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| DTV > SEC Filings for DTV > Form 8-K on 30-Jul-2009 | All Recent SEC Filings |
30-Jul-2009
Entry into a Material Definitive Agreement, Amendments to Articles of Inc. or B
Amendment No 1. to the Agreement and Plan of Merger
On July 29, 2009, The DIRECTV Group, Inc. ("DIRECTV") and Liberty Media Corporation ("Liberty") and certain subsidiaries of DIRECTV and certain subsidiaries of Liberty entered into Amendment No. 1 (the "Merger Agreement Amendment") to that certain Agreement and Plan of Merger, dated as of May 3, 2009 (as amended, the "Merger Agreement"), by and among Liberty, Liberty Entertainment, Inc. ("LEI"), DIRECTV, DIRECTV ("Holdings"), DTVG One, Inc. and DTVG Two, Inc.
The Merger Agreement Amendment, among other things, provides for the following:
º •
º the elimination of LEI's right to terminate the Merger Agreement if
Liberty does not receive prior to July 31, 2009 a private letter
ruling from the IRS addressing certain tax considerations relating to
the automatic conversion feature of Holdings' Class B Common Stock to
be issued in the transactions. Instead, the Merger Agreement Amendment
provides that LEI shall have the right to terminate the Merger
Agreement at any time after the second business day following the date
on which Liberty provides written notice to DIRECTV that Liberty has
received the private letter ruling relating to the qualification of
the Split-Off (as defined in the Merger Agreement) as a tax-free
transaction under Sections 355 and 368(a)(1)(D) of the Internal
Revenue Code, as amended, unless prior to such time DIRECTV has
delivered to Liberty: (a) written notice that the rulings as to
certain specified tax matters are reasonably acceptable DIRECTV, (b) a
written waiver of the related condition to closing, or (c) an
officer's certificate to the effect that DIRECTV has received an
opinion of its tax counsel with respect to such specified tax matters
and the receipt of such ruling is waived by DIRECTV as a condition to
the completion of the merger and replaced with a different condition
regarding an absence of a change in applicable law;
º •
º the identification of the Splitco Designees (as defined in the Merger
Agreement Amendment) to the Holdings Board and appointment of a
designee of LEI to the Nominating and Corporate Governance Committee
and Compensation Committee of the Board of Directors of Holdings
immediately before the Malone Contribution (as defined in the Merger
Agreement);
º •
º the requirement that a majority of DIRECTV stockholders excluding
Liberty, any director or officer of Liberty, John C. Malone and any
affiliate of John C. Malone, vote to approve the Voting and Right of
First Refusal Agreement, dated as of May 3, 2009, by and among LEI,
DIRECTV, Holdings, John C. Malone, Leslie Malone, The Tracy L. Neal
Trust A and The Evan D. Malone Trust A (as amended, the "Malone
Agreement"), in addition to the Merger Agreement;
º •
º that Liberty shall hold a special meeting of its stockholders to vote
on the Split-Off, the Malone Agreement and the Merger Agreement as
opposed to holding the vote of its stockholders on such matters at its
annual meeting of its stockholders;
º •
º the adoption by DIRECTV and Holdings of amendments to their respective
By-Laws, to provide that (i) any candidate to be elected as the new
President and Chief Executive Officer of DIRECTV and Holdings (to fill
the vacancy created by the resignation of Chase Carey without regard
to the appointment of Larry D. Hunter as interim Chief Executive
Officer) would require the affirmative vote of at least eighty
percent, rounded to the nearest whole number, of the number of members
of the Board at the time of such election ("Supermajority Vote"),
which Supermajority Vote would only be required for the election of
the next President and Chief Executive Officer of DIRECTV and
Holdings, (ii) any expansion of the size of the Board of Directors
beyond twelve members would require the Supermajority Vote, and
(iii) the election of the individual appointed by the Board of
Directors of Holdings to serve as an independent
º •
º the amendment of certain schedules to the Reorganization Agreement,
which is an Exhibit to the Merger Agreement; and
º •
º certain changes to the excess share provision in the LEI and Holdings
amended and restated certificates of incorporation and the redemption
right in the Holdings amended and restated certificate of
incorporation.
The foregoing description of the Merger Agreement Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement Amendment, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference, and to the Merger Agreement which is filed as Exhibit 10.1 to the Current Report on Form 8-K file with the SEC on May 4, 2009 (the "May 4, 2009 8-K").
Amendment No. 1 to the Voting and Right of First Refusal Agreement
On July 29, 2009, LEI, DIRECTV, Holdings, Dr. John C. Malone, Mrs. Leslie Malone, The Tracy L. Neal Trust A and The Evan D. Malone Trust A entered into Amendment No. 1 (the "Malone Agreement Amendment") to the Malone Agreement. The Malone Agreement Amendment corrects certain typographical errors and contains conforming changes based on the final provisions of the Holdings amended and restated certificate of incorporation.
The foregoing description of the Malone Agreement Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the Malone Agreement Amendment, which is attached as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference, and to the Malone Agreement which is filed as Exhibit 10.3 to the May 4, 2009 8-K.
In connection with the Merger Agreement Amendment, DIRECTV has amended its By-Laws to require a Supermajority Vote by its Board to (i) approve the new President and Chief Executive Officer as described above, (ii) expand the size of the Board of Directors beyond twelve members, and (iii) approve the next individual appointed by the Board of Directors of DIRECTV to serve as an independent director and fill the vacancy currently existing on the Board of Directors.
The foregoing description of the amendment to the By-Laws is only a summary, does not purport to be complete and is qualified in its entirety by reference to the amendment to the By-Laws, which is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Mr. Mark D. Carleton has informed the Board of Directors of DIRECTV that he intends to resign from the Board of Directors of DIRECTV effective upon the appointment of Paul A. Gould to the Board of Directors of DIRECTV, so long as Mr. Gould qualifies as an independent director under NASDAQ rules, or, in the event that Mr. Gould is not so appointed, an individual appointed by the Board of Directors of DIRECTV who qualifies as an independent director under NASDAQ rules and whose appointment has been approved by both DIRECTV and LEI.
(d ) Exhibits.
3.1 Certificate of Amendment to the By-laws of The DIRECTV Group, Inc.
10.1 Amendment No. 1, dated as of July 29, 2009, to the Agreement and Plan of
Merger, dated as of May 3, 2009, by and among Liberty Media Corporation,
Liberty Entertainment, Inc., The DIRECTV Group, Inc., DIRECTV, DTVG
One, Inc. and DTVG Two, Inc.
10.2 Amendment No. 1, dated as of July 29, 2009, to the Voting and Right of
First Refusal Agreement, dated as of May 3, 2009, by and among Liberty
Entertainment, Inc., The DIRECTV Group, Inc., DIRECTV, Dr. John C. Malone,
Mrs. Leslie Malone, The Tracy L. Neal Trust A and The Evan D. Malone Trust
A.
IMPORTANT ADDITIONAL INFORMATION FILED WITH THE SEC
Nothing in this communication shall constitute a solicitation to buy or an offer
to sell shares of Liberty Entertainment, Inc., DIRECTV, The DIRECTV Group, Inc.
or any of the Liberty Media tracking stocks. The offer and sale of shares in the
proposed business combination with Liberty Entertainment, Inc. will only be made
pursuant to one or more effective registration statements. Investors and
security holders are urged to carefully read the registration statements of
Liberty Entertainment, Inc. and DIRECTV filed with the SEC, including the proxy
statement/prospectuses contained therein, because they contain important
information about these transactions. Investors and security holders are able to
obtain free copies of the registration statements and the proxy
statements/prospectuses and other documents filed with the SEC by Liberty
Entertainment, Inc., DIRECTV, Liberty Media Corporation and The DIRECTV
Group, Inc., as the case may be, through the web site maintained by the SEC at
www.sec.gov. In addition, investors and security holders will be able to obtain
free copies of the Registration Statements and the Proxy Statements/Prospectuses
from Liberty Media Corporation by contacting Liberty Media Corporation, 12300
Liberty Boulevard, Englewood, Colorado 80112, Attention: Investor Relations,
Telephone (720) 875-5408 or from The DIRECTV Group, Inc. by contacting The
DIRECTV Group, Inc., 2230 E. Imperial Highway, El Segundo, CA 90245, Attn:
Investor Relations, Telephone (310) 964-0808.
PARTICIPANTS IN A SOLICITATION
The directors and executive officers of The DIRECTV Group, Inc. and other persons may be deemed to be participants in the solicitation of proxies in respect of proposals to approve the transactions. Information regarding the directors and executive officers of each of The DIRECTV Group, Inc. and DIRECTV and other participants in the proxy solicitation and a description of their respective direct and indirect interests, by security holdings or otherwise are available in the proxy materials filed with the SEC.
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