5. Continuing Effect of Standstill Agreement. Except as modified by this Amendment, the Standstill Agreement will continue in full force and effect in accordance with its terms. To the extent of any conflicts between the terms of the Standstill Agreement and the terms hereof, the terms of this Amendment will control.
(1)As a result of the Voting and Standstill Agreement, dated as of November10, 2015, among Lions Gate Entertainment Corp. (the Issuer), Liberty Global Incorporated Limited (LGIL), Discovery Lightning Investments Ltd. (DLIL), John C. Malone (Mr.Malone), MHR Fund Management, LLC (MHR), Liberty Global plc (Liberty Global), Discovery Communications,Inc. (Discovery) and the affiliated funds of MHR party thereto (the MHR Funds), as amended by the Amendment to Voting and Standstill Agreement, dated as of June30, 2016, by and among the Issuer, LGIL, DLIL, Mr.Malone, MHR, Liberty Global, Discovery and the MHR Funds (the Amended Voting and Standstill Agreement), Mr.Malone may be deemed to share beneficial ownership of shares beneficially owned by the other parties to the Amended Voting and Standstill Agreement. Additionally, the Voting Agreement, dated as of June30, 2016, by and among the Issuer, Starz, the Malone Family Land Preservation Foundation, the Malone Family Foundation, the John C. Malone June2003 Charitable Remainder Trust and the Malone Starz 2015 Charitable Remainder Trust (the Lions Gate Voting Agreement) contains provisions relating, in certain circumstances, to the voting of the Issuers shares by Mr.Malone and certain transfer restrictions over such shares. Mr.Malone expressly disclaims the existence of, and membership in, a group with any or all of the other parties to the Amended Voting and Standstill Agreement or the Lions Gate Voting Agreement. See Items 4, 5 and 6.
C.The Company agrees that it will not permit the exercise of any Series A Warrants that are exercised in breach of any Series A Warrant Standstill Agreement. Additionally, in no event shall the Company have entered into, or enter into, any other agreement or understanding with any holder of Series A Warrants other than an agreement on substantively the same terms as the Standstill Agreements and this Agreement; provided, however, that the Company shall be permitted to enter into agreements (the “Repurchase Agreements”) with holders of the Series A Warrant (other than Consenting Holders) to repurchase the Series A Warrants for (i) the Exchange Amount or (ii) any other amount less than the Exchange Amount; provided that, for each Series A Warrant repurchased pursuant to this sentence, the Company shall repurchase a ratable amount (based on such Holder’s Series A Warrant to all then outstanding Series A Warrants) of Series A Warrants from the Consenting Holders but at a repurchase amount equal to the applicable Exchange Amount of such Series A Warrants (a “Repurchase Obligation”); provided further, that such Repurchase Obligation shall not apply to a Permitted Transaction (as defined below). “Permitted Transaction” means the Company (i) after the Effective Date, either pays any individual holder of the Series A Warrants less than $250,000 in the aggregate for the repurchase the Series A Warrants or less than $2,500,000 million in the aggregate among all such holders that have their Series A Warrants repurchased or (ii) acquires any Series A Warrant in exchange for the Exchange Offer Consideration or any lesser amount. “Exchange Offer Consideration” shall mean $0.25.
In addition, each of Liberty Parent, DCI, Mr.Malone and MHR Fund Management (together with certain of their affiliates) has agreed that as long as any of them have the right to nominate at least one representative to the Issuers Board, each of them will vote all of the Issuers common shares owned by them (together with certain of their affiliates) in favor of each of the others respective director nominees, subject to certain exceptions set forth in the Voting and Standstill Agreement. Furthermore, each of Liberty Parent, DCI, Mr.Malone and MHR Fund Management (together with certain of their affiliates) has agreed that, through the first anniversary of the Issuers 2016 Annual Meeting of Shareholders, each of them will take any and all action necessary to propose and support the continued appointment of Dr.Rachesky as Chairman of the Board and in favor of the other director nominees recommended by the Board.
This Amendment is not an admission or acknowledgement that Mr.Malone constitutes a group within the meaning of Rule13d-5(b)(1)under the Act with any or all of the other parties to the Amended Voting and Standstill Agreement. Mr.Malone disclaims beneficial ownership of the ClassA Voting Shares owned by each of LGIL, DLIL, MHR and the MHR Funds.
Subject to certain exceptions, Mr.Malone is required to vote the ClassA Voting Shares beneficially owned by him in respect of certain matters in accordance with the Amended Voting and Standstill Agreement. See the description of the Amended Voting and Standstill Agreement in Item 6 of the Schedule 13D, which is incorporated herein by reference.
Further, JDS1 agreed pursuant to the Standstill Agreement to vote all shares of Common Stock beneficially owned by them at the 2020 Annual Meeting (a) in favor of the election of all directors nominated by the Board and against the removal of any member of the Board, (b) in accordance with the Board’s recommendation regarding any “say-on-pay” proposal, and (c) otherwise in accordance with the Board’s recommendation on all other ordinary course matters recommended for stockholder approval by the Board; provided, however, that in the event that Institutional Shareholders Services (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”) recommend otherwise with respect to any proposals (other than the election of directors), JDS1 shall be permitted to vote in accordance with the recommendation of ISS and Glass Lewis. Nothing in the Standstill Agreement restricts the Reporting Persons or CCUR from communicating privately with the Board, Company, or stockholders in a manner that does not violate the Standstill Agreement. JDS1 also agreed not to participate or vote in any solicitation of stockholder written consents during the Standstill Period unless requested by the Board.
Limited (LGIL), Discovery Lightning Investments Ltd. (DLIL), Mr.Malone, MHR Fund Management, LLC (MHR), Liberty Global plc (Liberty Global), Discovery Communications,Inc. (Discovery) and the affiliated funds of MHR party thereto (the MHR Funds), as amended by the Amendment to Voting and Standstill Agreement, dated as of June30, 2016, by and among the Issuer, LGIL, DLIL, Mr.Malone, MHR, Liberty Global, Discovery and the MHR Funds (the Amended Voting and Standstill Agreement). Mr.Malone may be deemed to share beneficial ownership of ClassA Voting Shares beneficially owned by the other parties to the Amended Voting and Standstill Agreement. Mr.Malone is Chairman of the board of directors of Liberty Global and a common stock director of Discovery.
In connection with the acquisition of Common Shares by Liberty Global and Discovery and in the Merger, Mr.Malone entered into the Amended Voting and Standstill Agreement. Pursuant to that agreement, so long as any of the Malone Stockholders, Liberty Global, Discovery or MHR is entitled to designate a nominee for election to the Issuers board of directors, each of Mr.Malone, Liberty Global, Discovery and MHR and their respective controlled affiliates will be required to vote their ClassA Voting Shares in favor of the other parties designees for election as director. As a result, Mr.Malone may be deemed to share beneficial ownership of ClassA Voting Shares with Liberty Global, Discovery, MHR, and the MHR Funds.
On June 13, 2019, the Issuer entered into the Fifth Amendment to Standstill Agreement (the "Fifth Standstill Agreement Amendment") with the Reporting Persons, which further amended the Standstill Agreement. Among other things, the Fifth Standstill Agreement Amendment (i) modifies certain limitations related to the Reporting Persons' right to acquire shares of common stock of the Issuer, (ii) requires that the Issuer nominate, recommend and support Mr. Bryant for election at the 2019 Annual Meeting of Shareholders of the Issuer, (iii) modified certain provisions relating to the composition of the Issuer's Board of Directors and (iv) extended the term of the Standstill Agreement so that it generally terminates on the date that is thirty days prior to the deadline for a shareholder to submit nominations at the 2020 Annual Meeting of Shareholders of the Issuer.
3.5Delivery of Standstill Agreement.As of the Effective Date, the Company and the Purchaser shall have executed and delivered the Amended and Restated Standstill Agreement, in form attached hereto as Appendix V (the “Standstill Agreement”), pursuant to which, among other things, the Purchaser will agree to certain restrictions on the acquisition or disposition of Company securities.
7.2Receipt of Executed Registration Rights Agreement and Standstill Agreement.The Company shall have executed and delivered to the Purchaser the Registration Rights Agreement and the Standstill Agreement as of the Effective Date.
Mobileye and Intel entered into a letter agreement on February 1, 2017 (as it may be amended from time to time, the Transaction Letter). Pursuant to the exclusivity provision of the Transaction Letter, which provision has expired, Mobileye agreed, among other things, to terminate and not to enter any further discussions or negotiations with a third party relating to any offer or proposal for certain proposed third party acquisitions. Mobileye also agreed not to disclose any non-public information relating to Mobileye to any third party in connection with a potential third party acquisition. Mobileye also agreed to notify Intel within 24 hours of becoming aware of any inquiry, request, proposal or offer with respect to any third party acquisition or any breach of the exclusivity provision. Pursuant to the Transaction Letter, Intel also agreed to certain standstill provisions that, for a period of one year from the date of the Transaction Letter, prohibit Intel and its affiliates from taking certain actions involving or with respect to Mobileye, other than pursuant to the proposed transaction between Intel and Mobileye. Mobileye agreed that, if at any time during the term of the standstill period, Mobileye or any of its affiliates enters into a less restrictive standstill agreement, then the standstill provision would be amended to match such less restrictive standstill agreement. Finally, each of Intel and Mobileye agreed not to solicit specified categories of employees of the other party, subject to certain exceptions and caveats, for a period of one year from the date of the Transaction Letter.
(b)Most Favored Nation Provision. The Company hereby represents and warrants to Intel that neither the Company nor any of the Companys affiliates has, within the past two years: (i)entered into a Less Restrictive Standstill Agreement; or (ii)entered into any confidentiality agreement or similar agreement with, or provided any non-public information to, any actual or potential investor or acquiror that did not become bound by a standstill or similar provision in favor of the Company. The Company agrees that if, at any time during the Standstill Period, the Company or any of its affiliates enters into a Less Restrictive Standstill Agreement, then (A)the Company shall immediately notify Intel in writing of the terms of such Less Restrictive Standstill Agreement; and (B)this Section4 shall automatically be deemed to have been amended: (1)to delete those portions of this Section4 that are more restrictive than the corresponding portions of the Less Restrictive Standstill Agreement, and to replace such portions of this Section4 with such corresponding (less restrictive) portions of the Less Restrictive Standstill Agreement; and (2)to delete those portions of this Section4 that do not appear in such Less Restrictive Standstill Agreement. The Company agrees that, if, at any time during the Standstill Period, the Company or any affiliate of the Company enters into any confidentiality agreement or similar agreement with, or provides any non-public information to, any actual or potential investor or acquiror that is not bound by a standstill or similar provision in favor of the Company, then this Section4, and all of Intels obligations set forth in this Section4, shall immediately terminate and cease to be of any further force or effect. For purposes of this Section 4(b), Less Restrictive Standstill Agreement means any agreement between the Company or any of its affiliates, on the one hand, and any individual or any corporation, partnership, entity, group (a Person), on the other hand, that contains a standstill or similar provision binding on such Person that is shorter in duration or otherwise less restrictive in any respect than the provision set forth in this Section4.
The Reporting Persons have previously informed the Issuer that they will requisition an extraordinary general meeting of the Issuer’s shareholders at which the composition of the Board would be addressed, subject to the Surviving Provisions of the Standstill Agreement. The Reporting Persons’ ownership currently exceeds the threshold required to call an extraordinary general meeting.
(1)This amount does not reflect the (A) 19,309,564 Class A Voting Shares, no par value (the “Voting 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”), or (B)2,500,000 Voting Shares held by a subsidiary of Discovery, Inc. (formerly known as 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. (2)The calculation of this percentage is based on an aggregate 82,950,119 Voting Shares outstanding as of August 3, 2020, as reported on a Quarterly Report on Form 10-Q filed by the Issuer on August 6, 2020.
This Adoption Agreement (Adoption Agreement) is executed on , 20, by the undersigned (the Holder) pursuant to the terms of that certain Voting and Standstill Agreement dated as of May2, 2016 (the Voting and Standstill Agreement), by and among the Company and certain of its Investors, as amended from time to time. Capitalized terms used but not defined in this Adoption Agreement shall have the respective meanings ascribed to such terms in the Voting and Standstill Agreement. By the execution of this Adoption Agreement, the Holder agrees as follows.
4.Voting and Standstill Agreement. All ClassA Common Shares and Class B Common Shares issued hereunder shall be subject to the restrictions set forth in the Voting and Standstill Agreement, dated as of May2, 2016, by and among the Company, the Lennar Entities and the other parties named therein.
During the period for which the restrictions apply, each of the Air T Group and the Biglari Group is restricted, subject to certain limited exceptions, from: (i)submitting, inducing or encouraging the submission of any shareholder proposal or notice of nomination or other business for consideration at a meeting of the Companys shareholders; (ii)opposing directors nominated by the Board; (ii)participating in any group within the meaning of Section13(d)(3)of the Securities Exchange Act of 1934, other than their respective shareholder group or any group deemed to arise from the Standstill Agreement; (iii)participating in the solicitation of any proxy other than in support of the Boards nominees; (iv)calling a special meeting of shareholders; (v)seeking, other than as a director of the Company, to control or influence the governance or policies of the Company; (vi)effecting or encouraging, other than as a director of the Company, to acquire any material assets or business of the Company to conduct any business combination involving any the Company, or any extraordinary transaction with respect to the Company, and (vii)disclosing or pursuing certain intentions with respect to the Standstill Agreement. During the same periods, the parties to the Standstill Agreement, including the Company, have agreed not to disparage make any public disclosure, announcement or statement (including disclosure with the SEC or any other governmental agency unless required by law or legal process), that disparages the Company, any of the members of the Air T Group (with respect to the Biglari Group), any of the members of the Biglari Group (with respect to the Air T Group), or any of their respective past or then-current directors, officers, employees or other affiliates.
On October 2, 2017, in connection with and as a condition to the execution of the Merger Agreement, the Issuer and HCPII Fund entered into a voting and standstill agreement (a “Voting and Standstill Agreement”) pursuant to which the HCPII Fund agreed to (i) vote all shares of Common Stock in the same manner as and in the same proportion as the votes cast on the matter by the holders of the Issuer’s voting securities entitled to vote on the matter, unless such requirement is waived by the Issuer’s Board of Directors, and (ii) refrain from various actions that might relate to the acquisition of control of the Issuer, such as (a) soliciting proxies with respect to the voting of securities for the election of individuals to the Board or for the support of any shareholder proposal under Rule 14a-8 under the Exchange Act or otherwise; (b) forming or participating in a group with respect to securities of the Issuer; (c) selling Issuer securities to any person who would have a beneficial ownership interest of more than 4.9% of the Common Stock in a transaction not approved by the Board; (d) seeking to effect or propose any tender offer, exchange offer, merger, consolidation or similar transaction or seeking to frustrate any similar transaction proposed by the Issuer; (e)engaging in any short sales or similar derivative transactions with respect to the Common Stock; (f) calling a stockholder meeting or soliciting written consents of stockholders; (g) taking certain actions in support of controlling, changing or influencing the Board, changes in capitalization, repurchase programs, dividend policies, material changes to management, business or corporate structure, or causing a class of securities to be delisted from an exchange or eligible for termination of its registration under the Exchange Act; (h) requesting an amendment or waiver to the Voting and Standstill Agreement, and (i) certain other actions, in each case subject to the qualifications, exceptions and other terms of the Voting and Standstill Agreement. The Voting and Standstill Agreement between the Issuer and HCPII Fund will terminate on the date that HCPII Fund and its affiliates no longer beneficially own at least 5% of the outstanding capital stock of the Issuer, or upon earlier notice of termination delivered by the Issuer to HCPII Fund.
Item 5. INTEREST IN SECURITIES OF THE ISSUER Paragraphs (a) - (c) of Item 5 of the Schedule 13D are hereby amended and restated in their entirety as follows: (a) See rows (11) and (13) of the cover pages to this Schedule 13D for the aggregate number of Shares and percentages of the Shares beneficially owned by each of the Reporting Persons.The percentages used in this Schedule 13D are calculated based upon 32,196,876 Shares outstanding as of April 28, 2017 as disclosed in the Standstill Agreement. (b) See rows (7) through (10) of the cover pages to this Schedule 13D for the number of Shares as to which each Reporting Person has the sole or shared power to vote or direct the vote and sole or shared power to dispose or to direct the disposition. (c) During the last 60 days, no transactions in the Shares were effected by any Reporting Person.
On January 17, 2012, MLVF announced its intention to undertake a second step conversion and we withdrew the lawsuit. The conversion and stock offering were completed on October 11, 2012, and our shares were converted into shares of Malvern Bancorp, Inc. On September 5, 2013, we notified MLVF of our intention to nominate John P. O’Grady for election as a director at its 2014 annual meeting, but we later reached an agreement with MLVF for Mr. O’Grady to join its board of directors and executed a standstill agreement. Subsequently, MLVF’s long-standing CEO resigned, its chairman of the board stepped down and several directors resigned from the board of directors. On November 25, 2014, we terminated our standstill agreement with MLVF, including the agreement’s performance targets. John P. O’Grady continued to serve as an independent director on the board but no longer as our nominee.
7.2Receipt of Executed Registration Rights Agreement/Standstill Agreement.The Company shall have executed and delivered to the Purchaser the Registration Rights Agreement and the Standstill Agreement.
(j) Standstill Agreement. First Financial shall have received executed Standstill Agreements with the shareholders of HopFed set forth on Section7.2(i)of the HopFed Disclosure Schedule, and such agreements shall be in full force and effect as of the Effective Time.