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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934*
SILVER KING COMMUNICATIONS, INC.
_______________________________________________________________________
(Name of Issuer)
Common Stock, par value $.01 per share
_______________________________________________________________________
(Title of Class of Securities)
827740101
_______________________________________________________________________
(CUSIP Number)
Stephen M. Brett, Esq. Pamela S. Seymon, Esq.
Senior Vice President and Wachtell, Lipton, Rosen & Katz
General Counsel
Tele-Communications, Inc. 51 West 52nd Street
5619 DTC Parkway New York, New York 10019
Englewood, CO 80111 (212) 403-1000
(303) 267-5500
_______________________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 13, 1996
_______________________________________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this
statement [ ]. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of less than
five percent of such class. See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for
other parties to whom copies are to be sent.
*The remainder of this cover page should be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amend-
ment containing information which would alter disclosures
provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
NOTE: THIS STATEMENT CONSTITUTES AMENDMENT NO. 4 OF A
REPORT ON SCHEDULE 13D OF EACH OF BARRY DILLER AND
THE REPORTING GROUP, AMENDMENT NO. 6 OF A REPORT ON
SCHEDULE 13D OF TELE-COMMUNICATIONS, INC. AND THE
ORIGINAL REPORT OF BDTV INC.
Page 1 of 8 pages
CUSIP No. 827740101
_______________________________________________________________________
(1) Names of Reporting Persons S.S. or I.R.S.
Identification Nos. of Above Persons
BDTV INC.
__________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group
(a) [X]
(b) [ ]
_______________________________________________________________________
(3) SEC Use Only
_______________________________________________________________________
(4) Source of Funds
_______________________________________________________________________
(5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
[ ]
_______________________________________________________________________
(6) Citizenship or Place of Organization
Delaware
_______________________________________________________________________
Number of (7) Sole Voting Power 0 shares
Shares Bene-
________________________________________________________
ficially (8) Shared Voting Power 13,915,016 shares
Owned by ________________________________________________________
Each Report- (9) Sole Dispositive Power 0 shares
ing Person
________________________________________________________
With (10) Shared Dispositive Power 13,915,016 shares
_______________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
13,915,016 shares
_______________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares [X]
Excludes options to purchase 625,000 shares of Common
Stock granted to Barry Diller on November 27, 1995,
which are subject to consummation of the
transactions, and options to purchase 1,421,885
shares of Common Stock granted on August 24, 1995,
none of which are currently vested or exercisable and
none of which will become exercisable within 60 days.
________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11)
67%
Because each share of Class B Stock generally is
entitled to ten votes per share while the Common
Stock is entitled to one vote per share, the Report-
ing Persons may be deemed to beneficially own equity
securities of the Company representing approximately
89% of the voting power of the Company.
_______________________________________________________________________
(14) Type of Reporting Person (See Instructions)
CO
Page 2 of 8 pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Statement Of
TELE-COMMUNICATIONS, INC.,
BARRY DILLER
and
BDTV INC.
Pursuant to Section 13(d) of the
Securities Exchange Act of 1934
in respect of
SILVER KING COMMUNICATIONS, INC.
This Report on Schedule 13D (the "Schedule 13D")
relates to the common stock, par value $.01 per share (the
"Common Stock"), of Silver King Communications, Inc., a
Delaware corporation (the "Company"). The Report on Schedule
13D originally filed by Tele-Communications, Inc., a Delaware
corporation ("TCI"), on August 15, 1994, as amended and
supplemented by the amendments thereto previously filed with
the Commission (collectively, the "TCI Schedule 13D"), is
hereby amended and supplemented to include the information
contained herein, and this Report constitutes Amendment No. 6
to the TCI Schedule 13D. In addition, the Report on Schedule
13D originally filed by each of Mr. Barry Diller (the "Barry
Diller Schedule 13D") and the Reporting Group (the "Reporting
Group Schedule 13D") on August 29, 1995, as amended and
supplemented by the amendments thereto previously filed with
the Commission (collectively, the "Barry Diller Schedule 13D"
and the "Reporting Group Schedule 13D," respectively), is
hereby amended and supplemented to include the information
contained herein, and this Report constitutes Amendment No. 4
to each of the Barry Diller Schedule 13D and the Reporting
Group Schedule 13D. This Report on Schedule 13D also
constitutes the Original Report (the "BDTV Schedule 13D") of
BDTV INC., formerly Silver Management Company, a Delaware
corporation ("BDTV"). Barry Diller, TCI, and BDTV (each, a
"Reporting Person") constitute a "group" for purposes of Rule
13d-5 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), with respect to their respective
beneficial ownership of the Common Stock and are collectively
referred to as the "Reporting Group." Capitalized terms not
defined herein have the meanings provided in the prior Reports
on Schedule 13D referred to in this paragraph.
The summary descriptions contained in this Report of
certain agreements and documents are qualified in their
entirety by reference to the complete texts of such agreements
and documents, filed as Exhibits hereto and incorporated herein
by reference. Information contained herein with respect to
each Reporting Person and its executive officers, directors and
controlling persons is given solely by such Reporting Person,
and no other Reporting Person has responsibility for the
accuracy or completeness of information supplied by such other
Reporting Person.
Page 3 of 8 pages
ITEM 2. IDENTITY AND BACKGROUND.
The information contained in Item 2 of the TCI
Schedule 13D, the Barry Diller Schedule 13D, the BDTV Schedule
13D and the Reporting Group Schedule 13D is hereby amended and
supplemented by adding the following information:
The business address of BDTV INC. is 1940 Coldwater
Canyon Drive, Beverly Hills, CA 90210. BDTV is a company
formed by TCI and Mr. Diller to hold Company Securities.
The name, business address and present principal
occupation or employment and the name, address and principal
business of any corporation or other organization in which such
employment is conducted of each of the executive officers and
directors of BDTV are set forth in Schedule 1 attached hereto
and incorporated herein by reference.
During the last five years, neither BDTV, nor, to the
best of BDTV's knowledge, any of the persons named on Schedule
1, has (i) been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or (ii) been a
party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws. To
the best knowledge of BDTV, each of its executive officers and
directors is a citizen of the United States, except as
specifically set forth in Schedule 1 hereto.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information contained in Item 3 of the TCI
Schedule 13D, the Barry Diller Schedule 13D, the BDTV Schedule
13D and the Reporting Group Schedule 13D is hereby amended and
supplemented by adding the following information:
As set forth below, on August 13, 1996, BDTV
exercised the Class B Option for an aggregate exercise price of
$3,500,000 in cash, which amount Liberty paid to RMS on behalf
of BDTV using working capital.
ITEM 4. PURPOSE OF TRANSACTION.
The information contained in Item 4 of the TCI
Schedule 13D, the Barry Diller Schedule 13D, the BDTV Schedule
13D and the Reporting Group Schedule 13D is hereby amended and
supplemented by adding the information set forth in Item 6
below, which is incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in Item 5 of the TCI
Schedule 13D, the Barry Diller Schedule 13D, the BDTV Schedule
13D and the Reporting Group Schedule 13D is hereby amended and
supplemented by adding the following information:
On August 13, 1996, pursuant to the Stockholders
Agreement, Liberty contributed to BDTV the Class B Option as
well as $3,500,000 in cash (which amount represented the
aggregate exercise price thereof). Immediately after such
contributions,
Page 4 of 8 pages
BDTV exercised the Class B Option and received 2,000,000 shares
of Class B Stock subject to the Class B Option. Such shares
are subject to the Stockholders Agreement, which agreement has
been previously filed as an exhibit to the Schedule 13D.
Following the exercise of the Class B Option and
including the shares of Common Stock and Class B Stock that
would be issued upon consummation of the Exchange as
outstanding and beneficially owned by the Reporting Group (and
based on the number of shares of Common Stock reported to be
outstanding as of August 5, 1996), TCI, Mr. Diller and BDTV
collectively beneficially own shares of Common Stock and Class
B Stock representing approximately 67% of the outstanding
common equity and 89% of the outstanding voting power with
respect to matters as to which the holders of the Class B Stock
and Common Stock vote together as a single class (other than
with respect to directors elected by the holders of the Common
Stock voting as a separate class and as otherwise required by
law). BDTV also has the power under the Class B Option to
require RMS to convert its shares of Class B Stock into an
equal number of shares of Common Stock, and thereby eliminate
the requirement for a separate class vote under the Company's
Certificate of Incorporation (other than with respect to such
directors elected by the holders of Common Stock and as
otherwise required by applicable law). Following such a
conversion, and after giving effect to the Exchange, the
Reporting Persons believe that they would hold approximately
93% of the voting power of the outstanding equity securities of
the Company and would be able to effectively control the
outcome of the vote on substantially all matters presented to
the stockholders of the Company (other than with respect to
such directors elected by the holders of Common Stock and as
otherwise required by applicable law). Such amounts do not
include shares of Common Stock subject to Options with respect
to 1,421,885 shares of Common Stock and the Additional Options
with respect to 625,000 shares of Common Stock, each of which
is held by Mr. Diller and none of which is currently vested or
currently exercisable or becomes exercisable in the next 60
days. See Item 6.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE
ISSUER.
The information contained in Item 6 of the TCI
Schedule 13D, the Barry Diller Schedule 13D, the BDTV Schedule
13D and the Reporting Group Schedule 13D is hereby amended and
supplemented by adding the following information:
Under the Class B Option the holder of the Class B
Option is entitled to require RMS to convert its remaining
shares of Class B Stock not subject to the Class B Option into
a like number of shares of Common Stock. In connection with
Liberty's assignment of the Class B Option to BDTV and BDTV's
exercise of the Class B Option, BDTV did not require RMS to
convert such remaining shares of Class B Stock. Accordingly,
there still remain at least 2,280,000 shares of Class B Stock
outstanding and, thus, the holders of the Class B Stock
continue to be entitled to a separate class vote for certain
fundamental transactions involving the Company. However,
because the terms of the Class B Option entitle BDTV to require
RMS to convert its remaining shares of Class B Stock, BDTV
effectively has the power to terminate the right of the holders
of the Class B Stock to such separate class vote, whereupon the
holders of the Class B Stock and the Common Stock would vote
together as one class with respect to all matters presented to
a vote of the stockholders of the Company (other than with re-
spect to the election by the holders of Common Stock, voting
separately as a class, of 25% of the members of the Company's
Board of Directors and as otherwise required by applicable
law), with the holders of the Class B Stock entitled to ten
votes per share and the holders of the Common Stock entitled to
one vote per share.
Page 5 of 8 pages
As previously reported, each of the Liberty HSN
Merger Agreement and the Exchange Agreement currently provides
that such agreement may be terminated by either party in the
event that the transactions contemplated thereby have not been
consummated by August 30, 1996. Because of the delays in
receiving the approval of the FCC of the exercise of the Class
B Option and certain limitations contained in the FCC June
Order relating to Liberty's acquisition of beneficial ownership
of additional shares of common stock of the Company (including
those shares in which it would acquire an ownership interest as
a result of the transactions contemplated by the Liberty HSN
Merger Agreement and the Exchange Agreement), Mr. Diller and
Liberty believe it is unlikely that such transactions will be
consummated by August 30, 1996, and as a result, Mr. Diller and
Liberty have recently begun discussing a restructuring of the
proposed transactions or a possible alternative transaction
relating to HSN, in any case such that the Company could
acquire control of HSN consistent with the FCC June Order.
There can be no assurance that such discussions will result in
any agreement providing for such a restructured or alternative
transaction or, if any such agreement is reached, that any
required regulatory or other approvals for such transaction
(including from the FCC) will be obtained or that any such
transaction will be consummated.
Separately, on August 13, 1996 the Company and Savoy
entered into an amendment to the Savoy Merger Agreement which,
among other things, reduced the number of shares of Common
Stock that will become issuable to the stockholders of Savoy in
connection with the Savoy Merger and extended the date upon
which either party is permitted to terminate such transaction
to December 31, 1996 (subject to extension in connection with
the consummation of the transactions under which the Company
has agreed to acquire the TCI HSN Shares). In addition, the
applicable parties also entered into a consent to such
amendment under the Stockholders Agreement and an amendment to
the Voting Agreement to confirm that the respective parties
obligations thereunder apply to the transactions contemplated
by the Savoy Merger Agreement, as so amended.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
16. Amended and Restated Joint Filing Agreement of TCI, Mr.
Diller and BDTV.
17. Amended and Restated Certificate of Incorporation of BDTV
INC.
Page 6 of 8 pages
SIGNATURE
After reasonable inquiry and to the best of his knowledge
and belief, the undersigned certifies that the information in
this statement is true, complete and correct.
Dated: August 16, 1996
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
Name: Stephen M. Brett
Title: Senior Vice President
and General Counsel
/s/ Barry Diller
Barry Diller
BDTV INC.
By: /s/ Barry Diller
Name: Barry Diller
Title: President
Page 7 of 8 pages
SCHEDULE 1
Directors, Executive Officers and Controlling Persons
of BDTV INC. ("BDTV")
Principal Business
or Organization in
Principal Occupation and which such Business
Name Business Address is Conducted
Barry Diller Chairman of the Board, Ownership and Operation
Chief Executive Officer of Television Stations
and Director of Silver
King Communications, Inc.,
2425 Olympic Boulevard,
Santa Monica, CA 90404;
Chairman of the Board,
President and Director
of BDTV.
Page 8 of 8 pages
EXHIBIT INDEX
Seq. Pg. No.
1. Written Agreement between TCI and Mr. Diller regarding Joint
Filing of Schedule 13D.*
2. Definitive Term Sheet regarding Stockholders Agreement, dated
as of August 24, 1995, by and between Liberty Media Corporation
and Mr. Diller.*
3. Definitive Term Sheet regarding Equity Compensation Agreement,
dated as of August 24, 1995, by and between the Company and
Mr. Diller.*
4. Press Release issued by the Company and Mr. Diller, dated
August 25, 1995.*
5. Letter Agreement, dated November 13, 1995, by and between
Liberty Media Corporation and Mr. Diller.*
6. Letter Agreement, dated November 16, 1995, by and between
Liberty Media Corporation and Mr. Diller.*
7. First Amendment to Stockholders Agreement, dated as of
November 27, 1995, by and between Liberty Media Corporation
and Mr. Diller.*
8. Agreement and Plan of Merger, dated as of November 27, 1995,
by and among Silver Management Company, Liberty Program
Investments, Inc. and Liberty HSN, Inc.*
9. Exchange Agreement, dated as of November 27, 1995, by and
between Silver Management Company and Silver King
Communications, Inc.*
10. Agreement and Plan of Merger, dated as of November 27, 1995,
by and among Silver King Communications, Inc., Thames
Acquisition Corp. and Savoy Pictures Entertainment, Inc.*
11. Voting Agreement, dated as of November 27, 1995, by and among
Certain Stockholders of the Company and Savoy Pictures
Entertainment, Inc.*
12. Letter Agreement, dated March 22, 1996, by and between Liberty
Media Corporation and Barry Diller.*
* Previously filed.
13. In re Applications of Roy M. Speer and Silver Management Company,
Federal Communications Commission Memorandum and Order, adopted
March 6, 1996 and released March 11, 1996.*
14. In re Applications of Roy M. Speer and Silver Management Company,
Request for Clarification of Silver Management Company, dated
April 10, 1996.*
15. In re Applications of Roy M. Speer and Silver Management Company,
Federal Communications Commission Memorandum Opinion and Order
and Notice of Apparent Liability, adopted June 6, 1996 and
released June 14, 1996.*
16. Amended and Restated Joint Filing Agreement of TCI, Mr. Diller
and BDTV.
17. Amended and Restated Certificate of Incorporation of BDTV INC.
* Previously filed.
Exhibit 16
AMENDED AND RESTATED JOINT FILING AGREEMENT
AMENDED AND RESTATED JOINT FILING AGREEMENT, dated as of
August 15, 1996, by and between Tele-Communications, Inc., a
Delaware corporation, Barry Diller and BDTV INC., a Delaware
corporation.
WHEREAS, each of the parties hereto beneficially owns
shares of Common Stock or options to purchase shares of Common
Stock, or shares of Class B Common Stock (collectively, the
"Company Securities") of Silver King Communications, Inc., a
Delaware corporation (the "Company");
WHEREAS, the parties hereto constitute a "group" with
respect to the beneficial ownership of the Company Securities
for purposes of Rule 13d-1 and Schedule 13D promulgated by the
Securities and Exchange Commission (the "Schedule 13D"); and
WHEREAS, Tele-Communications, Inc. and Barry Diller have
previously entered into an agreement, dated as of August 28,
1995, pursuant to which the parties thereto agreed to prepare a
single statement containing the information required by the
Schedule 13D with respect to their respective interests in the
Company;
NOW, THEREFORE, the parties hereto agree as follows:
1. The parties hereto shall prepare a single
statement containing the information required by Schedule 13D
with respect to their respective interests in the Company
Securities (the "Reporting Group Schedule 13D"), and the
Reporting Group Schedule 13D shall be filed on behalf of each
of them.
2. Each party hereto shall be responsible for the
timely filing of the Reporting Group Schedule 13D and any
necessary amendments thereto, and for the completeness and
accuracy of the information concerning him or it contained
therein, but shall not be responsible for the completeness and
accuracy of the information concerning any other party
contained therein, except to the extent that he or it knows or
has reason to believe that such information is inaccurate.
3. This Agreement shall continue unless terminated
by any party hereto.
4. Stephen M. Brett, Esq. and Pamela S. Seymon,
Esq. shall be designated as the persons authorized to receive
notices and communications with respect to the Reporting Group
Schedule 13D and any amendments thereto.
5. This Agreement may be executed in counterparts,
each of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
Name: Stephen M. Brett
Title: Senior Vice President
and General Counsel
/s/ Barry Diller
Barry Diller
BDTV INC.
By: /s/ Barry Diller
Name: Barry Diller
Title: President
2
Exhibit 17
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SILVER MANAGEMENT COMPANY
SILVER MANAGEMENT COMPANY, a corporation organized
and existing under the laws of the State of Delaware, hereby
certifies as follows:
(1) The name of the Corporation is Silver Management
Company. The original Certificate of Incorporation of the
Corporation was filed on November 27, 1995. The name
under which the Corporation was originally incorporated is
Silver Management Company.
(2) As of the date hereof, the Corporation has not
received any payment for any of its stock.
(3) This Amended and Restated Certificate of Incor-
poration amends and restates the Certificate of Incorpo-
ration of the Corporation and has been duly adopted in
accordance with Sections 241 and 245 of the General Corpo-
ration Law of the State of Delaware.
(4) Pursuant to Sections 241 and 245 of the General
Corporation Law of the State of Delaware, the text of the
Certificate of Incorporation is hereby amended and
restated to read in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is Silver Management
Company.
ARTICLE II
REGISTERED OFFICE
The location of the registered office of the
Corporation in the State of Delaware is the office of The
Prentice-Hall Corporation System, Inc., 1013 Centre Road, in
the City of
Wilmington, County of NewCastle, State of Delaware 19805, and
the name of the registered agent at such address is The
Prentice-Hall Corporation System, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV
SECTION A
AUTHORIZED STOCK
The total number of shares of capital stock which the
Corporation shall have authority to issue is one million two
hundred thirty thousand and one (1,230,001) shares, of which
six hundred fifteen thousand and one (615,001) shares shall be
Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), and six hundred fifteen thousand (615,000)
shares shall be Class B Common Stock, par value $.01 per share
(the "Class B Common Stock," and together with the Class A
Common Stock, the "Common Stock").
SECTION B
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
Each share of Class A Common Stock and Class B Common
Stock of the Corporation shall, except as otherwise provided in
this Certificate of Incorporation, be identical in all respects
and shall have equal rights and privileges.
1. Voting Rights.
(a) The holders of the Class A Common Stock
shall be entitled to vote on all matters presented to a vote of
the stockholders of the Corporation, including elections of
directors, at any annual or special meeting of stockholders of
the Corporation or in connection with the taking of any action
by the stockholders of the Corporation by written consent, with
each such holder entitled to one vote for each share of such
stock held.
-2-
(b) Except as otherwise required by law or as
provided in paragraph 1(c) or Article VI below the holders of
the Class B Common Stock shall have no voting rights
whatsoever.
(c) Notwithstanding anything else in this
Certificate of Incorporation to the contrary, so long as any
shares of the Class B Common Stock remain outstanding, the
Corporation shall not take any action with respect to any of
the following matters without first obtaining the affirmative
vote (or written consent) of (i) from and after the initial
issuance of shares of the Class B Common Stock until such time
as Liberty Media Corporation, a Delaware corporation (including
its successors by merger, consolidation, sale of assets or
otherwise, "Liberty"), ceases to hold any shares of the Class B
Common Stock, Liberty, and (ii) thereafter, until such time as
the members of Liberty's Stockholder Group (as defined in that
certain agreement, dated as of August 24, 1995, as amended as
of November 27, 1995, between Liberty and Barry Diller (as so
amended and including any successor agreement thereto as
contemplated by the terms thereof and any amendments thereto,
the "Stockholders Agreement")) cease to own any shares of the
Class B Common Stock, the member of Liberty's Stockholder Group
so designated in writing by Liberty by notice to the
Corporation (Liberty or such designee, the "Designated
Holder"):
(i) the issuance of any shares of capital
stock of the Corporation or any interests therein other than
(x) pursuant to the Stockholders Agreement, and (y) the
issuance of shares of Class A Common Stock as a result of the
conversion of shares of Class B Common Stock pursuant to
Section 2 below;
(ii) any acquisition or disposition
(including pledges), directly or indirectly, by the Corporation
of any equity securities (or any interest therein) of Silver
King Communications, Inc., a Delaware corporation ("Silver
King", which term shall include any successor by merger,
consolidation, sale of assets or otherwise), or any rights
relating to the acquisition or disposition of such equity
securities (or any interest therein), except as specifically
provided for by the Stockholders Agreement;
(iii) other than as provided in clauses
(i) and (ii) above, the acquisition or disposition (including
pledges), directly or indirectly, by the Corporation of any
assets (including debt and/or equity securities) or business
(by merger, consolidation or otherwise), the grant or issuance
of any debt or equity securities of the Corporation, the
redemption, repurchase, or reacquisition of any debt or equity
securities of the Corporation by the Corporation or any of its
subsidiaries (other than the conversion of shares of Class B
Common Stock as provided in Section 2), or the incurrence of
any indebtedness by the Corporation;
(iv) any amendments to this Certificate of
Incorporation or the Bylaws of the Corporation;
-3-
(v) engaging in any business other than
holdings shares of the capital stock of Silver King, exercising
rights of ownership and voting related to such shares of stock
and pursuant to the Stockholders Agreement (subject in any
event to the provisions hereof and of the Stockholders
Agreement), and engaging in corporate governance and
administrative activities consistent with the terms of this
Certificate of Incorporation, the Corporation's bylaws and the
Stockholders Agreement;
(vi) the settlement of any litigation,
arbitration or other proceeding which is other than in the
ordinary course of business and which involves any material
restriction on the conduct of business by the Corporation or
the continued ownership (A) of its assets by the Corporation or
(B) of the capital stock of the Corporation by its
stockholders;
(vii) except as specifically contemplated
by the Stockholders Agreement and this Certificate of
Incorporation, any transaction between the Corporation and
Barry Diller and his affiliates;
(viii) the merger, consolidation,
dissolution or liquidation of the Corporation; or
(ix) permitting Silver King to issue any
shares of Silver King's Class B Common Stock, par value $.01
per share, or any options, warrants or other rights to acquire
any shares of such Class B Common Stock of Silver King.
2. Conversion Rights.
(a) Upon the first to occur of either (i) a
Change in Law (as defined below) or (ii) the failure for any
reason of Barry Diller to be Chairman of the Board and/or Chief
Executive Officer and/or President of Silver King or to be a
director of this Corporation (any such event set forth in
clauses (i) and (ii), a "Conversion Event"), each share of
Class B Common Stock shall become convertible, at the option of
the holder thereof, into one share of Class A Common Stock. A
"Change in Law" shall be deemed to have occurred at such time
as Liberty, a member of Liberty's Stockholder Group or a
permitted transferee of the foregoing under the Stockholders
Agreement (such entity, a "Qualified Holder") is entitled to
exercise full ownership and control over its pro rata interest
in the shares of the capital stock of Silver King held at such
time by the Corporation, notwithstanding Silver King's
ownership of its broadcast licenses (or interests therein).
(b) As promptly as practicable following notice
to the Corporation by any Qualified Holder that, upon the
receipt of any required governmental or regulatory consents,
approvals or waivers (provided that such Qualified Holder has
determined in good faith that any such waiver is obtainable)
and the termination or expiration of any applicable waiting
period under the HSR Act, a Change in Law shall have occurred,
and that such Qualified Holder intends, upon such
-4-
occurrence, to convert any or all of its shares of Class B
Common Stock into shares of Class A Common Stock, the
Corporation shall, and shall cause each of its subsidiaries and
affiliates (including Silver King) to, (i) make any and all
required applications or filings with, (ii) seek any required
consents, approvals or waivers from, any governmental or
regulatory agencies (including, but not limited to, with the
Federal Communications Commission (the "FCC") and under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act")), (iii) obtain any and all such
consents, approvals or waivers and the termination of any
applicable waiting period under the HSR Act, in each case,
which is reasonably necessary in connection with such
conversion, and (iv) use reasonable efforts to cooperate with,
and express its support for, such Qualified Holder's efforts to
obtain any such consents, approvals and waivers. Upon receipt
of such consents, approvals or waivers or the expiration or
termination of such waiting period, as the case may be, the
Corporation shall notify the Qualified Holder requesting such
conversion of such receipt, expiration or termination. Such
Qualified Holder shall use reasonable efforts to cooperate with
the Corporation in connection with the satisfaction by the
Corporation of its obligations under this paragraph. Upon the
receipt of all such required consents, approvals or waivers and
the termination of any applicable waiting period under the HSR
Act, such Qualified Holder of the shares of Class B Common
Stock specified in the notice described in this paragraph shall
surrender for conversion the appropriate stock certificate(s)
pursuant to paragraph (c) hereof.
(c) Any conversion provided for in paragraph
(a) above may be effected by any holder of Class B Common Stock
by (i) delivering written notice to the Corporation of such
holder's intent to convert shares of Class B Common Stock,
which notice shall specify the number of shares to be converted
and the proposed date of such conversion, which shall be not
less than two business days after the delivery of such notice
and (ii) surrendering on the date specified in such notice (or
such later date as all required consents, approvals, waivers
and terminations described in paragraph (b) have been obtained)
such holder's certificate or certificates for the Class B
Common Stock to be converted, duly endorsed, at the office of
the Corporation or any transfer agent for the Class B Common
Stock, together with a written notice to the Corporation at
such office that such holder elects to convert all or a
specified number of shares of Class B Common Stock represented
by such certificate and stating the name or names in which such
holder desires the certificate or certificates for Class A
Common Stock to be issued. If so required by the Corporation,
any certificate for shares surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to
the Corporation, duly executed by the holder of such shares or
the duly authorized representative of such holder. Promptly
thereafter, the Corporation shall issue and deliver to such
holder or such holder's nominee or nominees, a certificate or
certificates for the number of shares of Class A Common Stock
to which such holder shall be entitled as herein provided.
Such conversion shall be deemed to have been made at the close
of business on the date of receipt by the Corporation or any
such transfer agent of the certificate or certificates, notice
and, if required, instruments of transfer referred to above,
and the Person or Persons entitled to receive the Class A Com-
mon Stock issuable on such conversion shall be treated for all
purposes as the record holder or holders of such Class A Common
Stock at the close of business on that date. A number of
shares
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of Class A Common Stock equal to the number of shares of Class
B Common Stock outstanding from time to time shall at all times
be set aside and reserved for issuance upon conversion of
shares of Class B Common Stock. Shares of Class B Common Stock
that have been converted hereunder shall be retired and shall
not be reissued by the Corporation. Shares of Class A Common
Stock shall not be convertible into shares of Class B Common
Stock.
3. Dividends and Other Distributions. The
Corporation shall be entitled to declare and pay, out of funds
legally available therefor, dividends and make distributions on
the Class A Common Stock and Class B Common Stock only as
provided in this paragraph 3. In connection with the
declaration and payment of any dividend or the making of any
distribution on the Common Stock (other than Liquidating
Distributions (as defined below)), the holders of the Class A
Common Stock shall be entitled to receive, prior to the
declaration or payment of any dividend or other distribution to
the holders of the Class B Common Stock, an amount equal to
$1.00 per share, payable solely in cash (the "Class A
Preferential Dividend"), and no more. Following the
declaration and payment of such amount to the holders of the
Class A Common Stock, the Corporation shall be entitled to pay
such dividends and make such distributions to the holders of
the Class B Common Stock as the Corporation shall determine.
Other than the payment in cash of the Class A Preferential
Dividend, the holders of the Class A Common Stock shall have no
other or further right to the payment of any other dividend or
distribution, other than Liquidating Distributions.
4. Reclassifications, Subdivisions and
Combinations. The Corporation shall not reclassify, subdivide
or combine one class of its Common Stock without reclassifying,
subdividing or combining the other class of Common Stock, on an
equal per share basis.
5. Liquidation and Mergers. In connection with any
liquidation, dissolution or winding up of the Corporation, the
holders of any shares of Class A Common Stock originally issued
as shares of Class A Common Stock (and not upon conversion of
shares of Class B Common Stock) shall be entitled to receive an
amount in cash equal to the Class A Liquidation Price (as
defined below) for such shares of Class A Common Stock, and no
other or further amount, and the holders of shares of (i) Class
B Common Stock and (ii) shares of Class A Common Stock issued
upon conversion of shares of Class B Common Stock shall
thereafter be entitled to share ratably, on a share for share
basis, in any distribution of the Corporation's remaining
assets upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment or
provisions for payment of the debts and other liabilities of
the Corporation. The "Class A Liquidation Price" of a share of
Class A Common Stock which was originally issued as Class A
Common Stock and was not issued upon conversion of a share of
Class B Common Stock shall be an amount in cash equal to the
price paid to the Corporation in respect of the initial
issuance and sale thereof by the Corporation, plus interest
thereon at the Agreed Rate from the date of original issuance
thereof to and including the effective date of any liquidation
or dissolution of the Corporation, compounded annually. The
"Agreed Rate" shall be the rate of interest per annum equal
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to the commercial lending rate per annum publicly announced
from time to time by The Bank of New York as its prime rate
(such rate of interest to change as of the close of business on
each date such prime rate changes). The distributions to be
made upon the shares of Class A Common Stock and Class B Common
Stock upon the liquidation, dissolution or winding up of the
Corporation are referred to as the "Liquidating Distribution."
Neither the consolidation or merger of the Corporation with or
into any other corporation or corporations nor the sale,
transfer or lease of all or substantially all of the assets of
the Corporation shall itself be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning
of this paragraph 5.
ARTICLE V
DIRECTORS
The governing body of the Corporation shall be a
Board of Directors. The number of directors constituting the
entire Board of Directors shall be one. Election of directors
need not be by written ballot. All directors of the
Corporation shall serve without compensation.
ARTICLE VI
INDEMNIFICATION OF OFFICERS AND DIRECTORS
1. Elimination of Certain Liability of Directors.
A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability
(a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the General
Corporation Law of the State of Delaware, or (d) for any
transaction from which the director derived an improper
personal benefit.
2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who
was or is made a party or is threatened to be made a party to
or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was
a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving
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as a director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation
to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments,
fines, amounts paid or to be paid in settlement, and excise
taxes or penalties arising under the Employee Retirement Income
Security Act of 1974) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrator; provided,
however, that, except as provided in paragraph (b) hereof, the
Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding(or
part thereof) was authorized by the Designated Holder. The
right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such pro-
ceeding in advance of its final disposition; provided, however,
that, if the General Corporation Law of the State of Delaware
requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered
by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, which
undertaking shall itself be sufficient without the need for
further evaluation of the creditworthiness of the undertaking
or of such advancement, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not
entitled to be indemnified under this Section or otherwise.
Notwithstanding the foregoing, no director or officer of the
Corporation shall be deemed to be serving at the request of the
Corporation as a director, officer, employee or agent of Silver
King Communications, Inc. or any entity controlled by,
controlling or under common control (other than the
Corporation) with Silver King (including employee benefit
plans) (collectively, "the Silver King Entities").
(b) Right of Claimant to Bring Suit. If a
claim under paragraph (a) of this Section is not paid in full
by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the
expense of prosecuting such claim, unless the failure to have
been so paid is the result of any action or failure to act on
the part of such claimant. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of the State of
Delaware for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation
(including its Board,
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independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of
Delaware, nor an actual determination by the Corporation
(including its Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable
standard of conduct.
(c) Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition
conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise.
(d) Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether
or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the
General Corporation Law of the State of Delaware.
(e) Set-off of Indemnification Remedies;
Subrogation. In the case of a claim for indemnification or
advancement of expenses against the Corporation under this
paragraph 2 arising out of acts, events or circumstances for
which the claimant, who was at the relevant time serving as a
director, officer, employee or agent of any of the Silver King
Entities, may be entitled to indemnification or advancement of
expenses pursuant to such entity's certificate of incorporation
or by-laws or a contractual agreement between the claimant and
such entity (a "Silver King Claim"), the claimant seeking
indemnification hereunder shall first seek indemnification and
advancement of expenses pursuant to any such Silver King Claim.
To the extent that amounts to be indemnified or advanced to a
claimant hereunder are paid or advanced by or on behalf of a
Silver King Entity, the claimant's right to indemnification and
advancement of expenses hereunder shall be reduced. In the
event of any payment of indemnification or advancement of
expenses pursuant to this Section 2 by the Corporation, the
Corporation shall be subrogated to any such rights the
applicable claimant may have to indemnification from or on
behalf of any of the Silver King Entities in connection with
the acts, events or circumstances giving rise to such claim.
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ARTICLE VII
TERM
The term of existence of this Corporation shall be
perpetual.
ARTICLE VIII
STOCK NOT ASSESSABLE
The capital stock of this Corporation shall not be
assessable. It shall be issued as fully paid, and the private
property of the stockholders shall not be liable for the debts,
obligations or liabilities of this Corporation.
ARTICLE IX
MEETINGS OF STOCKHOLDERS
Except as otherwise prescribed by law or by another
provision of this Certificate, special meetings of the
stockholders of the Corporation, for any purpose or purposes,
shall be called by the Secretary of the Corporation (i) upon
the written request of the holders of not less than a majority
of the total voting power of the outstanding Common Stock, (ii)
at any time following the occurrence of a Conversion Event,
upon the written request of the holders of not less than a
majority of the outstanding shares of Class B Common Stock, or
(iii) at the request of at least a majority of the members of
the Board of Directors then in office. The holders of the
Class B Common Stock shall be given notice of and shall be
entitled to attend all annual and special meetings of the
stockholders of the Corporation.
ARTICLE X
ACTION BY WRITTEN CONSENT OF STOCKHOLDERS;
ACTION BY THE BOARD OF DIRECTORS
Except as otherwise prescribed by law or by another
provision of this Certificate, any action required or permitted
to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, if a consent in
writing, setting forth the action to be taken, shall be signed
by the holder or holders of shares having not less than the
minimum number of votes that
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would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote on the action were
present and voted.
IN WITNESS WHEREOF, the undersigned has signed this
Amended and Restated Certificate of Incorporation this 12th day
of August, 1996.
SILVER MANAGEMENT COMPANY
By: /s/ Barry Diller
Name: Barry Diller
Title: President
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CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
SILVER MANAGEMENT COMPANY
SILVER MANAGEMENT COMPANY, a corporation organized
and existing under the laws of the State of Delaware, hereby
certifies as follows:
(1) That by the unanimous written consent of the
sole member of the Board of Directors of Silver Management
Company, resolutions were duly adopted setting forth a proposed
amendment of the Amended and Restated Certificate of
Incorporation of said corporation and declaring said amendment
to be advisable. The resolution setting forth the proposed
amendment is as follows:
RESOLVED, that the Amended and Restated Certificate
of Incorporation of this corporation be amended by
changing Article I so that, as amended said Article
shall be read as follows:
The name of the corporation (which is hereinafter
referred to as the "Corporation") is:
BDTV INC.
(2) That in lieu of a meeting and vote of
stockholders, the stockholders have given unanimous written
consent to said amendment in accordance with the provisions of
Section 228 of the General Corporation Law of the State of
Delaware.
(3) That the amendment was duly adopted in
accordance with the provisions of Sections 228 and 242 of the
General Corporation Law of the State of Delaware.
(4) That the capital of said corporation shall not
be reduced under or by reason of said amendment.
IN WITNESS WHEREOF, said Silver Management Company
has caused this certificate to be signed by its President this
15th day of August, 1996.
By: /s/ Barry Diller
Name: Barry Diller
Title: President
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