UPDATED, 9:55 AM WRITETHRU: CEO Greg Maffei says the battle for Sirius XM isn’t over yet. Liberty, which is controlled by John Malone, just agreed to a forward purchase contract it plans to exercise early in Q3 enabling it to raise its stake in the satellite radio company to about 45.2% from 40%. Maffei says the contract sets a price of $650M for 302M Sirius XM shares, or $2.15 a share. (Sirius XM closed yesterday at $2.17.) ”We thought it was attractive financially,” Maffei told analysts this morning. But more to the point, it ”will have a bearing on our application” at the FCC to have regulators turn Sirius XM’s broadcast licenses over to Liberty — in effect, ruling that it controls the satellite radio broadcaster. Last week the FCC staff rejected Liberty’s application to transfer control of Sirius XM’s licenses, saying it hasn’t proven yet that it runs the company. But Maffei says Liberty intends to file a motion asking regulators to reconsider the decision. With its stock holdings, and control over five of the 13 board seats, “we have the ability to have quite a bit of influence,” Maffei says.
The CEO says he believes that Liberty could raise its ownership stake in Sirius XM above 50% without first getting FCC permission, although at some point it would need regulators’ approval to take legal control over the broadcast licenses. He avoided saying, though, whether Liberty wants to run Sirius XM — or whether it might simply be a part of one of Malone’s famously complex financial deals, often designed to help him minimize tax payments. For example, if Liberty controlled Sirius XM it could use a gambit known as a Reverse Morris Trust: Liberty could spin the satellite broadcaster off to its shareholders who’d then merge it with another entity — in effect enabling Liberty to sell its Sirius XM holdings paying for the capital gains on its investment. Liberty invested $530M in Sirius XM in 2009, when the broadcaster was in danger of defaulting on its debt; that stake is now worth about $3.2B. ”We’re as enthusiastic about this business as anything we see in the marketplace,” Maffei says. But he adds: “We will weigh all of our options.”