Carl Icahn turns up the heat on Lions Gate, removes condition on tender offer

June 1, 2010 9:40 AM PT

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Making it much easier for him to cause trouble for the beleaguered film and television studio, Carl Icahn has amended his tender offer for Lions Gate Entertainment to remove the minimum number of shares he needs to purchase.

Previously, the activist investor’s $7 per share tender offer only took effect if enough shares were put up to raise his stake from is current 19% to more than 50%, giving him total control.

Under the amended offer, which expires June 16, Icahn will buy any and all shares tendered to him for $7. That means that he could end up owning between 20% and 50% of the company’s stock, a range in which he could exercise significant control without owning the company.

If his stake goes to more than 20%, for instance, Santa Monica-based Lions Gate would technically be in default on a revolving credit facility of $340 million with JPMorgan. It would either need to obtain a waiver or raise new money to pay back that debt. [Updated at 4:06 p.m. with corrected details about the credit facility.]

If Icahn were to acquire enough shares to control more than 30% of the company, he could block any acquisitions, making it difficult for Lions Gate to make major strategic moves. At 33%, thresholds would be met in the contracts of senior management including chief executive Jon Feltheimer and Vice Chairman Michael Burns for them to exit the company with multi-million dollar payouts.

Lions Gate recently set aside $16 million for executive golden parachutes for just that eventuality.

Icahn’s $7 per share offer conditional on him obtaining more than 50% of the company was set to expire for the third time today. Today’s announcement marks the fourth extension, though it is the first time he has changed the terms.

As of 8 a.m. Pacific time Tuesday, just under 4.7 million shares had been offered to Icahn, not nearly enough for his bid to take effect under the previous conditions. That’s about 4% of the company’s outstanding stock and virtually the same amount that had been offered to him as of May 21 when he last extended his bid.

It remains to be seen whether more shareholders, or any at all, will be willing to sell their stock under the amended terms of his offer.

It also remains to be seen whether this change by Icahn will spur a settlement with Lions Gate management, which doesn’t want to see him obtain more than 20% of the company’s stock. Previous settlement discussions broke down over disagreements about whether Icahn representatives would be granted outsized power on the studio’s board of directors to oversee costs.

Icahn has repeatedly said that Lions Gate’s overhead and film production costs are too high.

In a statement along with the announcement of his extension, Icahn once again blasted Lions Gate management, calling the $16-million fund for potential severance to senior management ‘reprehensible’ and stating that his investment company may challenge its propriety.

He also threatened to challenge any other defensive moves by the company to block his bid, stating that his firm ‘will seek to hold the directors personally liable for any breach of their fiduciary duty or actions which oppress Lions Gate shareholders or serve simply to enrich themselves.

Last month, Icahn successfully challenged a poison pill proposed by Lions Gate management to block a change in control.

A Lions Gate spokesman did not immediately respond to a request for comment. The studio will reports its quarterly financial performance later Tuesday.

[Update, 10:57 a.m.: In a statement released soon after Icahn’s announcement, Lions Gate said its board would evaluate the new conditions of Icahn’s offer and make a recommendation to shareholders soon. It also specifically noted the low participation in Icahn’s offer under the previous conditions: ‘Lionsgate’s shareholders have demonstrated that they believe the Icahn Group’s offer is financially inadequate,’ the company stated. ‘Lionsgate appreciates the continued support of its shareholders and notes that, while there is no need for shareholders to take action at this time, those shareholders who have tendered into the offer can still withdraw their shares.’

12:03 p.m.: Icahn told the Times that he will wage a proxy war to take control of Lions Gate’s board of directors.]

-- Ben Fritz

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