Lionsgate said in a regulatory filing today that Mark Rachesky, the former Carl Icahn protege and the mini-major’s largest shareholder, has been appointed co-chairman of the board, a title he will share with current CEO Jon Feltheimer. The move was finalized on Tuesday, according to the SEC filing; Feltheimer was re-appointed as the other co-chair. Rachesky has 37.3% of Lionsgate shares, making him by far its largest investor. He replaces Harold Ludwig as co-chair, though Ludwig remains on the board. Rachesky was Icahn’s chief investment officer for about a decade but left to start his own fund. Last year, he was considered a key player in keeping Lionsgate out of Icahn’s hands, increasing his stake in the company as Icahn’s challenge to Lionsgate’s management grew. Lionsgate and Icahn settled their longtime dispute last month, ending the corporate raider’s hostile takeover attempt.
BREAKING: In a move that ends a protracted hostile takeover attempt, Carl Icahn and Lionsgate have announced that Icahn and his son Brett will sell up to 44,161,971 shares of Lionsgate common stock, which is virtually the entire stake held by the family. Both Lionsgate and Icahn in turn have dropped the various litigation between them. Those shares will be sold for $7, which is below the $7.52 that the stock was worth at the market close today.
Through a series of tender offers that ranged from $6 per share to $7.50, Icahn accumulated a total of 33.2% control of Lionsgate, blasting the company’s management every step of the way as he tried to oust the company’s board. Those shares will fall into the hands of Lionsgate’s largest shareholders in a series of transactions that will take place over the next 35 business days. Right away, Lionsgate has bought 11,040,493 shares for $7 each. Another 11 million shares will be bought by one or more affiliates of MHR Fund Management LLC, which is controlled by Mark H. Rachesky, a Lionsgate director whose moves during the takeover battle helped management keep Icahn from accumulating enough shares to win a proxy battle.
UPDATE 1:30 PM: Carl Icahn released the following reaction to Lionsgate shareholders today re-electing current Lionsgate management’s board of directors and not his own proposed 5 directors. from the sound of it, Icahn has zero intention of giving up:
We are disappointed that shareholder democracy has failed – or rather was subverted – in the case of Lions Gate’s annual meeting of shareholders as a result of the voting of over 16 million shares that were issued to director Mark Rachesky at a bargain price in a transaction approved by Lions Gate’s board of directors “at a midnight meeting” in July in an effort to entrench themselves. It is clear to us from our analysis of the preliminary voting results that had this dilutive transaction been rescinded, as we had requested of courts in New York and Canada, our slate of nominees would have been elected.
This whole situation is a very sad commentary on the state of corporate governance today. The biggest losers are the shareholders of Lions Gate who were deprived, as a result of the machinations of Lions Gate’s board and senior management, of the opportunity to receive a large premium for their shares in our tender offer. Unfortunately, shareholders might be in for even more pain. The shares have already lost more than 8% of their value since December 8, 2010, the day before the New York Supreme Court denied our motion for a preliminary injunction regarding the dilutive
Carl C. Icahn announced today that the offer by his affiliated entities to purchase any and all of the outstanding common shares of Lions Gate Entertainment Corp. for $7.50 per share in cash has expired. The offer had been conditioned upon the New York State Supreme Court granting, by 11:59 p.m., Vancouver time, on December 10, 2010, the Icahn Group’s motion for a preliminary injunction preventing the Lions Gate common shares issued on July 20, 2010 to a fund controlled by director Mark Rachesky from being voted at the 2010 annual general meeting of Lions Gate shareholders. This condition was not met. As a result, Mr. Icahn and his affiliated entities will not purchase any of the Lions Gate common shares that were tendered in the offer. All Lions Gate common shares that were previously tendered and not withdrawn will be returned promptly.
Mr. Icahn stated: “We are disappointed that our motion for a preliminary injunction barring the voting of the shares issued to director Mark Rachesky was not granted, but we are pleased that the judge agreed to hold a full trial on the matter within the next several months and will require Lions Gate to hold a meeting of shareholders again in September 2011 following his ruling in the case. We will continue to monitor the situation at Lions Gate and will aggressively take all actions necessary to protect our investment, and we reserve all of our rights with respect to Lions Gate and its securities. We are
BREAKING: In the latest development in Carl Icahn’s attempt to take over Lionsgate and merge its assets with MGM, a Supreme Court judge in British Columbia has dismissed Icahn’s lawsuit to thwart a Lionsgate de-leveraging move on July 20 that took $100 million in debt off the books and converted it into equity, which was bought by shareholder John Kornitzer, who is loyal to the existing Lionsgate brass. In a separate third party transaction, Kornitzer sold those shares to Mark Rachesky, who is on the Lionsgate board and firmly behind current management. That move pushed Icahn’s 38% stake in the company back to 33.5%, and increase Rachesky’s stake from 19% to 29%. Icahn can still gain more shares, as his $7.50 per share tender offer has been extended until November 12. But his 33.5% stake isn’t enough to win a proxy fight.
Below is Carl Icahn’s statement from this morning expressing his support for a proposed Lionsgate/MGM merger. Late Monday, Lionsgate sent a proposal to MGM expressing support of a ”business combination” after what it called “detailed” discussions with Icahn. All of this after rebuffing Icahn’s attempts for so long. This latest development comes just days after MGM said it was planning a merger with Spyglass wherein Gary Barber and Roger Birnbaum would be the new bosses.
“We are holders of significant positions in both Lions Gate stock and MGM debt. Today, Lions Gate has made a proposal to combine these two companies. We believe that this combination of Lions Gate and MGM would enhance value for all constituencies and we believe this proposal as submitted is far better for MGM holders than the current proposal to combine MGM with Spyglass. In addition, we also believe such a combination transaction would enhance the value of Lions Gate shares. However, we intend to continue to pursue our lawsuits regarding Lions Gate’s recent dilutive transaction with Mark Rachesky. Whether or not we prevail in those lawsuits, we intend to continue to support a combination of Lions Gate and MGM. Our support for this combination is conditioned on the combined company having satisfactory corporate governance provisions.”
Every Icahn move has deep reverberations inside the film/television studio whose management is increasingly paranoid about how their actions will be viewed by him. What a destabilizing situation. Now Carl Icahn’s hostile takeover attempt intensifies with his $7.50 a share unsolicited tender offer this morning. It expires October 22nd. Icahn said his new offer will only be valid if the extra shares that the company recently issued to Lionsgate director Mark Rachesky (who used to be Icahn’s investment adviser) are rescinded or converted into nonvoting stock. The film/TV mini-major, in a defensive move against Icahn, did a debt-for-equity swap in July to dilute his stake in the company. It issued 16.2 million new common shares to Rachesky, boosting his stake to 28.9%, while diluting Icahn’s stake to 33.5% from 37.9%.
Icahn has asked the Supreme Court of British Columbia to reverse the swap. Lionsgate told me just now that its annual shareholders meeting, usually scheduled for sometime in September, has been postponed until after October 12th. “The British Columbia Supreme Court, which is hearing Icahn’s litigation, asked us to delay the record date for the Annual Shareholders Meeting until after their October 12 hearing,” a source told me.
Here is Lionsgate’s response to Icahn’s new tender offer:
SANTA MONICA, Calif. and VANCOUVER, August 31, 2010 — Lionsgate today announced that it has received a revised unsolicited tender offer from Carl Icahn and certain of his affiliated entities (the “Icahn Group”) to acquire up to all of Lionsgate’s