EXHIBIT 10.24
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of December 18, 2002, by and between ECHOSTAR COMMUNICATIONS
CORPORATION, a Nevada corporation (the "Company"), VIVENDI UNIVERSAL, S.A., a
societe anonyme organized under the laws of France (the "Parent"), and
FINANCIERE DE VIDEOCOMMUNICATION, a societe anonyme organized under the laws of
France and an indirect wholly owned subsidiary of Parent (the "Seller").
WHEREAS, the Company and Parent entered into an Investment Agreement,
dated as of December 14, 2001 ("Investment Agreement"), pursuant to which the
Parent purchased from the Company 5,760,479 shares (the "Preferred Shares") of
Series D Mandatorily Convertible Participating Preferred Stock, par value $0.01
per share (the "Preferred Stock"), of the Company;
WHEREAS, the Company and Parent also entered into a Contingent Value
Rights Agreement, dated as of January 22, 2002 ("CVR Agreement"), pursuant to
which the Company issued and delivered to the Parent contingent value rights
("CVRs"); and
WHEREAS, the Seller now desires, on behalf of and for the sole benefit
of Parent, to sell and the Purchaser desires to purchase the Shares;
NOW, THEREFORE, in consideration of the foregoing, the parties hereby
covenant and agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares. Subject to the terms and
conditions of this Agreement, the Company agrees to purchase at the Closing (as
defined in Section 1.2 below), and the Seller, on behalf of and for the sole
benefit of Parent, agrees to sell and transfer to the Company at the Closing,
the Preferred Shares. In accordance with Section 5.1(a)(iii) of the Certificate
of Designations establishing the Preferred Stock, immediately prior to the
purported sale, assignment, transfer or other disposition by Parent or the
Seller of any of the Preferred Shares to a person other than a Permitted
Transferee (as defined in such Certificate), each such Preferred Share shall
automatically convert into ten (10) fully paid and nonassessable shares of Class
A Common Stock, par value $0.01 per share ("Common Stock"), of the Company.
Accordingly, at the Closing, the Company will purchase, and the Seller, on
behalf of and for the sole benefit of Parent, will sell and transfer to the
Company, the 57,604,790 shares of Common Stock (the "Shares") into which the
Preferred Shares shall have converted automatically immediately prior to the
consummation of the purchase and sale contemplated hereby, at a purchase price
per share, in cash, of $18.50, representing an aggregate purchase price of
$1,065,688,615 (the "Purchase Price").
Section 1.2 Closing Date. The consummation of the purchase and sale of
the Shares (the "Closing") shall be held at the offices of Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
parties mutually agree upon in writing, at 10:00 a.m. on December 23, 2002 (the
"Closing Date").
Section 1.3 Delivery and Payment. On the Closing Date, the Seller shall
deliver to the Company the certificate representing the Preferred Shares,
properly endorsed for transfer or accompanied by a duly executed stock power in
a form acceptable to the Company, and the Company shall deliver to the Seller,
the aggregate purchase price for the Shares by means of a wire transfer of
immediately available ("same day") funds to such account as shall have been
designated by the Seller to the Company in writing not less than 24 hours prior
to the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Parent and the
Seller, at and as of the date of this Agreement and at and as of the Closing
Date, as follows:
Section 2.1 Governmental Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation of the
transactions contemplated hereby require no action of the Company by or in
respect of, or filing with, any governmental body, agency or official
("Governmental Entity"), other than the Company's compliance with its
obligations under the U.S. federal securities laws and any applicable stock
market listing rules or policies.
Section 2.2 Authority; Execution and Delivery; and Enforceability.
Purchaser has full power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Purchaser of this Agreement and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. Purchaser has duly executed and delivered this Agreement and
this Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
Section 2.3 No Conflicts; Consents. (a) The execution and delivery by
Purchaser of this Agreement does not, and the consummation of the transactions
contemplated hereby and compliance by Purchaser with the terms hereof, will not
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of any lien upon any of the properties or
assets of Purchaser or any of its subsidiaries under, any provision of (i) the
certificate of incorporation or by-laws of Purchaser or any of its subsidiaries,
(ii) any contract to which Purchaser or any of its subsidiaries is a party or by
which any of their respective properties or assets is bound or (iii) any
judgment or applicable law applicable to Purchaser or any of its subsidiaries or
their respective
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properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and are not
reasonably likely to have a material adverse effect on the consummation of
transactions contemplated hereby and compliance by Purchaser with the terms
hereof.
(b) Except for the filings by Purchaser which may be required by the
U.S. Federal Securities Laws and any applicable stock market listing rules or
policies, no consent, authorization or order of, or filing with, any
Governmental Entity or other person is required to be obtained or made by the
Purchaser for the execution, delivery and performance of this Agreement, except
where the failure to obtain such consents, authorizations or orders, or make
such filings, individually or in the aggregate, have not had and are not
reasonably likely to have a material adverse effect on the ability of the
Purchaser to timely perform its obligations under this Agreement.
Section 2.4 FIRPTA. The Company is not, and has not been during the
five-year period ending on the date hereof or the Closing Date, as the case may
be, a "United States real property holding corporation" within the meaning of
Section 897(c)(2) of the Internal Revenue Code of 1986, as amended.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND PARENT
The Seller and Parent hereby represent and warrant to the Company, at
and as of the date of this Agreement and at and as of the Closing Date, as
follows:
Section 3.1 Ownership of Shares. The Seller (i) is the record and
beneficial owner of the Preferred Shares, (ii) owns the Preferred Shares free
and clear of any lien or other encumbrance other than as provided in the
Investment Agreement and the Certificate of Designations for the Preferred
Stock, and (iii) has the right to transfer the Preferred Shares, upon the
conversion thereof in accordance with Section 1.1, to the Company, in each case
free and clear of any lien or encumbrance, in accordance with the terms of this
Agreement.
Section 3.2 Authority; Execution and Delivery; and Enforceability.
Seller and Parent have full power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Seller and Parent of this Agreement and the consummation by them of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. Seller and Parent have duly executed and delivered this
Agreement and this Agreement constitutes their legal, valid and binding
obligation, enforceable against it in accordance with its terms.
Section 3.3 No Conflicts; Consents. (a) The execution and delivery by
Seller and Parent of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance by Seller and Parent with the
terms hereof, will not conflict with, or result in any violation of or default
(with or without notice or lapse of
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time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any lien upon any of the properties or assets of Seller or
Parent or any of their subsidiaries under, any provision of (i) the certificate
of incorporation or by-laws of Seller or Parent or any of their subsidiaries,
(ii) any contract to which Seller or Parent or any of their subsidiaries is a
party or by which any of their respective properties or assets is bound or (iii)
any judgment or applicable law applicable to Seller or Parent or any of their
subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and are not reasonably likely to have a material adverse
effect on the consummation of transactions contemplated hereby and compliance by
Seller and Parent with the terms hereof.
(b) Except for the filings by Seller or Parent which may be required by
the U.S. Federal Securities Laws and any applicable stock market listing rules
or policies, no consent, authorization or order of, or filing with, any
Governmental Entity or other person is required to be obtained or made by the
Seller or Parent for the execution, delivery and performance of this Agreement,
except where the failure to obtain such consents, authorizations or orders, or
make such filings, individually or in the aggregate, have not had and are not
reasonably likely to have a material adverse effect on the ability of the
Seller or Parent to timely perform its obligations under this Agreement.
Section 3.4 Termination of CVRs. The Seller and Parent acknowledge and
agree that consummation of the transactions contemplated hereby will constitute
a transfer of the Shares from the Seller to an entity other than a wholly-owned
subsidiary of the Seller or Parent and, accordingly, that any and all CVRs
issued and delivered by the Company to the Seller or Parent pursuant to the CVR
Agreement shall automatically terminate and become null and void pursuant to
Section 1.04 of the CVR Agreement upon the Closing.
Section 3.5 No Reliance; Information. The Seller and Parent acknowledge
and represent that their decision to enter into this Agreement and to sell the
Shares is made upon such independent investigation of the Company and its
affairs as the Seller and Parent may have deemed necessary, and that in making
its decision to enter into this Agreement, they have not relied upon any
representation or warranty, written or oral, by the Company or any of its
directors, officers or affiliates, other than those contained in this Agreement,
or upon any disclosure of information by the Company or any such persons, other
than such information as may be disclosed in the Company's filings with the U.S.
Securities and Exchange Commission and other public announcements. The Seller
and Parent also acknowledge and agree (a) that the Company is not obligated to
provide any information to the Seller or Parent with respect to the Company and
its affairs in addition to that which is publicly available; (b) that they are
entering into this Agreement and propose to sell the Shares to the Company with
the understanding that
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there may or may not be information in the possession of the Company and its
directors or officers that could be relevant to an investor's decision to
purchase or sell shares of Common Stock but that the Company has not otherwise
been obligated to disclose publicly under applicable laws; and (c) that the
Seller and Parent, on behalf of themselves and all of their affiliates, hereby
waive and release any claim that they may now or hereafter have, in connection
with the transactions contemplated by this Agreement, with respect to any such
information about the Company and its affairs that may be or may not have been
disclosed to them, publicly or otherwise.
Section 3.6 Governmental Authorization. The execution, delivery and
performance by the Seller and Parent of this Agreement and the consummation of
the transactions contemplated hereby require no action of the Seller or Parent
or any of their affiliates by or in respect of, or filing with, any Governmental
Entity other than as provided in Section 3.5.
Section 3.7 Securities Exchange Act of 1934 -- Filings. The Seller and
Parent acknowledge their obligation to report the transactions contemplated
hereby in an amendment to its Schedule 13D and in a Form 4.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1 Condition to the Seller's Obligation. The Seller's
obligation to sell the Shares to the Purchaser is subject only to the condition
that the Seller shall receive at the Closing immediately available ("same day")
funds in the full amount of the Purchase Price.
Section 4.2 Condition to the Purchaser's Obligation. The obligation of
the Purchaser to purchase and pay for the Shares at the Closing is subject only
to the condition that the Seller shall have delivered to the Company the
certificates representing the Preferred Shares, duly endorsed or otherwise in
proper form for transfer as provided in Section 1.3.
Section 4.3 Conditions to Obligations of the Parties. The respective
obligations of the Company and the Seller and Parent to consummate the purchase
and sale contemplated hereby is subject to the conditions that no temporary
restraining order, preliminary or permanent injunction or other order or decree
issued by a court of competent jurisdiction or Governmental Entity of competent
jurisdiction that would prohibit the consummation of the transactions
contemplated by this Agreement shall have been issued and remain in effect, and
that no statute, rule or regulation shall have been enacted by any Governmental
Entity which prevents the consummation of the transactions contemplated by this
Agreement.
ARTICLE V
MISCELLANEOUS
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Section 5.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts to be performed wholly in such State.
Section 5.2 Survival. The representations, warranties and agreements of
the parties set forth in Articles II and III shall survive the closing of the
transactions contemplated hereby.
Section 5.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors of the parties hereto.
Section 5.4 Entire Agreement; Amendment; Certain Terminations. This
Agreement is intended by the parties as a final expression of their agreement
and constitutes the full and entire understanding and agreement among the
parties with regard to the subject matter hereof. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only by a written consent executed by the Company and the Seller
and Parent or the waiving party, as applicable. The parties acknowledge and
agree that, effective upon the consummation of the purchase and sale
contemplated by Section 1.1, each of the CVR Agreement and the Registration
Rights Agreement (as defined in the Investment Agreement) shall terminate in
accordance with their terms.
Section 5.5 Notices and Other Communications. Any notice or other
communication required or contemplated by this Agreement by either party shall
be made in writing by personal delivery, by facsimile transmission, by courier
guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if by personal delivery,
(ii) upon confirmation, if made by facsimile transmission, (iii) one business
day after being deposited with such courier, if made by overnight courier or
(iv) on the date indicated on the notice of receipt, if made my first-class
mail, to the parties as follows:
To the Company: EchoStar Communications Corporation
0000 Xxxxx Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Fax: 000-000-0000
with a copy to: Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. X'Xxxxx, Esq.
Fax: 000-000-0000
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To the Seller Vivendi Universal
and Parent: 00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Attn: Xx. Xxxx-Xxxxxx Levy
Fax: 00-0-00-00-00-00
with a copy to: Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Fax: 000-000-0000;
or at such other address as the intended recipient previously shall have
designated by written notice to the other party (with copies to counsel as may
be indicated herein).
Section 5.6 Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 5.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Execution and delivery of this Agreement by
exchange of facsimile copies bearing the facsimile signature of a party hereto
shall constitute a valid and binding execution and delivery of this Agreement by
such party. Such facsimile copies shall constitute enforceable original
documents.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth in the first paragraph hereof.
ECHOSTAR COMMUNICATIONS CORPORATION
By:
--------------------------------
Name:
Title:
VIVENDI UNIVERSAL, S.A.
By:
--------------------------------
Name:
Title:
FINANCIERE DE VIDEOCOMMUNICATION
By:
--------------------------------
Name:
Title:
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