[CS&M Draft--12/23/02]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
==============================================================================
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
EchoStar Communications Corporation
(Name of Issuer)
Class A Common Stock, par value $0.01 per share
(Title of Class of Securities)
282762109
(CUSIP Number)
Jacques Espinasse
Chief Financial Officer
Vivendi Universal, S.A.
42, Avenue de Friedland
75380 Paris Cedex 08 France
33-1-7171-1713
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
Copy to:
Faiza J. Saeed, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
December 23, 2002
(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 which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [__]
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 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
2
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Vivendi Universal, S.A.
(2) Check the Appropriate Box if a Member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not applicable.
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
France
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 57,604,790 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 57,604,790 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 57,604,790 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[ ]
(13) Percent of Class Represented by Amount in Row (11) 19.2%(1)
(14) Type of Reporting Person (See Instructions)
CO
---------------------
(1) Based on information provided by EchoStar Communications Corporation
(the "Company") that 242,353,739 shares of Class A Common Stock, par value
$0.01 per share ("Common Stock") of the Company were outstanding as of
November 11, 2002, and assuming conversion of all shares of Series D
mandatorily convertible participating preferred stock (the "Preferred Stock")
beneficially owned by the Reporting Persons. According to the Company, there
were 238,435,208 shares of Class B Common Stock, par value $0.01 per share
("Class B Common Stock") of the Company outstanding as of November 11, 2002.
Because such Class B Common Stock is convertible on a one-for-one basis into
Common Stock, assuming conversion of all shares of outstanding Class B Common
Stock into Common Stock and conversion of all shares of Preferred Stock
beneficially owned by the Reporting Persons, the percentage of the Common
Stock that the Reporting Persons may be deemed to have beneficial ownership of
would be approximately 10.69%. Because each share of Class B Common Stock is
entitled to 10 votes per share, the Reporting Persons beneficially own equity
securities of the Company representing approximately 2.14% of the voting power
of the Company (assuming no conversion of the Class B Common Stock).
3
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Groupe Canal+
(2) Check the Appropriate Box if a member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not applicable.
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
France
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 57,604,790 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 57,604,790 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 57,604,790 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[ ]
(13) Percent of Class Represented by Amount in Row (11) 19.2%(2)
(14) Type of Reporting Person (See Instructions)
CO
---------------------
(2) Based on information provided by the Company that 242,353,739 shares of
Common Stock of the Company were outstanding as of November 11, 2002, and
assuming conversion of all shares of Preferred Stock beneficially owned by the
Reporting Persons. According to the Company, there were 238,435,208 shares of
Class B Common Stock of the Company outstanding as of November 11, 2002.
Because such Class B Common Stock is convertible on a one-for-one basis into
Common Stock, assuming conversion of all shares of outstanding Class B Common
Stock into Common Stock and conversion of all shares of Preferred Stock
beneficially owned by the Reporting Persons, the percentage of the Common
Stock that the Reporting Persons may be deemed to have beneficial ownership of
would be approximately 10.69%. Because each share of Class B Common Stock is
entitled to 10 votes per share, the Reporting Persons beneficially own equity
securities of the Company representing approximately 2.14% of the voting power
of the Company (assuming no conversion of the Class B Common Stock).
4
(1) Names of Reporting Persons
I.R.S. Identification Nos. of Above Persons
Financiere De Videocommunication
(2) Check the Appropriate Box if a member of a Group
(a) [_]
(b) [X]
(3) SEC Use Only
(4) Source of Funds
Not applicable
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d)or 2(e) [_]
(6) Citizenship or Place of Organization
France
Number of Shares Beneficially Owned by Each Reporting Person With:
(7) Sole Voting Power 57,604,790 shares
(8) Shared Voting Power 0 shares
(9) Sole Dispositive Power 57,604,790 shares
(10) Shared Dispositive Power 0 shares
(11) Aggregate Amount Beneficially Owned
by Each Reporting Person 57,604,790 shares
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[ ]
(13) Percent of Class Represented by Amount in Row (11) 19.2%(3)
(14) Type of Reporting Person (See Instructions)
CO
---------------------
(3) Based on information provided by the Company that 242,353,739 shares of
Common Stock of the Company were outstanding as of November 11, 2002, and
assuming conversion of all shares of Preferred Stock beneficially owned by the
Reporting Persons. According to the Company, there were 238,435,208 shares of
Class B Common Stock of the Company outstanding as of November 11, 2002.
Because such Class B Common Stock is convertible on a one-for-one basis into
Common Stock, assuming conversion of all shares of outstanding Class B Common
Stock into Common Stock and conversion of all shares of Preferred Stock
beneficially owned by the Reporting Persons, the percentage of the Common
Stock that the Reporting Persons may be deemed to have beneficial ownership of
would be approximately 10.69%. Because each share of Class B Common Stock is
entitled to 10 votes per share, the Reporting Persons beneficially own equity
securities of the Company representing approximately 2.14% of the voting power
of the Company (assuming no conversion of the Class B Common Stock).
5
AMENDMENT NO. 1 TO SCHEDULE 13D
This Amendment No. 1 (this "Amendment") which amends the statement on
Schedule 13D ("Schedule 13D") relating to the Class A Common Stock, par value
$0.01 per share (the "Common Stock"), of EchoStar Communications Corporation,
a Nevada corporation (the "Company") as previously filed on January 31, 2002,
by Financiere De Videocommunication, a societe anonyme organized under the
laws of France ("Financiere"), Groupe Canal+, a societe anonyme organized
under the laws of France ("Groupe Canal+") and Vivendi Universal S.A., a
societe anonyme organized under the laws of France ("Vivendi Universal";
Financiere, Groupe Canal+ and Vivendi Universal, collectively referred to
herein as the "Reporting Persons") is filed pursuant to Rule 13d-2 under the
Securities Exchange Act of 1934, as amended. The purpose of this Amendment is
to reflect the sale of Common Stock by Financiere as noted in Item 5.
ITEM 1. SECURITY AND ISSUER.
This Amendment relates to the Class A Common Stock, par value $0.01 per
share, of the Company. The address of the principal executive offices of the
Company is 5701 South Santa Fe Drive, Littleton, Colorado 80120.
ITEM 2. IDENTITY AND BACKGROUND.
(a) The names of the persons filing this Amendment are Financiere de
Videocommunication, a societe anonyme organized under the laws of France,
Groupe Canal+, a societe anonyme organized under the laws of France, and
Vivendi Universal, S.A., a societe anonyme organized under the laws of France.
(b) The address of the principal office and principal place of business
of Financiere is 85-89 Quai Andre Citroen, 75015 Paris, France, the address of
the principal office and principal place of business of Groupe Canal+ is 85-89
Quai Andre Citroen, 75711 Paris Cedex 15, France and the address of the
principal office and the principal place of business of Vivendi Universal is
42, Avenue de Friedland, 75380 Paris Cedex 08, France.
(c) Vivendi Universal is a company engaged in the media, communications
and environmental services businesses. Set forth in Schedule A hereto, which
is incorporated herein by reference, is the name, business address, present
principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment is
conducted and citizenship, of each of Vivendi Universal's directors and
executive officers, as of the date hereof. Other than such directors and
executive officers, there are no persons controlling Vivendi Universal.
Groupe Canal+ is a company principally engaged, directly or through its
subsidiaries, in the production and distribution of film and pay-television
programming in Europe, and the provision of software technology for digital
television networks. Set forth in Schedule B hereto, which is incorporated
herein by reference, is the name, business address, present principal
occupation or employment and the name, principal business and address of any
corporation or other organization in which such employment is conducted and
citizenship, of each of Groupe Canal+'s directors and executive officers, as
of the date hereof.
6
Financiere is a company engaged in no operations, other than the
acquisition of certain assets from time to time, on behalf of Groupe Canal+.
Set forth in Schedule C hereto, which is incorporated herein by reference, is
the name, business address, present principal occupation or employment and the
name, principal business and address of any corporation or other organization
in which such employment is conducted and citizenship, of each of Financiere's
directors and executive officers, as of the date hereof.
(d) During the past five years, neither Vivendi Universal nor, to Vivendi
Universal's knowledge, any person named in Schedule A has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
During the past five years, neither Groupe Canal+ nor, to Groupe Canal+'s
knowledge, any person named in Schedule B has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
During the past five years, neither Financiere nor, to Financiere's
knowledge, any person named in Schedule C has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) During the past five years, neither Vivendi Universal nor, to Vivendi
Universal's knowledge, any person named in Schedule A has been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of which such person 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.
During the past five years, neither Groupe Canal+ nor, to Groupe Canal+'s
knowledge, any person named in Schedule B has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of which such person 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.
During the past five years, neither Financiere nor, to Financiere's
knowledge, any person named in Schedule C has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of which such person 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.
(f) Not applicable.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Not applicable. This Amendment is filed to report the sale of Common
Stock by Financiere as noted in Item 5.
ITEM 4. PURPOSE OF THE TRANSACTION
Not applicable. This Amendment is filed to report the sale of Common
Stock by Financiere as noted in Item 5.
7
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a)-(b) On December 23, 2002, Financiere, on behalf of and for the sole
benefit of Vivendi Universal, sold to the Company 5,760,479 shares of Series D
Mandatorily Convertible Participating Preferred Stock, par value $0.01 per
share, which, upon transfer, mandatorily converted into 57,604,790 shares of
Common Stock (the "Shares") at an aggregate purchase price of $1,065,688,615,
representing a purchase price per share, in cash, of $18.50. After sale of the
Shares to the Company, the Reporting Persons do not own, as of the date
hereof, any shares of Common Stock and do not have the power to vote or to
direct the vote or to dispose or direct the disposition of any shares of
Common Stock.
(c) Except as otherwise disclosed herein, to the best knowledge of each
of the Reporting Persons, none of the Reporting Persons and no other person
named in Schedules A, B and C, has effected any transaction in Common Stock
during the past 60 days.
(d) No other person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock reported in this Item 5.
(e) As of December 23, 2002, the Reporting Persons own less than 5% of
the outstanding shares of Common Stock. This constitutes the final statement
on Schedule 13D regarding beneficial ownership of Common Stock by the
Reporting Persons.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR RELATIONSHIPS WITH RESPECT
TO THE SECURITIES OF THE ISSUER
The response to Item 6 of Schedule 13D is incorporated by reference in
its entirety.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The response to Item 7 of Schedule 13D is incorporated by reference in
its entity.
8
SIGNATURES
After reasonable inquiry and to the best of his or her knowledge and
belief, each of the undersigned certifies that the information in this
statement is true, complete and correct.
Dated: December 23, 2002
VIVENDI UNIVERSAL, S.A.
By: /s/ George E. Bushnell III
------------------------------------
Name: George E. Bushnell III
Title: Vice President and
Corporate Counsel
GROUPE CANAL+
By: /s/ Xavier Couture
------------------------------------
Name: Xavier Couture
Title: Chairman and Chief
Executive Officer
FINANCIERE DE VIDEOCOMMUNICATION
By: /s/ Marc-Andre Feffer
------------------------------------
Name: Marc-Andre Feffer
Title: Chairman and Chief
Executive Officer
SCHEDULE A
Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of Vivendi
Universal. Unless otherwise indicated, the business address of each person
listed below is 42, Avenue de Friedland, 75380 Paris Cedex 08, France.
Position with Vivendi Name and Business Address Citizenship
--------------------- ------------------------- -----------
I. Directors
Chairman of the Board Jean-Rene Fourtou French
Director Edgar Bronfman, Jr. U.S.
Lexa Partners LLC
390 Park Avenue, 4th floor
New York, NY 10022
Director Claude Bebear French
AXA
25, avenue Matignon
75008 Paris
France
Director Gerhard Kleisterlee German
Royal Philips Electronic
P.O. Box 77900
Building HBT 14
1070 Amsterdam
The Netherlands
Director Dominique Hoenn French
BNP Paribas
3, rue d'Antin
75009 Paris
Director Edgar M. Bronfman U.S.
c/o Vivendi Universal
375 Park Avenue, 5th floor
New York, NY 10152-0192
USA
Director Marie-Josee Kravis Canadian
Hudson Institute
625 Park Avenue
New York, NY 10021
USA
Director Henri Lachmann French
Schneider Electric S.A.
43-45 Bd Franklin Roosevelt
92500 Rueil Malmaison
France
Position with Vivendi Name and Business Address Citizenship
--------------------- ------------------------- -----------
Director Fernando Falco Spain
RACE
10, Jose Abascal
28003 Madrid
Spain
II. Executive Officers
(other than those who are also Directors)
Senior Executive Vice Jacques Espinasse French
President and Chief
Financial Officer
Senior Executive Vice Andrew Kaslow U.S.
President, Human
Resources
Senior Executive Vice Robert de Metz French
President,
Divestitures, Mergers
and Acquisitions
Chief Operating Jean-Bernard Levy French
Officer
Director of Michael Bourgeois French
Communication
Executive Vice Jean-Francois Dubos French
President and General
Counsel
SCHEDULE B
Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of Groupe
Canal+. Unless otherwise indicated, the business address of each person listed
below is 85-89 Quai Andre Citroen, 75711 Paris Cedex 15, France.
Position with Vivendi Name and Business Address Citizenship
--------------------- ------------------------- -----------
Member of the Supervisory Board, Jean-Rene Fourtuo French
Chairman of the Board of Vivendi c/o Vivendi Universal
Universal 42, avenue de Friedland
75380 Paris, Cedex 08, France
Member of the Supervising Board, Erik Orsenna French
Vice Chairman of Association des
Salaries de Canal +.
Member of the Supervisory Board, Jacques Espinasse French
Executive Vice President and c/o Vivendi Universal
General Counsel of Vivendi 42, avenue de Friedland
Universal 75380 Paris, Cedex 08, France
Member of the Supervisory Board, Jean-Bernard Levy French
Senior Executive Vice President c/o Vivendi Universal
and Chief Financial Officer of 42, avenue de Friedland
Vivendi Universal 75380 Paris, Cedex 08, France
Member of the Supervisory Board, Jean-Francios Dubos French
Chief Operating Officer of c/o Vivendi Universal
Vivendi Universal 42, avenue de Friedland
75380 Paris, Cedex 08, France
Member of the Executive Board, Xavier Couture French
Chairman
Member of the Executive Board, Marc-Andre Feffer French
Vice Chairman, Chairman and CEO
of Financiere
Member of the Executive Board Alain de Greef French
Member of the Executive Board, Ron Meyer U.S.
President and Chief Operating Universal Studios Inc
Officer of Universal Studios Inc 100 Universal City Plaza
Building 1280, 14th Floor
Universal City
CA 91608-1085, U.S.
SCHEDULE C
Set forth below is the name, business address, principal occupation or
employment and citizenship of each director and executive officer of
Financiere. Unless otherwise indicated, the business address of each person
listed below is 85-89 Quai Andre Citroen, 75015 Paris, France.
Position with Vivendi Name and Business Address Citizenship
--------------------- ------------------------- -----------
Chairman of the Board, Vice Chairman of Marc-Andre Feffer French
Groupe Canal+
Director Thomas Christin French
Director Fabrice Faux French