Exhibit 10.8
EXECUTION VERSION
AMENDMENT NO. 1
TO
INVESTOR RIGHTS AGREEMENT
dated as of
June 30, 2016
among
MHR FUND MANAGEMENT, LLC,
LIBERTY GLOBAL INCORPORATED LIMITED,
DISCOVERY LIGHTNING INVESTMENTS LTD.,
LIONS GATE ENTERTAINMENT CORP.,
LIBERTY GLOBAL PLC,
DISCOVERY COMMUNICATIONS, INC.
and
the Mammoth Funds (as defined herein)
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT
AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT (this “Amendment”) dated as of June 30, 2016 among MHR Fund Management, LLC, a Delaware limited liability company(“Mammoth”), 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”), Lions Gate Entertainment Corp., a corporation organized under the laws of British Columbia, Canada (the “Company”), Liberty Global plc, a public limited company organized under the laws of England and Wales (“Leopard Parent”), Discovery Communications, Inc., a Delaware corporation (“Dragon Parent” and, together with Mammoth and Leopard Parent, the “Investors” and each, an “Investor”), and the affiliated funds of Mammoth party hereto (the “Mammoth Funds”) (collectively the “Parties”).
W I T N E S S E T H :
WHEREAS, the Parties entered into an Investor Rights 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, in connection with the Merger Agreement, Mammoth and the Mammoth Funds are entering into a Voting Agreement (the “Mammoth Voting Agreement”) with Parent and the Company, pursuant to which Mammoth and the Mammoth Funds will agree, among other things, to take specified actions in connection with the transactions contemplated by the Merger Agreement; and
WHEREAS, in connection with the Merger Agreement and the Mammoth Voting 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.Vote on Pre-Emptive Rights. The following shall be added as a new Section 3.01(i) to the Agreement:
“(i) (a) For purposes of this Section 3.01(i), “Parent Stockholders’ Meeting” shall have the meaning set forth in that certain
Agreement and Plan of Merger, dated as of June 30, 2016 (the “Merger Agreement”), by and between the Company, Orion Arm Acquisition Inc., a Delaware corporation and an indirect wholly-owned subsidiary of the Company, and Starz, a Delaware corporation.
(b) The Company shall (i) duly give notice of, convene and hold a meeting of the Company stockholders (the “Stockholder Meeting”) as promptly as practicable following the date hereof (and in no event later than the date of the Parent Stockholders’ Meeting) in order to seek the approval of the Company stockholders (including pursuant to Applicable Exchange Rules) of any issuance of New Issue Securities to the Investors pursuant to this Section 3.01 that occurs between the date of the Stockholder Meeting and the five-year anniversary of the date of the Stockholder Meeting (the “Stockholder Approval”), (ii) recommend to its stockholders that they vote in favor of the Stockholder Approval and (iii) use its reasonable best efforts to solicit such approval and obtain the Stockholder Approval.
(c) Each Investor shall, and shall cause each of its Controlled Persons to, cause the Voting Securities beneficially owned by such Investor and/or any of its Controlled Persons (other than (x) Voting Securities rehypothecated by a Hedging Counterparty in connection with a Hedging Transaction and (y) Company Securities beneficially owned by such Person solely as a result of clause (ii)(a) or (ii)(c) of the proviso in the definition of “beneficial ownership”) to be voted in favor of the Stockholder Approval at the Stockholder Meeting, and at any adjournment or postponement thereof.
(d) The Company shall not issue any New Issue Securities to the extent that complying with this Section 3.01 would require the Company to obtain shareholder approval pursuant to Applicable Exchange Rules with respect to such issuance unless the Company obtains shareholder approval with respect to such issuance (including any shareholder approval which the Company may obtain in advance for issuances that occur within a five-year period).
2.Pre-Emptive Rights. Section 3.01(f) of the Agreement shall be amended by deleting clause (vi) and the last sentence of such Section 3.01(f).
3.Definition. 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).”
4.No Other Changes. All terms of the Agreement, except as amended by this Amendment, remain in full force and effect.
| 2 |
[Signature Pages Follow]
| 3 |
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.
| LIONS GATE ENTERTAINMENT CORP. | |||
| By: | /s/ Wayne Levin | ||
| Name: | Wayne Levin | ||
| Title: | General Counsel and Chief Strategic Officer | ||
Signature Page to Amendment to Investor Rights Agreement
| LIBERTY GLOBAL PLC | |||
| By: | /s/ Bryan H. Hall | ||
| Name: | Bryan H. Hall | ||
| Title: | Secretary | ||
| LIBERTY GLOBAL INCORPORATED LIMITED | |||
| By: | /s/ Bryan H. Hall | ||
| Name: | Bryan H. Hall | ||
| Title: | Director | ||
For Notices:
Liberty Global plc
Griffin House
161 Hammersmith Road
London W6 8BS
United Kingdom
Attention: General Counsel, Legal Department
Fax: +44 20 8483 6400
E-mail: [redacted]
with a copy to:
Liberty Global plc
12300 Liberty Boulevard
Englewood, CO 80112
Attention: General Counsel, Legal Department
Facsimile No.: (303) 220-6691
E-mail: [redacted]
with a copy (which shall not constitute notice) to:
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 Investor Rights 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 Investor Rights 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 Investor Rights 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 Investor Rights 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 Investor Rights 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 Investor Rights Agreement
