Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT
AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER (this “ Amendment
”), dated as of July 29, 2009, is made by and among
LIBERTY MEDIA CORPORATION, a Delaware corporation (“
Liberty ”), LIBERTY ENTERTAINMENT, INC., a
Delaware corporation and an indirect, wholly-owned Subsidiary of
Liberty (“ Splitco ”), THE DIRECTV
GROUP, INC., a Delaware corporation (“
DIRECTV ”), DIRECTV, a Delaware corporation and
a direct, wholly-owned Subsidiary of DIRECTV (“
Holdings ”), DTVG ONE, INC., a Delaware
corporation and a direct, wholly-owned Subsidiary of Holdings
(“ Merger Sub One ”), and DTVG
TWO, INC., a Delaware corporation and a direct, wholly-owned
Subsidiary of Holdings (“ Merger Sub Two
”).
RECITALS
A.
Liberty, Splitco, DIRECTV, Holdings,
Merger Sub One and Merger Sub Two entered into that certain
Agreement and Plan of Merger, dated as of May 3, 2009 (the
“ Merger Agreement ”).
B.
Liberty, Splitco, DIRECTV, Holdings,
Merger Sub One and Merger Sub Two now intend to amend certain
provisions of the Merger Agreement as set forth herein.
C.
Section 10.1 of the Merger
Agreement requires that prior to the Merger Effective Time, the
Merger Agreement may be amended by written agreement of each of the
parties, by action taken by their respective Boards of
Directors.
NOW, THEREFORE
, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each of Liberty, Splitco, DIRECTV, Holdings, Merger
Sub One and Merger Sub Two hereby agrees as follows:
SECTION 1.
Defined
Terms. Terms
defined in the Merger Agreement are used in this Amendment with the
same meaning, unless otherwise indicated.
SECTION 2.
Amendments to Merger
Agreement. The
Merger Agreement is hereby amended as follows:
2.1
Exhibit A-1 to the Merger
Agreement is hereby amended and restated in its entirety to read as
provided in Exhibit A-1 hereof.
2.2
Exhibit A-2 to the Merger
Agreement is hereby amended and restated in its entirety to read as
provided in Exhibit A-2 hereof.
2.3
Exhibit A-3 to the Merger
Agreement is hereby amended and restated in its entirety to read as
provided in Exhibit A-3 hereof.
2.4
Section 1.6(c) of the
Merger Agreement is hereby amended and restated in its entirety to
read as follows:
“The directors of Holdings
from and after the time immediately prior to the Malone
Contribution shall be comprised of (i) John C. Malone, Gregory
B. Maffei and Paul A. Gould, or (x) if any of those
individuals do not serve on the Board of Directors of Splitco
immediately prior to the Malone Contribution or (y) if none of
those individuals qualifies as an independent director of Holdings
for Nasdaq purposes, replacement individuals designated by the
Board of Directors of Splitco who are reasonably acceptable to
Holdings (such three persons to serve as directors of Holdings, the
“ Splitco Designees ”), (ii) seven
individuals that serve on the Board of Directors of DIRECTV
immediately prior to the Malone Contribution, as designated by the
Board of Directors of DIRECTV, and (iii) to the extent
appointed by the Board of Directors of DIRECTV prior to the Malone
Contribution, the Additional Director. Each such director of
Holdings will hold office in accordance with the certificate of
incorporation and bylaws of Holdings until such director’s
successor is duly elected and qualified, or until such
person’s earlier death,
resignation or removal. In
connection with the classification of the Board of Directors of
Holdings required pursuant to the certificate of incorporation of
Holdings, such directors shall be apportioned among the classes of
directors in accordance with the certificate of incorporation of
Holdings; provided , that, the three Splitco Designees shall
be placed in separate classes and the assignment to different
classes of the Splitco Designees will be in accordance with a
resolution of the Board of Directors of Splitco to be delivered to
Holdings prior to the Merger Effective Time. The officers of
DIRECTV immediately prior to the DIRECTV Effective Time shall be,
from and after the DIRECTV Effective Time, the officers of
Holdings.”
2.5
Section 1.6 of the Merger
Agreement is hereby amended to add a new
subsection 1.6(e) thereto:
“(e) Immediately prior to
the Malone Contribution, the Board of Directors of Holdings shall
appoint the initial members of each of the Nominating and Corporate
Governance Committee and the Compensation Committee of the Board of
Directors of Holdings, in accordance with Article III,
Sections 4 and 5 of the bylaws of Holdings, which are set
forth in Exhibit A-2 to the Merger Agreement (the “
Holdings Bylaws ”).”
2.6
Section 5.3(d) of the
Merger Agreement is hereby amended and restated in its entirety to
read as follows:
“The affirmative vote (in
person or by proxy) of the holders of record of a majority of the
shares of DIRECTV Common Stock outstanding on the record date for
the DIRECTV Stockholders Meeting or any adjournment or postponement
thereof in favor of the adoption of this Agreement is the only vote
or approval of the holders of any class or series of capital stock
of DIRECTV which is legally required to adopt this Agreement;
provided, however , that in addition to the foregoing,
DIRECTV shall require the affirmative vote (in person or by proxy),
voting together as a separate class at the DIRECTV Stockholders
Meeting or any adjournment or postponement thereof, of the holders
of record of a majority of the shares of DIRECTV Common Stock
outstanding on the record date for the DIRECTV Stockholders
Meeting, excluding (i) the holders of the Liberty DIRECTV
Shares and (ii) any shares of DIRECTV Common Stock that are
Beneficially Owned by a director or officer of Liberty,
Dr. Malone or any Affiliate of Dr. Malone, to adopt this
Agreement and approve the Malone Agreement (collectively, the
“ DIRECTV Stockholder Approva
l”).”
2.7
Section 6.1(d) of the
Merger Agreement is hereby amended by replacing the last sentence
of such section with the following:
“In addition, Liberty,
Splitco, Holdings and DIRECTV shall discuss the possibility of
including, and, if practicable, shall include, the Liberty Proxy
Statement as a prospectus in the Holdings
Form S-4.”
2.8
Section 6.1(e) of the
Merger Agreement is hereby amended and restated in its entirety to
read as follows:
“DIRECTV shall, as soon as
practicable following the date of this Agreement, duly call, give
notice of, convene and hold a special meeting of its stockholders
(the “ DIRECTV Stockholders Meeting ”) for the
purpose of obtaining the DIRECTV Stockholder Approval. Subject to
Section 6.5(c) hereof, DIRECTV through its Board of
Directors shall recommend to its stockholders the adoption of this
Agreement and the approval of the Malone Agreement (the “
DIRECTV Board Recommendation ”). Without limiting the
generality of the foregoing (but subject to DIRECTV’s rights
pursuant to Section 6.5), DIRECTV’s obligations pursuant
to the first sentence of this Section 6.1(e)
2
shall not be affected by
(A) the commencement, public proposal, public disclosure or
communication to DIRECTV of any DIRECTV Takeover Proposal or
(B) the withdrawal or modification of (x) the DIRECTV
Board Recommendation, (y) such Board of Directors’
approval of, or the DIRECTV Special Committee’s
recommendation that such Board o
