof shall apply to the Section 7 hereof.
|
|
(i)
|
Upon satisfaction by Pledgor of all Secured Obligations (other than Secured Obligations in respect of indemnities that have not been claimed) in respect of any Component of any Tranche (including any obligation to pay or deliver any amounts in respect of any Cash Payment Settlement Date or Settlement Date (each as defined in the PPV Transaction Documents), as applicable, for each Component of such Tranche), unless an Event of Default or Potential Event of Default (as defined in the PPV Transaction Documents) shall have occurred and be continuing or a Collateral Event of Default shall have occurred and be continuing or would occur as a result of the following release and discharge, Secured Party shall (i) fully release and discharge from the Security Interests a number of Shares equal to the excess, if any, of the Number of Shares (as defined in the PPV Transaction Documents) of such Component over the number of Shares delivered to Secured Party (if any) in satisfaction of Pledgor’s Secured Obligations in respect of such Component and (ii) direct the Custodian to deliver such excess number of Shares at the direction of the Pledgor.
|
|
(ii)
|
In the event of any Optional Early Termination (as defined in the PPV Transaction Documents), upon satisfaction by Pledgor of all Secured Obligations (other than Secured Obligations in respect of indemnities that have not been claimed) in respect of such Optional Early Termination (including each obligation to pay amounts in respect of each related Unwind Amount Prepayment Date and Unwind Amount Payment Date (each as defined in the PPV Transaction Documents), as applicable), unless an Event of Default or Potential Event of Default (as defined in the PPV Transaction Documents) shall have occurred and be continuing or a Collateral Event of Default shall have occurred and be continuing or would occur as a result of the following release and discharge, Secured Party shall (i) fully release and discharge from the Security Interests a number of Shares equal to number of Shares subject to such Optional Early Termination and (ii) direct the Custodian to deliver such number of Shares at the direction of the Pledgor.
|
|
(iii)
|
If any Used Shares have been returned to the Collateral Account pursuant to Section 5(f)(v), such Used Shares shall be the first Shares delivered at the direction of the Pledgor pursuant to this Section 12(b).
|
PLEDGOR: | |||||
LIBERTY GLOBAL INCORPORATED LIMITED | |||||
By: | /s/ Jeremy Evans | By: | /s/ Charlie Bracken | ||
Name: |
Jeremy Evans
|
Name: |
Charlie Bracken
|
||
Title: |
Director
|
Title: |
Director
|
SECURED PARTY: | ||
BANK OF AMERICA, N.A. | ||
By: | /s/ Yury Mulman | |
Name: |
Yury Mulman
|
|
Title: |
Director
|
LIBERTY GLOBAL PLC | ||||
|
By:
|
/s/ Bryan H. Hall | ||
Name: |
Bryan H. Hall
|
|||
Title: |
Executive Vice President, General Counsel and Secretary
|
|||
LIBERTY GLOBAL INCORPORATED LIMITED | ||||
|
By:
|
/s/ Bryan H. Hall | ||
Name: |
Bryan H. Hall
|
|||
Title: |
Director
|
|||