Well, I see that Brandon is still sticking by the article today - even quoting eroneously again from the same 8-K, that is in my opinion misleading. Okay, I've let him suffer long enough -- here are the links and why he is wrong... although I'm only posting it over here...
Here is the actual Investment Agreement:
http://www.sec.gov/Archives/edgar/da...874/dex455.htm
Here is the Certificate of Designations for the Series B-1 Preferred Shares:
http://www.sec.gov/Archives/edgar/da...5097exv3w1.htm
Here is the Certificate of Designations for the Series B-2 Preferred Shares:
http://www.sec.gov/Archives/edgar/da...5097exv3w2.htm
If you go to section 4.6 on page 16 and section 5.15 on page 40, it covers the termination process. Section 5.15 even notes that if the agreement is terminated -- all liabilities and obligations to each party will terminate EXCEPT Sirius' obligations under the Registration Rights of the preferred shares... that is because Liberty would continue to hold the shares and Sirius is still obligated to register them. Furthermore, at no point in Section 4.6, does it state that Liberty is obligated to return the preferred shares. The fact is, Liberty purchased the Preferred Shares from Sirius for $12,500 - and they are under no obligation to return them to Sirius. Yes, Liberty PURCHASED the Preferred Shares from Sirius. Bet you didn't know that, did you Brandon?
The portion of the 8-K that Brandon keeps referring to, is a shortened quote taken from Section 4.6 - which is primarily how Sirius can get out of the agreement prior to Phase II closing. However, as you all know, Phase II closed on 3/6/2009... making that point moot. The agreement does continue on and state that Sirius can still terminate the agreement(s) after the non-solicitation period (after Phase II is closed), whenever they want. For which there isn't even an end date to such an option -- however, they are obligated to a $7MM termination fee... while at the same time, Liberty is not obligated to return the shares. The 12/31/2009 date is for if Phase II is not closed yet -- again, that is moot.
Brandon really should just give up on this one. His new site is looking bad over this.
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