Exhibit 4(a)


 


AMENDED AND RESTATED


CERTIFICATE OF INCORPORATION


OF


DIRECTV


 


DIRECTV, a corporation
organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies that:


 


1.             The present name of the Corporation
is DIRECTV, which is the name under which the Corporation was originally
incorporated; and the date of filing the original Certificate of Incorporation
of the corporation with the Secretary of State of the State of Delaware is April 24,
2009.


 


2.             This Amended and Restated
Certificate of Incorporation, which restates, integrates and further amends the
Certificate of Incorporation of the Corporation, has been duly adopted in
accordance with Sections 228, 242 and 245 of the General Corporation Law
of the State of Delaware (the “DGCL”).


 


3.             The Corporation’s Certificate of
Incorporation hereby is amended and restated to read in its entirety as
follows:


 


ARTICLE I


 


Section 1.1  Name.


 


The name of the corporation
is DIRECTV.


 


ARTICLE II


 


Section 2.1  Address.


 


The registered office of the
Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, Delaware. The name of
the Corporation’s registered agent at such address is The Corporation Trust
Company.


 


ARTICLE III


 


Section 3.1  Purpose.


 


The purpose of the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the DGCL.


 


ARTICLE IV


 


Section 4.1  Authorized
Capital Stock.


 


The total number of shares
of all classes of stock that the Corporation is authorized to issue is
4,000,000,000 shares, consisting of (i) 3,500,000,000 shares of Class A
common stock, par value $0.01 per share (the “Class A
Common Stock”), (ii) 30,000,000 shares of Class B common
stock, par value $0.01 per share (the “Class B
Common Stock”), (iii) 420,000,000 shares of Class C common
stock, par value $0.01 per share (the “Class C
Common Stock”, and together with the Class A Common Stock and
the Class B Common Stock, the “Common
Stock”), and (iv) 50,000,000 shares of preferred stock, par
value $0.01 per share (the “Preferred Stock”).


 


Each share of Class A
Common Stock, Class B Common Stock and Class C Common Stock will,
except as otherwise provided in this Certificate of Incorporation, be identical
in all respects and have equal rights, powers and privileges.


 


Section 4.2  Increase or
Decrease in Authorized Common or Preferred Stock.


 


The number of authorized
shares of Preferred Stock or any class of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding or then
issuable pursuant to any Convertible Securities) by the affirmative vote of the
holders of a majority in voting power of the stock of the Corporation entitled
to vote thereon, irrespective of the provisions of Section 242(b)(2) of
the DGCL (or any successor provision thereto), and no vote of the holders of
any of the Preferred Stock or Common Stock, voting separately as a class or as
a separate series, shall be required therefor.


 


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Section 4.3  Preferred
Stock.


 


(a)           Subject to the other provisions of this Certificate of
Incorporation, the Board of Directors of the Corporation (the “Board”) is hereby expressly authorized to
provide by resolution or resolutions from time to time out of the unissued
shares of Preferred Stock for the issuance of one or more series of Preferred
Stock, without further stockholder approval, by filing a certificate pursuant
to the applicable law of the State of Delaware (hereinafter referred to as a “Preferred Stock Designation”), setting
forth such resolution and, with respect to each such series, establishing the
number of shares to be included in such series, and fixing the voting powers,
full or limited, or no voting power of the shares of such series, and the
designation, preferences and relative, participating, optional or other special
rights, if any, of the shares of each such series and any qualifications,
limitations or restrictions thereof.


 


(b)           The authority of the Board with respect to each series of
Preferred Stock shall include, but not be limited to, the determination of the
following: (i) the designation of the series, which may be by
distinguishing number, letter or title, (ii) the number of shares of the
series, which number the Board may thereafter (except where otherwise provided
in the Preferred Stock Designation) increase or decrease (but not below the
number of shares thereof then outstanding), (iii) the amounts or rates at
which dividends will be payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any, shall
be cumulative or noncumulative, (iv) the dates on which dividends, if any,
shall be payable, (v) the redemption rights and price or prices, if any,
for shares of the series, (vi) the terms and amount of any sinking fund,
if any, provided for the purchase or redemption of shares of the series, (vii) the
amounts payable on, and the preferences, if any, of shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, (viii) whether the shares of the series
shall be convertible into, or exchangeable or redeemable for, shares of any
other class or series, or any other security, of the Corporation or any other
corporation, and, if so, the specification of such other class or series or
such other security, the conversion or exchange price or prices or rate or
rates, any adjustments thereof, the date or dates at which such shares shall be
convertible or exchangeable and all other terms and conditions upon which such
conversion or exchange may be made, (ix) any restrictions on the issuance
of shares of the same series or any other class or series, (x) the voting
rights, if any, of the holders of shares of the series generally or upon
specified events, and (xi) any other powers, preferences and relative,
participating, optional or other special rights of each series of Preferred
Stock, and any qualifications or limitations of, or restrictions on, such
shares as are permitted by law.


 


(c)           Shares of Preferred Stock, regardless of series, that are
converted into other securities or other consideration or otherwise acquired by
the Corporation shall be retired and canceled and the Corporation shall take
all such actions as are necessary to cause such shares to have the status of
authorized but unissued shares of Preferred Stock, without designation as to
series, and, unless otherwise provided in this Certificate of Incorporation or
the applicable Preferred Stock Designation, the Corporation shall have the
right to reissue such shares.


 


Section 4.4  Voting Rights.


 


(a)           Subject to applicable law, to the provisions of this
Certificate of Incorporation and to the rights and powers, if any, of any
outstanding series of Preferred Stock to vote as a separate class or series, or
to vote together with one or more other series of Preferred Stock or together
with one or more classes of Common Stock, on any matter:


 


(i)            each holder of Class A Common
Stock shall be entitled to one (1) vote for each share of Class A
Common Stock held of record by such holder on all matters on which stockholders
generally are entitled to vote;


 


(ii)           each holder of Class B Common
Stock shall be entitled to fifteen (15) votes for each share of Class B
Common Stock held of record by such holder on all matters on which stockholders
generally are entitled to vote; and


 


(iii)          the Class C Common Stock shall be
non-voting stock and, except as (and then only to the extent) required by
applicable law, shall not entitle the holders thereof to vote on any matter on
which stockholders are entitled to vote. If a vote or consent of the holders of
Class C Common Stock should at any time be required by the laws of the State
of Delaware on any matter, each holder of Class C Common Stock shall be
entitled to 1/100th of a vote
on such matter for each share of Class C Common Stock held of record by
such holder.


 


(b)           Except as (and then only to the extent) required by
applicable law, or as otherwise expressly set forth in this Certificate of
Incorporation, on all matters on which stockholders are entitled to vote,
holders of Voting Securities shall vote their respective shares of Class A
Common Stock, Class B Common Stock and Preferred Stock (if such Preferred
Stock is a Voting Security) together as one class. If a vote or consent of the
holders of Class C Common Stock shall be required by applicable law on a
matter referred to in the immediately preceding sentence, then holders of Class C
Common Stock shall 


 


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vote their shares of Class C Common
Stock with holders of Class A Common Stock, Class B Common Stock and
Preferred Stock (if such Preferred Stock is a Voting Security) together as one
class, except as (and then only to the extent) required by applicable law.


 


(c)           Except as required by applicable law and notwithstanding
any other provision in this Section 4.4, holders of Common Stock shall not
be entitled to vote on any amendment to this Certificate of Incorporation that
relates solely to the terms, number of shares, powers (including, without
limitation, voting powers), designations, preferences, or relative,
participating, optional or other special rights, or to qualifications,
limitations, or restrictions thereof, of the Preferred Stock or any series
thereof, if the holders of outstanding shares of Preferred Stock or any series
thereof are entitled, either separately or together with the holders of
outstanding shares of one or more other classes or series of capital stock of
the Corporation, to vote thereon pursuant to applicable law or this Certificate
of Incorporation, as amended from time to time.


 


(d)           So long as any shares of Class A Common Stock are
issued and outstanding, unless the Corporation shall have obtained a Class A
Consent with respect to such transaction, the Corporation shall not engage in a
merger, consolidation or sale of all or substantially all of its assets (a “Subject Transaction”) (x) as to which
the DGCL, as then in effect, requires the approval, vote or consent of the
Corporation’s stockholders (which, for the avoidance of doubt, shall not
include instances where a Class B Consent is required hereunder but
stockholder approval otherwise is not required), and (y) the terms of such
Subject Transaction provide that the holders of Class A Common Stock are
to receive consideration per share of Class A Common Stock that is
different in form or amount than the per share consideration to be received in
respect of shares of Class B Common Stock in such Subject Transaction. The
provisions of this Section 4.4(d) shall cease to be of any force or
effect and shall be automatically repealed without any action on the part of
the Corporation or the stockholders of the Corporation and replaced with the
words “Intentionally Omitted” (and the Corporation will issue a public
announcement of such occurrence) upon the earliest to occur of (i) such
time as the Malones in the aggregate do not own shares of Class B Common
Stock entitling them to vote at least 10% of the combined voting power of all
outstanding shares of Class A Common Stock and Class B Common Stock, (ii) the
death of Mr. John C. Malone, and (iii) June 30, 2010, if the
Judgment Effective Date has not occurred as of such date.


 


Section 4.5  Automatic
Conversion of Class B Common Stock into Class A Common Stock.


 


Transfers of shares of Class B
Common Stock shall be subject to the following provisions. A holder of shares
of Class B Common Stock that wishes to effect a Transfer of shares of Class B
Common Stock shall provide written notice thereof to the Corporation prior to
the Close of Business on the business day prior to the proposed date of
transfer (the “Transfer Notice”).
The Transfer Notice shall (i) identify the proposed transferee, (ii) state
whether or not the proposed transferee is an Affiliate of the transferor, and (iii) state
whether or not the Transfer is being effected in a Public Transfer. The
transferor shall provide such additional supporting information, opinions and
documentation as may be reasonably requested by the Corporation. If the
Transfer (y) is to a transferee that is not an Affiliate of the transferor
and (z) is being effected pursuant to a Public Transfer, then immediately
following such Transfer each such share of Class B Common Stock so
Transferred will automatically convert into one (1) fully paid and
non-assessable share of Class A Common Stock registered in the name of the
transferee (the “Class B Automatic
Conversion”). All other Transfers of shares of Class B Common
Stock shall not result in a Class B Automatic Conversion, and in all such
other cases the shares of Class B Common Stock being Transferred shall be
registered in the name of the transferee and shall not be converted into shares
of Class A Common Stock. All shares of Class B Common Stock shall be
certificated and shall bear a legend stating that such shares are subject to
the Class B Automatic Conversion provisions set forth herein. The
Corporation shall not be obligated to issue one or more certificates or
instruct the Corporation’s transfer agent to make a book entry evidencing the
shares of Class A Common Stock issuable upon a Class B Automatic
Conversion unless the certificate(s) evidencing Transferred share(s) of
Class B Common Stock are delivered to the Corporation for cancellation.


 


Section 4.6  Dividends and
Distributions.


 


Whenever a dividend, other
than a dividend that constitutes a Share Distribution, is paid to the holders
of any class of Common Stock then outstanding, the Corporation will also pay to
the holders of each other class of Common Stock then outstanding an equal
dividend per share. Dividends will be payable only as and when declared by the
Board out of assets of the Corporation legally available therefor. Whenever a
Share Distribution is paid to the holders of any class of Common Stock then
outstanding, the Corporation will also pay a Share Distribution to the holders
of each other class of Common Stock then outstanding, as provided in Section 4.7
below. For purposes of this Section 4.6 and Section 4.7 below, a “Share Distribution” means a dividend or
distribution (including a distribution made in connection with any stock-split,
reclassification, recapitalization, dissolution, winding up or full or partial
liquidation of the Corporation) payable in shares of any class or series of
capital stock, Convertible Securities or other securities of the Corporation or
any other Person.


 


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Section 4.7  Share Distributions.


 


If at any time a Share
Distribution is to be made with respect to any class of Common Stock, such
Share Distribution may be declared and paid only as follows:


 


(a)           a Share Distribution (i) consisting
of shares of Class C Common Stock or Class C Convertible Securities
may be declared and paid to holders of Class A Common Stock, Class B
Common Stock and Class C Common Stock, on an equal per share basis, or (ii) consisting
of (x) shares of Class A Common Stock or Class A Convertible
Securities may be declared and paid to holders of Class A Common Stock, on
an equal per share basis, (y) shares of Class B Common Stock or Class B
Convertible Securities may be declared and paid to holders of Class B
Common Stock, on an equal per share basis, and (z) shares of Class C
Common Stock or Class C Convertible Securities may be declared and paid to
holders of Class C Common Stock, on an equal per share basis; or


 


(b)           subject to Section 4.7(c) below,
a Share Distribution consisting of any class or series of securities of the
Corporation or any other Person other than Class A Common Stock, Class B
Common Stock or Class C Common Stock (or Class A Convertible
Securities, Class B Convertible Securities or Class C Convertible
Securities), may be declared and paid on the basis of a distribution of (i) identical
securities, on an equal per share basis, to holders of Class A Common
Stock, Class B Common Stock and Class C Common Stock, (ii) separate
classes or series of securities, on an equal per share basis, to the holders of
each such class of Common Stock, or (iii) a separate class or series of
securities to the holders of one or more classes of Common Stock and, on an
equal per share basis, a different class or series of securities to the holders
of all other classes of Common Stock; provided, that, in connection with a
Share Distribution pursuant to clause (ii) or clause (iii) of
this Section 4.7(b), (1) such separate classes or series of
securities (and, if the distribution consists of Convertible Securities, the
Underlying Securities) do not differ in any respect other than their relative
voting rights (and any related differences in designation, conversion,
redemption and share distribution provisions, as applicable), with holders of
shares of Class B Common Stock receiving the class or series of securities
having (or convertible into or exercisable or exchangeable for securities
having) the highest relative voting rights and the holders of shares of each
other class of Common Stock receiving securities of a class or series having
(or convertible into or exercisable or exchangeable for securities having)
lesser relative voting rights, in each case, without regard to whether such
rights differ to a greater or lesser extent than the corresponding differences
in voting rights (and any related differences in designation, conversion,
redemption and share distribution provisions, as applicable) among the Class A
Common Stock, the Class B Common Stock and the Class C Common Stock,
and (2) in the event the securities to be received by the holders of
shares of Common Stock other than the Class B Common Stock consist of
different classes or series of securities, with each such class or series of
securities (or the Underlying Securities into which such class or series is
convertible or for which such class or series is exercisable or exchangeable)
differing only with respect to the relative voting rights of such class or
series (and any related differences in designation, conversion, redemption and
share distribution provisions, as applicable), then such classes or series of
securities will be distributed to the holders of each class of Common Stock
(other than the Class B Common Stock) (A) as the Board of Directors
determines or (B) such that the relative voting rights (and any related differences
in designation, conversion, redemption and share distribution provisions, as
applicable) of the class or series of securities (or the Underlying Securities)
to be received by the holders of each class of Common Stock (other than the Class B
Common Stock) corresponds to the extent practicable to the relative voting
rights (and any related differences in designation, conversion, redemption and
share distribution provisions, as applicable) of such class of Common Stock, as
compared to the other classes of Common Stock (other than the Class B
Common Stock).


 


(c)           So long as any shares of Class B
Common Stock are issued and outstanding, unless a Class B Consent has been
received approving the terms of such Share Distribution, (i) no Share
Distribution may be declared or paid if the securities to be received by the
holders of the Class C Common Stock in such Share Distribution (and, if
the Share Distribution consists of Convertible Securities, the Underlying
Securities with respect thereto) are entitled to vote with respect to matters
upon which security holders of the issuer thereof are generally entitled to
vote (other than to an extent no greater than the holders of Class C
Common Stock are entitled to vote upon matters as provided in this Certificate of
Incorporation); and (ii) no Share Distribution of securities entitled to
vote generally upon matters that may be submitted to a vote of security holders
of the issuer thereof, whether consisting of any class or series of securities
of the Corporation or any other Person (or Convertible Securities that are
convertible into, exchangeable for or evidence the right to purchase such
securities), may be declared or paid unless the securities to be received by
the holders of Class B Common Stock in such Share Distribution (and, if
the Share Distribution consists of Convertible Securities, the Underlying
Securities with respect thereto) at all times have voting power with respect to
matters upon which security holders of the issuer thereof are generally entitled
to vote 


 


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per share or other unit (“Per Share Voting Power”) of not less than
fifteen times the Per Share Voting Power of the securities (and, if the Share
Distribution consists of Convertible Securities, the Underlying Securities with
respect thereto) to be received in such Share Distribution by the holders of
each other class of Common Stock receiving securities entitled to such voting
power, if any.


 


Section 4.8  Liquidation,
Dissolution or Winding Up.


 


In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, after payment or provision for payment of the debts and
other liabilities of the Corporation, and subject to the payment or provision for
payment of the preferential and other amounts, if any, to which the holders of
Preferred Stock, if any, shall be entitled, the holders of all outstanding
shares of Common Stock shall be entitled to receive the remaining assets of the
Corporation available for distribution ratably in proportion to the number of
shares held by each such stockholder. For the purposes of this Section 4.8,
neither the sale, conveyance, exchange, lease, assignment, transfer or other
disposition (for cash, shares of stock, securities or other consideration) of
all or substantially all the property or assets of the Corporation nor the
consolidation or merger of the Corporation with or into one or more other
Persons shall be deemed to be a liquidation, dissolution or winding-up of the
Corporation, voluntary or involuntary, unless such sale, conveyance, exchange,
lease, assignment, transfer or other disposition, merger or consolidation shall
be in connection with a liquidation, dissolution or winding-up of the business
of the Corporation.


 


Section 4.9  Excess Shares.


 


(a)  Purpose. 
For purposes of (x) protecting the Corporation and its stockholders
from potential adverse tax effects that could result for U.S. income tax
purposes from certain changes in ownership of shares of Equity Stock in light
of the Corporation’s participation in the Splitco Merger and related
transactions, including the DIRECTV Merger, and (y) inducing The DIRECTV
Group, Inc. to enter into the Merger Agreement and to consummate the
transactions contemplated thereby, the provisions of this Section 4.9
shall apply.


 


(b)  Prohibited Transfers.  If, notwithstanding any other provisions
contained herein, at any time during the Prohibition Period, there is a
purported Transfer or Non-Transfer Event such that any Person otherwise would
be treated as acquiring shares of Equity Stock, directly or indirectly (as
determined by reference to Section 355(e) of the Code, taking into
account applicable constructive ownership rules and any Treasury
regulations promulgated thereunder), and (x) such Person is, or upon such
purported Transfer or Non-Transfer Event, would become, a ten-percent
shareholder of the Corporation, a controlling shareholder of the Corporation,
or a member of a coordinating group that is, or upon such purported Transfer or
Non-Transfer Event, would become, a ten-percent shareholder of the Corporation
or a controlling shareholder of the Corporation, each as defined in Treasury
Regulation Section 1.355-7, or (y) both (A) the acquisition of
shares of Equity Stock would not be considered, for purposes of Section 355(e) of
the Code, to be not part of a plan that includes the Split-Off by reason of the
application of Safe Harbor VII set forth in Treasury Regulation Section 1.355-7(d)(7),
and (B) such Person is a Prohibited Party, then except as otherwise
provided below in this Section 4.9(b), or in Section 4.9(c) or Section 4.9(q),
(I) the Purported Record Transferee (and the Purported Beneficial
Transferee, if different) shall acquire no right or interest (or, in the case
of a Non-Transfer Event, the Person holding record title to the shares of
Equity Stock purportedly Beneficially Owned by such Beneficial Owner shall
cease to own any right or interest) in such number of shares of Equity Stock
(the “Excess Shares”), (II) the
Excess Shares (rounded up to the nearest whole share) of Equity Stock shall be
automatically transferred to a Trust, without any action on the part of the
Corporation or any holder of shares of Equity Stock, in accordance with Section 4.9(f) below,
and (III) such Purported Record Transferee (and such Purported Beneficial
Transferee, if different) or, in the case of a Non-Transfer Event, the Person
who, immediately prior to such automatic transfer, was the holder of record
title to the shares of Equity Stock automatically transferred, shall submit the
certificates representing such number of shares of Equity Stock to the
Corporation, accompanied by all requisite and duly executed assignments of
transfer thereof, for registration in the name of the Trustee of the Trust.
Such transfer to a Trust shall be effective as of the close of trading on the
Trading Day prior to the date of the purported Transfer or Non-Transfer Event,
as the case may be, even though the certificates representing the shares of
Equity Stock so transferred may be submitted to the Corporation at a later
date. For purposes of this Section 4.9, (A) the number of shares of
Equity Stock treated as acquired in the case of a Non-Transfer Event shall be
equal to the number of shares which cause or result in an increase in the
percentage of a Person’s Beneficial Ownership of the outstanding shares of
Equity Stock, and (B) in the case of a Person described in
clause (x), but not in clause (y), of this Section 4.9(b),
Excess Shares shall not include such number of shares of Equity Stock, if any,
as may be acquired by such Person without causing such Person to become a
ten-percent shareholder of the Corporation, a controlling shareholder of the
Corporation, or a member of a coordinating group that is a ten-percent
shareholder of the Corporation or a controlling shareholder of the Corporation,
each as defined in Treasury Regulation Section 1.355-7. The provisions of
this Section 4.9(b) shall not apply to any SplitCo Excess Shares that
were transferred to a trust pursuant to Article IV, Section C.2. of
the SplitCo Restated Certificate of Incorporation prior to the Merger Effective
Time (and that continue to be SplitCo Excess Shares immediately prior to the
Merger Effective Time), and any such SplitCo Excess Shares shall be treated as
provided by Section 4.9(f) below.


 


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(c)  Waiver of Restrictions.


 


(i)            The Board may, in its sole
discretion, waive the restrictions set forth in Section 4.9(b) with
respect to a particular Transfer of shares of Equity Stock or a particular
Non-Transfer Event in the event of an inadvertent violation of the provisions
thereof by any Person, so long as such waiver is conditioned upon such Person
promptly disposing (and such Person does in fact promptly dispose) of a
sufficient number of shares of Equity Stock such that any such violation ceases
to exist.


 


(ii)           Notwithstanding Section 4.9(b),
any transfer of shares of Equity Stock by the Corporation to any Person, or by
any Person to the Corporation, shall not constitute a Transfer or a
Non-Transfer Event that is subject to the terms of Section 4.9(b).


 


(d)  Remedies for Breach.  If the Corporation, or its designees, shall
at any time determine in good faith that a Transfer has taken place that
triggers the automatic transfer provisions of Section 4.9(b) above or
that a Person intends to acquire or has attempted to acquire, directly or
indirectly, any shares of Equity Stock, which, if completed, would trigger the
automatic transfer provisions of Section 4.9(b) above, the
Corporation shall, and shall cause its agents to, take such action as it deems
advisable to refuse to give effect to or to prevent such Transfer or
acquisition, including, but not limited to, refusing to give effect to such
Transfer on the stock transfer books of the Corporation or instituting
proceedings to enjoin such Transfer or acquisition, but the failure to take any
such action shall not affect the automatic transfer to a Trust in accordance
with Section 4.9(f) below.


 


(e)  Notice of Restricted Transfer.  Any Person who acquires or attempts to
acquire shares of Equity Stock, which, if such acquisition were completed,
would trigger the automatic transfer provisions of Section 4.9(b) above,
or any Person who owned shares of Equity Stock that were transferred to a Trust
pursuant to Section 4.9(f) below, shall immediately give written
notice to the Corporation of such event and shall provide to the Corporation
such other information as the Corporation may request in order to determine the
effect, if any, of such Transfer or Non-Transfer Event on the tax-free status
of the Split-Off. In the event that a Person determines that Equity Stock has
been acquired, and such acquisition would trigger the automatic transfer provisions
of Section 4.9(b) above, such Person shall immediately give written
notice to the Corporation of such acquisition and shall provide to the
Corporation such other information as the Corporation may request in order to
determine the effect, if any, of such acquisition on the tax-free status of the
Split-Off.


 


(f)  Transfer in Trust.  Upon the DIRECTV Effective Time, the
Corporation shall create, or cause to be created, a Trust, and the audit
committee of the Board shall designate a Trustee. Upon any purported Transfer
or Non-Transfer Event that results in the transfer of Excess Shares to a Trust
pursuant to Section 4.9(b) above, (i) the Corporation shall name
a Beneficiary of the Trust and (ii) such Excess Shares, which shall have
been automatically transferred to such Trust pursuant to Section 4.9(b) above,
shall be held for the exclusive benefit of the Beneficiary. Any transfer of
Excess Shares to a Trust shall be effective as of the close of trading on the
Trading Day prior to the date of the purported Transfer or Non-Transfer Event
that results in the transfer to the Trust. In addition, if a trustee of a trust
holds SplitCo Excess Shares immediately prior to the Merger Effective Time as a
result of the provisions of Article IV, Section C.2. of the SplitCo
Restated Certificate of Incorporation (such trust, the “SplitCo Trust”), the Equity Stock issued
in connection with the Splitco Merger in respect of the SplitCo Excess Shares
will be deemed Excess Shares subject to the provisions of this Section 4.9
(including, for the avoidance of doubt and without limitation, Section 4.9(b)).
In the case of Excess Shares held by the trustee of the SplitCo Trust,
references herein to “Prohibited Owner”, “Trust”, “Trustee” and “Beneficiary”
will have the meanings assigned to such terms in the SplitCo Restated
Certificate of Incorporation. Excess Shares held in trust as described above
shall be issued and outstanding shares of stock of the Corporation.


 


(g)  Dividend Rights; Reorganization.


 


(i)            The Trustee, as record holder of the
Excess Shares, shall be entitled to receive all dividends and distributions and
shall hold all such dividends or distributions in trust for the benefit of the
Beneficiary. The Prohibited Owner shall not be entitled to receive any
dividends or distributions with respect to Excess Shares and shall be required
to repay the amount or return, as applicable, to the Trust any dividends or
distributions received by it (i) that are attributable to any Excess
Shares and, (ii) in the case of Excess Shares transferred to a Trust under
Sections 4.9(b) and (f), the record date of which was on or after the
date that such shares were transferred to a Trust in accordance with Section 4.9(f).
The Corporation shall take all measures that it determines are reasonably necessary
to recover any such dividend or distribution paid or delivered to a Prohibited
Owner, including, if necessary, withholding any portion of future dividends or
distributions payable on shares of Equity Stock purportedly Beneficially Owned
by the Person who, but for the provisions of this Section 4.9, would
Beneficially Own the shares of Equity Stock that were transferred to the Trust
and, as soon as reasonably practicable following the Corporation’s receipt or
withholding thereof, shall pay over to the Trust for the benefit of the
Beneficiary the dividends or distributions so received or withheld, as the case
may be.


 


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(ii)           Notwithstanding the provisions of Section 4.9(g)(i),
the provisions of Section 4.9 shall apply to any shares of Equity Stock
distributed in a Share Distribution in respect of Excess Shares (an “Event”). Any Excess Shares held by the
Trustee following such Event shall continue to be treated as Excess Shares, and
any Equity Stock distributed in respect of such Excess Shares pursuant to such
Event shall be treated as Excess Shares. Following an Event, (x) a
Prohibited Owner shall have the right to receive payment pursuant to Section 4.9(h) or
4.9(k) in respect of each Excess Share attributable to such Prohibited
Owner in an amount adjusted to reflect such Event, and (y) the Corporation’s
purchase price of each Excess Share attributable to a Prohibited Owner pursuant
to Section 4.9(l) shall be adjusted to reflect such Event.


 


(iii)          Notwithstanding the provisions of Section 4.9(g)(i),
and subject to the provisions of Section 4.9(g)(ii), the provisions of Section 4.9
shall apply to any property received in exchange for an Excess Share in any
merger, reorganization, split-off or similar corporate transaction as if such
property constituted an Excess Share, with appropriate adjustments made to
reflect the terms of such exchange.


 


(h)  Liquidation of the Corporation.  In the event of any voluntary or involuntary
liquidation or dissolution of, or winding up of, the Corporation, the Trustee,
as the holder of Excess Shares, shall be entitled to receive, ratably with each
other holder of shares of the same class of Equity Stock, that portion of the
assets of the Corporation that is available for distribution to the holders of
such class of Equity Stock. The Trust shall distribute to the Prohibited Owner
the amounts received with respect to the Excess Shares attributable to such
Prohibited Owner upon such liquidation, dissolution or winding up; provided,
however, that the Prohibited Owner shall not be entitled to receive amounts in
excess of, (I) in the case of a purported Transfer in which the Prohibited
Owner gave value for shares of Equity Stock (or SplitCo Equity Stock) and which
Transfer resulted in the transfer of such shares of Equity Stock (or SplitCo
Equity Stock) to a Trust, the product of (x) the price per share, if any,
such Prohibited Owner paid for such shares of Equity Stock (or SplitCo Equity
Stock) and (y) the number of such shares of such class or series of Equity
Stock (or SplitCo Equity Stock) which were transferred to the Trust, and (II) in
the case of a Non-Transfer Event or purported Transfer in which the Prohibited
Owner did not give value for such shares (e.g., if the shares were received
through a gift or devise), and which Non-Transfer Event or purported Transfer,
as the case may be, resulted in the transfer of the shares to the Trust, the
product of (i) the price per share equal to the Market Price of such class
or series of Equity Stock (or SplitCo Equity Stock) on the date of such
Non-Transfer Event or purported Transfer and (ii) the number of shares of
such class or series of Equity Stock (or SplitCo Equity Stock) which were
transferred to the Trust. Any remaining amount in such Trust shall be
distributed to the Beneficiary.


 


(i)  Voting Rights.  The Trustee, as record holder of the Excess
Shares, shall have all voting rights with respect to those shares, which rights
shall be exercised exclusively for the benefit of the Beneficiary. The
Prohibited Owner shall have no voting rights with respect to any Excess Shares
held in the Trust and, subject to applicable law, effective as of the date the
shares have been transferred to the Trustee, the Trustee shall have the
authority (at the Trustee’s sole discretion) (i) to rescind as void or
revoke any vote by a Prohibited Owner as a purported holder of Excess Shares
prior to the discovery by the Corporation that such shares of Equity Stock have
been transferred to the Trust, in which case the vote of such Excess Shares
shall be void ab initio, and (ii) to
recast such vote in accordance with the desires of the Trustee acting for the
benefit of the Beneficiary; provided, however, that if the Corporation has
already taken irreversible corporate action, then the Trustee shall not have
the authority to rescind and recast such vote.


 


(j)  Restrictions on Transfer; Sale of Excess Shares.


 


(i)            As soon as practicable after the
Trustee acquires Excess Shares and complies with the last sentence of this Section 4.9(j)(i),
but in an orderly fashion so as not to materially adversely affect the trading
price of Equity Stock, the Trustee shall designate one or more Persons as
Permitted Transferees and sell to such Permitted Transferees any Excess Shares
held by the Trustee; provided, however, that (x) any Permitted Transferee
so designated purchases for cash (whether in a public or private sale) the
Excess Shares and (y) a Person may be designated as a Permitted Transferee
only to the extent such Person may acquire the Excess Shares without violating
any of the restrictions set forth in Section 4.9(b) above and without
such acquisition resulting in the transfer of such shares to a Trust pursuant
to Section 4.9(f) above. Subject to the foregoing, the Trustee shall
have the exclusive and absolute right to designate Permitted Transferees of any
and all Excess Shares. Prior to any Transfer by the Trustee of any Excess
Shares to a Permitted Transferee, the Trustee shall give not less than five
Trading Days prior written notice to the Corporation of such intended Transfer
and the Corporation must have waived in writing its purchase rights under Section 4.9(l) below
if such intended Transfer would occur during the 30-day period referred to
therein.


 


(ii)           Upon the designation by the Trustee
of a Permitted Transferee in accordance with the provisions of this Section 4.9(j),
the Trustee shall cause to be Transferred to the Permitted Transferee Excess
Shares acquired by the Trustee and subject to the provisions of this Section 4.9.
The Trustee shall (x) cause to be recorded on the 


 


7

















 


stock transfer books of the
Corporation that the Permitted Transferee is the holder of record of such
number of shares of Equity Stock, and (y) distribute to the Beneficiary
any and all amounts held with respect to such shares of Equity Stock after
making payment to the Prohibited Owner pursuant to Section 4.9(k) below.


 


(iii)          If the Transfer of Excess Shares to a
purported Permitted Transferee would or does violate any of the transfer
restrictions set forth in Section 4.9(b) above, such Transfer shall
be void ab initio as to that
number of Excess Shares that causes the violation of any such restriction when
such shares are Transferred and the purported Permitted Transferee shall be
deemed to be a Prohibited Owner and shall acquire no rights in such Equity
Stock. Such shares of Equity Stock shall be automatically transferred to the
Trust from which they were originally Transferred. Such transfer to the Trust
shall be effective as of the close of trading on the Trading Day prior to the
date of the Transfer to the purported Permitted Transferee and the provisions
of this Section 4.9 shall apply to such shares, including, without
limitation, the provisions of Sections 4.9(j) through 4.9(l) with
respect to any future transfer of such shares by the Trust.


 


(k)  Payments to Prohibited Owner.  Any Prohibited Owner shall be entitled
(following the sale of Excess Shares to a Permitted Transferee in accordance with
Section 4.9(j) above or following the acceptance of the offer to
purchase such shares in accordance with Section 4.9(l) below) to
receive from the Trustee following the sale or other disposition of such Excess
Shares the lesser of (a)(i) in the case of a purported Transfer in which
the Prohibited Owner gave value for shares of Equity Stock (or SplitCo Equity
Stock) and which Transfer resulted in the transfer to a Trust of Excess Shares
(or SplitCo Excess Shares), the product of (x) the price per share, if
any, such Prohibited Owner paid for the shares of such class or series of
Equity Stock (or SplitCo Equity Stock) that were transferred to the Trust and (y) the
number of such shares of such class or series of Equity Stock (or SplitCo
Equity Stock) that were transferred to the Trust and (ii) in the case of a
Non-Transfer Event or purported Transfer in which the Prohibited Owner did not
give value for such shares (e.g., if the shares were received through a
gift or devise) and which Non-Transfer Event or purported Transfer, as the case
may be, resulted in the transfer to a Trust of Excess Shares (or SplitCo Excess
Shares), the product of (x) the price per share equal to the Market Price
of such class or series of Equity Stock (or SplitCo Equity Stock) on the date
of such Non-Transfer Event or purported Transfer and (y) the number of
such shares of such class or series of Equity Stock (or SplitCo Equity Stock)
that were transferred to the Trust, provided, that if the Trustee disposes of
less than all of the Excess Shares attributable to the Prohibited Owner in a
single disposition, the amount determined pursuant to this clause (a) shall
be appropriately adjusted to reflect such partial disposition, or (b) the
proceeds received by the Trustee from the sale or other disposition of such
Excess Shares (net of any commissions and other expenses of sale) in accordance
with Section 4.9(j) above or Section 4.9(l) below. Any
amounts received by the Trustee in respect of such Excess Shares which are in
excess of such amounts to be paid to the Prohibited Owner pursuant to this Section 4.9(k) shall
be distributed to the Beneficiary. The Trustee and the Trust shall not be
liable for, and each Beneficiary and Prohibited Owner shall be deemed to have
irrevocably waived, any claim by a Beneficiary or Prohibited Owner arising out
of the disposition of Excess Shares, except for claims arising out of the gross
negligence or willful misconduct of, or any failure to make payments in
accordance with this Section 4.9(k) by, such Trustee.


 


(l)  Purchase Right in Stock Transferred to Trustee.  Excess Shares shall be deemed to have been
offered for sale to the Corporation, or its designee, at a price per share
equal to the price per share of the class or series of Equity Stock (or SplitCo
Equity Stock) paid by the Prohibited Owner in the purported Transfer that
resulted in the transfer of such Excess Shares (or SplitCo Excess Shares) to
the Trust (or, in the case of a Non-Transfer Event or Transfer in which the
Prohibited Owner did not give value for the shares (e.g., if the shares
were received through a gift or devise), the Market Price of the class or
series of Equity Stock (or SplitCo Equity Stock) on the date of such
Non-Transfer Event or purported Transfer in which the Prohibited Owner did not
give value for the shares); provided, that, if Excess Shares are held in a
Trust pursuant to the fourth sentence of Section 4.9(f) hereof, then
the price per share or Market Price, as applicable, of the applicable series of
SplitCo Equity Stock shall be adjusted to reflect the Splitco Exchange Ratio
(as defined in the Merger Agreement). The Corporation shall have the right to
accept such offer for a period of 30 days following the later of (x) the
date of the Non-Transfer Event or purported Transfer which results in the
transfer of Excess Shares (or SplitCo Excess Shares) to a Trust or (y) the
date the Board first determines that a Non-Transfer Event or Transfer resulting
in Excess Shares (or SplitCo Excess Shares) has occurred, if the Corporation does
not receive a notice of such Non-Transfer Event or Transfer pursuant to Section 4.9(e).


 


(m)  Remedies Not Limited; Interpretations.  Nothing contained in this Article IV
shall limit the authority of the Corporation to take such other action as it
deems necessary or advisable to protect the Corporation and the interests of
its stockholders from potential adverse tax effects that could result from
certain changes in ownership of shares of Equity Stock. Notwithstanding
anything herein to the contrary, the Board shall have the power and authority
to administer the provisions of this Section 4.9 and to make all
interpretations and determinations with respect thereto which, if made in good
faith, and absent manifest error, shall be conclusive and binding.


 


8

















 


(n)  Legend. 
Each certificate for shares of Equity Stock (if and to the extent
certificated) shall bear the following or a similar legend:


 


“The shares
of DIRECTV (the “Corporation”)
represented by this certificate are subject to restrictions on transfer and
otherwise, as set forth in the Corporation’s Amended and Restated Certificate
of Incorporation, including restrictions based upon a holder’s ownership of
shares of Equity Stock, and to automatic transfer to a Trust upon the
occurrence of certain events, all as set forth therein. Capitalized terms used
herein and not defined herein are defined in the Corporation’s Amended and
Restated Certificate of Incorporation.


 


The
Corporation will furnish without charge, to each stockholder who so requests, a
copy of the relevant provisions of the Corporation’s Amended and Restated
Certificate of Incorporation, which set forth the limitations and restrictions
on ownership or transfer of Equity Stock. Any such request may be addressed to
the Secretary of the Corporation or to the transfer agent named on the face
hereof.”


 


(o)  Severability.  Each provision of this Section shall be
severable and an adverse judicial determination as to any such provision or a
judicial modification of such provision shall in no way affect the validity of
any other provisions.


 


(p)  NASDAQ Transactions.  Nothing in this Section 4.9 shall
preclude the settlement of any transaction entered into through the facilities
of the NASDAQ or any other national securities exchange or automated inter-
dealer quotation system. In no event shall the existence or application of the
preceding sentence have the effect of deterring or preventing the transfer to a
Trust of Excess Shares as contemplated herein.


 


(q)  Exemption.  Notwithstanding anything set forth in this Section 4.9
to the contrary, (A) (i) any shares of Equity Stock that are
Beneficially Owned (as defined in the Malone Agreement for purposes of this Section 4.9(q))
by a Malone and (ii) any shares of Equity Stock issued or issuable in
respect of any Malone Awards (as well as the Malone Awards themselves) shall
not be subject to this Section 4.9 and such shares of Equity Stock shall
not be automatically transferable to a Trust or otherwise treated as Excess
Shares, and any transfer of such shares of Equity Stock (or Malone Awards) by a
Malone that is made in accordance with the terms of the Malone Agreement shall
not constitute a Transfer or a Non-Transfer Event that is subject to the terms
of Section 4.9(b), (B) any transfer of shares of Equity Stock in an
Exempt Transfer (as defined in the Malone Agreement) that is made in accordance
with the terms of the Malone Agreement shall not constitute a Transfer or a
Non-Transfer Event that is subject to the terms of Section 4.9(b) and
the shares of Equity Stock so transferred shall not be automatically
transferable to a Trust or otherwise treated as Excess Shares, (C) the
issuance of any shares of Equity Stock to a former holder of Subject Shares in
connection with the exercise of the Redemption Right by the Corporation shall
not constitute a Transfer or a Non-Transfer Event that is subject to the terms
of Section 4.9(b) and the shares of Equity Stock so transferred shall
not be automatically transferable to a Trust or otherwise treated as Excess
Shares, and (D) any transfer of shares of Equity Stock to any Person in
connection with the consummation of the transactions, including the Mergers and
the Malone Contribution (each as defined in the Merger Agreement), specifically
contemplated by the Transaction Agreements shall not constitute a Transfer or a
Non-Transfer Event that is subject to the terms of Section 4.9(b). For the
avoidance of doubt, the provisions of this Section 4.9(q) shall not
affect any obligations of any holder thereof pursuant to Section 4 of the
Malone Agreement.


 


Section 4.10  Consideration
For Class B Common Stock in a Business Combination.  In the event of any merger, consolidation or
other business combination involving the Corporation in which the holders of
Common Stock receive cash, securities or other consideration, the per share
consideration to be received in respect of shares of Class B Common Stock
in such transaction shall not be less than the per share consideration to be
received in respect of shares of Class A Common Stock.


 


Section 4.11  Redemption
Right.


 


Subject to and on the terms
and conditions set forth in this Certificate of Incorporation, the Corporation
has the right to redeem Subject Shares on the terms set forth in this Section 4.11.


 


(a)  Redemption Right.


 


(i)            Upon the death of John C. Malone,
the Corporation shall have the right (the “Redemption
Right”), exercisable during the Redemption Period (as defined below)
by action of the Independent Committee, to redeem all but not less than all of
the Subject Shares held of record by each Malone and each Malone Related Person
(as such term is defined in the Malone Agreement, without regard to
clause (ii) of such definition), and if the Corporation elects to
redeem all Subject Shares from each Malone and each Malone Related Person (as
such term is defined in 


 


9

















 


the Malone Agreement,
without regard to clause (ii) of such definition), to redeem all but
not less than all Subject Shares held by any one or more record owners of
Subject Shares who are not a Malone or a Malone Related Person (as such term is
defined in the Malone Agreement, without regard to clause (ii) of
such definition).


 


(ii)           To exercise the Redemption Right the Corporation
will give a single written notice (the “Corporation
Notice”) to all holders of Subject Shares of its decision to
exercise or not exercise the Redemption Right as to each holder of Subject
Shares, at any time during the period commencing on the later of the date of
the death of John C. Malone and the Merger Effective Time and ending at the
Close of Business on the later of (x) the 50th day after the date on
which any legal action that may be required to confirm the appointment of the
personal representative(s) for the Estate or for the Estate to act through
its personal representative(s) has been completed and (y) the tenth
(10th) day following
the Merger Effective Time (such period, the “Redemption
Period”). The date the Corporation Notice is given to holders of
Subject Shares is referred to as the “Redemption
Exercise Date.” Any Subject Shares not called for redemption
pursuant to a Corporation Notice on the Redemption Exercise Date will no longer
be subject to the Redemption Right.


 


(iii)          The total consideration payable to a
Holder for the Subject Shares to be purchased from such Holder will be an
amount equal to 110% of the product of the Per Share Value, multiplied by the
number of Subject Shares owned by such Holder as of (x) the date such Holder’s
Holder Election Notice (as defined below) is given, or (y) if a Holder’s
Holder Election Notice is not given to the Corporation at least 60 days
prior to the Redemption Closing Date, the number of Subject Shares owned by
such Holder as of the 60th day immediately preceding the Redemption
Closing Date (each such amount, the “Redemption
Price”).


 


(iv)          The Redemption Price will be payable
in cash, in fully paid and nonassessable shares of Class A Common Stock,
or any combination of the foregoing, as each Holder may elect, by written
notice given to the Corporation at least 60 days prior to the Redemption
Closing Date (each, a “Holder Election
Notice”). The Holder Election Notice submitted by each Holder shall
specify the portion, if any, of the Redemption Price to be paid in Class A
Common Stock to such Holder (such portion in respect of such Holder, the “Stock Value”). The Redemption Price less
the Stock Value is herein referred to as the “Redemption
Closing Date Amount”. The Redemption Closing Date Amount together
with the shares of Class A Common Stock, in the combination requested by
the Holder, will be delivered to each such Holder on the Redemption Closing
Date (as defined below). If a Holder’s Holder Election Notice is not given to
the Corporation at least 60 days prior to the Redemption Closing Date,
such Holder shall be deemed to have elected to be paid his, her or its
Redemption Price in cash.


 


(v)           If a Holder has timely elected in
accordance with Section 4.11(a)(iv) to receive any portion of the Redemption
Price in shares of Class A Common Stock, the number of shares of Class A
Common Stock to be delivered to such Holder on the Redemption Closing Date
shall be equal to the quotient obtained by dividing (i) the Stock Value in
respect of such Holder by (ii) the Per Share Value. The shares to be so
delivered on the Redemption Closing Date will not have been registered for sale
under the Securities Act and may not be sold except pursuant to an effective
registration statement or an exemption from the registration requirements of
the Securities Act. The Corporation will be under no obligation to register
such shares for resale except as otherwise provided in a registration rights
agreement to be entered into by the Corporation and the Holders on or prior to
the Redemption Closing Date pursuant to which the Corporation shall grant to
the Holders registration rights with respect to such shares no less favorable
to the Holders than any registration rights heretofore or hereafter granted by
the Corporation or The DIRECTV Group, Inc. to any Person with respect to
shares of capital stock and otherwise on terms customary for similar agreements
of similarly situated well-known seasoned issuers (the “Registration Rights Agreement”). The
certificates for the shares of Class A Common Stock to be delivered to the
Holders on the Redemption Closing Date shall bear a customary legend to the
foregoing effect, but shall be free of any rights of the Corporation hereunder.


 


(vi)          Amounts payable pursuant to the
Redemption Right in cash shall, unless otherwise agreed by the Corporation and
each applicable Holder, be paid by wire transfer of immediately available funds
on or prior to the Redemption Closing Date to an account designated in writing
by each such Holder at least two (2) Business Days before the Redemption
Closing Date.


 


(vii)         The Corporation Notice and the Holder
Election Notice shall each be in writing and shall be deemed given if delivered
personally, facsimiled (which is confirmed) or sent by overnight courier (providing
proof of delivery) to (a) the Corporation at the address specified in the
Malone Agreement, and (b) a holder of Subject Shares, to the address noted
in the stock transfer books of the Corporation for such record holder. Each
such notice shall be deemed given on the date such notice is sent by the sender
thereof.


 


10
















 


(b)  Redemption Closing Date.  The consummation of the redemption of all
Subject Shares (other than those that cease to be subject to the Redemption
Right pursuant to Section 4.11(a)) following the exercise of the
Redemption Right (the “Redemption Closing”)
shall be held at 10:00 a.m. local time on the 155th day following the
Redemption Exercise Date, or such other date and at such other time as the
Holders and the Corporation may agree (the date on which any such Redemption
Closing occurs is referred to herein as the “Redemption
Closing Date”). The Redemption Closing shall take place at the
principal offices of the Corporation or at such other place as the Holders and
the Corporation may agree.


 


(c)  Redemption Closing Deliveries.  At the Redemption Closing, the Corporation
shall pay to the Holder(s) (i) any portion of the Redemption Closing
Date Amount that was required to be paid in cash in the manner provided in Section 4.11(a)(vi),
as and if applicable, and (ii) deliver certificate(s) registered in
the name of the applicable Holder for the number of shares of Class A
Common Stock required to be delivered in payment of the Stock Value portion of
the Redemption Price. At the Redemption Closing (x) the Corporation and
each Holder receiving shares of Class A Common Stock will duly execute and
deliver the Registration Rights Agreement and (y) each of the Holder(s) participating
in the sale shall be required, as a condition to receiving payment, to deliver
to the Corporation (i) a stock certificate or certificates, duly endorsed
for transfer or in blank, representing such Person’s Subject Shares, (ii) if
applicable, copies of Letters Testamentary or other documentation evidencing
the authority of such Person to transfer any of the Subject Shares that are
evidenced by certificates registered in the name of a Person other than such
Seller, (iii) a certificate, executed by or on behalf of such Person, in
which such Person represents and warrants to the Corporation that such Person
has good title to the Subject Shares being sold by him, free and clear of any
liens, claims, charges or encumbrances (other than such liens, claims, charges
and encumbrances created pursuant to the Redemption Right, the Malone Agreement
or federal or state securities laws, and other than any such liens or
encumbrances permitted under the Malone Agreement and which liens or
encumbrances will be released at the Redemption Closing) and has the legal
authority to consummate such sale and (iv) such other certificates and
documents as the Corporation may reasonably request.


 


Section 4.12 
Reclassification.  The
Corporation will not reclassify, subdivide or combine one class of Common Stock
without reclassifying, subdividing or combining each other class of Common
Stock on an equal per share basis.


 


ARTICLE V


 


Section 5.1  Perpetual
Existence.


 


The Corporation shall have
perpetual existence.


 


ARTICLE VI


 


Section 6.1  Composition
of the Board.


 


(a)           The business and affairs of the Corporation shall be
managed by or under the direction of the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not, by
applicable law or this Certificate of Incorporation, directed or required to be
exercised or done by stockholders.


 


(b)           Except as otherwise provided in this Certificate of
Incorporation (including any provisions of the Certificate of Incorporation
relating to the rights of the holders of any series of Preferred Stock), the
number of directors shall be fixed from time to time exclusively by resolution
adopted by the Board in accordance with the By-Laws of the Corporation (the “By-Laws”). Except as otherwise provided by
the By-Laws, the election of directors need not be by written ballot.


 


(c)           The directors of the Corporation at the DIRECTV Effective
Time shall be as provided in the Merger Agreement. The directors of the
Corporation at the Merger Effective Time shall be of one class and shall have a
term which expires at the first annual meeting of stockholders after the Merger
Effective Time, which meeting shall occur during the first full calendar year
following the year in which the Merger Effective Time occurs. Beginning with
such first annual meeting, the Board shall be divided into three classes: Class I,
Class II and Class III, the allocation of directors among such
classes to be consistent with the applicable provisions set forth in the Merger
Agreement. Subject to the terms of the Merger Agreement, the Board is expressly
authorized to assign directors already in office to such classes at the time such
classification becomes effective and to nominate persons for election to each
class at such first annual meeting. Each class shall consist, as nearly as may
be possible, of one-third of the total number of directors constituting the
entire Board. Class I directors shall be initially elected for a term
expiring at the first annual meeting of stockholders held after such first
annual meeting of stockholders. Class II directors shall be initially
elected for a term expiring at the second annual meeting of stockholders held
after such first annual meeting of stockholders. Class III directors shall
be initially elected for a term expiring at the third annual meeting of
stockholders held after such first annual meeting of stockholders. At each
annual meeting of stockholders held after such first annual meeting, successors
to the class of directors whose term expires at that annual meeting shall be
elected in accordance with this Section 6.1(c) of Article VI for
a term expiring at the third succeeding annual meeting of stockholders and
until the election and qualification of their respective successors. If the
number of 


 


11

















 


directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional
director of any class elected to fill a newly-created directorship resulting
from an increase in such class shall hold office in accordance with Section 6.2
of this Article VI, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting at which his or her term expires and until his
or her successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.


 


Section 6.2  Vacancies


 


Except as otherwise provided
for or fixed by or pursuant to the provisions of this Certificate of
Incorporation relating to the rights of the holders of any series of Preferred
Stock, any vacancy on the Board resulting from death, resignation, retirement,
disqualification, removal or other cause and any newly created directorship
resulting from any increase in the authorized number of directors in accordance
with the By-Laws shall be filled only in the manner provided in the By-Laws,
or, if not so provided for therein, by the affirmative vote of (i) a
majority of all the directors then in office, even if less than a quorum, or (ii) a
duly appointed committee of the Board, but in any event not by the
stockholders. Any director so chosen shall hold office until the next election
of the class for which the director shall have been chosen, and until a
successor is duly elected and qualified or until his or her earlier death,
resignation, retirement, disqualification or removal from office in accordance
with this Certificate of Incorporation, the By-Laws or any applicable law or
pursuant to an order of a court. If there are no directors in office, then an
election of directors may be held in the manner provided by the By-Laws or, if
not so provided for therein, by applicable law.


 


Section 6.3  Removal of
Directors; Director Disqualification.


 


Except as otherwise provided
for or fixed by or pursuant to the provisions of this Certificate of
Incorporation relating to the rights of the holders of any series of Preferred
Stock, and subject to the succeeding paragraph of this Section 6.3, (i) no
director may be removed from office without cause and (ii) a director may
be removed for cause only by the affirmative vote of the holders of a majority
of the combined voting power of the then outstanding shares of stock of the
Corporation entitled to vote for the election of directors, voting together as
a single class; provided, however, that prior to the first annual
meeting of stockholders after the Merger Effective Time, directors may be
removed with or without cause by the affirmative vote of the holders of a
majority of the combined voting power of the then outstanding shares of stock
of the Corporation entitled to vote for the election of directors, voting
together as a single class.


 


Unless otherwise determined
by the Board, a Director who, at the time of taking office as a director, is an
employee of the Corporation or any Subsidiary of the Corporation (an “Employee Director”), shall cease to be
qualified to serve as a director and shall automatically cease to be a director
(an “Employee Director Disqualification”)
without any action on the part of the stockholders or the other members of the
Board, if such person ceases to be an employee of the Corporation or any one of
its Subsidiaries, with the disqualification of such director to take place upon
the earliest of (i) such director’s cessation of employment, (ii) delivery
by such Employee Director to the Corporation, or such Subsidiary or
Subsidiaries, as the case may be, of a notice of resignation of employment, or (iii) delivery
by the Corporation or one of its Subsidiaries, as the case may be, to such
Employee Director of a notice of termination of employment.


 


Section 6.4  Election of
Directors by Preferred Stockholders.


 


Notwithstanding the
foregoing, whenever the holders of any one or more series of Preferred Stock
issued by the Corporation shall have the right, voting separately as a series
or separately as a class with one or more such other series, to elect directors
at an annual or special meeting of stockholders, the election, term of office,
removal, filling of vacancies and other features of such directorships shall be
governed by the terms of this Certificate of Incorporation (including any
Preferred Stock Designation relating to any series of Preferred Stock)
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article VI unless expressly provided by such
terms.


 


Section 6.5  Independent
Directors.


 


(a)           The Board shall consist of at least a majority of
Independent Directors (where “Independent
Director” means a Director who qualifies as an “Independent Director” under the By-Laws in
effect from time to time).


 


(b)           The audit committee of the Board shall be comprised solely
of Independent Directors who also satisfy such other standard for service on
such committee as may be set forth from time to time in the By-Laws.


 


(c)           Each of the nominating/corporate governance committee and
the compensation committee of the Board shall be comprised solely of
Independent Directors who also satisfy such other standard for service on such
committee as may be set forth from time to time in the By-Laws.


 


Section 6.6  Notice.  Advance notice of nominations for the
election of directors and business to be transacted at any stockholders meeting
shall be given in the manner and to the extent provided in the By-Laws.


 


12

















 


ARTICLE VII


 


Section 7.1  Meetings of
Stockholders.


 


Subject to any rights
provided to the holders of any outstanding series of Preferred Stock, no action
required or permitted to be taken by the stockholders of the Corporation shall
be effected except at a duly called annual or special meeting of stockholders
of the Corporation called in accordance with the By-Laws, and no action shall
be taken by the stockholders by written consent; provided, however,
that notwithstanding the foregoing, (i) the holders of the Class B
Common Stock may take action by written consent solely for purposes of
providing a Class B Consent, and (ii) the holders of any series of
Preferred Stock may take action by written consent to the extent provided in a
Preferred Stock Designation with respect to such Series. Except as otherwise
required by law and subject to the rights of the holders of any outstanding
series of Preferred Stock, special meetings of stockholders of the Corporation
may be called only (i) by or at the direction of the Board or (ii) if
Section 4.4(d) is in force and effect in accordance with its terms,
by or at the direction of the Board upon the written request of stockholders of
the Corporation who Beneficially Own (as defined in the Malone Agreement),
collectively, 10% or more of the Class A Common Stock then outstanding,
and may not be called by any other person or persons. Business transacted at
any special meeting is limited to the purposes stated in the notice.


 


Section 7.2  No Cumulative
Voting.


 


Shares of capital stock of
the Corporation shall not be entitled to cumulative voting.


 


ARTICLE VIII


 


Section 8.1  Limited
Liability of Directors.


 


To the fullest extent
permitted by the DGCL as amended from time to time, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director. For purposes
of the prior sentence, the term “damages”
shall, to the extent permitted by law, include, without limitation, any
judgment, fine, amount paid in settlement, penalty, punitive damages, excise or
other tax assessed with respect to an employee benefit plan, or expense of any
nature (including, without limitation, counsel fees and disbursements). Each
person who serves as a director of the Corporation while this Section 8.1
is in effect shall be deemed to be doing so in reliance on the provisions of
this Section 8.1, and neither the amendment or repeal of this Section 8.1,
nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Section 8.1, shall apply to or have any effect on
the liability or alleged liability of any director of the Corporation for,
arising out of, based upon, or in connection with any acts or omissions of such
director occurring prior to such amendment, repeal or adoption of an
inconsistent provision.


 


If any provision of this Section 8.1
shall be held to be invalid, illegal or unenforceable as applied to any circumstance
for any reason whatsoever, to the fullest extent possible, the other provisions
of this Section 8.1 (including, without limitation, each such portion of
any paragraph of this Section 8.1 containing any such provision held to be
invalid, illegal or unenforceable) shall be construed so as to permit the
Corporation to protect its directors from personal liability in respect of
their good faith service to or for the benefit of the Corporation to the
fullest extent permitted by law.


 


ARTICLE IX


 


The provisions of this Article IX,
except for this paragraph, are of no force or effect and shall remain of no
force or effect, provided, however, that (i) if the Judgment
Effective Date has not occurred prior to June 30, 2010, then the
provisions of this Article IX shall automatically, and without any action
on the part of the Corporation, the Board or the stockholders of the
Corporation, become effective and be in full force and effect, and (ii) if
the Judgment Effective Date has occurred prior to June 30, 2010, then upon
the Judgment Effective Date, this paragraph shall automatically cease to be of
any force or effect, and this Article IX (including this paragraph) shall
be automatically repealed without any action on the part of the Corporation or
the stockholders of the Corporation and be replaced with the words “Intentionally
Omitted,” and the Corporation will issue a public announcement of such
occurrence.


 


Section 9.1  Certain
Acknowledgments.


 


In recognition and
anticipation that (a) directors and officers of the Corporation who are
not employees of the Corporation (the “Non-Employee
Directors and Officers”) may serve as directors, officers, employees
and agents of any other corporation, company, partnership, association, firm or
other entity, including, without limitation, Subsidiaries and 


 


13

















 


Affiliates of the Corporation (“Other Entity”), (b) the Corporation,
directly or indirectly, may engage and is expected to continue to engage in the
same, similar or related lines of business as those engaged in by any Other
Entity and other business activities that overlap with or compete with those in
which such Other Entity may engage, (c) the Corporation may have an
interest in the same areas of business opportunity as any Other Entity, (d) the
Corporation may engage in material business transactions with any Other Entity
and its Affiliates, including (without limitation) receiving services from,
providing services to or being a significant customer or supplier to such Other
Entity and its Affiliates, and that the Corporation and such Other Entity or
one or more of their respective Affiliates may benefit from such transactions,
and (e) as a consequence of the foregoing, it is in the best interests of
the Corporation that the rights of the Corporation, and the duties of any
Non-Employee Directors and Officers of the Corporation (including any such
persons who are also directors, officers or employees of any Other Entity), be
determined and delineated in respect of (x) any transactions between the
Corporation and its Affiliates, on the one hand, and such Other Entity and its
Affiliates, on the other hand, and (y) any potential transactions or
matters that may be presented to Non-Employee Directors and Officers of the
Corporation, or of which such officers or directors may otherwise become aware,
which potential transactions or matters may constitute business opportunities
of the Corporation or any of its Affiliates, and in recognition of the benefits
to be derived by the Corporation through its continued contractual, corporate
and business relations with such Other Entity and of the benefits to be derived
by the Corporation by the possible service as directors or officers of the
Corporation and its Subsidiaries of Persons who may also serve from time to
time as directors, officers and employees of such Other Entity, the provisions
of this Article IX will, to the fullest extent permitted by law, regulate
and define the conduct of the business and affairs of the Corporation in relation
to such Other Entity and its Affiliates, and as such conduct and affairs may
involve such Other Entity’s respective directors, officers and employees, and
the powers, rights, duties and liabilities of the Corporation and its
Non-Employee Directors and Officers in connection therewith and in connection
with any potential business opportunities of the Corporation. Any Person
purchasing or otherwise acquiring any shares of capital stock of the
Corporation, or any interest therein, will be deemed to have notice of and to
have consented to the provisions of this Article IX. References in this Article IX
to “directors,” “officers” or “employees” of any Person will be deemed to include those
Persons who hold similar positions or exercise similar powers and authority
with respect to any Other Entity that is a limited liability company,
partnership, joint venture or other non-corporate entity.


 


Section 9.2  Duties of
Directors and Officers Regarding Potential Business Opportunities.


 


If a Non-Employee Director
and Officer of the Corporation is offered, or otherwise acquires knowledge of,
a potential transaction or matter that may constitute or present a business
opportunity for the Corporation or any of its Subsidiaries, in which the
Corporation could, but for the provisions of this Article IX, have an
interest or expectancy (any such transaction or matter, and any such actual or
potential business opportunity, a “Potential
Business Opportunity”), (i) such Non-Employee Director and
Officer will, to the fullest extent permitted by law, have no duty or
obligation to refer such Potential Business Opportunity to the Corporation, or
to refrain from referring such Potential Business Opportunity to any Other
Entity, or to give any notice to the Corporation regarding such Potential
Business Opportunity (or any matter related thereto), (ii) any Other
Entity may engage or invest in, independently or with others, any such
Potential Business Opportunity, (iii) the Corporation shall not have any
right in or to such Potential Business Opportunity or to receive any income or
proceeds derived therefrom, and (iv) the Corporation shall have no
interest or expectancy, and hereby specifically renounces any interest or
expectancy, in any such Potential Business Opportunity, unless both the
following conditions are satisfied: (A) such Potential Business
Opportunity was expressly offered to a Non-Employee Director or Officer of the
Corporation solely in his or her capacity as a director or officer of the
Corporation or as a director or officer of any Subsidiary of the Corporation
and (B) such opportunity relates to a line of business in which the
Corporation or any of its Subsidiaries is then directly engaged.


 


Section 9.3  Amendment of Article IX.


 


No alteration, amendment or
repeal of, or adoption of any provision inconsistent with, any provision of
this Article IX will have any effect upon (a) any agreement between
the Corporation or an Affiliate thereof and any Other Entity or an Affiliate
thereof, that was entered into before the time of such alteration, amendment or
repeal or adoption of any such inconsistent provision (the “Amendment Time”), or any transaction
effected in connection with the performance of any such agreement, whether such
transaction is effected before or after the Amendment Time, (b) any
transaction entered into between the Corporation or an Affiliate thereof and
any Other Entity or an Affiliate thereof, before the Amendment Time, (c) the
allocation of any business opportunity between the Corporation or an Affiliate
thereof and any Other Entity before the Amendment Time, or (d) any duty or
obligation owed by any Non-Employee Director and Officer of the Corporation (or
the absence of any such duty or obligation) with respect to any Potential
Business Opportunity which such Non-Employee Director and Officer was offered,
or of which such Non-Employee Director and Officer otherwise became aware,
before the Amendment Time (regardless of whether any proceeding relating to any
of the above is commenced before or after the Amendment Time).


 


14

















 


ARTICLE X


 


Section 10.1  Additional Class B
Consent Rights.


 


So long as any shares of Class B
Common Stock are issued and outstanding, unless the Corporation shall have
obtained a Class B Consent with respect to such amendment, alteration,
repeal, addition or insertion, (x) the Corporation will not amend, alter
or repeal the provisions of this Section 10.1 or any of Sections 4.4,
4.5, 4.6, 4.7, 4.8, 4.9(q), 4.10, 4.11 or 4.12 of this Certificate of
Incorporation (including by merger or consolidation with a Subsidiary of the
Corporation, but subject to the second sentence of this Section 10.1), and
(y) the Corporation will not amend, alter or repeal any provision of this
Certificate of Incorporation or add to or insert any provision in this
Certificate of Incorporation (including by merger or consolidation with a
Subsidiary of the Corporation, but subject to the second sentence of this Section 10.1),
if, solely with respect to this clause (y), (1) such amendment,
alteration, repeal, addition or insertion would result, directly or indirectly,
in the reclassification or recapitalization of the then outstanding shares of
Common Stock into securities of the Corporation or any of its Subsidiaries (or securities
convertible into or exchangeable for, or which evidence the right to purchase,
securities of the Corporation) and (2)(A) the securities to be held or
received by the holders of Class B Common Stock as a result of such
reclassification or recapitalization (and, if such securities are Convertible
Securities, the Underlying Securities with respect thereto) would have no
voting power, or would have Per Share Voting Power of less than fifteen times
the Per Share Voting Power of the securities (and, if such securities are
Convertible Securities, the Underlying Securities with respect thereto) to be
held or received as a result of such reclassification or recapitalization by
the holders of shares of Class A Common Stock (or, if there are two or
more other classes of Common Stock then outstanding, that class of Common Stock
holding or receiving, as a result of such reclassification or recapitalization,
securities (and, if such securities are Convertible Securities, the Underlying
Securities with respect thereto) having the next highest Per Share Voting Power
relative to the securities (and, if such securities are Convertible Securities,
the Underlying Securities with respect thereto) to be held or received by the
holders of Class B Common Stock), or (B) the securities to be held or
received by the holders of Class C Common Stock as a result of such
reclassification or recapitalization (and, if such securities are Convertible
Securities, the Underlying Securities with respect thereto) would be entitled
to vote with respect to matters upon which securities holders of the issuer
thereof are generally entitled to vote (other than to an extent no greater than
the holders of Class C Common Stock are entitled to vote upon matters as
provided in this Certificate of Incorporation). For the avoidance of doubt, (1) this
Section 10.1 is not intended to and shall not limit the ability of the
Corporation to enter into an agreement of merger or consolidation in connection
with an acquisition, change of control, or other business combination
transaction pursuant to which the outstanding shares of Common Stock are to be
converted into or exchanged for cash, stock, securities or property of another
Person or Persons not affiliated with the Corporation, or of any Person affiliated
with the Corporation if as part of such transaction the holders of shares of
Common Stock or other equity securities of another Person not affiliated with
the Corporation will also be converted into or exchanged for cash, stock,
securities or property of such Person affiliated with the Corporation, whether
or not such merger, consolidation or other business combination transaction
would result in or involve, directly or indirectly, any of the actions set
forth in clauses (x) and (y) in the first sentence of this Section 10.1,
and (2) no Class B Consent shall be required in connection therewith
except in the case of any such agreement of merger or consolidation entered
into solely with one or more Subsidiaries or Affiliates of the Corporation for
the purpose of evading the restrictions and limitations set forth in this Section 10.1.


 


ARTICLE XI


 


Section 11.1  Certain
Defined Terms.  Unless
specifically provided to the contrary or the context otherwise requires, the
terms defined below will have, for all purposes of this Amended and Restated
Certificate of Incorporation, the meanings herein specified:


 


“Affiliate” means, with respect to any
Person, any other Person that directly or indirectly through one or more
intermediaries Controls, is Controlled by, or is under common Control with such
Person, and with respect to a natural Person, such Person’s immediate family
members and any trust, partnership, limited liability company or similar
vehicle established and maintained for the benefit of such first Person.


 


“Beneficial Ownership” shall mean
beneficial ownership for U.S. federal income tax purposes. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the
correlative meanings.


 


“Beneficiary” shall mean, with respect to
the Trust, one or more organizations described in each of Section 170(b)(l)(A) (other
than clauses (vii) and (viii) thereof) and Section 170(c)(2) of
the Code that are named by the Corporation as the beneficiary or beneficiaries
of such Trust, in accordance with the provisions of Section 4.9(f) above;
provided that for purposes of Excess Shares held in a trust pursuant to the
fourth sentence of Section 4.9(f) hereof, “Beneficiary” shall have
the meaning assigned to it in the SplitCo Restated Certificate of Incorporation.


 


15

















 


“Class A Consent” means the consent or
affirmative vote of the holders of a majority of the outstanding shares of Class A
Common Stock, voting as a separate class, which consent or affirmative vote may
be obtained at an annual or special meeting of stockholders of the Corporation
or by written consent pursuant to this Certificate of Incorporation.


 


“Class A Convertible Securities” means
Convertible Securities convertible into or exercisable or exchangeable for
shares of Class A Common Stock.


 


“Class B Consent” means the prior
consent or affirmative vote of the holders of a majority of the outstanding
shares of Class B Common Stock, voting as a separate class, which consent
or affirmative vote may be obtained at an annual or special meeting of
stockholders of the Corporation or by written consent pursuant to this
Certificate of Incorporation.


 


“Class B Convertible Securities” means
Convertible Securities convertible into or exercisable or exchangeable for
shares of Class B Common Stock.


 


“Class C Convertible Securities” means
Convertible Securities convertible into or exercisable or exchangeable for
shares of Class C Common Stock.


 


“Close of Business” has the meaning
ascribed thereto in the Malone Agreement.


 


“Code” shall mean the Internal Revenue Code
of 1986, as amended, and any successor thereto.


 


“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
agreement, or otherwise. The terms “Controls”,
“Controlled” and “Controlling” will have corresponding
meanings.


 


“Convertible Securities” means (x) any
securities of the Corporation (other than any class of Common Stock) that are
directly or indirectly convertible into or exchangeable for, or that evidence
the right to purchase, directly or indirectly, securities of the Corporation or
any other Person, whether upon conversion, exercise, exchange, pursuant to anti-dilution
provisions of such securities or otherwise, and (y) any securities of any
other Person that are directly or indirectly convertible into or exchangeable
for, or that evidence the right to purchase, directly or indirectly, securities
of such Person or any other Person (including the Corporation), whether upon
conversion, exercise, exchange, pursuant to anti-dilution provisions of such
securities or otherwise.


 


“DIRECTV Effective Time” shall have the
meaning set forth in the Merger Agreement.


 


“DIRECTV Merger” shall have the meaning set
forth in the Merger Agreement.


 


“Equity Stock” shall mean any and all
shares, interests, participation rights or other equivalents (however
designated, whether voting or nonvoting) of capital stock, membership interests
or equivalent ownership interests in or issued by the Corporation; it being
understood that Equity Stock shall include shares of Common Stock of the
Corporation.


 


“Estate” has the meaning ascribed thereto
in the Malone Agreement.


 


“GAAP” means generally accepted accounting
principles in the United States as in effect from time to time.


 


“Holder” means the record holder of any
Subject Shares with respect to which the Redemption Right is exercised in
accordance with Section 4.11.


 


“Independent Committee” means a committee
of the Board of Directors consisting exclusively of Independent Directors, as
determined in accordance with the By-Laws of the Corporation.


 


“Judgment Effective Date” means the date on
which the final approval and entry of judgment by the Court of Chancery of the
State of Delaware pursuant to the Stipulation of Settlement becomes final and
no longer subject to further direct appeal or other direct review, whether by
exhaustion of any possible appeal, lapse of time, or otherwise.


 


“Liberty” shall have the meaning set forth
in the Merger Agreement.


 


“Malone” or “Malones” shall have the meaning set forth in the Malone
Agreement.


 


“Malone Agreement” means the Voting and
Right of First Refusal Agreement, dated as of May 3, 2009, as it may be
amended from time to time, by and among Liberty Entertainment, Inc., a
Delaware corporation, The 


 


16

















 


DIRECTV Group, Inc., a
Delaware corporation, the Corporation, Dr. John C. Malone, Mrs. Leslie
Malone, The Tracy L. Neal Trust A and The Evan D. Malone Trust A.


 


“Malone Awards” shall have the meaning set
forth in the Malone Agreement.


 


“Market Price” of any class or series of
Equity Stock (or SplitCo Equity Stock) means, on any date of determination:


 


(1)           if, at the date of determination, the
security is reported on the NASDAQ—Global Select Market or listed on a national
securities exchange in the United States, then the Market Price shall be deemed
to be the Volume Weighted Average Trading Price of the daily sales prices as
reported on the NASDAQ—Global Select Market, and, if not so listed, shall be
deemed to be the Volume Weighted Average Trading Price of the daily sales
prices as reported on such national securities exchange other than the
NASDAQ—Global Select Market or on the New York Stock Exchange, as applicable,
in each case for the five (5) consecutive Trading Days preceding and
ending on the Trading Day immediately prior to the date of determination.


 


(2)           if, at the date of determination, the
security is not so listed or reported, but a “regular,
active public market” exists for such security (as determined in the
good faith, sole discretion of the Board, whose decision shall be conclusive
and binding), then the Market Price shall be deemed to be the Volume Weighted
Average Trading Price of the daily bid and ask quotations in the
over-the-counter market for the security for the five (5) consecutive
Trading Days preceding and ending on the Trading Day immediately prior to the
date of determination. For purposes of the foregoing, a market in which trading
is sporadic and the ask quotations generally exceed the bid quotations by more
than 15% shall not be deemed to be a “regular,
active public market;” or


 


(3)           if, at the date of determination,
neither clause (1) nor clause (2) of this definition
applies, then the Market Price shall be deemed to be the fair market value of
the security as determined in the good faith, sole discretion of the Board,
whose determination shall be conclusive and binding.


 


“Merger Agreement” shall mean the Agreement
and Plan of Merger, dated as of May 3, 2009, as it may be amended from
time to time, by and among Liberty, Splitco, The DIRECTV Group, Inc., the
Corporation, DTVG One, Inc. and DTVG Two, Inc.


 


“Merger Effective Time” shall have the
meaning set forth in the Merger Agreement.


 


“Non-Transfer Event” shall mean an event
(other than a purported Transfer) occurring after the Merger Effective Time
that would cause or result in a direct or indirect increase in the percentage
of any Person’s ownership of the outstanding shares of Equity Stock (as
determined by reference to Section 355(e) of the Code, taking into
account applicable constructive ownership rules and any Treasury
regulations promulgated thereunder), provided that the consummation of the
transactions, including the Mergers and the Malone Contribution (each as
defined in the Merger Agreement), specifically contemplated by the Transaction
Agreements (and the receipt of, or transfer of, shares of Equity Stock in
connection therewith) shall not result in or constitute a “Non-Transfer Event”; and provided, further,
that the redemption, purchase or other acquisition by the Corporation or any of
its Subsidiaries of shares of Equity Stock shall not result in or constitute a “Non-Transfer Event.” “Non-Transfer Event” shall also include an
event (other than a purported Transfer) occurring before the Merger Effective
Time that resulted in the transfer to a trust of SplitCo Excess Shares in
exchange for which Equity Stock was issued in the Splitco Merger.


 


“Per Share Value” means the average of the
Market Prices of the Class A Common Stock for the period of 30 consecutive
trading days ending on the last trading day prior to the date of John C.
Malone’s death, appropriately adjusted to take into account any stock dividends
on the Class A Common Stock, or any stock splits, reclassifications or
combinations of the Class A Common Stock, during the period following the
first of such 30 trading days and ending on the last full trading day
immediately preceding the Redemption Closing Date; provided, that if John C. Malone’s death occurs prior to the
date of issuance of the Class A Common Stock or if the Class A Common
Stock is not traded regular way on any date within such 30 consecutive trading
day period, then references in this definition to “Class A Common Stock” for each such date shall be to
the common stock, par value $0.01 per share, of The DIRECTV Group, Inc.
The Per Share Value will be appropriately adjusted after the determination
thereof to reflect the effects of any stock split, stock dividend, reverse
split and similar event occurring after the date of determination of such Per
Share Price.


 


“Permitted Transferees” shall mean any
Person designated as a Permitted Transferee in accordance with the provisions
of Section 4.9(j) above.


 


 


17

















 


“Person” shall mean (a) an individual
or any corporation, partnership, limited liability company, estate, trust,
association, private foundation, joint stock company or any other entity, (b) a
“group” as the term is used for
purposes of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended; but shall not include an underwriter that participates in a public
offering of stock (including Equity Stock) for a period of 90 days
following purchase by such underwriter of such stock, and (c) a “person” as such term is used in Section 355(e) of
the Code.


 


“Prohibited Owner” shall mean, with respect
to any purported Transfer or Non-Transfer Event, any Person who is prevented
from becoming or remaining the owner of record title to shares of Equity Stock
by the provisions of Section 4.9; provided that for purposes of Excess
Shares held in a trust pursuant to the fourth sentence of Section 4.9(f) hereof,
“Prohibited Owner” shall have the meaning assigned to it in the SplitCo
Restated Certificate of Incorporation.


 


“Prohibited Party” shall mean,
collectively, (x) any Person that had an agreement, understanding,
arrangement, or engaged in substantial negotiations (within the meaning of
Treasury Regulation Section 1.355-7), in each case, regarding an
acquisition of Equity Stock, or capital stock of Liberty, Splitco or The
DIRECTV Group, Inc. during the two (2) year period preceding the
Split-Off and (y) (i) any Person from whom ownership of Equity Stock
would be attributed to the Person described in clause (x) hereof for
purposes of Section 355(e) of the Code and (ii) any member of a “coordinating group” as defined in Treasury
Regulation Section 1.355-7(h)(4) that includes the Person described
in clause (x) hereof (or any Person from whom ownership of Equity
Stock would be attributed to such member for purposes of Section 355(e) of
the Code).


 


“Prohibition Period” shall mean the period
beginning at the Split-Off Effective Time and ending on the day after the date
that is the one year anniversary of the date of the Split-Off Effective Time;
provided that if, (a) prior to the day after the date that is the one year
anniversary of the date of the Split-Off Effective Time, a Prohibited Party
enters into an agreement, understanding, arrangement or substantial
negotiations (within the meaning of Treasury Regulation Section 1.355-7)
(collectively, an “Agreement”)
which contemplates a transaction which, if consummated prior to such day, would
constitute a Transfer or Non-Transfer Event that would result in Excess Shares
being transferred to a Trust and (b) such Prohibited Party entered into an
Agreement with respect to such transaction or a similar acquisition (within the
meaning of Treasury Regulation Section 1.355-7) on or prior to the date of
the Split-Off Effective Time, then with respect to such Prohibited Party only,
the Prohibition Period shall be extended until the later to occur of one day
after (i) the date that is the two year anniversary of the date of the
Split-Off Effective Time, and (ii) the date that is the six month
anniversary of the date such transaction is consummated or such Agreement is
terminated, as the case may be.


 


“Prospective Purchaser” has the meaning ascribed
thereto in the Malone Agreement.


 


“Public Transfer” means a Transfer that (i) is
effected on any stock exchange, in the over-the-counter market, or on any
electronic screen-based or automated securities trading market and (ii) which
involves a broker, dealer or market maker.


 


“Purported Beneficial Transferee” shall
mean, with respect to any purported Transfer of Beneficial Ownership of shares
of Equity Stock that results in the automatic transfer of Excess Shares to a
Trust, the purported transferee of Beneficial Ownership of such shares if such
purported Transfer had not been prohibited by Section 4.9.


 


“Purported Record Transferee” shall mean,
with respect to any purported Transfer of Beneficial Ownership of shares of
Equity Stock that results in the automatic transfer of Excess Shares to a
Trust, the purported record transferee of such shares if such purported
Transfer had not been prohibited by Section 4.9.


 


“Split-Off” shall have the meaning set
forth in the Merger Agreement.


 


“Split-Off Effective Time” shall have the
meaning set forth in the Merger Agreement.


 


“Splitco” shall have the meaning set forth
in the Merger Agreement.


 


“SplitCo Equity Stock” shall have the
meaning set forth in the SplitCo Restated Certificate of Incorporation for “Equity
Stock.”


 


“SplitCo Excess Shares” shall have the
meaning set forth in the SplitCo Restated Certificate of Incorporation for “Excess
Shares.”


 


“Splitco Merger” shall have the meaning set
forth in the Merger Agreement.


 


18

















 


“SplitCo Restated Certificate of Incorporation”
shall mean the Restated Certificate of Incorporation of Splitco dated November
19, 2009, without giving effect to any amendment thereof subsequent to such
date.


 


“Stipulation of Settlement” means the
Stipulation and Agreement of Compromise, Settlement and Release made and
entered into on October 16, 2009, by and among the parties to the action
captioned In re The DirecTV Group, Inc.,
Shareholder Litig., Consolid. C.A. No. 4581-VCP, pending before
the Court of Chancery of the State of Delaware, by their respective undersigned
counsel.


 


“Subject Shares” means the shares of Class B
Common Stock outstanding at the time of the exercise of the Redemption Right
that are not held of record by any Prospective Purchaser or any direct or
indirect transferee of any Prospective Purchaser which transferee is not a
Member (as defined in the Malone Agreement).


 


“Subsidiary” when used with respect to any
Person, means any other Person (1) of which (x) in the case of a
corporation, at least (A) 50% of the equity or (B) 50% of the voting
interests are owned or Controlled, directly or indirectly, by such first
Person, by any one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries or (y) in the case of any Person other than a
corporation, such first Person, one or more of its Subsidiaries, or such first
Person and one or more of its Subsidiaries (A) owns at least 50% of the
equity interests thereof or (B) has the power to elect or direct the
election of at least 50% of the members of the governing body thereof or
otherwise has Control over such organization or entity; or (2) that is
required to be consolidated with such first Person for financial reporting
purposes under GAAP.


 


“Trading Day” shall mean 9:30 a.m.
through 4:00 p.m., Eastern Time, of any day on which the principal
national securities exchange on which any of the shares of Equity Stock (or
SplitCo Equity Stock) are listed or admitted to trading is open for the
transaction of business or, if none of the shares of Equity Stock (or SplitCo
Equity Stock) are listed or admitted to trading on any national securities
exchange, any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.


 


“Transaction Agreements” shall have the
meaning set forth in the Merger Agreement.


 


“Transfer” (as a noun) shall mean any sale,
transfer, gift, assignment, devise or other disposition of Beneficial Ownership
of Equity Stock occurring after the Merger Effective Time, whether voluntary or
involuntary and whether by operation of law or otherwise, provided that, solely for purposes of Section 4.9,
the consummation of the transactions, including the Mergers and the Malone
Contribution (each as defined in the Merger Agreement), specifically
contemplated by the Transaction Agreements (and the receipt of, or transfer of,
shares of Equity Stock in connection therewith) shall not result in or
constitute a “Transfer.” “Transfer”
(as a verb) shall have the correlative meaning. “Transfer” shall also include
any sale, transfer, gift, assignment, devise or other disposition occurring
prior to the Merger Effective Time that resulted in the transfer to a trust of
SplitCo Excess Shares in exchange for which Equity Stock was issued in the
Splitco Merger.


 


“Trust” shall mean the trust created and
administered in accordance with the terms of Section 4.9(f), for the
exclusive benefit of any Beneficiary; provided that for purposes of Excess
Shares held in a trust pursuant to the fourth sentence of Section 4.9(f) hereof,
“Trust” shall have the meaning assigned to it in the SplitCo Restated
Certificate of Incorporation.


 


“Trustee” shall mean any Person,
unaffiliated with both the Corporation and any Prohibited Owner (and, if
different than the Prohibited Owner, the Person who would have had Beneficial
Ownership of the Equity Stock that would have been owned of record by the
Prohibited Owner), designated by the audit committee of the Board to act as
trustee of the Trust, or any successor trustee thereof; provided that for
purposes of Excess Shares held in a trust pursuant to the fourth sentence of Section 4.9(f) hereof,
“Trustee” shall have the meaning assigned to it in the SplitCo Restated
Certificate of Incorporation.


 


“Underlying Securities” means, with respect
to any class or series of Convertible Securities, the class or series of
securities into which such class or series of Convertible Securities are
directly or indirectly convertible, or for which such Convertible Securities
are directly or indirectly exchangeable, or that such Convertible Securities
evidence the right to purchase or otherwise receive, directly or indirectly.


 


“Volume Weighted Average Trading Price”
means, with respect to any Trading Day, the weighted average of the reported
per share prices at which transactions in the relevant Equity Stock (or SplitCo
Equity Stock) are executed on the NASDAQ or other national securities exchange
during such Trading Day (weighted based on the number of shares of the relevant
Equity Stock or SplitCo Equity Stock traded), as such weighted average price
appears on the Bloomberg screen “Volume at
Price” page for such Equity Stock (or SplitCo Equity Stock).


 


 


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“Voting Securities” means the Class A
Common Stock, Class B Common Stock and any series of Preferred Stock which
by the terms of its Preferred Stock Designation is designated as a voting
security, provided that each such
series of Preferred Stock will be entitled to vote together with the other
Voting Securities only as and to the extent expressly provided for in the
applicable Preferred Stock Designation or as may be required under the laws of
the State of Delaware.


 


ARTICLE XII


 


Section 12.1  Amendment of
By-Laws.


 


(a)           In furtherance and not in limitation of the powers
conferred by the DGCL and subject to Section 12.1(b) below, the Board
is expressly authorized to adopt, amend or repeal the By-Laws at any meeting of
the Board by the affirmative vote of a majority of the whole Board unless the
By-Laws require a vote of a larger portion of the Board for the adoption,
amendment or repeal of the By-Laws (or any provisions thereof) in which case
the Board may adopt, amend or repeal such By-Laws (or such provisions thereof)
only with such vote of a larger portion of the Board, or by taking action by
unanimous written consent. Subject to Section 12.1(b) below, the
By-Laws may also be altered, amended or repealed at any meeting of stockholders,
or at any special meeting of the holders of shares of stock entitled to vote
thereon called by the Board for that purpose, by the affirmative vote of not
less than a majority of the voting power of all outstanding shares of all
classes and series of capital stock of the Corporation entitled to vote
thereon, voting as a single class.


 


(b)           Notwithstanding Section 12.1(a) hereof and
paragraph (a) of Article IX of the By-Laws, the definition of
Qualifying Director (as defined in the By-Laws), Section 12 of Article II
of the By-Laws and Section 6 of Article III of the By-Laws may be
altered, amended or repealed only by (i) the approval of a majority of the
whole Board (which must include the unanimous approval of the Qualifying
Directors (as defined in the By-Laws) then serving on the Board) or (ii) the
approval of the holders of a majority of the voting power of the outstanding
shares of Class A Common Stock (other than shares held by the Malones); provided, however,
that no such amendment by the Board pursuant to the preceding clause (i) may
be made prior to the third anniversary of the Merger Effective Time (as defined
in the Merger Agreement); provided,
further, that Section 12 of Article II
of the By-Laws, Section 6 of Article III of the By-Laws and this Section 12.2
shall cease to be of any force or effect and shall be automatically repealed
without any action on the part of the Corporation or the stockholders of the
Corporation and replaced with the words “Intentionally Omitted” (and the
Corporation will issue a public announcement of such occurrence) upon the
earliest to occur of (x) such time as the Malones in the aggregate do not
own shares of Class B Common Stock entitling them to vote at least 10% of
the combined voting power of all outstanding shares of Class A Common
Stock and Class B Common Stock, (y) the death of Mr. John C.
Malone and (z) June 30, 2010, if the Judgment Effective Date has not
occurred as of such date.


 


Section 12.2  Amendment of
Certificate of Incorporation.


 


Subject to compliance with Section 10.1,
the Corporation reserves the right at any time, and from time to time, to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by law, and all rights,
preferences and privileges conferred upon stockholders, directors or any other
persons herein are granted subject to this reservation.


 


ARTICLE XIII


 


Section 13.1  Severability.


 


If any provision or
provisions of this Certificate of Incorporation shall be held to be invalid,
illegal or unenforceable as applied to any circumstance for any reason
whatsoever the validity, legality and enforceability of such provisions in any
other circumstance and of the remaining provisions of this Certificate of
Incorporation (including, without limitation, each portion of any paragraph of
this Certificate of Incorporation containing any such provision held to be
invalid, illegal or unenforceable that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby.


 


IN WITNESS WHEREOF, the
Corporation has caused this Amended and Restated Certificate of Incorporation
to be executed on its behalf by the undersigned authorized officer on November
18, 2009.


 


	
   

  	
  By:

  	
  
  /s/ Larry D. Hunter

  

  Name: Larry D. Hunter

  Title: Executive Vice President

  



 


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