EXECUTION COPY
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STOCK PURCHASE AGREEMENT
AMONG
ECHOSTAR COMMUNICATIONS CORPORATION,
XXXXXX ELECTRONICS CORPORATION,
XXXXXX COMMUNICATIONS GALAXY, INC.,
XXXXXX COMMUNICATIONS SATELLITE SERVICES, INC.
AND
XXXXXX COMMUNICATIONS, INC.
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Dated as of October 28, 2001
TABLE OF CONTENTS
Section Page
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Article I SALE AND PURCHASE OF SHARES.......................................1
1.1 Sale and Purchase of Shares.........................................1
Article II PURCHASE PRICE AND PAYMENT........................................2
2.1 Amount of Purchase Price............................................2
2.2 Form of Consideration...............................................2
2.3 Failure to Receive Purchaser Financing..............................3
2.4 Payment of Purchase Price...........................................3
3.1 Alternative Transaction.............................................3
3.2 Conditions..........................................................4
3.3 Voting Agreement....................................................4
Article IV CLOSING AND TERMINATION...........................................4
4.1 Closing Date........................................................4
4.2 Termination of Agreement............................................5
4.3 Procedure Upon Termination..........................................6
4.4 Effect of Termination...............................................6
Article V REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND XXXXXX..........6
5.1 Organization and Good Standing......................................6
5.2 Authorization of Agreement..........................................6
5.3 Conflicts; Consents of Third Parties................................7
5.4 Litigation..........................................................8
5.5 Voting Agreements...................................................8
5.6 Ownership and Transfer of Shares....................................8
5.7 PanAmSat SEC Documents..............................................8
5.8 Absence of Certain Changes..........................................8
5.9 Related Party Transactions..........................................9
5.10 Capitalization......................................................9
5.11 Financial Advisors..................................................9
Article VI REPRESENTATIONS AND WARRANTIES OF
PURCHASER.........................................................9
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Section Page
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6.1 Organization and Good Standing......................................9
6.2 Authorization of Agreement..........................................9
6.3 Conflicts; Consents of Third Parties...............................10
6.4 Litigation.........................................................10
6.5 Investment Intention...............................................10
6.6 Financial Advisors.................................................11
6.7 Financing..........................................................11
6.8 Absence of Inducement..............................................11
6.9 Ownership of Common Stock..........................................11
6.10 Ownership and Transfer of Purchaser Shares.........................11
6.11 Purchaser SEC Documents............................................12
6.12 Absence of Certain Changes.........................................12
Article VII COVENANTS........................................................12
7.1 Access to Information..............................................12
7.2 Conduct of the Business Pending the Closing........................12
7.3 Regulatory.........................................................14
7.4 Other Actions......................................................16
7.5 Publicity..........................................................17
7.6 Stockholders' Agreement............................................17
7.7 Take-Along Rights..................................................17
7.8 Exchange Offer.....................................................18
7.9 Notification of Certain Matters....................................18
7.10 Intercompany Obligations...........................................18
7.11 Tax Allocation Agreement...........................................19
7.12 Actions Pursuant to the Stockholders' Agreement....................19
Article VIII CONDITIONS TO CLOSING............................................19
8.1 Mutual Conditions..................................................19
8.2 Conditions Precedent to Obligations of Purchaser...................20
8.3 Conditions Precedent to Obligations of the Sellers.................21
Article IX DOCUMENTS TO BE DELIVERED........................................22
9.1 Documents to be Delivered by the Seller............................22
9.2 Documents to be Delivered by Purchaser.............................22
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Section Page
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Article X INDEMNIFICATION..................................................22
10.1 Indemnification by Xxxxxx and the Sellers..........................22
10.2 Indemnification by Purchaser.......................................23
10.3 Limitations on Indemnification.....................................24
10.4 Exclusive Remedy...................................................24
10.5 Notice and Payment of Claims.......................................24
10.6 Procedure for Indemnification - Third Party Claims.................25
Article XI MISCELLANEOUS....................................................27
11.1 Certain Definitions................................................27
11.2 Payment of Sales, Use or Similar Taxes.............................29
11.3 Knowledge..........................................................29
11.4 Survival of Representations and Warranties.........................29
11.5 Commercially Reasonable Efforts....................................29
11.6 Expenses...........................................................30
11.7 Specific Performance...............................................30
11.8 Further Assurances.................................................30
11.9 Submission to Jurisdiction; Consent to Service of Process..........30
11.10 Entire Agreement; Amendments and Waivers...........................30
11.11 Governing Law......................................................31
11.12 Table of Contents and Headings.....................................31
11.13 Notices............................................................31
11.14 Severability.......................................................32
11.15 Binding Effect; Assignment.........................................32
11.16 Counterparts.......................................................33
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EXHIBITS
Exhibit A - Ownership of Shares
Exhibit B - Continuing Obligations
Exhibit C - Form of Registration Rights Agreement
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SCHEDULES
Schedule 5.3 - Euripides' Consents
Schedule 5.8 - Xxxxxx and Sellers' Certain Changes
Schedule 5.9 - Related Party Transactions
Schedule 6.3 - Xxxxxx and Sellers' Consents
Schedule 6.12 - Euripides' Certain Changes
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of October 28, 2001 (the "Agreement"), among
EchoStar Communications Corporation, a Nevada corporation (the "Purchaser"),
Xxxxxx Electronics Corporation, a Delaware corporation ("Xxxxxx"), Xxxxxx
Communications Galaxy, Inc., a California corporation ("HCGI"), Xxxxxx
Communications Satellite Services, Inc., a California corporation ("HCSSI") and
Xxxxxx Communications, Inc., a California corporation ("HCI" and, collectively
with HCGI and HCSSI, the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers own an aggregate of 120,812,175 shares of common
stock, par value $0.01 per share ("Company Common Stock"), of PanAmSat
Corporation, a Delaware corporation (the "Company"), which shares constitute
approximately 80.6% of the issued and outstanding shares of capital stock of the
Company as of October 23, 2001; and
WHEREAS, the Sellers desire to sell to Purchaser, and Purchaser desires
to purchase from the Sellers, the Shares (as defined below) for the purchase
price and upon the terms and conditions hereinafter set forth; and
WHEREAS, certain terms used in this Agreement are defined in Section
11.1;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares. Upon the terms and subject to the
conditions contained herein, on the Closing Date each Seller shall sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser shall purchase from
each Seller, the number of shares of Company Common Stock owned by such Seller
set forth opposite such Seller's name on Exhibit A hereto, plus any additional
shares of Company Common Stock that may be acquired by Xxxxxx, the Sellers or
any Subsidiary of Xxxxxx or the Sellers after the date hereof, whether through
purchase, stock split, stock dividend or otherwise (if and to the extent any
such Persons (other than the Sellers) acquire shares of Company Common Stock
after the date hereof, such Persons shall be deemed to be Sellers under this
Agreement; and all such shares of Company Common Stock (including
shares acquired after the date hereof) to be sold pursuant to this Agreement are
collectively referred to herein as the "Shares").
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.1 Amount of Purchase Price. The purchase price per Share shall be an
amount equal to $22.47. The aggregate purchase price for all Shares purchased
hereby is referred to herein as the "Purchase Price".
2.2 Form of Consideration.
(a) In the event the Merger Agreement is terminated pursuant to Section
7.1(b)(i)(A)(1) or 7.1(c)(iv) thereof, then, subject to Section 2.3 below, the
Purchase Price shall be payable in cash, provided that Purchaser may, in its
sole discretion, pay up to $600,000,000.00 of the Purchase Price in shares
("Purchaser Shares") of Class A common stock, $0.01 par value per share, of
Purchaser ("Purchaser Common Stock").
(b) In the event the Merger Agreement is terminated by Xxxxxx pursuant
to Section 7.1(b)(i)(A)(3) thereof, then, subject to Section 2.3 below, the
Purchase Price shall be payable solely in cash.
(c) In the event the Merger Agreement is terminated pursuant to (i)
Section 7.1(c)(vii) thereof, or (ii) pursuant to Section 7.1(b)(ii) thereof as a
result of the failure of the condition set forth in Section 6.1(e) thereof (each
such termination, a "Financing Termination"), then the Purchase Price shall be
payable as follows:
(x) $1,500,000,000.00 in cash; and
(y) Purchaser shall use commercially reasonable efforts to pay
the remaining amount of the Purchase Price (the "Remainder") in cash
(including by raising cash through the issuance of equity or debt
securities or otherwise); provided that if Purchaser is unable to pay
the Remainder in cash (after using commercially reasonable efforts to
try to do so), the Remainder shall be payable by delivery to the
Sellers of a note in an aggregate principal amount equal to the
Remainder, having terms and conditions mutually acceptable to
Purchaser and Xxxxxx; provided, further, that if the parties cannot
agree on the terms and conditions of such note, then an amount equal
to 50% of the Remainder shall be payable in Purchaser Shares and an
amount equal to 50% of the Remainder shall be payable in subordinated
notes with an aggregate principal amount equal to 50% of the
Remainder, which notes shall have a term no greater than five years,
an interest rate of LIBOR plus 500 basis points, and other customary
terms as are reasonably acceptable to Purchaser and Xxxxxx.
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For purposes of this Section 2.2, the value of any Purchaser Shares to
be delivered in partial payment of the Purchase Price shall be determined on the
basis of the average (rounded to the nearest 1/10,000, or if there shall not be
a nearest 1/10,000, to the next highest 1/10,000) of the Volume Weighted Average
Trading Prices (as defined below) of Purchaser Common Stock for each of the ten
(10) consecutive trading days ending on and including the trading day
immediately prior to the Closing Date (as defined below).
2.3 Failure to Receive Purchaser Financing. Notwithstanding anything to
the contrary in Section 2.2, in the event that the PanAmSat Purchase Financing
(as defined in the Merger Agreement) is not obtained by Purchaser at or prior to
the Closing Date, then the Purchase Price shall be payable in accordance with
Section 2.2(c), regardless of the section of the Merger Agreement pursuant to
which the Merger Agreement was terminated.
2.4 Payment of Purchase Price. On the Closing Date, Purchaser shall pay
(a) the cash portion of the Purchase Price to the Sellers by wire transfer of
immediately available funds into accounts designated by the Sellers and
allocated among the Sellers in accordance with their pro rata ownership of the
Shares as set forth on Exhibit A; (b) the portion of the Purchase Price, if any,
to be paid in Purchaser Shares by delivering to the Sellers certificates
evidencing Purchaser Shares due in payment of the Purchase Price and (c) the
portion of the Purchase Price, if any, to be paid in debt securities of
Purchaser, by delivering to the Sellers certificates evidencing such securities
for the payment of the Purchase Price.
ARTICLE III
3.1 Alternative Transaction. Notwithstanding anything to the contrary
contained herein, if at any time after the date hereof and on or prior to the
earlier of the Closing and the termination of this Agreement, (a) Purchaser and
the Company shall enter into an agreement (a "PanAmSat Merger Agreement")
providing for a merger (a "PanAmSat Merger") pursuant to which Purchaser (which
term shall include, for purposes of this Article III, the Surviving Corporation
(as defined in the Merger Agreement)) would acquire, directly or indirectly
through a wholly owned Subsidiary of Purchaser, all of the issued and
outstanding shares of Company Common Stock (the "Company Shares"), or (b)
Purchaser shall commence a tender offer (as it may be amended from time to time,
the "Tender Offer") to purchase all (and not less than all) of the issued and
outstanding Company Shares for cash or a combination of cash and Purchaser
Shares, then, subject to the conditions set forth in Section 3.2 below and
subject to Applicable Law, the obligations of Purchaser under Articles I and II
and Sections 7.7 (other than the first sentence thereof) and 7.8, may be
satisfied by Purchaser by the consummation of the PanAmSat Merger or the
acceptance of the Shares for payment (which would constitute the Closing
hereunder) on or prior to the consummation of the Tender Offer. In no event
shall the entry by Purchaser (or any Subsidiary of Purchaser) into the PanAmSat
Merger Agreement, if any, or the making of the Tender
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Offer, if any, or any of the terms and conditions thereof, affect the rights and
obligations of the parties hereunder except as expressly provided in this
Article III.
3.2 Conditions. The obligations of Purchaser under Articles I and II
may be satisfied by Purchaser as provided in Section 3.1 only if the following
conditions shall have been satisfied (or waived by Xxxxxx and the Sellers in
their sole discretion):
(a) the consideration to be received by the Sellers for the Shares
shall be in an amount equal to or in excess of the Purchase Price and, except as
provided in (b) below, shall be in cash;
(b) In the event the Merger Agreement is terminated pursuant to Section
7.1(b)(i)(A)(1) or 7.1(c)(iv) thereof, Purchaser may pay a portion of the
consideration to be received by the Sellers for the Shares in the form of
Purchaser Shares; provided, that the value of any such Purchaser Shares (valued
in accordance with the second sentence of Section 2.2) shall not exceed the
lesser of (i) $600,000,000.00 and (ii) the product of (A) a fraction, the
numerator of which is the aggregate value of all non-cash consideration received
by all holders of Company Common Stock other than the Sellers (the "Other
Holders") and the denominator of which is the aggregate amount of cash plus the
value of all non-cash consideration received by the Other Holders for their
shares of Company Common Stock and (B) the Purchase Price; and
(c) if Purchaser shall not earlier have purchased the Shares at the
Closing pursuant to Section 2.4, the consummation of the PanAmSat Merger or the
Tender Offer, as the case may be, shall occur prior to or on the date on which
the Closing would otherwise occur pursuant to Section 4.1, and payment for the
Shares shall be made promptly upon the surrender of certificates for the Shares
as contemplated by the terms of the PanAmSat Merger Agreement or at or prior to
the consummation of the Tender Offer, as the case may be.
3.3 Voting Agreement. In the event that Purchaser proposes to enter
into a PanAmSat Merger Agreement, each of the Sellers will execute and deliver
to Purchaser a Voting Agreement, in customary form reasonably acceptable to both
parties, providing for each Seller to vote its Shares in favor of the PanAmSat
Merger.
ARTICLE IV
CLOSING AND TERMINATION
4.1 Closing Date. Subject to the satisfaction of the conditions set
forth in Article VIII hereof (or the waiver thereof by the party entitled to
waive that condition), the closing of the sale and purchase of the Shares
provided for in Section 1.1 hereof (the "Closing") shall take place at 10:00
a.m. at the offices of Weil, Gotshal & Xxxxxx LLP located at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx (or at such other time and place as the parties may designate
in writing) on the later of (a) the date which is sixty (60) days after
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the date of termination of the Merger Agreement and (b) the date which is three
(3) Business Days after the day on which the last to be fulfilled or waived of
the conditions set forth in Article VIII hereof shall have been fulfilled or
waived (other than any of such conditions that by their nature are to be
fulfilled at the Closing, but subject to the fulfillment or waiver of such
conditions) (the "Closing Date").
4.2 Termination of Agreement.
(a) This Agreement may be terminated prior to the Closing as follows:
(i) by mutual written consent duly authorized by the respective Boards
of Directors of Xxxxxx and Purchaser;
(ii) by Xxxxxx or Purchaser if the purchase and sale of the Shares
contemplated hereby shall not have been consummated within nine (9) months
after the satisfaction of the condition set forth in Section 8.1(d) hereof,
unless such period shall be extended by the Boards of Directors of both
Xxxxxx and Purchaser (provided that the right to terminate this Agreement
under this Section 4.2(a)(ii) shall not be available to Xxxxxx or
Purchaser, as applicable, if its failure to perform any material covenant
or obligation under this Agreement has been the cause of or resulted in the
failure of the purchase and sale of the Shares to occur on or before such
date);
(iii) by Xxxxxx or Purchaser if there shall be in effect any permanent
injunction or other Order of a court of competent jurisdiction or other
competent Governmental Body preventing the purchase and sale of the Shares
contemplated hereby which shall have become final and nonappealable and,
prior to such termination, the parties shall have used best efforts to
resist, resolve or lift, as applicable, such injunction or other Order;
(iv) by Xxxxxx or Purchaser if the Merger Agreement shall have been
terminated pursuant to its terms, other than a termination pursuant to
Section 7.1(b)(i)(A)(1), 7.1(b)(i)(A)(3), 7.1(c)(iv), 7.1(c)(vii) or
7.1(b)(ii) as a result of the failure of the condition set forth in Section
6.1(e) of the Merger Agreement;
(v) by Xxxxxx or Purchaser, if a material breach of any provision of
this Agreement has been committed by the other party and such breach has
not been waived and cannot be cured by the date set forth in Section
4.2(a)(ii) hereof; and, in the case of a breach by Xxxxxx, such breach has
resulted in a PanAmSat Material Adverse Effect; provided, that termination
pursuant to this Clause (v) shall not relieve the breaching party of
liability for such breach or otherwise; or
(vi) by Xxxxxx, during the thirty-day period immediately following a
Financing Termination.
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(b) This Agreement shall terminate automatically upon the consummation
of the Merger (as defined in the Merger Agreement).
(c) This Agreement shall terminate automatically upon the satisfaction
by Purchaser of its obligations under Section 1.1 in accordance with Article
III.
4.3 Procedure Upon Termination. In the event of termination of this
Agreement by Purchaser or Xxxxxx, or both, pursuant to Section 4.2 hereof,
written notice thereof shall forthwith be given to the other party or parties,
and this Agreement shall terminate, and the purchase of the Shares hereunder
shall be abandoned, without further action by Purchaser, the Sellers or Xxxxxx.
If this Agreement is terminated as provided herein, each party shall redeliver
all documents, work papers and other material of any other party relating to the
transactions contemplated hereby, whether so obtained before or after the
execution hereof, to the party furnishing the same.
4.4 Effect of Termination. In the event that this Agreement is validly
terminated prior to Closing as provided herein, then each of the parties shall
be relieved of its duties and obligations arising under this Agreement after the
date of such termination, and such termination shall be without liability to
Purchaser, Xxxxxx or either Seller; provided, however, that the obligations of
the parties set forth in Sections 7.5, 11.6, 11.7, 11.9, 11.10, 11.11 and 11.15
hereof shall survive any such termination and shall be enforceable hereunder;
provided, further, however, that nothing in this Section 4.4 shall relieve
Purchaser, Xxxxxx or either Seller of any liability for a breach of this
Agreement or invalidate the provisions of the Confidentiality Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS AND XXXXXX
The Sellers and Xxxxxx hereby jointly and severally represent and
warrant to Purchaser that:
5.1 Organization and Good Standing. Each of the Sellers, Xxxxxx and, to
the knowledge of Xxxxxx, the Company and its Subsidiaries, is a corporation duly
organized, validly existing and is in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority to conduct its
business as it is now being conducted.
5.2 Authorization of Agreement. Each of the Sellers and Xxxxxx has all
requisite corporate power and authority to enter into this Agreement and each
other agreement, document, instrument or certificate to be entered into by such
party in connection with the consummation of the purchase and sale of the Shares
contemplated by this Agreement (together with this Agreement, the "Seller
Documents"), and to consummate the transactions contemplated hereby and thereby.
The execution and
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delivery of this Agreement and each Seller Document by the Sellers and Xxxxxx,
as applicable, and the consummation of the transactions contemplated thereby to
be effected by the Sellers and Xxxxxx, as applicable, have been (or will be
prior to execution and delivery thereof) duly authorized by all necessary
corporate action on the part of the Sellers and Xxxxxx, as applicable. This
Agreement has been, and each of the Seller Documents will be at or prior to the
Closing, duly executed and delivered by each Seller and Xxxxxx, as applicable,
and, assuming the due authorization, execution and delivery by the other parties
hereto and thereto, this Agreement constitutes, and each of the Seller Documents
when so executed and delivered will constitute, the legal, valid and binding
obligations of each Seller and Xxxxxx, as applicable, enforceable against each
of them in accordance with its terms, except as enforceability may be limited by
bankruptcy, similar laws of debtor relief and general principles of equity.
5.3 Conflicts; Consents of Third Parties. Except as set forth on
Schedule 5.3 hereto, the execution and delivery by Xxxxxx and the Sellers of
this Agreement and the Seller Documents and the consummation of the transactions
contemplated hereby or thereby will not (i) violate any provision of the
certificate of incorporation or by-laws of Xxxxxx or the Sellers; (ii) violate,
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with the giving of notice, the passage of time or
otherwise, would constitute a default) under, require the consent of any party
under, or entitle any party (with the giving of notice, the passage of time or
otherwise) to terminate, accelerate, modify or call a default under, or result
in the creation of any Lien upon any of the properties or assets of Xxxxxx or
the Sellers under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, intellectual property or other license,
contract, undertaking, agreement, lease or other instrument or obligation to
which Xxxxxx or either Seller is a party, including the Stockholders' Agreement;
(iii) violate any Order, writ, injunction, decree, statute, rule or regulation
applicable to Xxxxxx or either Seller; or (iv) require any consent or approval
of or registration or filing by Xxxxxx or any of its Affiliates (including the
Company and its Subsidiaries) with, any third party or any Governmental Body,
other than (a) actions required by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder
(the "HSR Act"), and any similar laws of foreign jurisdictions and (b)
registrations or other actions required under federal, state and foreign
securities laws; except, in the case of clauses (ii) (but excluding application
to the Stockholders' Agreement), (iii) and (iv), for any of the foregoing that,
individually or in the aggregate, could not reasonably be expected to materially
delay or burden the consummation by Xxxxxx or either Seller of the transactions
contemplated by this Agreement. Schedule 5.3 sets forth a true, complete and
correct list of any material consents, waivers, authorizations or approvals
required to be obtained under any agreement, license, lease, contract, loan,
note, mortgage, indenture or other commitment or obligation (whether written or
oral and express or implied), under which Xxxxxx or either Seller is or may
become bound or is or may become subject to any obligation or liability or by
which any of their respective assets owned or used are or may become bound in
connection with the execution, delivery and performance of this Agreement by
Xxxxxx and either Seller or consummation of the transactions contemplated
herein.
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5.4 Litigation. As of the date hereof, there are no Legal Proceedings
pending or, to the knowledge of Xxxxxx, threatened that are reasonably likely to
prohibit or restrain the ability of Xxxxxx or either Seller to enter into this
Agreement or consummate the transactions contemplated hereby.
5.5 Voting Agreements. Except for the Stockholders' Agreement and the
PanAmSat Voting Agreement, if any, neither Xxxxxx nor either Seller is a party
to any voting trust or other voting agreement with respect to any of the Shares
or to any agreement relating to the issuance, sale, redemption, transfer or
other disposition of the capital stock of the Company.
5.6 Ownership and Transfer of Shares. Each Seller is the sole record
and beneficial owner of the number of Shares indicated as being owned by such
Seller on Exhibit A, free and clear of any and all Liens, other than the
Stockholders' Agreement and restrictions imposed by federal or state securities
laws. Each Seller has the corporate power and authority to sell, transfer,
assign and deliver such Shares as provided in this Agreement, and such delivery
will convey to Purchaser good and valid title to such Shares, free and clear of
any and all Liens, other than the Stockholders' Agreement and restrictions
imposed by federal or state securities laws. Other than with respect to the
Stockholders' Agreement or any federal or state securities laws, no legend or
other reference to any purported Lien appears upon any certificate representing
the Shares.
5.7 PanAmSat SEC Documents.
(a) To Xxxxxx' knowledge, the Company has timely filed with the U.S.
Securities and Exchange Commission ("SEC") all required reports, filings,
registration statements and other documents to be filed by them with the SEC
since January 1, 2000.
(b) To Xxxxxx' knowledge, as of its filing date, or as amended or
supplemented prior to the date hereof, each PanAmSat SEC Document complied as to
form in all material respects with the applicable requirements of the Exchange
Act and the Securities Act.
(c) To Xxxxxx' knowledge, no PanAmSat SEC Document, as of its filing
date, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
5.8 Absence of Certain Changes. To the knowledge of Xxxxxx, except as
set forth in Schedule 5.8 and except as contemplated hereby, since September 30,
2001, there has been no (i) PanAmSat Material Adverse Effect or (ii) development
that has had or could reasonably be expected to have a material adverse impact
on the ability of Xxxxxx to consummate the transactions contemplated by this
Agreement.
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5.9 Related Party Transactions. Except as set forth in Schedule 5.9 or
as disclosed in the PanAmSat SEC Documents, since January 1, 2000, there have
been no material transactions, agreements, arrangements or understandings
between the Company or its Subsidiaries, on the one hand, and Xxxxxx and its
Affiliates (other than Subsidiaries of the Company), on the other hand, that
would be required to be disclosed under Item 404 of Regulation S-K under the
Securities Act.
5.10 Capitalization. To the knowledge of Xxxxxx, as of September 30,
2001, the authorized capital stock of the Company consisted of 400,000,000
shares of Common Stock and 50,000,000 shares of preferred stock, par value $.01
per share (the "Preferred Stock"). To the knowledge of Xxxxxx, as of October 23,
2001, (i) 149,847,692 shares of Common Stock were issued and outstanding and
(ii) no shares of Preferred Stock were issued and outstanding. To the knowledge
of Xxxxxx, all the outstanding shares of the Company's capital stock are duly
authorized, validly issued, fully paid and non-assessable.
5.11 Financial Advisors. Except for obligations to Xxxxxxx, Sachs &
Co., Credit Suisse First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Bear, Xxxxxxx & Co. Inc., neither Xxxxxx nor any of its
Affiliates, stockholders, directors, officers or employees has incurred or will
incur on behalf of Xxxxxx or any of its Affiliates, any brokerage, finder's or
similar fee in connection with the transactions contemplated by this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Xxxxxx and the Sellers (it
being understood that the representations and warranties contained in Sections
6.10 and 6.11 shall be deemed made by Purchaser only if Purchaser determines to
pay a portion of the Purchase Price in Purchaser Shares) that:
6.1 Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and is in good standing under the laws of the State
of Nevada, with full power and authority to conduct its business as it is now
being conducted.
6.2 Authorization of Agreement. Purchaser has all requisite corporate
power and authority to enter into this Agreement and each other agreement,
document, instrument or certificate to be entered into by Purchaser in
connection with the consummation of the purchase and sale of the Shares
contemplated by this Agreement (together with this Agreement, the "Purchaser
Documents"), and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and each Purchaser Document by
Purchaser and the consummation of the transactions contemplated thereby to be
effected by Purchaser have been (or will be prior to execution and delivery
thereof) duly authorized by all necessary corporate action on
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the part of Purchaser. This Agreement has been, and each of Purchaser Documents
will be at or prior to the Closing, duly executed and delivered by Purchaser
and, assuming the due authorization, execution and delivery by the other parties
hereto and thereto, this Agreement constitutes, and each of Purchaser Documents
when so executed and delivered will constitute, the legal, valid and binding
obligations of Purchaser, enforceable against it in accordance with its terms,
except as enforceability may be limited by bankruptcy, similar laws of debtor
relief and general principles of equity.
6.3 Conflicts; Consents of Third Parties. Except as set forth on
Schedule 6.3 hereto, the execution and delivery by Purchaser of this Agreement
and Purchaser Documents and the consummation of the transactions contemplated
hereby or thereby will not (i) violate any provision of the certificate of
incorporation or by-laws of Purchaser; (ii) violate, conflict with, or result in
a breach of any provision of, or constitute a default (or an event which, with
the giving of notice, the passage of time or otherwise, would constitute a
default) under, require the consent of any party under, or entitle any party
(with the giving of notice, the passage of time or otherwise) to terminate,
accelerate, modify or call a default under, or result in the creation of any
Lien upon any of the properties or assets of Purchaser under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
intellectual property or other license, contract, undertaking, agreement, lease
or other instrument or obligation to which Purchaser is a party; (iii) violate
any Order, writ, injunction, decree, statute, rule or regulation applicable to
Purchaser; or (iv) require any consent or approval of or registration or filing
by Purchaser or any of its Affiliates with, any third party or any Governmental
Body, other than (a) actions required by the HSR Act, and any similar laws of
foreign jurisdictions and (b) registrations or other actions required under
federal, state and foreign securities laws; except, in the case of clauses (ii),
(iii) and (iv), for any of the foregoing that, individually or in the aggregate,
could not reasonably be expected to materially delay or burden the consummation
by Purchaser of the transactions contemplated by this Agreement. Schedule 6.3
sets forth a true, complete and correct list of any material consents, waivers,
authorizations or approvals required to be obtained under any agreement,
license, lease, contract, loan, note, mortgage, indenture or other commitment or
obligation (whether written or oral and express or implied), under which
Purchaser is or may become bound or is or may become subject to any obligation
or liability or by which any of its respective assets owned or used are or may
become bound in connection with the execution, delivery and performance of this
Agreement by Purchaser or consummation of the transactions contemplated herein.
6.4 Litigation. As of the date hereof, there are no Legal Proceedings
pending or, to the knowledge of Purchaser, threatened that are reasonably likely
to prohibit or restrain the ability of Purchaser to enter into this Agreement or
consummate the transactions contemplated hereby.
6.5 Investment Intention. Purchaser is acquiring the Shares for its own
account, for investment purposes only and not with a view to the distribution
(as such term is used in Section 2(11) of the Securities Act) thereof. Purchaser
understands that the Shares have not been registered under the Securities Act
and cannot be sold unless
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subsequently registered under the Securities Act or an exemption from such
registration is available.
6.6 Financial Advisors. Except for obligations to UBS Warburg, neither
Purchaser nor any of its Affiliates, stockholders, directors, officers or
employees has incurred or will incur on behalf of Purchaser or any of its
Affiliates, any brokerage, finder's or similar fee in connection with the
transactions contemplated by this Agreement.
6.7 Financing. Purchaser has obtained a commitment letter, dated as of
October 28, 2001 (the "Bank Commitment"), from Deutsche Bank AG, New York
Branch, providing credit facilities to Purchaser for, among other things, the
purchase of the Shares hereunder. Purchaser has provided an executed copy of the
Bank Commitment to Sellers.
6.8 Absence of Inducement. Purchaser, on behalf of itself and its
Affiliates, acknowledges and agrees that, except for the express
representations, warranties and covenants of Xxxxxx and the Sellers set forth in
this Agreement, Xxxxxx and the Sellers make no representation, warranty or
covenant whatsoever, express or implied, in connection with this Agreement.
Purchaser, on behalf of itself and its Affiliates, represents and warrants to
Xxxxxx and the Sellers that in making its determination to enter into, and to
proceed with the transactions contemplated by, this Agreement, it has not relied
on and will not rely on any representation, warranty or covenant of Xxxxxx, the
Sellers, any of their respective Affiliates or any director, officer, employee,
agent, consultant, advisor, accountant or attorney of Xxxxxx, the Sellers or any
of their respective Affiliates, other than the express representations,
warranties and covenants of Xxxxxx and the Sellers set forth in this Agreement.
6.9 Ownership of Common Stock. Neither Purchaser nor any of its
Affiliates own any shares of Common Stock. Neither Purchaser nor any of its
Affiliates have purchased, sold or contracted to purchase or sell any Common
Stock, options to purchase Common Stock or other securities convertible into or
exchangeable for Common Stock, in the sixty (60) days prior to the date hereof.
6.10 Ownership and Transfer of Purchaser Shares. Purchaser has the
corporate power and authority to sell, transfer, assign and deliver Purchaser
Shares as contemplated by this Agreement, and such delivery will convey to the
Sellers good and valid title to such Purchaser Shares, free and clear of any and
all Liens, other than restrictions imposed by federal or state securities laws.
Purchaser has taken all action necessary to authorize and approve the issuance
of Purchaser Shares and as of the Closing Purchaser Shares will, if and when
issued in accordance herewith, be validly issued, fully paid and nonassessable.
There are no statutory or contractual preemptive rights or rights of refusal
with respect to any issuance of Purchaser Shares in accordance with the terms of
this Agreement. Other than with respect to any federal or state securities laws,
no legend or other reference to any purported Lien appears upon any certificate
representing Purchaser Shares.
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6.11 Purchaser SEC Documents.
(a) Purchaser has timely filed with the U.S. Securities and Exchange
Commission ("SEC") all required reports, filings, registration statements and
other documents to be filed by it with the SEC since January 1, 2000.
(b) As of its filing date, or as amended or supplemented prior to the
date hereof, each Purchaser SEC Document complied as to form in all material
respects with the applicable requirements of the Exchange Act and the Securities
Act.
(c) No Purchaser SEC Document, as of its filing date, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
6.12 Absence of Certain Changes. Except as set forth in Schedule 6.12
and except as contemplated hereby, since September 30, 2001, there has been no
(i) material adverse effect on the Purchaser or (ii) development that has had or
could reasonably be expected to have a material adverse impact on the ability of
Euripides to consummate the transactions contemplated by this Agreement.
ARTICLE VII
COVENANTS
7.1 Access to Information. Except as required by any confidentiality
agreement to which Purchaser, on the one hand, and either Seller, Xxxxxx or the
Company, on the other hand, is a party or pursuant to Applicable Law, from and
after the date of this Agreement until the Closing Date (or the termination of
this Agreement), Xxxxxx and the Sellers agree to use commercially reasonable
efforts to cause the Company to (i) permit representatives of Purchaser to have
reasonable access to the properties, books, records, contracts, tax records and
documents of the Company and its Subsidiaries, to the extent related to the
businesses of the Company and its Subsidiaries, at all reasonable times upon
reasonable advance notice, and in a manner so as not to interfere with the
normal operation of the Company's and its Subsidiaries' businesses and (ii)
furnish promptly such information concerning the Company's and its Subsidiaries'
businesses as Purchaser or its representatives may reasonably request. Such
access shall be limited to the extent that antitrust counsel to Xxxxxx and
Purchaser agree that such limitation is advisable under applicable antitrust
law. Information obtained by Purchaser (or its officers, employees and
representatives) pursuant to this Section 6.1 shall be subject to the provisions
of the Confidentiality Agreement, which agreement remains in full force and
effect.
7.2 Conduct of the Business Pending the Closing. During the period from
the date of this Agreement to the Closing, Xxxxxx and the Sellers shall use
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commercially reasonable efforts to cause the Company and its Subsidiaries to
conduct their respective businesses and operations in the ordinary course, to
maintain and preserve their business organization and their material rights and
franchises and to retain the services of their officers and key employees and
maintain relationships with customers, suppliers, lessees, licensees and other
third parties to the end that their goodwill and ongoing business shall not be
impaired in any material respect. Without limiting the generality of the
foregoing, during the period from the date of this Agreement to the Closing,
Xxxxxx and the Sellers shall use commercially reasonable efforts to cause the
Company and its Subsidiaries not to, without the prior written consent of
Purchaser:
(a) do or effect any of the following actions with respect to the
Company's or any of its Subsidiaries' securities: (i) adjust, split, combine,
recapitalize or reclassify its capital stock, (ii) make, declare or pay any
dividend or distribution on, or directly or indirectly redeem, purchase or
otherwise acquire, any shares of its capital stock or any securities or
obligations convertible into or exchangeable for any shares of its capital
stock, other than pursuant to that certain Tax Sharing Agreement (unexecuted as
of the date hereof but in effect by mutual agreement and practice) by and
between the Company and Xxxxxx, (iii) grant any Person any right or option to
acquire any shares of its capital stock, other than grants of rights or options
(A) to individuals who are hired or promoted on or after the date hereof, (B)
after prior notice by PanAmSat to the chief executive officer of Euripides
describing special circumstances to employees affected by such circumstances,
and (C) to acquire not more than 3,000,000 shares of Company Common Stock, in
each case in the ordinary course of business, consistent with past practice and
which will not accelerate in vesting or exercisability as a result of or in
connection with the transactions contemplated by this Agreement, (iv) issue,
deliver or sell or agree to issue, deliver or sell any additional shares of its
capital stock or any securities, instruments or obligations convertible into or
exchangeable or exercisable for any shares of its capital stock or such
securities (except pursuant to the exercise of outstanding options and options
issued after the date hereof) or (v) enter into any agreement, understanding or
arrangement with respect to the sale or voting of its capital stock;
(b) take any intentional or improper action to interfere with the
Company's or its Subsidiaries' existing contractual or economic relationships
with its suppliers, equipment manufacturers, dealers and retailers;
(c) sell, transfer, lease, pledge, mortgage, encumber or otherwise
dispose of any amount of its property or assets that is material to the Company
and its Subsidiaries, taken as a whole, other than in the ordinary course of
business, consistent with past practice;
(d) make or propose any changes in its certificate of incorporation or
by-laws (or equivalent organizational documents);
13
(e) merge or consolidate with any other Person or acquire assets or
capital stock of any other Person which are material to the Company and its
Subsidiaries, taken as a whole, or enter into any confidentiality agreement with
any Person with respect to any such transaction;
(f) create any Subsidiaries which are material to the Company and its
Subsidiaries taken as a whole and which are not, directly or indirectly, wholly
owned by the Company;
(g) enter into or modify any employment, severance, change in control,
termination or similar agreements or arrangements with, or grant any bonuses,
salary increases, severance or termination pay to, or otherwise increase the
compensation or benefits of, any officer, director, consultant or employee of
the Company or its Subsidiaries other than payment of severance or termination
benefits or increases in salary, compensation or benefits granted in the
ordinary course of business consistent with past practice, except as may be
required by Applicable Law or a binding written contract in effect on the date
of this Agreement;
(h) except as may be required by Applicable Law or by accounting
principles, change any method or principle of accounting in a material manner
that is inconsistent with past practice;
(i) take any action that would reasonably be expected to result in the
representations and warranties set forth in Article 4 becoming false or
inaccurate such that the condition set forth in Section 8.2(a) would fail to be
satisfied;
(j) except for any refinancing of the promissory note dated May 15,
1997, issued by the Company to Xxxxxx, enter into or carry out any other
transaction which is material to the Company and its Subsidiaries, taken as a
whole, other than in the ordinary and usual course of business;
(k) enter into or amend any agreement or understanding between the
Company and either of Xxxxxx or GM or their respective Subsidiaries (other than
agreements entered into in the ordinary course of business);
(l) take any action which could reasonably be expected to adversely
affect or delay the ability of any parties hereto to obtain any approval of any
Governmental Body required to consummate the transactions contemplated hereby;
or
(m) agree in writing or otherwise to do anything prohibited by this
Section 7.2.
7.3 Regulatory.
(a) As soon as practicable, and in any event within twenty (20)
Business Days after the date hereof, each of the parties hereto shall file any
Notification
14
and Report Forms and related material required to be filed by it with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice under the HSR Act and any similar required notifications
under the laws of any foreign jurisdiction with respect to the transactions
contemplated by this Agreement and shall promptly make any further filings
pursuant thereto that may be necessary, proper or advisable.
(b) As soon as practicable after the date hereof, each of the parties
hereto shall make, and shall cause their Subsidiaries to make, all necessary
filings with or applications to any Governmental Body that has issued any
permits, approvals, authorizations, certificates, consents, franchises,
licenses, concessions and rights issued or authorized by any Governmental Body
("Permit") (as amended or modified) to, or held by, the Company or any of its
Subsidiaries, with respect to the transactions contemplated by this Agreement,
including any necessary applications to the FCC for consent to the transfer of
all Permits issued by the FCC to the Company or any of its Subsidiaries pursuant
to the transactions contemplated hereby (the "FCC Consent Application").
(c) The parties shall: (A) use their best efforts to obtain prompt
termination of any waiting period under the HSR Act (including any extension of
the initial thirty (30) day waiting period with respect to the transactions
contemplated by this Agreement), and neither party shall, without the prior
consent of the other, agree with any Governmental Authority not to consummate
the transactions contemplated by this Agreement for a period of time beyond the
expiration of the waiting period applicable to the consummation of the
transactions contemplated by this Agreement under the HSR Act or to extend the
Closing Date to a date within the thirty(30)-day period prior to the date set
forth in Section 4.2(a)(ii); (B) furnish to the other parties such information
and assistance as such parties may reasonably request in connection with the
preparation of any submissions to, or agency proceedings by, any Governmental
Body under any Antitrust Law; (C) keep the other parties promptly apprised of
any communications with, and inquiries or requests for information from, such
Governmental Bodies; (D) permit the other parties to review any material
communication given by it to, and consult with the other parties in advance of
any meeting or conference with, any Governmental Body or, in connection with any
proceeding by a private party, with any other Person, and to the extent
permitted by such applicable Governmental Body or other Person, give the other
parties the opportunity to attend and participate in such meetings and
conferences; and (E) use its best efforts to cause the condition set forth in
Section 8.1(a) of this Agreement to be satisfied; provided, however, that
nothing contained in this Section 7.3 shall require any employee or
representative of Xxxxxx who serves as a director or officer of the Company or
any of its Subsidiaries to take any action on behalf of the Company or any of
its Subsidiaries, or to cause the Company or any of its Subsidiaries to take or
refrain from taking any action. For purposes of this Agreement, "Antitrust Law"
means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the
Federal Trade Commission Act, as amended, and all other federal, state and
foreign statutes, rules, regulations, orders, decrees, administrative and
judicial doctrines and other laws that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect
15
of monopolization or restraint of trade or lessening of competition through
merger or acquisition.
(d) Each party shall (i) use its best efforts to diligently prosecute
all applications with the FCC, including the FCC Consent Application, and all
similar foreign Governmental Bodies for consent to the transactions contemplated
herein, (ii) use its best efforts to resist or resolve any administrative
proceeding or suit, including appeals, that is instituted to challenge the grant
of any such applications, (iii) furnish to the other parties such information
and assistance as such parties reasonably may request in connection with the
preparation or prosecution of any such applications, (iv) keep the other parties
promptly apprised of any communications with, and inquiries or requests for
information from, such Governmental Bodies with respect to the transactions
contemplated hereby and (v) use its best efforts to cause the condition set
forth in Section 8.1(c) of this Agreement to be satisfied.
(e) In furtherance and not in limitation of the covenants of the
parties contained in Sections 7.3(a), (b), (c) and (d), each party shall use its
best efforts to resolve such objections if any, as may be asserted with respect
to the transactions contemplated hereby under any FCC Regulation or Antitrust
Law. In connection with the foregoing, if any administrative or judicial action
or proceeding, including any proceeding by a private party, is instituted (or
threatened to be instituted) challenging any transaction contemplated by this
Agreement as violative of any Antitrust Law or any FCC Regulations, the parties
shall cooperate in all respects with each other and use their best efforts to
avoid the institution of any such action or proceeding and to contest and resist
any such action or proceeding and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement.
(f) If any objections are asserted with respect to the transactions
contemplated hereby under any Antitrust Law or any FCC Regulations or if any
suit is instituted by any Governmental Body or any private party challenging any
of the transactions contemplated hereby as violative of any Antitrust Law or FCC
Regulations, the parties shall use their best efforts to resolve any such
objections or challenge as such Governmental Body or private party may have to
such transactions under such law so as to permit consummation of the
transactions contemplated by this Agreement. In furtherance and not in
limitation of the foregoing, each of Purchaser and Xxxxxx (and, to the extent
required by any Governmental Body, their respective Subsidiaries and Affiliates
over which they exercise control, other than the Company and its Subsidiaries)
shall be required to enter into a settlement, undertaking, consent decree,
stipulation or other agreement with a Governmental Body regarding antitrust or
FCC matters in connection with the transactions contemplated by this Agreement.
7.4 Other Actions. Each of the Sellers, Xxxxxx and Purchaser shall use
its best efforts (except where a different efforts standard is specifically
contemplated in this Agreement, in which case such different standard shall
apply) to (i) take all action
16
and to do all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement and (ii) cause the fulfillment at
the earliest practicable date of all of the conditions to their respective
obligations to consummate the transactions contemplated by this Agreement, other
than the conditions set forth in Section 8.1(d).
7.5 Publicity. Neither the Sellers, Xxxxxx nor Purchaser shall issue
any press release or public announcement concerning this Agreement or the
transactions contemplated hereby without obtaining the prior written approval of
the other parties hereto, which approval will not be unreasonably withheld or
delayed, unless, in the sole judgment of Purchaser, either Seller or Xxxxxx,
disclosure is otherwise required by Applicable Law or by the applicable rules of
any stock exchange on which Purchaser, the Seller, Xxxxxx, or any of their
respective Affiliates, lists securities, provided that, to the extent required
by Applicable Law, the party intending to make such release shall use its best
efforts consistent with such Applicable Law to consult with the other party with
respect to the text thereof.
7.6 Stockholders' Agreement. Purchaser acknowledges the existence of
the Stockholders' Agreement.
7.7 Take-Along Rights. Immediately after the execution and delivery of
this Agreement, the Sellers shall deliver to each party to the Stockholders'
Agreement a notice in the form prescribed therein. Purchaser agrees that, to the
extent any of the parties to the Stockholders' Agreement is then entitled
thereunder to, and elects to exercise, its Take-Along Rights (as defined in the
Stockholders' Agreement) triggered by the execution and delivery of this
Agreement, Purchaser will agree, unless such parties to the Stockholders'
Agreement otherwise agree, to purchase such Person's shares of Common Stock,
subject to the same terms and conditions as are contained herein, at the same
price per share of Common Stock and for the same type of consideration as
Purchaser is paying the Sellers hereunder (the "Purchase Price Per Share"). In
order to effectuate such transaction, Purchaser and each such Person exercising
Take-Along Rights shall enter into an agreement substantially similar to this
Agreement (and identical with respect to the Purchase Price Per Share and other
payment terms).
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7.8 Exchange Offer.
(a) Unless Purchaser shall have entered into the PanAmSat Merger
Agreement or commenced the Tender Offer pursuant to Article III hereof,
Purchaser agrees that promptly following the Closing, unless the Tender Offer or
the PanAmSat Merger shall have been consummated on or prior to the Closing, it
shall offer to purchase (the "Offer") all of the outstanding shares of Common
Stock of the Company (the "Remaining PanAmSat Shares"). The Offer (a) shall
provide that Purchaser shall pay or deliver to a holder of Remaining PanAmSat
Shares, for each Remaining PanAmSat Share, at the election of such holder,
either (i) cash in an amount equal to not less than the Purchase Price Per Share
or (ii) a number of shares of Class A common stock of Purchaser having an
aggregate fair market value (as of a date reasonably proximate to the date the
Offer is made) at least equal in amount to the Purchase Price Per Share and (b)
shall not limit the portion of the total consideration payable pursuant to the
Offer that may be payable in cash. Purchaser agrees to use commercially
reasonable efforts to structure the Offer such that the exchange of Class A
common stock of Purchaser for Remaining PanAmSat Shares will be a tax free
exchange.
(b) Not later than five (5) Business Days following the Closing,
Purchaser shall file with the United States Securities and Exchange Commission
("SEC") and with any other applicable Governmental Body all such documentation
as shall be necessary to effectuate the Offer (the "Exchange Offer Documents").
Purchaser shall as promptly as practicable provide Xxxxxx with copies of, and
consult with Xxxxxx and prepare written responses with respect to, any written
comments received from the SEC and other state and foreign securities regulators
with respect to the Exchange Offer Documents and promptly advise Xxxxxx of any
oral comments received from the SEC and other state and foreign securities
regulators, and, to the extent reasonably practicable under the circumstances,
shall offer a reasonable opportunity to appropriate representatives of Xxxxxx to
participate in any telephone calls with the SEC or any state or foreign
regulator the purpose of which is to discuss comments made by such regulators.
Purchaser shall respond to any comments made by the SEC or any state or foreign
regulator as soon as reasonably practicable following the receipt of such
comments. No amendment or supplement to the Exchange Offer Documents (or any
related materials) will be filed or submitted to the SEC or any state or foreign
regulator or publicly disseminated by Purchaser without the approval of Xxxxxx,
which shall not be unreasonably withheld or delayed.
7.9 Notification of Certain Matters. Each party shall give prompt
written notice to the other parties of the initiation or threat of any
litigation that seeks or is reasonably likely to prohibit or restrain the
ability of such party to consummate the transaction contemplated by this
Agreement.
7.10 Intercompany Obligations. On or prior to the Closing, Purchaser
shall use best efforts to assume all of the obligations and commitments of GM
under, and from and after the Closing indemnify and hold General Motors
Corporation ("GM"), Xxxxxx and the Sellers harmless from and against, any and
all indebtedness, liabilities,
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obligations, claims, costs and expenses, whether accrued, fixed or contingent,
mature or inchoate, known or unknown, reflected on a balance sheet or otherwise
(including reasonable attorneys' fees) incurred or which may be incurred by GM,
Xxxxxx, the Sellers or any of their respective Subsidiaries resulting from or
arising out of that certain guaranty described on Exhibit B hereto. Purchaser
shall use best efforts to obtain the termination or release of GM, Xxxxxx, the
Sellers and their respective Subsidiaries from such obligation.
7.11 Tax Allocation Agreement. Xxxxxx shall use commercially reasonable
efforts to cause to be executed prior to the Closing a tax allocation agreement
between Xxxxxx and the Company with substantially comparable terms to the
Amended and Restated Agreement for the Allocation of United States Income Taxes
between GM and Xxxxxx dated the date hereof (the "TAA"); provided, however, that
substantially comparable terms do not include the terms of the TAA which address
the management of, or the compensation for, tax attributes.
7.12 Actions Pursuant to the Stockholders' Agreement. Xxxxxx and the
Sellers shall use commercially reasonable efforts (including by exercising all
of their contractual rights under the Stockholders' Agreement) as soon as
practicable to cause, between the date hereof and the Closing Date, at least 50%
of the members of the Board of Directors of the Company to be comprised of
individuals who, as of the date hereof, or who hereafter become, directors or
employees of Xxxxxx or its Affiliates.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Mutual Conditions. The obligation of the parties hereto to
consummate the transactions contemplated by this Agreement shall be subject to
fulfillment, on or prior to the Closing Date, of each and all of the following
conditions (any or all of which may be waived by written consent of Purchaser,
Xxxxxx and the Sellers in whole or in part to the extent permitted by Applicable
Law):
(a) all waiting periods applicable to the consummation of the
transactions contemplated by this Agreement under the HSR Act shall have expired
or been terminated and all approvals of, or filings with, any Governmental
Authority (other than the FCC) required to consummate the transactions
contemplated hereby shall have been obtained or made, other than approvals and
filings, the failure to obtain or make which, in the aggregate, are not
reasonably likely to have a PanAmSat Material Adverse Effect;
(b) no temporary restraining order, preliminary or permanent injunction
or other order or decree issued by a court of competent jurisdiction or
Governmental Authority of competent jurisdiction which prevents the consummation
of the transactions contemplated by this Agreement shall have been issued and
remain in
19
effect, and no statute, rule or regulation shall have been enacted by any
Governmental Authority which prevents the consummation of the transactions
contemplated by this Agreement;
(c) the FCC (or the FCC staff on delegated authority) shall have
granted any necessary consents to the transactions contemplated herein;
(d) the Merger Agreement shall have been terminated pursuant to Section
7.1(b)(i)(A)(1), 7.1(b)(i)(A)(3), 7.1(c)(iv), 7.1(c)(vii) or 7.1(b)(ii) as a
result of the failure of the condition set forth in Section 6.1(e) of the Merger
Agreement; and
(e) Xxxxxx and the Sellers shall have obtained all consents and waivers
referred to in Section 4.3 hereof with respect to the transactions contemplated
by this Agreement and the Seller Documents, except for those consents and
waivers the absence of which would not reasonably be expected to cause a
material adverse effect on the business, properties, results of operations or
financial condition of the Company and its Subsidiaries taken as a whole.
8.2 Conditions Precedent to Obligations of Purchaser. The obligation of
Purchaser to consummate the transactions contemplated by this Agreement is
subject to the fulfillment, on or prior to the Closing Date, of each and all of
the following conditions (any or all of which may be waived by Purchaser in
whole or in part to the extent permitted by Applicable Law):
(a) all representations and warranties of Xxxxxx and the Sellers
contained herein shall be true and correct at and as of the Closing Date with
the same effect as though those representations and warranties had been made
again at and as of that time, except to the extent that all the breaches of such
representations and warranties collectively (without giving effect to any
materiality or similar qualification) could not reasonably be expected to result
in a, and have not resulted in a PanAmSat Material Adverse Effect; provided,
that any and all actions taken by Xxxxxx and the Sellers pursuant to Article III
or Section 7.3 and the effects thereof on the representations and warranties of
Xxxxxx and the Sellers set forth in Article V shall be ignored for purposes of
this Section 8.3;
(b) Xxxxxx and the Sellers shall have performed and complied in all
material respects with all of their respective obligations and covenants
required by this Agreement to be performed or complied with by them on or prior
to the Closing Date;
(c) Purchaser shall have been furnished with certificates (dated the
Closing Date and in form and substance reasonably satisfactory to Purchaser)
executed by Xxxxxx and each Seller certifying as to the fulfillment of the
conditions specified in Sections 8.2(a), 8.2(b) and 8.2(g) hereof;
(d) certificates representing the Shares (or other reasonable evidence
of ownership thereof) shall have been, or shall at the Closing be, validly
delivered and
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transferred to Purchaser, free and clear of any and all Liens, other than the
Stockholders' Agreement and restrictions imposed by federal or state securities
laws;
(e) there shall not have occurred after the date hereof and be
continuing any PanAmSat Material Adverse Effect; provided, however, that any and
all actions taken by any party hereto pursuant to Section 7.3 and the effects
thereof shall be ignored for the purposes of this Section 8.2(e);
(f) Purchaser shall have received the written resignations of each
director of the Company who is at the time of the Closing an employee of Xxxxxx
or any of its Affiliates;
(g) the representation and warranty contained in Section 5.10 shall
have been true and correct as of the date made except for immaterial deviations
therefrom, and the Company shall not have taken any of the actions described in
Section 7.2(a)(ii), unless such actions are taken in the ordinary course of
business, consistent with past practice;
(h) (i) the Company shall not have issued, delivered or sold or agreed
to issue, deliver or sell more than 7% of its capital stock (in the aggregate
together with any securities, instruments or obligations convertible into or
exchangeable for its capital stock), except for such issuances, deliveries, or
sales, or such agreements to issue, deliver or sell that would not be reasonably
likely to impair in any material respect the ability of the Purchaser to
consummate the acquisition of the Remaining PanAmSat Shares at the Purchase
Price per Share set forth in Section 1.2, and (ii) shall not have taken any
other action with respect to its capital stock not permitted under Section
7.2(a) that would be reasonably likely to impair in any material respect the
ability of Purchaser to consummate the acquisition of the Remaining PanAmSat
Shares at the Purchase Price per Share set forth in Section 1.2;
(i) the Company shall not have adopted any shareholder rights plan or
similar plan after the date hereof.
8.3 Conditions Precedent to Obligations of the Sellers. The obligations
of the Sellers to consummate the transactions contemplated by this Agreement are
subject to the fulfillment, prior to or on the Closing Date, of each and all of
the following conditions (any or all of which may be waived by the Sellers in
whole or in part to the extent permitted by Applicable Law):
(a) all representations and warranties of Purchaser contained herein
shall be true and correct as of the date of this Agreement and with the same
effect as though those representations and warranties had been made again at and
as of that time, except (i) for the representation contained in Section 6.4 and
(ii); to the extent that all the breaches of such representations and warranties
collectively (without giving effect to any materiality or similar qualification)
could not reasonably be expected to result in a, and have not resulted in a
PanAmSat Material Adverse Effect; provided, that any and all
21
actions taken by Purchaser pursuant to Article III or Section 7.3 and the
effects thereof on the representations and warranties of Purchaser set forth in
Article VI shall be ignored for purposes of this Section 8.3;
(b) Purchaser shall have performed and complied in all material
respects with all of its obligations and covenants required by this Agreement to
be performed or complied with by Purchaser on or prior to the Closing Date;
(c) the Sellers shall have been furnished with certificates (dated the
Closing Date and in form and substance reasonably satisfactory to the Sellers)
executed by Purchaser certifying as to the fulfillment of the conditions
specified in Sections 8.3(a) and 8.3(b);
(d) if Purchaser determines to pay any portion of the Purchase Price in
Purchaser Shares, Purchaser shall have executed and delivered to the Sellers a
registration rights agreement in the form attached hereto as Exhibit C.
ARTICLE IX
DOCUMENTS TO BE DELIVERED
9.1 Documents to be Delivered by the Seller. At the Closing, Xxxxxx and
the Sellers shall deliver, or cause to be delivered, to Purchaser the following:
(a) stock certificates representing the Shares, duly endorsed in blank
or accompanied by stock transfer powers;
(b) the certificates referred to in Sections 8.2(c) and 8.2(d) hereof;
and
(c) copies of all consents and waivers referred to in Section 8.1(e)
hereof.
9.2 Documents to be Delivered by Purchaser. At the Closing, Purchaser
shall deliver to the Sellers the following:
(a) evidence of the wire transfer referred to in Section 2.2 hereof;
(b) stock certificates representing Purchaser Shares, if any, duly
endorsed in blank or accompanied by stock transfer powers;
(c) the certificates referred to in Section 8.3(c) hereof; and
(d) written confirmation from Purchaser that it is simultaneously
purchasing the shares of Common Stock to be sold by those Persons, if any, who
exercise Take-Along Rights pursuant to the Stockholders' Agreement, as
contemplated by Section 7.7 hereof.
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ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Xxxxxx and the Sellers. Subject to Section
10.3(a) hereof, if the Closing occurs or Purchaser purchases the Shares pursuant
to Article III, Xxxxxx and each Seller, jointly and severally, hereby agree to
indemnify and hold Purchaser and its directors, officers, employees, Affiliates,
agents, successors and assigns (collectively, the "Purchaser Indemnified
Parties") harmless from and against, and shall reimburse Purchaser Indemnified
Parties for, any and all losses, liabilities, Legal Proceedings and reasonable
expenses (including reasonable costs of investigation and defense and reasonable
attorneys' and accountants' fees), whether or not involving a third-party claim
(collectively "Damages"), incurred thereby, directly or indirectly, based on,
arising out of, or resulting from:
(a) any breach of or inaccuracy in any representation or warranty made
by Xxxxxx or any of the Sellers in this Agreement or any other certificate or
document delivered pursuant to this Agreement, other than those, if any, that
have been waived in writing by Purchaser and other than the representations
contained in Sections 5.6, 5.8 and 5.10 hereof; and
(b) any breach of or inaccuracy in the representations contained in
Sections 5.6 and 5.10 hereof;
(c) any breach or violation of or failure to fully perform any
covenant, agreement, undertaking or obligation of Xxxxxx or either Seller set
forth in this Agreement, other than those, if any, that have been waived in
writing by Purchaser; and
(d) in the event that Xxxxxx and the Company do not enter into a tax
allocation agreement as contemplated by Section 7.11 hereof, all income taxes
(including interest, penalties and additions to tax) that a taxing authority may
attempt to collect from the Company or any Subsidiary thereof solely pursuant to
Treasury Regulation ss.1.1502-6 or similar provisions of state law for a taxable
period or portion thereof during which the Company was a member of the GM or
Xxxxxx consolidated, combined or unitary group for federal or state income tax
purposes excluding any taxes (including interest, penalties and additions to
tax) for which Purchaser indemnifies the Seller Indemnified Parties (as defined
below) pursuant to Section 10.2(d) hereof.
10.2 Indemnification by Purchaser. Subject to Section 10.3(b) hereof,
if the Closing occurs and any portion of the Purchase Price is paid in Purchaser
Shares, Purchaser hereby agrees to indemnify and hold Xxxxxx and the Sellers and
their directors, officers, employees, Affiliates, agents, successors and assigns
(collectively, the "Seller Indemnified Parties") harmless from and against, and
shall reimburse the Seller Indemnified Parties for, any and all Damages incurred
thereby, directly or indirectly, based on, arising out of, or resulting from:
23
(a) any breach of or inaccuracy in any representation or warranty made
by Purchaser in this Agreement or any other certificate or document delivered
pursuant to this Agreement, other than those, if any, that have been waived in
writing by Xxxxxx and other than the representation contained in Section 6.10
hereof;
(b) any breach of or inaccuracy in the representation contained in
Section 6.10 hereof;
(c) any breach or violation of or failure to fully perform any
covenant, agreement, undertaking or obligation of Purchaser set forth in this
Agreement, other than those, if any, that have been waived in writing by Xxxxxx;
and
(d) in the event that Xxxxxx and the Company do not enter into a tax
allocation agreement as contemplated by Section 7.11 hereof, any income taxes
(including interest, penalties and additions to tax) that would be imposed upon
or assessed against the Company or any Subsidiary thereof (other than solely
pursuant to Treasury Regulation ss.1.1502-6 or similar provisions of state law)
with respect to any taxable periods or portions thereof ending on or prior to
the Closing Date were the Company and its subsidiaries a separate group that
always filed separate consolidated, combined or unitary tax returns for federal,
state and local tax purposes (as applicable) and never joined in the filing of a
consolidated, combined or unitary tax return with General Motors Corporation, a
Delaware corporation or Xxxxxx.
10.3 Limitations on Indemnification.
(a) The aggregate amount of Damages for which Xxxxxx shall be obligated
to indemnify Purchaser Indemnified Parties pursuant to Sections 10.1(a) and (c)
shall be limited to an amount equal to 50% of the Purchase Price and the
aggregate amount of Damages for which Xxxxxx and each Seller shall be obligated
to indemnify Purchaser Indemnified Parties pursuant to Section 10.1(b) shall be
limited to an amount equal to 100% of the Purchase Price ; provided, however,
that the aggregate amount of Damages for which Xxxxxx and each Seller shall be
obligated to indemnify Purchaser Indemnified Parties pursuant to Sections
10.1(a), (b) and (c) shall be limited to an amount equal to 100% of the Purchase
Price.
(b) The aggregate amount of Damages for which Purchaser shall be
obligated to indemnify the Seller Indemnified Parties pursuant to Sections
10.2(a) and (c) shall be limited to an amount equal to 50% of the Purchase Price
and the aggregate amount of Damages for which Purchaser shall be obligated to
indemnify the Seller Indemnified Parties pursuant to Section 10.2(b) shall be
limited to an amount equal to 100% of the Purchase Price; provided, however,
that the aggregate amount of Damages for which Purchaser shall be obligated to
indemnify the Seller Indemnified Parties pursuant to Sections 10.2(a), (b) and
(c) shall be limited to an amount equal to 100% of the Purchase Price.
24
10.4 Exclusive Remedy. The parties acknowledge and agree that, except
for claims of fraud, the sole and exclusive remedy with respect to any and all
claims for indemnification relating to the subject matter of this Agreement
shall be pursuant to the indemnification provisions set forth in this Article X;
provided, however, that nothing in this Section 10.3 shall limit rights or
remedies which, as a matter of Applicable Law or public policy, cannot be
limited or waived.
10.5 Notice and Payment of Claims.
(a) Notice. The party entitled to indemnification pursuant to this
Article X (the "Indemnified Party") shall notify the party liable for
indemnification pursuant to this Article X (the "Indemnifying Party") within ten
(10) days after becoming aware of, and shall provide to the Indemnifying Party
as soon as practicable thereafter all information and documentation necessary to
support and verify, any damages that the Indemnified Party shall have determined
to have given or is reasonably likely to give rise to a claim for
indemnification hereunder, and the Indemnifying Party shall be allowed access to
all books and records in the possession or under the control of the Indemnified
Party which the Indemnifying Party reasonably determines to be related to such
claim. Notwithstanding the foregoing, the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any Liability that it may have
to any Indemnified Party, except to the extent that the Indemnifying Party
demonstrates that it is materially prejudiced by the Indemnified Party's failure
to give such notice.
(b) Payment. In the event an action for indemnification under this
Article X shall have been finally determined, such final determination shall be
paid to Xxxxxx and Sellers or Purchaser, as the case may be, on demand in
immediately available funds in U.S. dollars. An action, and the liability for
and amount of Damages therefor, shall be deemed to be "finally determined" for
purposes of this Article X when the parties to such action have so determined by
mutual agreement or, if disputed, when a final non-appealable Order shall have
been entered.
10.6 Procedure for Indemnification - Third Party Claims.
(a) Upon receipt by an Indemnified Party of notice of the commencement
of any Action by a third party (a "Third Party Claim") against it, such
Indemnified Party shall, if a claim is to be made against an Indemnifying Party
under this Article IX, give notice to the Indemnifying Party of the commencement
of such Third Party Claim as soon as practicable, but in no event later than ten
(10) days after the Indemnified Party shall have been served, but the failure to
so notify the Indemnifying Party shall not relieve the Indemnifying Party of any
Liability that it may have to any Indemnified Party, except to the extent that
the Indemnifying Party demonstrates that it is materially prejudiced by the
Indemnified Party's failure to give such notice.
(b) If a Third Party Claim is brought against an Indemnified Party and
it gives proper notice to the Indemnifying Party of the commencement of such
Third Party Claim, the Indemnifying Party will be entitled to participate in
such Third Party
25
Claim and, to the extent that it wishes (unless (i) the Indemnifying Party is
also a party to such Third Party Claim and the Indemnified Party determines in
good faith that joint representation would be inappropriate, or (ii) the
Indemnifying Party fails to provide reasonable assurance to the Indemnified
Party of its financial capacity to defend such Third Party Claim and provide
indemnification with respect to such Third Party Claim) to assume the defense of
such Third Party Claim with counsel reasonably satisfactory to the Indemnified
Party and, after notice from the Indemnifying Party to the Indemnified Party of
its election to assume the defense of such Third Party Claim, the Indemnifying
Party shall not, as long as it legitimately conducts such defense, be liable to
the Indemnified Party under this Article X for any fees of other counsel or any
other expenses with respect to the defense of such Third Party Claim, in each
case subsequently incurred by the Indemnified Party in connection with the
defense of such Third Party Claim, other than reasonable costs of investigation.
If the Indemnifying Party assumes the defense of a Third Party Claim,
(i) no compromise, discharge or settlement of, or admission of Liability in
connection with, such claims may be effected by the Indemnifying Party without
the Indemnified Party's written consent (which consent shall not be unreasonably
withheld or delayed) unless (A) there is no finding or public admission of any
violation of Law or any violation of the rights of any Person and no effect on
any other claims that may be made against the Indemnified Party, and (B) the
sole relief provided is monetary Damages that are paid in full by the
Indemnifying Party; (ii) the Indemnifying Party shall have no Liability with
respect to any compromise or proposed settlement of such claims effected without
its written consent (which consent shall not be unreasonably withheld or
delayed); and (iii) the Indemnified Party shall cooperate in all reasonable
respects with the Indemnifying Party in connection with such defense, and shall
have the right to participate, at the Indemnified Party's sole expense, in such
defense, with counsel selected by it. Should the Indemnified Party withhold
consent under clause (i) above, the Indemnifying Party shall have the right,
upon notice to the Indemnified Party within ten (10) days of receipt of the
Indemnified Party's denial of consent, to pay to the Indemnified Party the full
amount of such judgment or settlement, including all interest, costs or other
charges relating thereto, and shall pay all attorneys' fees incurred to such
date for which the Indemnifying Party is obligated under this Agreement, at
which time the Indemnifying Party's rights and obligations with respect to the
Third Party Claim shall cease. If proper notice is given to an Indemnifying
Party of the commencement of any Third Party Claim for which indemnification is
available hereunder and the Indemnifying Party does not, within thirty (30) days
after the Indemnified Party's notice is given, give notice to the Indemnified
Party of its election to assume the defense of such Third Party Claim, the
Indemnifying Party shall be bound by any determination made in such Third Party
Claim or any compromise or settlement effected by the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party determines
in good faith that there is a reasonable probability that a Third Party Claim
may adversely affect it other than as a result of monetary Damages for which it
could be entitled to
26
indemnification under this Agreement, the Indemnified Party may, by notice to
the Indemnifying Party, assume the exclusive right to defend, compromise, or
settle such Third Party Claim as against the Indemnified Party, but the
Indemnifying Party shall not be bound by any determination of a Third Party
Claim so defended or any compromise or settlement thereof.
(d) The Indemnifying Party hereby consents to the non-exclusive
jurisdiction of any court in which a Third Party Claim is brought against the
Indemnified Party for purposes of any claim that the Indemnified Party may have
under this Agreement with respect to such Third Party Claim or the matters
alleged therein, and agree that process may be served on the Indemnifying Party
with respect to such a claim anywhere in the world.
ARTICLE XI
MISCELLANEOUS
11.1 Certain Definitions.
For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 11.1:
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person.
"Applicable Law" means all applicable laws, statutes, orders, rules,
regulations, policies or guidelines promulgated, or judgments, decisions or
orders entered by any Governmental Body.
"Business Day" means any day of the year except a Saturday, Sunday or a
day on which national banking institutions in New York are obligated by Law,
regulation or governmental order to close.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended.
"Common Stock" means the Company's common stock, $0.01 par value per
share.
"Confidentiality Agreement" means that certain confidentiality
agreement between Purchaser and the Company, dated February 27, 2001, including
all amendments thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
27
"Governmental Body" means any foreign, federal, state or local
governmental or regulatory body, administrative or regulatory authority,
commission, agency, instrumentality or authority.
"Implementation Agreement" means the Implementation Agreement, dated as
of the date hereof, by and among GM, Xxxxxx and Purchaser.
"Legal Proceeding" means any criminal, civil, judicial, administrative
or arbitral actions, suits, proceedings (public or private), claims or
governmental proceedings.
"Lien" means any lien, pledge, security interest, charge, claim, lease,
option, right of first refusal, transfer restriction under any shareholder or
similar agreement, encumbrance or any other similar restriction or limitation.
"Merger Agreement" means the Merger Agreement, dated as of the date
hereof, by and between Xxxxxx and Purchaser.
"Order" means any order, injunction, judgment, decree, decision,
settlement, subpoena, verdict, ruling, writ, assessment or arbitration award.
"PanAmSat Material Adverse Effect" means an event, change, circumstance
or effect that has had or is reasonably likely to have a material adverse effect
on the business, operations, assets, liabilities or financial condition of the
Company and its Subsidiaries, taken as a whole, other than events, changes,
circumstances or effects that arise out of or result from (i) factors affecting
the economy or financial markets as a whole or generally affecting the
industries in which the Company or its Subsidiaries operate, (ii) the
announcement of the execution of this Agreement or any other Xxxxxx Transaction
Agreement (as defined in the Merger Agreement) (including any cancellations of
or delays in customer orders, any reduction in sales, any disruption in
supplier, distributor, partner or similar relationships or any loss of
employees) and (iii) any change resulting solely from a change in trading prices
of the Company's outstanding publicly traded securities. A PanAmSat Material
Adverse Effect shall have occurred upon the complete failure with respect to
three (3) or more of the Company's satellites that are either presently
functional or are subsequently launched, and which satellite failures are not
covered by any launch or in orbit insurance.
"PanAmSat SEC Documents" means the Company's annual report on Form 10-K
for each of the fiscal years ended December 31, 1998, 1999 and 2000, the
Company's quarterly reports on Form 10-Q for each of the fiscal quarters since
January 1, 2001 and all other reports, filings, registration statements and
other documents filed by the Company with the SEC after September 30, 2001 and
prior to the date hereof (as such documents have been amended since the time of
their filing and prior to the date hereof).
28
"Person" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Body or other entity.
"Purchaser SEC Documents" means Purchaser's annual report on Form 10-K
for each of the fiscal years ended December 31, 1998, 1999 and 2000, Purchaser's
quarterly reports on Form 10-Q for each of the fiscal quarters since January 1,
2001 and all other reports, filings, registration statements and other documents
filed by Purchaser with the SEC after September 30, 2001 and prior to the date
hereof (as such documents have been amended since the time of their filing and
prior to the date hereof).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Stockholders' Agreement" means that certain Amended and Restated
Stockholders' Agreement, dated as of May 16, 1997, by and among the Company,
HCGI and the other parties thereto.
"Subsidiary" means any Person of which a majority of the outstanding
voting securities or other voting equity interests are owned, directly or
indirectly, by the Company.
"Volume Weighted Average Trading Price" means, with respect to any
trading day (defined as 9:30 a.m. through 4:30 p.m., Eastern Time), the weighted
average of the reported per share prices at which transactions in Purchaser
Common Stock are executed on the Nasdaq Stock Market during such trading day
(weighted based on the number of shares of Purchaser Common Stock traded, as
such weighted average price appears on the Bloomberg screen "Volume at Price"
page for Purchaser Common Stock.
11.2 Payment of Sales, Use or Similar Taxes. All sales, use, transfer,
intangible, recordation, documentary stamp or similar taxes or charges, of any
nature whatsoever, applicable to, or resulting from, the transactions
contemplated by this Agreement shall be borne by Purchaser.
11.3 Knowledge. For purposes of this Agreement, the knowledge of (a)
Purchaser shall mean the actual knowledge of the senior officers of Purchaser
and (b) Xxxxxx shall mean the actual knowledge of the senior officers of Xxxxxx
and employees of Xxxxxx who are directors or officers of the Company.
11.4 Survival of Representations and Warranties. The parties hereto
hereby agree that the representations and warranties contained in this Agreement
or in any certificate, document or instrument delivered in connection herewith,
and the rights of Purchaser Indemnified Parties and Seller Indemnified Parties
to seek indemnification with respect thereto, shall survive the execution and
delivery of this Agreement, and the Closing hereunder (other than the
representation contained in Section 5.8 hereof). Such representations and
warranties and the rights of Purchaser Indemnified Parties and Seller
29
Indemnified Parties to seek indemnification with respect thereto shall expire,
except with respect to any claim or action asserted prior to and pending at the
time of such expiration, twelve (12) months after the Closing or upon the
earlier termination of this Agreement pursuant to Section 4.2; provided,
however, that the representations and warranties contained in Sections 5.6 and
5.10 and Section 6.10 hereof shall survive indefinitely.
11.5 Commercially Reasonable Efforts. For purposes of Article VII of
this Agreement, the obligation of Xxxxxx and each of the Sellers to use
commercially reasonable efforts to cause the Company to take or not take any
action shall require only that Xxxxxx and each of the Sellers, as applicable,
(i) vote the Shares it owns on any matter submitted by the Company for approval
of its stockholders in a manner consistent with the provisions of Article VII
hereof, (ii) request that the Company use its best efforts to act in a manner
consistent with the provisions of Article VII hereof and (iii) request that any
employees of Xxxxxx or such Seller who serve as members of the Board of
Directors of the Company vote on matters submitted to the Board of Directors of
the Company in a manner consistent with the provisions of Article VII hereof to
the extent that so voting would be considered by them to be in the best
interests of the Company and its stockholders and otherwise consistent with
their fiduciary duties as directors.
11.6 Expenses. Except as otherwise provided in this Agreement, Xxxxxx,
the Sellers and Purchaser shall each bear their own expenses incurred in
connection with the negotiation and execution of this Agreement and each other
agreement, document and instrument contemplated by this Agreement and the
consummation of the transactions contemplated hereby and thereby.
11.7 Specific Performance. The parties agree that the remedies at law
for any breach or threatened breach, including monetary damages, are inadequate
compensation for any loss and that any defense in any action for specific
performance that a remedy at law would be adequate is waived. Accordingly, in
the event of any actual or threatened default in, or breach of, any of the
terms, conditions and provisions of this Agreement, including, without
limitation, the Sellers' obligation to sell the Shares to Purchaser, and
Purchaser's obligations to purchase the Shares from the Sellers, the party or
parties who are or are to be thereby aggrieved shall have the right to specific
performance and injunctive or other equitable relief of its rights under this
Agreement, in addition to any and all other rights and remedies at law or in
equity, and all such rights and remedies shall be cumulative. Any requirements
for the securing or posting of any bond with such remedy are waived.
11.8 Further Assurances. Xxxxxx, the Sellers and Purchaser each agree
to execute and deliver such other documents or agreements and to take such other
action as may be reasonably necessary or desirable for the implementation of
this Agreement and the consummation of the transactions contemplated hereby.
11.9 Submission to Jurisdiction; Consent to Service of Process. Any
suit, action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated by
30
this Agreement may be brought against any of the parties in any Federal court
located in the State of Delaware, or any Delaware state court, and each of the
parties hereto hereby consents to the exclusive jurisdiction of such courts (and
of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and waives any objection to venue laid therein. Process in any such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the State of Delaware. Without limiting the generality
of the foregoing, each party hereto agrees that service of process upon such
party at the address referred to in Section 11.13, together with written notice
of such service to such party, shall be deemed effective service of process upon
such party.
11.10 Entire Agreement; Amendments and Waivers. This Agreement
(including the documents and the instruments referred to herein) and the
Confidentiality Agreement contain the entire agreement between the parties with
respect to the subject matter hereof and supersede all previous agreements,
negotiations, discussions, writings, understandings, commitments and
conversations with respect to such subject matter, and there are no agreements
or understandings between the parties other than those set forth or referred to
herein or therein. This Agreement can be amended, supplemented or changed, and
any provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought. No action taken
pursuant to this Agreement, including without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
11.11 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to
principles of conflicts of law.
11.12 Table of Contents and Headings. The table of contents and section
headings of this Agreement are for reference purposes only and are to be given
no effect in the construction or interpretation of this Agreement.
11.13 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or dispatched by a nationally recognized overnight courier service
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
31
If to Xxxxxx or any Seller, to:
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
P.O. Box 456
El Segundo, CA 90245
Attention: General Counsel
Telecopy No.: (000) 000-0000
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx and
Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: R. Xxxxx Xxxx and
Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
If to Purchaser, to:
0000 Xxxxx Xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx and
Xxxx X. X'Xxxxx
Telecopy No.: (000) 000-0000
11.14 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to
32
which it has been held invalid or unenforceable, shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, so long
as the economic or legal substance of the transactions contemplated hereby is
not affected in any manner adverse to any party. Upon such determination, the
parties shall negotiate in good faith in an effort to agree upon such a suitable
and equitable provision to effect the original intent of the parties.
11.15 Binding Effect; Assignment. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns. The provisions of this Agreement are solely for the
benefit of the parties and are not intended to confer upon any Person except the
parties any rights or remedies hereunder and there are no third party
beneficiaries of this Agreement and this Agreement shall not provide any third
Person with any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party; provided,
however, that each Seller shall have the right to assign its rights, interests
and obligations to the Shares and under this Agreement to any Affiliate thereof
(whether as a result of recapitalization, reorganization, merger or otherwise),
except that no such assignment shall relieve either Seller of any of their
respective obligations hereunder.
11.16 Counterparts. This Agreement may be executed in counterparts,
which together shall constitute one and the same Agreement. The parties may
execute more than one copy of the Agreement, each of which shall constitute an
original.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
ECHOSTAR COMMUNICATIONS CORPORATION
By: /s/ XXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
XXXXXX ELECTRONICS CORPORATION
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX GALAXY COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
XXXXXX COMMUNICATIONS SATELLITE
SERVICES, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
XXXXXX COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
[PanAmSat Stock Purchase Agreement]
EXHIBIT A
Name of Seller Number of Shares Owned
-------------- ----------------------
Xxxxxx Communications Galaxy, Inc. 88,605,390
Xxxxxx Communications Satellite Services, Inc. 17,729,545
Xxxxxx Communications, Inc. 14,477,240
EXHIBIT B
GM guarantee of the Amended and Restated Loan and Security Agreement
dated as of July 2, 1999, between PanAmSat and The Chase Manhattan Bank as
Agent.
