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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported)
October 2, 2009
THE DIRECTV GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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1-31945
(Commission File Number)
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52-1106564
(IRS Employer Identification No.)
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2230 East Imperial Highway
El Segundo, California
(Address of Principal Executive Offices)
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90245
(Zip Code)
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(310) 964-5000
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
Amendment No 2. to the Agreement and Plan of Merger
On October 2, 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. 2 (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:
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a new termination date of December 29, 2009;
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that the split-off of LEI by Liberty may not happen until the first to occur of (i) all of the
conditions precedent set forth in Article VII of the Merger Agreement, other than those conditions precedent set forth in the Merger Agreement relating to the completion of the
split-off and the Malone Contribution (as defined in the Merger Agreement) and those conditions precedent that by their nature are to be satisfied at closing, shall have been satisfied or,
to the extent permitted under the terms of the Merger Agreement, waived and the parties to the Merger Agreement shall have confirmed that the closing will occur subject only to the satisfaction of
those conditions precedent relating to the completion of the split-off and the Malone Contribution (as defined in the Merger Agreement) and those conditions that by their nature are to be
satisfied at closing and (ii) the termination of the Merger Agreement;
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certain changes to the Merger Agreement and the form of amended and restated certificate of incorporation and
by-laws of Holdings to implement the terms of the Stipulation of Settlement (as further described below); and
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amendments to the Reorganization Agreement, the Services Agreement and certain schedules to the Merger Agreement.
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 (i) 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, (ii) Amendment No. 1 to the
Merger Agreement, which is filed as Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on July 30, 2009 (the "
July 30,
2009 8-K
") and (iii) the Merger Agreement, which is filed as Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on
May 4, 2009 (the "
May 4, 2009 8-K
").
Amendment No. 2 to the Voting and Right of First Refusal Agreement
On October 2, 2009, LEI, DIRECTV, Holdings, Dr. John C. Malone, Mrs. Leslie Malone, The Tracy L. Neal Trust A and
The Evan D. Malone Trust A (each a "
Malone
", and collectively the "
Malones
") entered into Amendment
No. 2 (the "
Malone Agreement Amendment
") to that certain 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
"). The Malone Agreement Amendment amends certain defined terms for tax-related
purposes.
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 (i) 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, (ii) Amendment No. 1 to the
Malone Agreement, which is filed as
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Exhibit 10.2
to the July 30, 2009 8-K, and (iii) the Malone Agreement, which is filed as Exhibit 10.3 to the May 4, 2009 8-K.
ITEM 8.01 Other Events
DIRECTV and Liberty have reached an agreement in principle with the plaintiffs (the
"
Settlement
") in the multiple purported class action complaints pending against DIRECTV, Liberty and the DIRECTV board of directors in the Delaware
Court of Chancery that were brought on behalf of the public stockholders of DIRECTV alleging, among other things, that the members of the DIRECTV board of directors breached their fiduciary duties in
approving the Merger Agreement (the
"Delaware Action"
). The Settlement will be memorialized in a Stipulation and Agreement of Compromise, Settlement and
Release (the "
Stipulation of Settlement
") to be executed by DIRECTV, Liberty and the plaintiffs in the Delaware Action. In the event that final court
approval of the Stipulation of Settlement is not obtained by June 30, 2010 (the "
Approval Deadline
"), the terms of the Stipulation of Settlement
and the related changes to the Holdings amended and restated certificate of incorporation and by-laws, with certain limited exceptions, will become null and void.
The
Settlement contemplates certain changes to the terms of the mergers and the transaction agreements as follows:
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the Merger Agreement will be amended to add a provision to the amended and restated certificate of incorporation of
Holdings to the effect that any future merger, consolidation or sale of all or substantially all of the assets which requires stockholder approval but provides for payment of per share consideration
to be made to the holders of Holdings Class B common stock that is different in form or amount from the per share consideration to be paid to holders of Holdings Class A common stock
will require a separate vote of holders of Holdings Class A common stock (almost entirely non-Malone holders at the time of the mergers), voting as a separate class;
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the elimination of certain provisions in the amended and restated certificate of incorporation of Holdings that were
intended to exculpate the directors and officers of Holdings who also serve as directors or officers of other entities for any potential breach of fiduciary duty arising out of the allocation of
business opportunities not presented to such persons in their capacity as directors or officers of Holdings;
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the Malones' ability to seek control of Holdings through future purchases of Holdings common stock will be restricted by
their agreement to a 3-year standstill (the "
Malone Standstill
") commencing upon the completion of the mergers. The Stipulation of
Settlement will provide that the Malones may, however, acquire shares of Holdings Class A common stock: (i) pursuant to the Merger Agreement, (ii) from another Malone,
(iii) pursuant to the grant, exercise or vesting of any equity incentive awards, (iv) as a result of any stock dividend, stock split or other distribution so long as such dividend or
distribution is made on a pro rata basis to all holders of Holdings common stock, (v) pursuant to the exercise of any rights, warrants or other securities issued or distributed to all holders
of Holdings common stock on a pro rata basis, (v) received in exchange for shares of Holdings Class B common stock so long as the aggregate voting power of the Malones (as a group) does
not increase as a result of such exchange, (vii) upon the redemption of Holdings Class B common stock following the death of Mr. Malone in accordance with the provisions of the
Holdings amended and restated certificate of incorporation and (viii) commencing on the first anniversary of the effective time of the split-off, in an amount not to exceed 1% of
the fully diluted shares outstanding immediately following the effective time of the mergers; provided that the Malones will not acquire more than 50% of the number of shares permitted to be acquired
pursuant to this clause (viii) prior to the second anniversary of the effective time of the split-off and provided further that shares acquired by any Malone pursuant
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The
amendments to the Merger Agreement contemplated by the Settlement are reflected in the Merger Agreement Amendment. The revised disclosure to the Holdings proxy statement/prospectus
contemplated by the Settlement is reflected in the proxy statement/prospectus filed with the SEC on October 2, 2009.
ITEM 9.01 Financial Statements and Exhibits
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(d)
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Exhibits.
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10.1
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Amendment No. 2, dated as of October 2, 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.
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10.2
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Amendment No. 2, dated as of October 2, 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.
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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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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its
behalf by the undersigned hereunto duly authorized.
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THE DIRECTV GROUP, INC.
(Registrant)
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Date: October 2, 2009
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By:
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/s/ LARRY D. HUNTER
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Name:
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Larry D. Hunter
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Title:
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Chief Executive Officer
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EXHIBIT INDEX
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Exhibit No.
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Exhibit
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10.1
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Amendment No. 2, dated as of October 2, 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.
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10.2
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Amendment No. 2, dated as of October 2, 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.
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