After it signed a Machiavellian deal with Liberty Media (Nasdaq: LINTA) to save its hide, some observers wrongly assumed that Sirius XM Radio (Nasdaq: SIRI) was no longer in play.
But if Charles Ergen wants a slice of Sirius to go with his smorgasbord of satellites, including EchoStar (Nasdaq: SATS) and DISH Network (Nasdaq: DISH), he doesn't have to walk away with an empty plate.
Liberty may have handed Sirius XM the first $250 million of the $530 million it is willing to dish out to save the satellite radio provider from bankruptcy, but the 40% stake it is due to receive in exchange doesn't kick in until Liberty completes the second phase of its bailout.
Liberty and Sirius's 8-K filing with the SEC spells out the open-ended nature of their agreement.
"If, prior to April 15, 2009, we receive an alternative proposal that our Board of Directors concludes in good faith is a Superior Proposal (as defined below), our Board of Directors may terminate the Investment Agreement in order to transact the Superior Proposal," it reads. "After April 15, 2009, we may terminate the Investment Agreement if our Board of Directors determines it is in our best interests to do so."
There would be a $7 million deal termination fee if Sirius XM walked away, and the company would need to pay Liberty back at a premium. But if Sirius can find a much better deal out there, all of the hurdles would be worth it.
Liberty's deal is certainly sweet. In addition to that hefty 40% chunk of the company, it's collecting a healthy 15% interest rate on the loan. Did we ever find out what Ergen was offering? According to The Wall Street Journal, he was willing to invest $700 million for a 51% stake. What if that $700 million came in with more attractive terms than Liberty's offer?
The clincher here is that Ergen wanted a majority stake in the company. In the SEC filing, Liberty agrees to not acquire more than half of the company over the next three years. That will help keep CEO Mel Karmazin and his execs in control, but shareholders may be irate if it turns out the company passed on more shareholder-friendly offers.
The clock's still ticking in this particular saga. Maybe Ergen comes back with a sweeter, less stifling new bid. Maybe terrestrial radio heavies like Clear Channel and CBS (NYSE: CBS) realize that satellite radio is better in their hands.
The media circus may be leaving town, now that Sirius has at least another three months of life -- and likely quite a bit more. But if you still crave real entertainment, make sure to stick around for the sideshows.
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