<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 2)/1/
---------------------
ECHOSTAR COMMUNICATIONS CORPORATION
----------------------------------------------
(Name of Issuer)
Class A Common Stock, par value $.01 per share
----------------------------------------------
(Title of Class of Securities)
282-762-109
-----------------------------------------------
(CUSIP Number)
Arthur M. Siskind, Esq.
The News Corporation Limited
c/o News America Incorporated
1211 Avenue of the Americas
New York, New York 10036
(212) 852-7000
-----------------------------------------------
with copies to:
Joel I. Papernik, Esq.
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
(212) 661-6500
(Name, address and telephone number of person
authorized to receive notices and communications)
December 2, 1999
----------------------------------------------
(Date of event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of (S)(S) 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box [_]
Note. Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See (S) 240.13d-7(b)
for other parties to whom copies are to be sent.
________________________
/1/ The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Exchange Act") or otherwise subject to the liabilities of that
section of the Exchange Act but shall be subject to all other provisions of the
Exchange Act (however, see the Notes).
Page 1 of 50 Pages
<PAGE>
SCHEDULE 13D
- -----------------------
CUSIP NO.
- -----------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The News Corporation Limited
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
South Australia, Australia
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 16,510,584
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
-0-
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 16,510,584
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
16,510,584
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
15.2%/1/
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
CO
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
____________________
/1/ Based on 108,628,192 shares of Class A Common Stock, par value $.01 per
share ("Class A Common Stock"), of EchoStar Communications Corporation
("EchoStar") outstanding on October 28, 1999 as reported in the Quarterly Report
on Form 10-Q of EchoStar for the quarter ended September 30, 1999 (the "Form 10-
Q"). Considering the 16,510,584 shares of Class A Common Stock held by News
America Incorporated ("NAI"), together with the 4,101,880 shares of Class A
Common Stock held by MCI Telecommunications Corporation ("MCI"), the percentage
of the Class A Common Stock that the Reporting Persons (as defined herein) may
be deemed to have beneficial ownership would be approximately 19.0%. As
reported in the Form 10-Q, there were outstanding 119,217,604 shares of Class B
Common Stock, par value $.01 per share ("Class B Common Stock"), of EchoStar.
Because such Class B Common Stock is convertible on a one-for-one basis into
Class A Common Stock, assuming conversion of shares of Class B Common Stock into
Class A Common Stock, the percentage of the Class A Common Stock that the
Reporting Persons may be deemed to have beneficial ownership of would be
approximately 7.2%. Because each share of Class B Common Stock is entitled to
10 votes per share, the Reporting Persons beneficially own equity securities of
EchoStar representing approximately 1.3% of the voting power of EchoStar
(assuming no conversion of the Class B Common Stock).
Page 2 of 50 Pages
<PAGE>
SCHEDULE 13D
- -----------------------
CUSIP NO.
- -----------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
News America Incorporated/13-3249610
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware, U.S.A.
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 16,510,584
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
-0-
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 16,510,584
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
16,510,584
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
15.2%/1/
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
CO
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
___________________
/1/ Based on 108,628,192 shares of Class A Common Stock of EchoStar outstanding
on October 28, 1999 as reported in the Form 10-Q. Considering the 16,510,584
shares of Class A Common Stock held by NAI, together with the 4,101,880 shares
of Class A Common Stock held by MCI, the percentage of the Class A Common Stock
that the Reporting Persons may be deemed to have beneficial ownership would be
approximately 19.0%. As reported in the Form 10-Q, there were outstanding
119,217,604 shares of Class B Common Stock of EchoStar. Because such Class B
Common Stock is convertible on a one-for-one basis into Class A Common Stock,
assuming conversion of shares of Class B Common Stock into Class A Common Stock,
the percentage of the Class A Common Stock that the Reporting Persons may be
deemed to have beneficial ownership of would be approximately 7.2%. Because each
share of Class B Common Stock is entitled to 10 votes per share, the Reporting
Persons beneficially own equity securities of EchoStar representing
approximately 1.3% of the voting power of EchoStar (assuming no conversion of
the Class B Common Stock).
Page 3 of 50 Pages
<PAGE>
SCHEDULE 13D
- -----------------------
CUSIP NO.
- -----------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
K. Rupert Murdoch
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 16,510,584
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
-0-
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 16,510,584
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
-0-
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
16,510,584
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
15.2%/1/
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
________________
/1/ Based on 108,628,192 shares of Class A Common Stock of EchoStar outstanding
on October 28, 1999 as reported in the Form 10-Q. Considering the 16,510,584
shares of Class A Common Stock held by NAI, together with the 4,101,880 shares
of Class A Common Stock held by MCI, the percentage of the Class A Common Stock
that the Reporting Persons may be deemed to have beneficial ownership would be
approximately 19.0%. As reported in the Form 10-Q, there were outstanding
119,217,604 shares of Class B Common Stock of EchoStar. Because such Class B
Common Stock is convertible on a one-for-one basis into Class A Common Stock,
assuming conversion of shares of Class B Common Stock into Class A Common Stock,
the percentage of the Class A Common Stock that the Reporting Persons may be
deemed to have beneficial ownership of would be approximately 7.2%. Because each
share of Class B Common Stock is entitled to 10 votes per share, the Reporting
Persons beneficially own equity securities of EchoStar representing
approximately 1.3% of the voting power of EchoStar (assuming no conversion of
the Class B Common Stock).
Page 4 of 50 Pages
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)
Pursuant to Section 13(d) of the
Securities Exchange Act of 1934
in respect of
ECHOSTAR COMMUNICATIONS CORPORATION
Introductory Statement
----------------------
This Amendment No. 2 (this "Amendment") to the Statement on Schedule 13D
(the "Statement") relates to the Class A Common Stock, par value $.01 per share
(the "Class A Common Stock"), of EchoStar Communications Corporation, a Nevada
corporation ("EchoStar"). This Amendment amends and supplements (i) the
Statement originally filed with the Securities and Exchange Commission (the
"SEC") by the "Reporting Persons" (as defined herein) on December 10, 1998 and
(ii) Amendment No.1 to the Statement ("Amendment No. 1") filed by the Reporting
Persons on July 1, 1999.
On June 24, 1999, The News Corporation Limited ("News Corporation"), MCI
Telecommunications Corporation ("MCI"), American Sky Broadcasting, LLC ("ASkyB")
and EchoStar consummated the transactions previously described in the Statement.
On such date, pursuant to (i) the Purchase Agreement, dated as of November 30,
1998, among ASkyB, News Corp, MCI and EchoStar (the "Purchase Agreement") and
(ii) the letter agreement, dated November 30, 1998, among Charles W. Ergen,
EchoStar, ASkyB, News Corporation and MCI (the "Letter Agreement" and
collectively with the Purchase Agreement, the "Acquisition Agreements"), News
America Incorporated ("NAI"), a wholly-owned subsidiary of News Corporation,
acquired an aggregate of 6,891,096 shares of EchoStar's Class A Common Stock
(27,564,384 shares of Class A Common Stock after subsequent stock splits).
Page 5 of 50 Pages
<PAGE>
On December 8, 1999, pursuant to an Underwriting Agreement, dated December
2, 1999, between EchoStar, NAI, MCI Worldcom Network Services, Inc. and
Donaldson, Lufkin & Jenrette Securities Corporation, Allen & Company
Incorporated, Credit Suisse First Boston Corporation, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, acting severally on behalf of themselves and the
several underwriters named therein (the "Underwriters") (the "Underwriting
Agreement"), the Reporting Persons sold 11,053,800 shares of Class A Common
Stock at $71 per share, less an underwriter's commission of $1.9525 per share
and offering expenses of $222,658.48, yielding aggregate net proceeds of
$763,014,597.10. In conjunction with the closing, NAI paid approximately
$54,311,000 to EchoStar for amounts due under the Satellite Contracts (as
defined in the Purchase Agreement).
The descriptions of, and references to, the Acquisition Agreements, the
Underwriting Agreement and other agreements and documents filed as Exhibits to
this Statement are qualified in their entirety by reference to the complete
texts of such agreements and documents.
Item 2. Identity and Background.
-----------------------
Item 2 is hereby amended and restated to read in its entirety as
follows:
This statement is being filed by (i) News Corporation, a South
Australia, Australia corporation, with its principal executive office located at
2 Holt Street, Sydney, New South Wales 2010, Australia, (ii) NAI, a Delaware
corporation and a subsidiary of News Corporation, with its principal executive
office located at 1211 Avenue of the Americas, New York, New York, 10036, and
(iii) K. Rupert Murdoch, a United States citizen, with his business address at
10201 West Pico Boulevard, Los Angeles, California 90035. News Corporation, NAI,
and K. Rupert Murdoch are referred to herein collectively as the "Reporting
Persons." The name, residence or business address, principal occupation or
employment and the name, principal business, and address of any corporation or
other organization in which such employment is conducted with respect to each
director and executive officer of the Reporting Persons are set forth in
Schedule 1 attached hereto, which is incorporated herein by reference. To the
knowledge of the Reporting Persons, each of the persons named on Schedule 1 (the
"Schedule 1 Persons") is a United States citizen unless otherwise indicated.
Page 6 of 50 Pages
<PAGE>
News Corporation is one of the world's largest media companies with total
assets as of December 31, 1998 of approximately US $36 billion and total annual
revenues of approximately US $14 billion. News Corporation's diversified global
operations in the United States, Canada, the United Kingdom, Australia, Latin
America and the Pacific basin include the production and distribution of motion
pictures and television programming; television, satellite and cable
broadcasting; the publication of newspapers, magazines and books; the production
and distribution of promotional and advertising products and services; the
development of digital broadcasting; the development of conditional access and
subscriber management systems; and the creation and distribution of various
popular online services.
NAI is a company 100% owned by News Corporation through certain
intermediaries. NAI is the principal subsidiary of News Corporation in the
United States and whose affiliates and subsidiaries conduct a substantial
portion of the United States activities of News Corporation.
K. Rupert Murdoch is the Chairman and Chief Executive of News Corporation;
a director of News Publishing Australia Limited ("NPAL"), a holding company 100%
of which is owned by News Corporation directly and through certain
intermediaries; a director of News International plc, News Corporation's
principal subsidiary in the United Kingdom; a director of News Limited, News
Corporation's principal subsidiary in Australia; a director of NAI; a director
of TVG Holdings, Inc., a wholly-owned subsidiary of NPAL; a director of
Satellite Television Asian Region Limited, the Asia Pacific Region's largest
satellite television broadcaster; Chairman and a director of British Sky
Broadcasting Group plc, which operates the leading pay television broadcasting
services in the United Kingdom and the Republic of Ireland; director, Chairman
and Chief Executive Officer of Fox Entertainment Group, Inc., an indirect
subsidiary of News Corporation principally engaged in the development,
production and worldwide distribution of feature films and television programs,
television broadcasting and cable network programming; and a director of Fox
Family Worldwide, Inc., a subsidiary of Fox Entertainment Group, Inc. which is
an integrated family and children's entertainment
Page 7 of 50 Pages
<PAGE>
company that develops, acquires, produces, broadcasts and distributes live-
action and animated family and children's television programming on a global
basis.
Approximately 30% of the voting stock of News Corporation is owned by (i)
Mr. Murdoch and members of his family, (ii) Cruden Investments Pty. Limited, a
private Australian investment company owned by Mr. Murdoch, members of his
family and certain charities and (iii) corporations which are controlled by
trustees of settlements and trusts set up for the benefit of the Murdoch family,
certain charities and other persons. By virtue of shares of News Corporation
owned by such persons and entities, and Mr. Murdoch's positions as Chairman and
Chief Executive of News Corporation, Mr. Murdoch may be deemed to control the
operations of News Corporation.
During the last five years, none of the Reporting Persons or, to the best
of the knowledge of the Reporting Persons, none of the Schedule 1 Persons has
(i) been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction as a result of which it was or
is subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 4. Purpose of Transaction.
----------------------
Item 4 is hereby amended and restated to read in its entirety as
follows:
EchoStar, News Corporation, ASkyB and MCI entered into the Purchase
Agreement with respect to the acquisition of 30,000,000 shares of Class A Common
Stock, subject to adjustment./1/ Pursuant to the Purchase Agreement, NAI
acquired 6,891,096 shares of Class A Common Stock (27,564,384 shares of Class A
Common Stock after subsequent stock splits) (the "ASkyB Shares")/2/, and MCI
acquired
__________________
/1/ The amount Class A Common Stock actually issued was reduced to 8,603,116
shares pursuant to Section 2 (a)(ii) of the Purchase Agreement.
/2/ Pursuant to Section 2 (a)(i)(A) of the Purchase Agreement, ASkyB designated
NAI to acquire the ASkyB Shares.
Page 8 of 50 Pages
<PAGE>
1,712,020 shares of Class A Common Stock (6,848,080 shares of Class A Common
Stock after subsequent stock splits) (the "MCI Shares," and together with the
ASkyB Shares, the "Shares"). On December 8, 1999, pursuant to the Underwriting
Agreement, the Reporting Persons sold 11,053,800 shares of Class A Common Stock
at $71 per share, less an underwriter's commission of $1.9525 per share and
offering expenses of $222,658.48, yielding aggregate net proceeds of
$763,014,597.10. In conjunction with the closing, NAI paid approximately
$54,311,000 to EchoStar for amounts due under the Satellite Contracts (as
defined in the Purchase Agreement).
The Reporting Persons acquired beneficial ownership of the securities for
the purpose of investment. Subject to the Acquisition Agreements and the other
agreements referenced in Item 6 below, the Reporting Persons intend to
continuously review their investment in EchoStar, and may in the future
determine to (i) acquire additional securities of EchoStar, through open market
purchases, private agreements or otherwise, (ii) dispose of all or a portion of
the securities of EchoStar owned by them or (iii) take any other available
course of action, which could involve one or more of the types of transactions
or have one or more of the results described in the last paragraph of this Item
4 or (iv) otherwise change their investment intent. Notwithstanding anything
contained herein, the Reporting Persons specifically reserve the right to change
their intentions with respect to any or all of such matters. In reaching any
decision as to their course of action (as well as to the specific elements
thereof), the Reporting Persons currently expect that they would take into
consideration a variety of factors, including, but not limited to, EchoStar's
financial condition, business, operations and prospects, other developments
concerning EchoStar and the satellite business generally, other business
opportunities available to the Reporting Persons, other developments with
respect to the business of the Reporting Persons, general economic conditions
and money and stock market conditions, including the market price of the
securities of EchoStar. See Item 6.
The resale of the Shares has been registered pursuant to a Registration
Statement on Form S-3, which was declared effective by the SEC on October 29,
1999.
Page 9 of 50 Pages
<PAGE>
Other than as described herein, none of the Reporting Persons have any
present plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of EchoStar or the
disposition of securities of EchoStar; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving EchoStar
or any of its subsidiaries; (c) a sale or transfer of a material amount of
assets of EchoStar or any of its subsidiaries; (d) any change in the Board of
Directors or management of EchoStar, including any plans or proposals to change
the number or terms of directors or to fill any existing vacancies on the Board
of Directors of EchoStar; (e) any material change in the present capitalization
or dividend policy of EchoStar; (f) any other material change in EchoStar's
business or corporate structure; (g) changes in EchoStar's charter, by-laws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of EchoStar by any person; (h) a class of securities of
EchoStar being delisted from a national securities exchange or ceasing to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; (i) a class of equity securities of EchoStar
becoming eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); or (j)
any action similar to those enumerated above.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is hereby amended and restated to read in its entirety as
follows:
On June 24, 1999, by virtue of the consummation of the transactions
contemplated by the Purchase Agreement, NAI became the direct beneficial owner
of 6,891,096 shares of Class A Common Stock (27,564,384 shares of Class A Common
Stock after subsequent stock splits). On December 8, 1999, pursuant to the
Underwriting Agreement, NAI sold 11,053,800 shares of the Class A Common Stock
at $71 per share. After such sale, NAI was the direct beneficial owner of
16,510,584 shares of Class A Common Stock. Each of News Corporation and K.
Rupert Murdoch may be deemed to be indirect beneficial owners of such shares.
Based upon the number of shares of Class A Common Stock
Page 10 of 50 Pages
<PAGE>
and Class B Common Stock reflected as outstanding as of October 28, 1999 in
EchoStar's Quarterly Report on Form 10-Q for the period ended September 30, 1999
(the "Form 10-Q"), the shares of EchoStar's securities beneficially owned by the
Reporting Persons represent approximately 15.2% of the Class A Common Stock
(approximately 7.2% assuming the conversion of the Class B Common Stock into
Class A Common Stock) and approximately 1.3% of the combined voting power of the
Class A Common Stock and the Class B Common Stock. The holders of Class A Common
Stock are entitled to one vote for each share of Class A Common Stock held, and
the holders of Class B Common Stock are entitled to ten votes for each share of
the Class B Common Stock held.
To the Reporting Persons' knowledge, MCI is the direct beneficial owner of
4,101,880 shares of Class A Common Stock. Based upon the number of shares of
Class A Common Stock and Class B Common Stock reflected as outstanding as of
October 28, 1999 in the Form 10-Q, the shares of EchoStar's securities
beneficially owned by MCI represent approximately 3.8% of the Class A Common
Stock (approximately 1.8% assuming the conversion of the Class B Common Stock
into Class A Common Stock) and approximately 0.3% of the combined voting power
of the Class A Common Stock and the Class B Common Stock.
Subject to the Letter Agreement, the Reporting Persons have the sole power
to vote the ASkyB Shares. See Item 6 below.
Except as described above, no transactions were effected by the Reporting
Persons in the Class A Common Stock during the 60 days preceding the date
hereof.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
---------------------------------------------------------------------
to Securities of the Issuer.
---------------------------
Item 6 is hereby amended and restated to read in its entirety as
follows:
In conjunction with the purchase of the Shares, EchoStar, ASkyB, MCI,
News Corporation and Charles W. Ergen entered into the Letter Agreement.
Pursuant to the Letter Agreement, each of News
Page 11 of 50 Pages
<PAGE>
Corporation and MCI agreed that, for a period of five years after the closing
date of the transactions contemplated by the Purchase Agreement, it will not:
(i) attempt to influence voting of EchoStar securities (such as through a
solicitation of proxies or election contest); (ii) participate in any way in a
"group" within the meaning of section 13(d)(3) of the Exchange Act, with respect
to EchoStar securities; (iii) otherwise act to control or influence the
management, Board of Directors, or affairs of EchoStar or its affiliates; (iv)
deposit the securities of EchoStar in a voting trust or similar arrangement; (v)
initiate, or induce another to initiate, a tender offer or shareholder proposal
with respect to EchoStar or its affiliates; or (vi) enter into any negotiation
or arrangement with any third party with respect to any of the above.
Further, each of News Corporation and MCI agreed that for a period of five
years it will: (i) with respect to the election of directors of EchoStar, vote
in the manner recommended by the board of directors of EchoStar; and (ii) with
respect to any other stockholder action, vote as recommended by the Board of
Directors, or abstain from voting. The restrictions set forth in section (ii)
in the preceding sentence shall not apply to News Corporation or MCI as to
actions which would discriminate against (A) the holders of Class A Common Stock
vis a vis holders of any other class of EchoStar's equity securities or (B) News
Corporation or MCI vis a vis any other holder of EchoStar's equity securities.
Under Section 9(m) of the Purchase Agreement, NAI and MCI (the "Buyers")
must abide by transfer restrictions relating to the Shares purchased by each of
them. Under the terms of the Purchase Agreement, the Buyers could not, directly
or indirectly, sell, transfer or otherwise dispose of any interest in the Shares
in an amount not to exceed 10% of such Shares until all amounts due under the
Satellite Contracts (as defined therein) were paid. Upon the closing of the sale
of the Shares described herein, such amounts were paid and the restriction
lapsed. In addition to the foregoing, during the two-year period after the
closing under the Purchase Agreement, dispositions may be made by the Buyers in
an amount not to exceed for each 365-day period thereafter one-third of the
Shares; provided, however, that
Page 12 of 50 Pages
<PAGE>
any Shares permitted to be sold, but not sold, during the first 365-day period
shall be added to the number of Shares permitted to be sold during the second
365-day period; and provided further that the Buyers, pursuant to a firm
commitment underwritten public offering pursuant to an effective registration
statement, may make a disposition of Shares in an amount not to exceed (x) the
difference between 50% of the Shares issued to the Buyers and the number of
Shares disposed of by the Buyers during the first 365-day period or (y) the
difference between 80% of the Shares issued to the Buyers and the number of
Shares disposed of by the Buyers during the first and second 365-day periods.
From the date that is two years after the closing date under the Purchase
Agreement, the Buyers may make dispositions freely, subject to applicable law.
Notwithstanding any of the above, the Buyers have the right to transfer any of
their Shares to a direct or indirect wholly-owned subsidiary of either MCI or
News Corporation.
On December 2, 1999, MCI and NAI entered into the Underwriting Agreement in
connection with the sale of an aggregate of 13,800,000 shares of Class A Common
Stock. Pursuant to Section 8 of the Underwriting Agreement, MCI and NAI will
each indemnify the Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933 and the Securities Exchange Act of
1934, and contribute to payments an indemnified party may be required to make in
respect of such liabilities. In addition, pursuant to the Underwriting
Agreement, NAI and MCI each entered into a lock-up agreement with EchoStar and
the Underwriters for a period of 180 days whereby they each agreed not to
transfer or dispose of any shares of EchoStar's capital stock or enter into
certain other transactions without the consent of EchoStar and Donaldson, Lufkin
and Jenrette Securities Corporation.
Item 7. Materials to be Filed as Exhibits.
---------------------------------
Item 7 is hereby amended and restated to read in its entirety as
follows:
Document Exhibit No.
------------------------------------------------ -------------
Purchase Agreement, dated as of November 99.1
30, 1998, by and among ASkyB, News
Corporation, MCI and EchoStar (filed with the
original filing of the Statement on Schedule
13D).
Amendment No.1 to Purchase Agreement, 99.2
dated June 23, 1999 (filed with Amendment
No. 1).
Page 13 of 50 Pages
<PAGE>
Letter Agreement, dated November 30, 1998, 99.3
by and among Charles W. Ergen, EchoStar,
ASkyB, News Corporation and MCI. (filed
with the original filing of the Statement on
Schedule 13D as Exhibit 99.2).
Agreement of Joint Filing among the 99.4
Reporting Persons (filed with Amendment No. 1).
Power of Attorney, dated June 29, 1999 by K. 99.5
Rupert Murdoch (filed with Amendment No. 1).
Underwriting Agreement, dated December 2, 1999, 99.6
by and among EchoStar, MCI, NAI and the Underwriters
named in Schedule I thereto.
Page 14 of 50 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete, and correct.
Date: December 9, 1999
THE NEWS CORPORATION LIMITED
By: /s/ Arthur M. Siskind
-----------------------------
Name: Arthur M. Siskind
Title: Director
Page 15 of 50 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete, and correct.
Date: December 9, 1999
NEWS AMERICA INCORPORATED
By: /s/ Arthur M. Siskind
----------------------------------------
Name: Arthur M. Siskind
Title: Senior Executive Vice President
Page 16 of 50 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete, and correct.
Date: December 9, 1999
*
----------------------------
K. Rupert Murdoch
* By: /s/ Arthur M. Siskind
--------------------------
Arthur M. Siskind
Attorney-in-Fact
Page 17 of 50 Pages
<PAGE>
Schedule 1 is hereby amended and restated to read in its entirety as follows:
Schedule 1
----------
Directors, Executive Officers and Controlling Persons of the Reporting
Persons.
<TABLE>
<CAPTION>
Principal Business or
Organization in
Which Such
Name Principal Occupation and Employment is
- ----
Business Address Conducted
---------------- ---------
- -----------------------------------------------------------------------------------------------
<S> <C> <C>
K. Rupert Murdoch Chairman and Chief Executive of News News Corporation
Corporation; Director of NPAL; Director
of News International plc; Director of
News Limited; Director of NAI; Director
of TVG Holdings, Inc. ("Holdings");
Director and Chairman of Satellite
Television Asian Region Limited ("STAR
TV"); Director and Chairman of British
Sky Broadcasting Group plc ("BSkyB");
Director, Chairman and Chief Executive
Officer of Fox Entertainment Group, Inc.;
Director of Fox Family Worldwide, Inc.
("FFW"); Director of Philip Morris
Companies Inc.
10201 West Pico Boulevard
Los Angeles, CA 90035
Geoffrey C. Bible Non Executive Director of News Philip Morris
Corporation; Chairman and Chief
Executive Officer of Philip Morris
Companies Inc. ("Philip Morris");
Director of New York Stock Exchange,
Inc.
120 Park Avenue
New York, New York 10017
</TABLE>
Page 18 of 50 pages
<PAGE>
<TABLE>
<S> <C> <C>
Chase Carey Executive Director and Co-Chief Fox Television
Operating Officer of News Corporation;
Director, President and Chief Operating
Officer of NAI; Director and Co-Chief
Operating Officer of Fox Entertainment
Group, Inc.; Chairman and Chief
Executive Officer of Fox Television;
President and Chief Operating Officer of
Holdings; Director of STAR TV; Director
of FFW; Director of TV Guide, Inc.;
Director of Gateway, Inc.; Director of
Colgate University.
10201 West Pico Boulevard
Los Angeles, CA 90035
Gareth C.C. Chang Executive Director of News Corporation; STAR TV
Executive Chairman of STAR TV;
Director of Apple Computers Inc.
8th Floor, One Harbourfront
18 Tak Fung Street
Hunghom, Kowloon, Hong Kong
Peter Chernin Executive Director, President and Chief News Corporation
Operating Officer of News Corporation;
Director, Chairman and Chief Executive
Officer of NAI ; Director, President and
Chief Operating Officer of Fox
Entertainment Group, Inc.; Chairman and
Chief Executive Officer of Holdings;
Director of TV Guide, Inc.; Director of
Tickets.com, Inc.; Director of E*TRADE
Group, Inc.
10201 West Pico Boulevard
Los Angeles, CA 90035
Ken E. Cowley/1/ Non Executive Director of News News Corporation
Corporation; Executive Director of Ansett
Australia Holdings Limited; Director of
Commonwealth Bank of Australia.
2 Holt Street
Sydney, New South Wales 2010
Australia
</TABLE>
____________________
/1/ Citizen of Australia
Page 19 of 50 Pages
<PAGE>
<TABLE>
<S> <C> <C>
David F. DeVoe Executive Director, Senior Executive News Corporation
Vice President and Chief Financial
Officer and Finance Director of News
Corporation; Director and Senior
Executive Vice President of NAI;
Director, Senior Executive Vice President
and Chief Financial Officer of Fox
Entertainment Group, Inc.; Director of
STAR TV; Director of BSkyB; Director
and Senior Executive Vice President of
Holdings.
1211 Avenue of the Americas
New York, New York 10036
Aatos Erkko/2/ Non Executive Director of News Sanoma
Corporation; Chairman of Sanoma
Corporation ("Sanoma"), a privately
owned media company in Finland.
P.O. Box 144
SF00101 Helsinki, Finland
Leslie Hinton Director and Executive Vice President of News Corporation
NPAL; Executive Chairman of News
International plc; Director of Press
Association Limited.
1 Virginia Street
London E1 9XN England
Andrew S.B. Knight/3/ Non Executive Director of News News Corporation
Corporation
c/o News International plc
1 Virginia Street
London E1 9XN England
Peter Macourt Director and President of NPAL; Deputy News Corporation
Chief Executive Officer of News Limited.
2 Holt Street
Surry Hills, New South Wales 2010
Australia
</TABLE>
_____________________
/2/ Citizen of Finland
/3/ Citizen of United Kingdom
Page 20 of 50 Pages
<PAGE>
<TABLE>
<S> <C> <C>
Lachlan K. Murdoch Executive Director and Senior Executive News Corporation
Vice President of News Corporation;
Chairman and Director of Queensland
Press Limited; Director, Chairman, and
Chief Executive of News Limited; Deputy
Chairman of STAR TV; Director of
Beijing PDN Xinren Information
Technology Company Ltd; Director of
FOXTEL Management Pty Ltd.;
2 Holt Street
Sydney, New South Wales 2010
Australia
Thomas J. Perkins Non Executive Director of News Kleiner Perkins
Corporation; Senior Partner at Kleiner
Perkins Caufield & Byers ("Kleiner
Perkins"); Director of Compaq Computer
Corporation;
4 Embarcadero Center
Suite 3520
San Francisco, CA 94111
Bert C. Roberts, Jr. Non Executive Director of News MCI
Corporation; Chairman of MCI
Worldcom, Inc. ("MCI");
1801 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Stanley S. Shuman Non Executive Director of News Allen & Company
Corporation; Executive Vice President
and Managing Director of Allen &
Company Incorporated ("Allen &
Company"); Director of NAI; Director of
Bayou Steel Corporation;
711 Fifth Avenue
New York, New York 10176
</TABLE>
Page 21 of 50 Pages
<PAGE>
<TABLE>
<S> <C> <C>
Arthur M. Siskind Executive Director, Senior Executive News Corporation
Vice President and Group General
Counsel of News Corporation; Director of
BSkyB; Director and Executive Vice
President of NAI; Director, Senior
Executive Vice President and General
Counsel of Fox Entertainment Group,
Inc.; Director of STAR TV; Director and
Senior Executive Vice President of
Holdings; 1211 Avenue of the Americas
New York, New York 10036
</TABLE>
Page 22 of 50 Pages
<PAGE>
Exhibit 99.6
13,800,000 Shares
ECHOSTAR COMMUNICATIONS CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 2, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALLEN & COMPANY INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
As representatives of the several Underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Certain stockholders of EchoStar Communications Corporation, a Nevada
corporation (the "Company"), named in Schedule II hereto (the "Sellers")
severally propose to sell to the several underwriters named in Schedule I hereto
(the "Underwriters"), the number of Firm Shares (as defined below) set forth
opposite such Seller's name in Schedule II hereto, constituting an aggregate of
12,000,000 shares of the Class A Common Stock, par value $.01 per share, of the
Company (the "Firm Shares"), all of which such Shares are to be sold by the
Sellers, each Seller selling the amount set forth opposite such Seller's name in
Schedule II hereto. The Sellers also propose to sell to the several
Underwriters not more than an additional 1,800,000 shares of the Class A Common
Stock, par value $.01 per share, of the Company (the "Additional Shares") if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter referred to collectively as the
"Shares". The shares of common stock of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock".
Section 1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3, including a related prospectus,
and each supplement thereto, relating to the Shares. The Company will cause the
prospectus, properly completed, and
Page 23 of 50 Pages
<PAGE>
any supplement thereto, to be filed with the Commission pursuant to Rule 424(b)
within the time period prescribed and will provide the Underwriters with
satisfactory evidence of timely filing. The Company has complied with the
conditions for the use of Form S-3. The registration statement, as amended, at
the time it became effective, including the exhibits thereto, the information
incorporated by reference therein and the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule
461(a) under the Act, is hereinafter referred to as the "Registration
Statement"; and the prospectus, including any prospectus supplement thereto
relating to the Shares, in the form first used to confirm sales of Shares is
hereinafter referred to as the "Prospectus". If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional shares of Common Stock (a
"Rule 462(b) Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations, warranties and covenants contained in this
Agreement, and subject to its terms and conditions, (i) each Seller agrees,
severally and not jointly, to sell the number of Firm Shares set forth opposite
such Seller's name in Schedule II hereto and (ii) each Underwriter agrees,
severally and not jointly, to purchase from each Seller at a price per Share of
$71.00 (the "Purchase Price") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Firm Shares to be sold by such Seller as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) each Seller agrees,
severally and not jointly, to sell the Additional Shares set forth opposite such
Seller's name in Schedule II hereto and (ii) the Underwriters shall have the
right to purchase, severally and not jointly, up to 1,800,000 Additional Shares
from the Sellers at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Sellers within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Sellers
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) which bears the same proportion to the
total number of Additional Shares to be purchased from the Sellers as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
bears to the total number of Firm Shares.
Page 24 of 50 Pages
<PAGE>
Each of the Sellers agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Closing Date (as defined below) without
the prior written consent of Donaldson, Lufkin & Jenrette Securities Corporation
and the Company, which consent the Company may withhold in its sole discretion.
Each Seller agrees that, for a period of 180 days after the date of the
Prospectus without the prior written consent of Donaldson, Lufkin & Jenrette
Securities Corporation, it will not make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
Each Seller shall, prior to or concurrently with the execution of this
Agreement, deliver an agreement executed by such Seller to the effect that such
person will not, during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the Prospectus, without the
prior written consent of Donaldson, Lufkin & Jenrette Corporation, (A) engage in
any of the transactions described in the first sentence of this paragraph or (B)
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; provided, that any such agreement shall not
relieve any other obligation such Seller otherwise has to the Company.
Section 3. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Sellers, with any transfer
taxes thereon duly paid by the respective Sellers, to Donaldson, Lufkin &
Jenrette Securities Corporation through the facilities of The Depository Trust
Company ("DTC"), for the respective accounts of the several Underwriters,
against payment to the Sellers of the Purchase Price therefore by wire transfer
of Federal or other funds immediately available in New York City. The
certificates representing the Shares shall be made available for inspection not
later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, at the
office of DTC or its designated custodian (the "Designated Office"). The time
and date of delivery and payment for the Firm Shares shall be 9:00 A.M., New
York City time, on December 8, 1999 or such other time on the same or such other
date as Donaldson, Lufkin & Jenrette Securities Corporation and the Sellers
shall agree in
Page 25 of 50 Pages
<PAGE>
writing. The time and date of delivery and payment for the Firm Shares are
hereinafter referred to as the "Closing Date". The time and date of delivery and
payment for any Additional Shares to be purchased by the Underwriters shall be
9:00 a.m., New York City time, on the date specified in the applicable exercise
notice given by you pursuant to Section 2 or such other time on the same or such
other date as Donaldson, Lufkin & Jenrette Securities Corporation and the
Sellers shall agree in writing. The time and date of delivery and payment for
any Additional Shares are hereinafter referred to as an "Option Closing Date".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of Paul, Hastings, Janofsky & Walker LLP, 399
Park Avenue, New York, New York and the Shares shall be delivered at the
Designated Office, all on the Closing Date or such Option Closing Date, as the
case may be.
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will use its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish to you five photocopies of signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration Statement
as so filed and of each amendment to it, without exhibits, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been advised
or to which you shall reasonably object after being so advised; provided, that
the Company shall have the right to make such further
Page 26 of 50 Pages
<PAGE>
amendments as are required by law to be made and shall forthwith notify you of
any such amendment; and, during such period, to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement or amendment or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the Shares by you,
and to use its reasonable best efforts to cause any such amendment to the
Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request in writing.
(f) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters at the expense of the Sellers in connection
with the registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue Sky laws
of such jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Shares and
to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that the Company shall not be required in connection therewith to
register or qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters and
transactions relating to the Prospectus, the Registration Statement, any
preliminary prospectus or the offering or sale of the Shares, in any
jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending
December 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act,
and to advise you in writing when such statement has been so made available.
Page 27 of 50 Pages
<PAGE>
(h) During the period of three years after the date of this Agreement,
to furnish to you upon your written request copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) To use its best efforts to list for quotation the Shares on the
Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq
National Market for a period of three years after the date of this Agreement.
(j) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Shares.
(k) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so covered
in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter and each Seller that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or threatened by the Commission.
(b)(i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
including the conditions for use of Form S-3, (iii) if the Company is required
to file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments thereto,
when they become effective (A) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) will comply in
all material respects with the Act and (iv) the Prospectus does not
Page 28 of 50 Pages
<PAGE>
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein or with respect to the information described in
Section 7(h) hereof.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein or with respect to the information described in Section 7(h)
hereof.
(d) Each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be in good standing or so qualified
would not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect").
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Sellers) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights; and the Shares to be sold by the Sellers have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued, fully
paid and non-assessable.
(g) The entities listed on Schedule B hereto are the only subsidiaries,
direct or indirect, of the Company. All of the outstanding shares of capital
stock of each of the
Page 29 of 50 Pages
<PAGE>
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature (each, a
"Lien").
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Except as disclosed in the Registration Statement or Prospectus,
neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(j) Each of this Agreement and the instruments contemplated herein to
which the Company is a party (collectively, the "Operative Documents") has been
duly and validly authorized by all necessary corporate action on the part of the
Company and has been executed and delivered by the Company.
(k) Each of the Operative Documents will be legal, valid and binding
agreements of the Company, enforceable against the Company in accordance with
their respective terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency, or similar laws effecting creditors' rights generally
and (ii) rights of acceleration and availability of equitable remedies may be
limited by equitable principles of general applicability. On the Closing Date
each of the Operative Documents will conform as to legal matters at the
description thereof in the Prospectus.
(l) The execution, delivery and performance of the Operative Documents by
the Company and compliance by the Company with all provisions hereof and thereof
and the consummation of the transactions contemplated hereby and thereby will
not require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency and will not
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its subsidiaries
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is bound, or
violate or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company or any of its subsidiaries or their respective
property, or result in the imposition or creation of (or the obligation to
create or impose) a Lien under, any agreement or instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them is bound, or
to which any properties of the Company or any of its subsidiaries is or may be
subject, or result in the termination or revocation of any Authorization (as
defined) of the
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Company or any of its subsidiaries or result in any other impairment of the
rights of the holder of any such Authorization.
(m) To the best knowledge of the Company, except as set forth in the
Prospectus, there are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject, which might
result, singly or in the aggregate, in a Material Adverse Effect.
(n) To the best knowledge of the Company, no action has been taken and no
law, statute, rule or regulation or order has been enacted, adopted or issued by
any governmental agency or body which prevents the execution, delivery and
performance of any of the Operative Documents, the sale of the Shares or
suspends the sale of the Shares in any applicable jurisdiction; and no
injunction, restraining order or other order or relief of any nature by a
federal or state court or other tribunal of competent jurisdiction has been
issued with respect to the Company or any of its subsidiaries which would
prevent or suspend the sale of the Shares in any applicable jurisdiction.
(o) To the best knowledge of the Company, neither the Company nor any of
its subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or the rules and regulations
promulgated thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(p) To the best knowledge of the Company, there are no costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(q) Except as set forth in the Prospectus, each of the Company and its
subsidiaries has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization") of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including,
without limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. Except as set forth in the Prospectus, each such Authorization
is valid and in full force and effect and each of the Company and its
subsidiaries is in compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto except where such failure to comply would not
have a Material Adverse Effect;
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and except as set forth in the Prospectus, no event has occurred (including,
without limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or result or,
after notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such Authorization except where any such event
would not have a Material Adverse Effect; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(r) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and the
its subsidiaries, in each case free and clear of all Liens and defects, except
such as are described in the Prospectus or such others as do not, singly or in
the aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and
the Company's subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case, except as described in the
Prospectus.
(s) Except as set forth in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, all patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
("intellectual property") currently employed by them in connection with the
business now operated by them, except where the failure to own or possess or
otherwise be able to acquire such intellectual property would not, singly or in
the aggregate, have a Material Adverse Effect; and, except as set forth in the
Prospectus, neither the Company nor any of the Company's subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of such intellectual property which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(t) Except as set forth in the Prospectus, the Company and each of its
subsidiaries is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; and neither the Company nor any of
its subsidiaries (i) has received notice from any insurer or agent of such
insurer that substantial capital improvements or other material expenditures
will have to be made in order to continue such insurance or (ii) has any reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers at a cost that would not have a Material Adverse Effect.
Page 32 of 50 Pages
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(u) Except as set forth in the Prospectus, no relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries, on the
one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries, on the other hand, which are required by
the Act to be described in the Prospectus.
(v) To the best knowledge of the Company there is no (i) significant
unfair labor practice complaint, grievance or arbitration proceeding pending or
threatened against the Company or any of its subsidiaries before the National
Labor Relations Board or any state or local labor relations board, (ii) strike,
labor dispute, slowdown or stoppage pending or threatened against the Company or
any of its subsidiaries or (iii) union representation question existing with
respect to the employees of the Company or any of its subsidiaries, except in
the case of clauses (i), (ii) and (iii) for such actions which, singly or in the
aggregate, would not have a Material Adverse Effect. To the best knowledge of
the Company, no collective bargaining organizing activities are taking place
with respect to the Company or any of its subsidiaries, except for such actions
specified in clause (i), (ii) or (iii) above, which, singly or in the aggregate,
would not have a Material Adverse Effect.
(w) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(y) The accountants, Arthur Andersen LLP, that have certified the
financial statements and supporting schedules incorporated by reference in the
Registration Statement are independent public accountants with respect to the
Company, as required by the Act and the Exchange Act. The historical financial
statements, together with related schedules and notes, incorporated by reference
in the Prospectus comply as to form in all material respects with the
requirements applicable to registration statements on Form S-3 under the Act.
(z) The consolidated financial statements incorporated by reference in
the Registration Statement and the Prospectus (and any amendment or supplement
thereto),
Page 33 of 50 Pages
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together with related schedules and notes, present fairly the consolidated
financial position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated therein at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with the financial
statements and books and records of the Company.
(aa) The Company is not an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended.
(bb) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the sale of the Shares to violate
Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation
U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
(cc) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
(dd) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(ee) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
(ff) Neither the Company nor any of the Company's subsidiaries has taken,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
any security of the Company or any of the Company's subsidiaries to facilitate
the sale or resale of the Shares.
(gg) Other than this Agreement and as set forth on Exhibit A, there are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act
Page 34 of 50 Pages
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with respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the Registration
Statement.
(hh) Except for the Shares being offered by the Sellers pursuant to this
Agreement, there are no holders of securities of either the Company or any of
its subsidiaries who, by reason of the filing or the execution by the Company of
this Agreement or the consummation of the transactions contemplated herein, have
the right to request or demand that the Company or any subsidiary of the Company
register under the Act securities held by them.
(ii) To the best knowledge of the Company and its subsidiaries and except
as set forth in the Registration Statement and the Prospectus, all Information
Systems and Equipment (defined below) are either Year 2000 Compliant (as defined
below), or any reprogramming, remediation, or any other corrective action,
including the internal testing of all such Information Systems and Equipment,
will be completed by December 31, 1999 except for any failure to be Year 2000
Compliant and any reprogramming, remediation or other corrective action not
completed by December 31, 1999, that could not reasonably be expected to have a
Material Adverse Effect. To the best knowledge each of the Company and its
subsidiaries and except as set forth in the Registration Statement and the
Prospectus, to the extent that such reprogramming/remediation and testing action
is required, the cost thereof, as well as the cost of the reasonably foreseeable
consequences of failure to become Year 2000 Compliant, to the Company and its
subsidiaries (including, without limitation, reprogramming errors and the
failure of other systems or equipment) could not reasonably be expected to have
a Material Adverse Effect.
"Year 2000 Compliant" means that all Information Systems and Equipment
---- ---- ---------
accurately process date data (including, but not limited to, calculating,
comparing and sequencing), before, during and after the Year 2000, as well as
same and multi-century dates, or between the years 1999 and 2000, taking into
account all leap years, including the fact that the year 2000 is a leap year,
and further, that when used in combination with, or interfacing with, other
Information Systems and Equipment, shall accurately accept, release and exchange
date data, and shall in all material respects continue to function in the same
manner as it performs today and shall not otherwise impair in any material
respect the accuracy or functionality of Information Systems and Equipment.
"Information Systems and Equipment" shall mean all computer hardware,
----------- ------- --- ---------
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the Company and its subsidiaries,
including through third-party service providers, and which, in whole or in part,
are used, operated, relied upon, or integral to, the conduct of the business of
the Company or its subsidiaries; provided that Information Systems and Equipment
does not include any of the foregoing of any third party customer or vendor
which is not owned, licensed, leased, operated or otherwise controlled by the
Company and its subsidiaries.
Page 35 of 50 Pages
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The Company acknowledges that the Underwriters and, for purposes of the
opinions to be delivered to the Underwriters pursuant to Section 9 hereof,
counsel to the Company and counsel to the Underwriters will rely upon the
accuracy and truth of the foregoing representations and hereby consents to such
reliance.
Section 7. Representations and Warranties of the Sellers. Each Seller,
severally and not jointly, represents and warrants to each Underwriter and the
Company that:
(a) Such Seller is the lawful owner of the Shares to be sold by such
Seller pursuant to this Agreement and has, and on the Closing Date will have,
good and clear title to such Shares, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Seller has, and on the Closing Date will have, full legal right,
power and authority, and all authorizations and approvals required by law, to
enter into this Agreement, and to sell, assign, transfer and deliver the Shares
to be sold by such Seller in the manner provided herein.
(c) This Agreement has been duly authorized, executed and delivered by or
on behalf of such Seller.
(d) [intentionally omitted].
(e) [intentionally omitted].
(f) Upon delivery of and payment for the Shares to be sold by such Seller
pursuant to this Agreement, good and clear title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever.
(g) The execution, delivery and performance of this Agreement, the
compliance by such Seller with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (i)
require any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default under,
the organizational documents of such Seller, or any material indenture, loan
agreement, mortgage, lease or other material agreement or instrument to which
such Seller is a party or by which such Seller or any property of such Seller is
bound or (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over such Seller or any property of such Seller.
(h) The information in the Registration Statement or the Prospectus under
the caption "Selling Shareholders", "Plan of Distribution" and "Underwriting"
which specifically relates to such Seller does not, and will not on the Closing
Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated
Page 36 of 50 Pages
<PAGE>
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 5(d), if there is
any change in the information referred to in Section 7(h), such Seller will
immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Seller and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by such Seller to the Underwriters as to the matters
covered thereby.
Section 8. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if any,
who controls such Underwriters within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages, liabilities and
judgments (the "Losses") (including, without limitation, any legal or other
expenses incurred in connection with defending or investigating any matter,
including any action that could give rise to any such Losses) caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such Losses are caused by (i) any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to such Underwriters furnished in writing to the Company by
such Underwriters (or the failure of the Underwriters to deliver any such
document in a timely manner) or (ii) any such untrue statement or omission or
alleged untrue statement or omission based upon the information described in
Section 7(h) hereof.
(b) Each of the Sellers, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
Losses caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only insofar as such Losses are caused by any such
untrue statement or omission or alleged untrue statement or based upon
information relating to such Seller furnished in writing to the Company by or on
behalf of such Seller expressly for use therein; provided that the aggregate
liability of any Seller pursuant to this Section 8(b) shall be limited to an
amount equal to the total proceeds (after deducting underwriting discounts and
commissions and expenses) received by such Seller from the Underwriters for the
sale of the Shares sold by such Seller hereunder. Notwithstanding the foregoing,
the indemnity of the Sellers contained in this Section 8(b) shall not inure to
the benefit of any Underwriter (or other indemnified party, as defined below) if
the untrue statement or omission of material fact contained in the preliminary
prospectus was
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corrected on a timely basis in the Prospectus.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company and its respective directors and officers and each
person who controls (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) the Company, each Seller and each person, if any, who
controls such Seller within the meaning of Section 15 of the Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriters but only with reference to information relating to
such Underwriters furnished in writing to the Company by such Underwriters
expressly for use in the Registration Statement or the Prospectus.
(d) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to Section 8(c) and either or both of Section 8(a) and Section 8(b), the
Underwriter shall not be required to assume the defense of such action pursuant
to this Section 8(d), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as provided
below, shall be at the expense of such Underwriter). Any indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (i) the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Underwriters, their officers and
directors and such control persons of any Underwriters, such firm shall be
designated in writing by Donaldson, Lufkin & Jenrette Securities Corporation. In
the case of any such separate firm for the Company and such directors, officers
and control persons of the Company, such firm shall be designated in writing by
the Company. In the case of any such separate firm for the Sellers and such
control persons of any Sellers, such firm shall be
Page 38 of 50 Pages
<PAGE>
designated in writing by the Sellers. The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all Losses by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(e) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses (i) in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations or (ii) if the allocation provided by clause 8(e)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative fault referred to in clause 8(e)(i) above but
also the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the Shares. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. As between each Seller and the Underwriters, the relative
benefits received by such parties shall be deemed to be in the same proportion
as the total net proceeds from the offering (after deducting expenses) received
by such Seller, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of such Shares, in each
case as set forth in the table on the cover page of the Prospectus. As between
the Company and the Underwriters, the relative benefits shall be evaluated in
the context, among other things, of the services performed by the Underwriters
pursuant to this Agreement allowing the Company to fulfill its contractual
obligations to the Sellers and the aggregate benefits received by the Company
therefrom.
Page 39 of 50 Pages
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The Sellers, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8(e) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
Losses referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any matter, including any action, that could have given rise to such Losses.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no Seller shall be required to
contribute any amount in excess of the amount equal to the total proceeds (after
deducting underwriting discounts and commissions and expenses) received by such
Seller from the Underwriters for the sale of the Shares sold by such Seller
hereunder, less the amount of any indemnification payment made pursuant to
Section 8(b) herein. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8(e) are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
(f) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity, and, as between each of the Sellers and
the Company, shall not supersede or otherwise affect any agreement between such
parties with respect to indemnification or contribution.
(g) News Corporation hereby designates Arthur M. Siskind, Senior
Executive Vice President and General Counsel, News America Incorporated, 1211
Avenue of the Americas, New York, New York 10036, and MCI WorldCom Network
Services, Inc. hereby designates Michael Salsbury, Esq., General Counsel, MCI
Telecommunications Corporation, 1801 Pennsylvania Avenue, N.W., Washington, D.C.
20006 , as its authorized agent, upon which process may be served in any action
which may be instituted in any state or federal court in the State of New York
by any Underwriter, any director or officer of any Underwriter or any person
controlling any Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each Seller will accept
the jurisdiction of such court in such action, and waives, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue. A copy of any such process shall be sent or given to such
Seller, at the address for notices specified in Section 12 hereof.
SECTION 9. Conditions of Underwriters' Obligations'. The several
obligations of the Underwriters to purchase the Shares under this Agreement are
subject to the
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satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the President and the Chief Executive Officer of the
Company, confirming the matters set forth in Sections 6(cc), 9(a) and 9(b) and
that the Company has complied with all of the agreements and satisfied all of
the conditions herein contained and required to be complied with or satisfied by
the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Seller contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date and you shall have received
on the Closing Date a certificate dated the Closing Date from each Seller to
such effect and to the effect that such Seller has complied with all of the
agreements and satisfied all of the conditions herein contained and required to
be complied with or satisfied by such Seller on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Friedlob
Sanderson Raskin Paulson & Tourtillott, LLC (who may rely, as to matters
governed by Nevada law, on the opinion of Hale Lane Peek Dennison Howard and
Anderson), counsel for the Company, to the effect that:
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(i) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties as described therein;
(ii) The Company and each its subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect;
(iii) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(iv) All the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, and are free and clear of any
Lien;
(v) This Agreement has been duly authorized, executed and
delivered by the Company and this Agreement (assuming the due execution and
delivery thereof by the Underwriters) is the legally valid and binding
agreement of the Company;
(vi) The Registration Statement has become effective under the
Act, no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge
after due inquiry, pending before or contemplated by the Commission;
(vii) The statements under the captions "Description of our
capital stock" and "Plan of Distribution" in the Prospectus and Items 14
and 15 of Part II of the Registration Statement, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings;
(viii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of such
counsel's knowledge and except as would not have a Material Adverse Effect,
neither the Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective
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property is bound or to which any of its properties is subject, or is in
violation of any law, statute, rule, regulation, judgment or court decree
applicable to the Company or any Company subsidiary; and to the best of
such counsel's knowledge, there exists no condition that, with notice, the
passage of time or otherwise, would constitute such a default under any
such document or instrument;
(ix) The execution, delivery and performance of this Agreement
and the other Operative Documents and compliance by the Company with all
the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require, to such counsel's
knowledge, any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except, with
respect to the Operative Documents, such as may be required under the
securities or Blue Sky laws of the various states) and will not conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of the
Company's subsidiaries or any indenture, loan agreement, mortgage, lease or
other agreement or instrument identified on a schedule to such opinion that
is material to the Company and any of the Company's subsidiaries, taken as
a whole, to which the Company or any of the Company's subsidiaries is a
party or by which the Company or any of the Company's subsidiaries or their
respective property is bound, or violate or conflict with any applicable
law or any rule or regulation or, to such counsel's knowledge, any
judgment, order or decree of any court or any governmental body or agency
having jurisdiction over the Company, any of the Company's subsidiaries or
their respective property, or result in the imposition or creation of (or
the obligation to create or impose) a Lien under, any agreement or
instrument identified on such schedule to which the Company or any of the
Company's subsidiaries is a party or by which it or any of them is bound,
or to which any properties of the Company or any of the Company's
subsidiaries is or may be subject;
(x) Except as disclosed in the Prospectus, such counsel does not
know of any legal or governmental proceedings pending or threatened to
which the Company or any of Company's subsidiaries is or could be a party
or to which any of their respective property is or could be subject, which
might result, singly or in the aggregate, in a Material Adverse Effect.
(xi) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xii) Except as disclosed in the Prospectus or Exhibit A to this
Agreement, such counsel is aware of no holders of securities of either the
Company or any of the Company's subsidiaries of this Agreement or the
consummation of the transactions contemplated herein that have the right to
request or demand that the Company or any of the Company's subsidiaries
register under the Act securities held by them.
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<PAGE>
(xiii) The Registration Statement (including any Registration
Statement filed under 462(b) of the Act, if any) and the Prospectus and any
supplement or amendment thereto (except for financial statements as to
which no opinion need be expressed) comply as to form in all material
respects with the Act. At the time of filing the Registration Statement,
and as of the date of this opinion, the Company complied with the
conditions for use of Form S-3.
(xiv) To the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character which
are required under the Act to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus which have not
been filed, summarized or described.
(xv) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to such document has been filed, when such amendment was
filed), complied as to form in all material respects with the Exchange Act.
In addition, such counsel will advise that it has participated in
conferences with directors, officers and other representatives of the Company
and the Subsidiaries, and representatives of the independent public accountants
for the Company, at which conferences the contents of the Registration Statement
or the Prospectus and related matters were discussed, and, although such counsel
has not independently verified and is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except as specified,
no facts have come to such counsel's attention which lead such counsel to
believe that the Registration Statement or the Prospectus on the effective date
thereof (or any amendment thereof made prior to the Closing Date, as of the date
of such amendment), contained any untrue statement of a material fact or omitted
to state any material fact necessary to make the statements contained therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no view with respect to the
financial statements and related notes, the financial statement schedules and
other financial, statistical and accounting data included in the Registration
Statement or the Prospectus or any information regarding the Sellers). The
opinion of Friedlob Sanderson Raskin Paulson & Tourtillott, LLC described in
this Section 9(f) shall be rendered to you at the request of the Company and
shall so state therein.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of counsel for each Seller, which may include in-house counsel, to the effect
that:
(i) Such Seller is the lawful owner of the Shares to be sold by
such Seller pursuant to this Agreement and, to our knowledge, has good and
clear title to such Shares, free of all restrictions on transfer, liens,
encumbrances, security
Page 44 of 50 Pages
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interests, equities and claims whatsoever;
(ii) Such Seller has full legal right, power and authority, and all
authorization and approval required by law, to enter into this Agreement
and to sell, assign, transfer and deliver the Shares to be sold by such
Seller in the manner provided herein and therein;
(iii) [intentionally omitted];
(iv) [intentionally omitted];
(v) Assuming the Underwriters are "bona fide purchasers" within
the meaning of Section 8-302 of the Uniform Commercial Code as in effect in
the State of New York, upon delivery of and payment for the Shares to be
sold by such Seller pursuant to this Agreement, good and clear title to
such Shares will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever; and
(vi) The execution, delivery and performance of this Agreement by
such Seller, the compliance by such Seller with all the provisions hereof
and thereof and the consummation of the transactions contemplated hereby
and thereby will not (A) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (B) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the organizational
documents of such Seller or any material indenture, loan agreement,
mortgage, lease or other material agreement or instrument to which such
Seller is a party or by which any property of such Seller is bound or (C)
violate or conflict with any New York or federal law, rule or regulation,
or, to the best of such counsel's knowledge, any judgment, order or decree
of any court or any governmental body or agency having jurisdiction over
such Seller or any property of such Seller.
(h) [intentionally omitted]
(i) The Underwriters shall have received on the Closing Date an
opinion, dated the Closing Date, of Steptoe & Johnson, regulatory counsel for
the Company, in form and substance reasonably satisfactory to the Underwriters
and counsel to the Underwriters.
(j) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Paul, Hastings, Janofsky & Walker LLP, counsel for the
Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(k) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the case
may be, in
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<PAGE>
form and substance satisfactory to you, from Arthur Andersen LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Prospectus.
(l) The Sellers shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force and effect
on the Closing Date.
(m) The Shares shall have been duly listed for quotation on the
Nasdaq National Market.
(n) The Company and the Sellers shall not have failed on or prior
to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Sellers, as the case may be, on or prior to the Closing Date.
(o) You shall have received on the Closing Date, a certificate of
each Seller who is not a U.S. Person (as defined under applicable U.S. federal
tax legislation) to the effect that such Seller is not a U.S. Person, which
certificate may be in the form of a properly completed and executed United
States Treasury Department Form W-8 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
(p) Each of the opinions described in Section 9(f) and 9(i) and
the letter described in Section 9(k) shall have been received by, and shall be
addressed to, each of the Sellers. The Underwriters shall not have the power to
waive compliance with the conditions set forth in this Section 9(p) without the
prior written consent of the Sellers.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options
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<PAGE>
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you,
the Company and the Sellers for purchase of such Firm Shares are not made within
48 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Sellers. In any
such case which does not result in termination of this Agreement, either you or
the Sellers shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
fails or refuses to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than one-
tenth of the aggregate number of Additional Shares to be purchased on such date,
the non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase such Additional Shares or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase on such date in the
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<PAGE>
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
SECTION 11. Agreements of the Sellers. Each Seller agrees with you and
the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares to be sold by such Seller to the
Underwriters.
(b) To do and perform all things to be done and performed by such Seller
under this Agreement prior to the Closing Date and to take such action as is
required by this Agreement to satisfy all conditions precedent (which conditions
are required to be satisfied by such Seller) to the delivery of the Shares to be
sold by such Seller pursuant to this Agreement.
(c) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Company's, and to the extent
relevant hereto, the Sellers' obligations under this Agreement, including: (i)
the reasonable fees, disbursements and expenses of the Company's counsel, the
Company's accountants and any Seller's counsel (in addition to the Company's
counsel) in connection with the registration and delivery of the Shares under
the Act and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Registration Statement (including
financial statements and exhibits), any preliminary prospectus, the Prospectus
and all amendments and supplements to any of the foregoing, including the
mailing and delivering of copies thereof to the Underwriters and dealers in the
quantities specified herein, (ii) all costs and expenses related to the transfer
and delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) all costs of printing or producing this Agreement
and any other agreements or documents in connection with the offering, purchase,
sale or delivery of the Shares, (iv) all expenses in connection with the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Shares, (vi) the costs and charges of any transfer agent, registrar and/or
depositary, and (vii) all other costs and expenses incident to the performance
of the obligations of the Company and the Sellers hereunder for which provision
is not otherwise made in this Section, including payment to the Commission the
filing fee for any Rule 462(b) Registration Statement at the time of the filing
thereof or to give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act. The provisions of this Section shall not supersede
or otherwise affect any agreement that the Company and the Sellers may otherwise
have for allocation of such expenses among themselves.
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SECTION 12. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to EchoStar
Communications Corporation, 5701 South Santa Fe Drive, Littleton, Colorado
80120, Attention: General Counsel, telephone number (303) 799-8222, (ii) if to
MCI WorldCom Network Services, Inc., 1801 Pennsylvania Avenue, N.W., Washington,
D.C. 20006, Attention: General Counsel, telephone number (202) 887-3373, (iii)
if to News America Incorporated, News America Incorporated, 1211 Avenue of the
Americas, New York, New York 10036, Attention: Arthur M. Siskind, Senior
Executive Vice President and General Counsel, and (iv) if to any Underwriter or
to you, to you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park
Avenue, New York, New York 10172, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Sellers and the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Shares, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Seller or any person controlling such Seller, (ii) acceptance of
the Shares and payment for them hereunder and (iii) termination of this
Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Sellers shall be liable for all expenses
which they have agreed to pay pursuant to Section 11(c) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Sellers, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
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This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Sellers and the several Underwriters.
Very truly yours,
ECHOSTAR COMMUNICATIONS CORPORATION
/s/ David Moskowitz
By: David Moskowitz
Title: Senior Vice President, General
Counsel and Secretary
NEWS AMERICA INCORPORATED
/s/ Lawrence A. Jacobs
By: Lawrence A. Jacobs
Title: Senior Vice President
MCI WORLDCOM NETWORK SERVICES, INC.
/s/ Sunit S. Patel
By: Sunit S. Patel
Title: Treasurer
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALLEN & COMPANY INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL, LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
/s/ J. Tracy Mehr
By: J. Tracy Mehr
Title: Vice President
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