Amendment to Registration of Securities (General Form) — Form 10 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-12B/A Amendment to From 10-12(B) HTML 69K
2: EX-2.1 Form of Separation Agreement HTML 257K
3: EX-3.1 Articles of Incorporation HTML 64K
4: EX-3.2 Bylaws HTML 70K
5: EX-4.1 Specimen Class A Common Stock Certificate HTML 17K
6: EX-10.1 Form of Transition Services Agreement HTML 90K
7: EX-10.2 Form of Tax Sharing Agreement HTML 74K
11: EX-10.22 Form of 2008 Stock Incentive Plan HTML 59K
12: EX-10.23 Form of 2008 Employee Stock Purchase Plan HTML 52K
13: EX-10.24 Form of 2008 Nonemployee Director Stock Option HTML 29K
Plan
14: EX-10.25 Form of Echostar Holding Corporation 2008 Class B HTML 39K
CEO Stock Option Plan
8: EX-10.3 Form of Employee Matters Agremeent HTML 77K
9: EX-10.4 Form of Intellectual Property Matters Agreement HTML 109K
10: EX-10.5 Form of Management Services Agreement HTML 47K
15: EX-21 List of Subsidiaries HTML 12K
16: EX-99.1 Preliminary Information Statement Subject to HTML 2.07M
Completition
The name of the corporation shall be ECHOSTAR HOLDING CORPORATION (the “Corporation”).
ARTICLE II
Period of Duration
The Corporation shall exist in perpetuity, from and after the date of filing of its original
Articles of Incorporation with the Secretary of State of the State of Nevada unless dissolved
according to law.
ARTICLE III
Purposes
The purpose for which this Corporation is organized is to engage in any lawful acts and
activities for which corporations may be organized under the laws of the State of Nevada and to
exercise any powers permitted to corporations under the laws of the State of Nevada.
ARTICLE IV
Capital
1. Authorized Capital Stock. The total number of shares of capital stock which the
Corporation is authorized to issue shall be 4,020,000,000 shares, consisting of 4,000,000,000
shares of common stock, par value $0.001 per share (“Common Stock”), and 20,000,000 shares of
preferred stock, par value $0.001 per share (“Preferred Stock”).
2. Common Stock. Of the 4,000,000,000 shares of authorized Common Stock,
1,600,000,000 shares shall be designated Class A Common Stock (“Class A Common Stock”), 800,000,000
shares shall be designated Class B Common Stock (“Class B Common Stock”), 800,000,000 shares shall
be designated Class C Common Stock (“Class C Common Stock”) and 800,000,000 shares shall be
designated Class D Common Stock (“Class D Common Stock”).
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3. Preferred Stock. The Board of Directors of the Corporation is hereby authorized
to provide, by resolution or resolutions adopted by such Board, for the issuance of Preferred Stock
from time to time in one or more classes and/or series, to establish the number of shares of each
such class or series, and to fix the powers, designations, preferences and relative, participating,
optional or other rights, if any, and the qualifications, limitations or restrictions thereof, of
any of the shares of each such class or series, all to the full extent permitted by the Nevada
Revised Statutes (the “NRS”), or any successor law(s) of the State of Nevada. Without limiting the
generality of the foregoing, the Board of Directors is authorized to provide that shares of a class
or series of Preferred Stock:
(1) are entitled to cumulative, partially cumulative or noncumulative dividends or
other distributions payable in cash, capital stock or indebtedness of the Corporation or
other property, at such times and in such amounts as are set forth in the Board resolutions
establishing such class or series or as are determined in a manner specified in such
resolutions;
(2) are entitled to a preference with respect to payment of dividends over one or more
other classes and/or series of capital stock of the Corporation;
(3) are entitled to a preference with respect to any distribution of assets of the
Corporation its liquidation, dissolution or winding up over one or more other classes and/or
series of capital stock of the Corporation in such amount as is set forth in the Board
resolutions establishing such class or series or as is determined in a manner specified in
such resolutions;
(4) are redeemable or exchangeable at the option of the Corporation and/or on a
mandatory basis for cash, capital stock or indebtedness of the Corporation or other
property, at such times or upon the occurrence of such events, and at such prices, as are
set forth in the Board resolutions establishing such class or series or as are determined in
a manner specified in such resolutions;
(5) are entitled to the benefits of such sinking fund, if any, as is required to be
established by the Corporation for the redemption and/or purchase of such shares by the
Board resolutions establishing such class or series;
(6) are convertible at the option of the holders thereof into shares of any other class
or series of capital stock of the Corporation, at such times or upon the occurrence of such
events, and upon such terms, as are set forth in the Board resolutions establishing such
class or series or as are determined in a manner specified in such resolutions;
(7) are exchangeable at the option of the holders thereof for cash, capital stock or
indebtedness of the Corporation or other property, at such times or upon the occurrence of
such events, and at such prices, as are set forth in the Board resolutions establishing such
class or series or as are determined in a manner specified in such resolutions;
(8) are entitled to such voting rights, if any, as are specified in the Board
resolutions establishing such class or series (including, without limiting the generality of
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the foregoing, the right to elect one or more directors voting alone as a single class
or series or together with one or more other classes and/or series of Preferred Stock, if so
specified by such Board resolutions) at all times or upon the occurrence of specified
events; and
(9) are subject to restrictions on the issuance of additional shares of Preferred Stock
of such class or series or of any other class or series, or on the reissuance of shares of
Preferred Stock of such class or series or of any other class or series, or on increases or
decreases in the number of authorized shares of Preferred Stock of such class or series or
of any other class or series.
Without limiting the generality of the foregoing authorizations, any of the voting powers,
designations, preferences, rights and qualifications, limitations or restrictions of a class or
series of Preferred Stock may be made dependent upon facts ascertainable outside the Board
resolutions establishing such class or series, all to the full extent permitted by the NRS. Unless
otherwise specified in the Board resolutions establishing a class or series of Preferred Stock,
holders of a class or series of Preferred Stock shall not be entitled to cumulate their votes in
any election of directors in which they are entitled to vote and shall not be entitled to any
preemptive rights to acquire shares of any class or series of capital stock of the Corporation.
ARTICLE V
Voting and Conversion Rights
1. Voting Rights.
(a) Except as otherwise required by law or, in any Preferred Stock Statement and Certificate
of Designations, Preferences and Rights (“Certificate of Designations”), with respect to all
matters upon which stockholders are entitled to vote or to which stockholders are entitled to give
consent, the holders of any outstanding shares of Class A Common Stock, Class B Common Stock, Class
C Common Stock and Preferred Stock shall vote together without regard to class, and every holder of
any outstanding shares of the Class A Common Stock and Class C Common Stock shall be entitled to
cast one vote in person or by proxy for each share of the Class A Common Stock and Class C Common
Stock held by such holder; every holder of any outstanding shares of Class B Common Stock shall be
entitled to cast ten votes in person or by proxy for each share of Class B Common Stock held by
such holder; and every holder of any outstanding shares of Preferred Stock shall be entitled to
cast, in person or by proxy for each share of Preferred Stock held by such holder, the number of
votes specified in the applicable Certificate of Designations; providedhowever, in
the event of a “Change in Control” of the Corporation, the holders of any outstanding shares of
Class C Common Stock shall be entitled to cast ten votes in person or by proxy for each share of
Class C Common Stock held by such holder. The Class D Common Stock shall be non-voting stock. As
used herein, a “Change of Control” of the Corporation means: (i) any transaction or series of
transactions, the result of which is that the Principals and their Related Parties (as such terms
are hereinafter defined), or an entity controlled by the Principals and their Related Parties,
cease to be the “beneficial owners” (as defined in Rule 13(d) (3) under the Securities Exchange Act
of 1934) of at least 30% of the total equity interests of the Corporation and to have the voting
power to elect at least a
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majority of the Board of Directors of the Corporation; or (ii) the first day on which a
majority of the members of the Board of Directors of the Corporation are not continuing directors.
“Principals” means Charles W. Ergen, James DeFranco, and David K. Moskowitz. “Related Parties”
means, with respect to any Principal: (y) the spouse and each immediate family member of such
Principal; and (z) each trust, corporation, partnership or other entity of which such Principal
beneficially holds an 80% or more controlling interest.
(b) A quorum for the purpose of shareholder meeting shall consist of a majority of the voting
power of the Corporation. If a quorum is present, the effective vote of a majority of the voting
power represented at the meeting and entitled to vote on the subject matter shall be the act of the
shareholders, unless the vote of a greater proportion or number is required by any provisions
contained in the NRS. Notwithstanding any provisions contained in the NRS requiring the vote of
shares possessing two-thirds of the voting power of the Corporation to take action, absent a
provision herein to the contrary, in the case of such provisions the affirmative vote of a majority
of the voting power shall be the act of the shareholders.
(c) Holders of Common Stock shall not be entitled to cumulate their votes in the election of
directors and shall not be entitled to any preemptive rights to acquire shares of any class or
series of capital stock of the Corporation. Subject to any preferential rights of holders of
Preferred Stock, holders of Common Stock shall be entitled to receive their pro rata shares, based
upon the number of shares of Common Stock held by them, of such dividends or other distributions as
may be declared by the Board of Directors from time to time and of any distribution of the assets
of the Corporation upon its liquidation, dissolution or winding up, whether voluntary or
involuntary.
2. Conversion Rights.
(a) Each share of Class B Common Stock and Class C Common Stock shall be convertible at the
option of the holder thereof into Class A Common Stock of the Corporation in accordance with this
Article V. In order to exercise the conversion privilege, a holder of Class B Common Stock
or Class C Common Stock shall surrender the certificate evidencing such Class B Common Stock or
Class C Common Stock to the Corporation at its principal office, duly endorsed to the Corporation
or, in the case of uncertificated shares, instruct the Corporation’s transfer agent to surrender
such shares to the Corporation and, in either case, accompanied by written notice to the
Corporation that the holder thereof elects to convert a specified portion or all of such shares.
Class B Common Stock or Class C Common Stock converted at the option of the holder shall be deemed
to have been converted on the day of surrender of the certificate representing such shares for
conversion in accordance with the foregoing provisions or, in the case of uncertificated shares, on
the day in which the Corporation’s transfer agent receives instruction to effect a book entry
transfer to the Corporation, and at such time the rights of the holder of such Class B Common Stock
or Class C Common Stock, as such holder, shall cease and such holder shall be treated for all
purposes as the record holder of Class A Common Stock issuable upon conversion. As promptly as
practicable on or after the conversion date, the Corporation shall issue and mail or deliver to
such holder a certificate or certificates for the number of Class A Common Stock issuable upon
conversion or shall instruct the Corporation’s transfer agent to effect a book entry transfer to
reflect such Class A Common Stock issuable upon conversion, computed to the nearest one hundredth
of a full share, and a certificate or
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certificates or book entry transfer for the balance of Class B Common Stock or Class C Common
Stock surrendered, if any, not so converted into Class A Common Stock.
(b) The Class B Common Stock and Class C Common Stock shall be convertible into one share of
Class A Common Stock for each share of Class B Common Stock or Class C Common Stock so converted
(the “Conversion Rate”). In the event the Corporation shall at any time subdivide or split its
outstanding Class A Common Stock, into a greater number of shares or declare any dividend payable
in Class A Common Stock, the Conversion Rate in effect immediately prior to such subdivision, split
or dividend shall be proportionately increased, and conversely, in case the outstanding Class A
Common Stock of the Corporation shall be combined into a smaller number of shares, the Conversion
Rate in effect immediately prior to such combination shall be proportionately decreased.
(c) Upon any adjustment of the Conversion Rate then and in each such case the Corporation
shall give written notice thereof, by first-class mail, postage prepaid, addressed to the
registered holders of Class B Common Stock and Class C Common Stock at the addresses of such
holders as shown on the books of the Corporation, which notice shall state the Conversion Rate
resulting from such adjustment and the increase or decrease, if any, in the number of shares
receivable at such price upon the conversion of Class B Common Stock or Class C Common Stock,
setting forth in reasonable detail the method of calculation and the facts upon which such
calculation is based.
(d) The holders of Class B Common Stock and Class C Common Stock shall have the following
rights to certain properties received by the holders of Class A Common Stock:
(i) In case the Corporation shall declare a dividend or distribution upon Class
A Common Stock payable other than in cash out of earnings or surplus or other than
in Class A Common Stock, then thereafter each holder of Class B Common Stock or
Class C Common Stock upon the conversion thereof will be entitled to receive the
number of shares of Class A Common Stock into which such Class B Common Stock or
Class C Common Stock shall be converted, and, in addition and without payment
therefor, the property which such holder would have received as a dividend if
continuously since the record date for any such dividend or distribution such
holder: (A) had been the record holder of the number of Class A Common Stock then
received; and (B) had retained all dividends or distributions originating directly
or indirectly from such Class A Common Stock.
(ii) If any capital reorganization or reclassification of the capital stock of
the Corporation, or consolidation or merger of the Corporation with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Class A Common Stock
shall be entitled to receive stock, securities or assets with respect to or in
exchange for a Class A Common, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision shall
be made whereby the holders of Class B Common Stock and Class C Common
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Stock shall thereafter have the right to receive, in lieu of Class A Common
Stock of the Corporation immediately theretofore receivable upon the conversion of
such Class B Common Stock and Class C Common Stock, such shares of stock, securities
or assets as may be issued or payable with respect to or in exchange for a number of
outstanding Class A Common Stock equal to the number of Class A Common Stock
immediately theretofore receivable upon the conversion or such Class B Common Stock
and Class C Common Stock had such reorganization, reclassification, consolidation,
merger or sale not taken place, and in any such case appropriate provision shall be
made with respect to the rights and interests of the holders of the Class B Common
Stock and Class C Common Stock to the end that the provisions hereof (including
without limitation provisions for adjustments of the Conversion Rate and of the
number of shares receivable upon the conversion of such Class B Common Stock and
Class C Common Stock) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities or assets thereafter receivable upon the
conversion of such Class B Common Stock and Class C Common Stock. The Corporation
shall not effect any such reorganization, reclassification, consolidation, merger or
sale, unless prior to the consummation thereof the surviving corporation (if other
than the Corporation), the corporation resulting from such consolidation or the
corporation purchasing such assets shall assume by written instrument executed and
mailed to the registered holders of the Class B Common Stock and Class C Common
Stock at the last address of such holders appearing on the books of the Corporation,
the obligation to deliver to such holders such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holders may be entitled to
receive.
(e) In case at any time:
(iii) the Corporation shall pay any dividend payable in stock upon Class A
Common Stock or make any distribution (other than regular cash dividends to the
holders of Class A Common Stock); or
(iv) the Corporation shall offer for subscription pro rata to the holders of
Class A Common Stock any additional shares of stock of any class or other rights; or
(v) there shall be any capital reorganization, reclassification of the capital
stock of the Corporation, or consolidation or merger of the Corporation with, or
sale of all or substantially all of its assets, to another corporation
(providedhowever, that this provision shall not be applicable to
the merger or consolidation of the Corporation with or into another corporation if,
following such merger or consolidation, the shareholders of the Corporation
immediately prior to such merger or consolidation own at least 80% of the equity of
the combined entity); or
(vi) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Corporation;
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then, in any one or more of the aforesaid cases, the Corporation shall give written notice, by
first-class mail, postage prepaid, addressed to the holders of Class B Common Stock and Class C
Common Stock at the addresses of such holders as shown on the books of the Corporation, of the date
on which: (A) the books of the Corporation shall close or a record shall be taken for such
dividend, distribution or subscription rights; or (B) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up shall take place, as the case
may be. Such notice shall also specify the date as of which the holders of Class A Common Stock of
record shall participate in such dividend, distribution, or subscription rights, or shall be
entitled to exchange their Class A Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up, as the case may be. Such written notice shall be given at least 20 days prior to the
action in question and not less than 20 days prior to the record date or the date on which the
Corporation’s transfer books are closed in respect thereto.
ARTICLE VI
Board of Directors
The name and addresses of the first board of directors, which shall be seven (7) in number,
are as follows:
The following provisions are inserted for the management of the business and for the conduct
of the affairs of the Corporation, and the same are in furtherance of and not in limitation of the
powers conferred by law.
1. No contract or other transaction between this Corporation and one or more of its directors
or any other corporation, firm, association, or entity in which one or more of its directors are
directors or officers or are financially interested shall be either void or voidable solely because
of such relationship or interest or solely because such directors are present at the meeting of the
Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or
transaction or solely because their votes are counted for such purpose if:
(a) The material facts as to such relationship or interest and as to the contract or
transaction are disclosed or are otherwise known to the Board of Directors or committee and
the Board or committee authorizes, approves, or ratifies such contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though such directors
are less than a quorum; or
(b) The material facts of such relationship or interest and as to the contract or
transaction are disclosed or are otherwise known to the shareholders entitled to vote
thereon and they authorize, approve or ratify such contract or transaction by vote or
written consent; or
(c) The contract or transaction is fair and reasonable to the Corporation.
2. Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction.
ARTICLE VIII
Corporate Opportunity
1. Certain Acknowledgements; Definitions. The provisions of this Article VIII shall,
to the fullest extent permitted by law, delineate the doctrine of “corporate opportunities,” as it
applies to the Corporation, define the conduct of certain affairs of the Corporation and its
Subsidiaries and the Corporation’s and its Subsidiaries’ directors and officers as they may involve
EchoStar Communications Corporation (“EchoStar”) and its Subsidiaries, and the powers, rights,
duties and liabilities of the Corporation and its Subsidiaries and the Corporation’s and its
Subsidiaries’ directors, officers and employees in connection therewith. In recognition and
anticipation that (a) directors and officers of the Corporation and its Subsidiaries may serve as
directors, officers and employees of EchoStar and its Subsidiaries, (b) the Corporation and its
Subsidiaries, directly or indirectly, may engage and are expected to continue to engage in the
same, similar or related lines of business as those engaged in by EchoStar and its Subsidiaries
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and other business activities that overlap with or compete with those in which EchoStar and
its Subsidiaries may engage, (c) the Corporation and its Subsidiaries may have an interest in the
same areas of business opportunity as EchoStar and its Subsidiaries, (d) the Corporation and its
Subsidiaries may engage in material business transactions with EchoStar and its Subsidiaries,
including, without limitation, receiving services from, providing services to or being a
significant customer or supplier to EchoStar and its Subsidiaries, and that the Corporation,
EchoStar and/or one or more of their respective Subsidiaries may benefit from such transactions,
and (e) as a consequence of the foregoing, it is in the best interests of the Corporation that the
rights of the Corporation and its Subsidiaries, and the duties of any directors or officers of the
Corporation or any of its Subsidiaries, be determined and delineated in respect of (x) any
transactions between the Corporation and its Subsidiaries, on the one hand, and EchoStar and its
Subsidiaries, on the other hand, and (y) any potential transactions or matters that may be
presented to officers and directors or the Corporation and its Subsidiaries, or of which such
officers or directors may otherwise become aware, which potential transactions or matters may
constitute business opportunities of the Corporation or any of its Subsidiaries, and in recognition
of the benefits to be derived by the Corporation and its Subsidiaries through its continued
contractual, corporate and business relations with EchoStar and its Subsidiaries and of the
benefits to be derived by the Corporation and its Subsidiaries by the possible service as directors
or officers of the Corporation and its Subsidiaries of persons who may also serve from time to time
as directors, officers and employees of EchoStar or any of its Subsidiaries, the provisions of this
Article VIII shall, to the fullest extent permitted by law, regulate and define the conduct of the
business and affairs of the Corporation and its Subsidiaries in relation to EchoStar and its
Subsidiaries, and as such conduct and affairs may involve EchoStar’s and its Subsidiaries
directors, officers and employees, and the powers, rights, duties and liabilities of the
Corporation and its Subsidiaries and their respective officers and directors in connection
therewith and in connection with any potential business opportunities of the Corporation and its
Subsidiaries. Any person purchasing or otherwise acquiring any shares of capital stock of the
Corporation, or any interest therein, shall be deemed to have notice of and to have consented to
the provisions of this Article VIII. For purposes of this Article VIII, “Control” and derivative
terms means the possession of the power to direct or cause the direction of the management and
policies of a person, whether through the possession of voting securities, by contract or
otherwise; and “Subsidiary” means, with respect to any person, any other person that such first
person directly or indirectly Controls. References in this Article VIII to “directors,”“officers”
or “employees” of any person shall be deemed to include those persons who hold similar positions or
exercise similar powers and authority with respect to any such person that is a limited liability
company, partnership, joint venture or other non-corporate entity or any close corporation governed
directly by its stockholders.
2. Certain Agreements and Transactions Permitted. No contract, agreement,
arrangement or transaction (or any amendment, modification or termination thereof) entered into
between the Corporation and/or any of its Subsidiaries, on the one hand, and EchoStar and/or any of
its Subsidiaries, on the other hand, before the Corporation ceased to be a wholly-owned subsidiary
of EchoStar shall be void or voidable or be considered unfair to the Corporation or any of its
Subsidiaries for the reason that EchoStar or any of its Subsidiaries is a party thereto, or because
any directors, officers or employees of EchoStar or a Subsidiary of EchoStar are a party thereto,
or because any directors, officers or employees of EchoStar or a Subsidiary of EchoStar were
present at or participated in any meeting of the board of directors, or committee thereof, of
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the Corporation, or the board of directors, or committee thereof, of any Subsidiary of the
Corporation, that authorized the contract, agreement, arrangement or transaction (or any amendment,
modification or termination thereof), or because his, her or their votes were counted for such
purpose. The Corporation may from time to time enter into and perform, and cause or permit any of
its Subsidiaries to enter into and perform, one or more contracts, agreements, arrangements or
transactions (or amendments, modifications or supplements thereto) with EchoStar or any Subsidiary
thereof pursuant to which the Corporation or a Subsidiary thereof, on the one hand, and EchoStar or
a Subsidiary thereof, on the other hand, agree to engage in contracts, agreements, arrangements or
transactions of any kind or nature with each other, or agree to compete, or to refrain from
competing or to limit or restrict their competition, with each other, including to allocate and
cause their respective directors, officers and employees (including any such persons who are
directors, officers or employees of both) to allocate opportunities between, or to refer
opportunities to, each other. To the fullest extent permitted by law, no such contract, agreement,
arrangement or transaction (nor any such amendments, modifications or supplements), nor the
performance thereof by the Corporation, EchoStar or any Subsidiary of the Corporation or EchoStar,
shall be considered contrary to any fiduciary duty owed to the Corporation (or to any Subsidiary of
the Corporation, or to any stockholder of the Corporation or any of its Subsidiaries) by any
director or officer of the Corporation (or by any director or officer of any Subsidiary of the
Corporation) who is also a director, officer or employee of EchoStar or any Subsidiary thereof. To
the fullest extent permitted by law, no director or officer of the Corporation or any Subsidiary of
the Corporation who is also a director, officer or employee of EchoStar or any Subsidiary thereof
shall have or be under any fiduciary duty to the Corporation (or to any Subsidiary of the
Corporation, or to any stockholder of the Corporation of any of its Subsidiaries) to refrain from
acting on behalf of the Corporation or EchoStar, or any of their respective Subsidiaries, in
respect of any such contract, agreement, arrangement or transaction or performing any such
contract, agreement, arrangement or transaction in accordance with its terms and each such director
or officer of the Corporation or any Subsidiary of the Corporation who is also a director, officer
or employee of EchoStar or any Subsidiary thereof shall be deemed to have acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the best interests of the
Corporation, and shall be deemed not to have breached his or her duties of loyalty to the
Corporation and their respective stockholders, and not to have derived an improper personal benefit
therefrom.
3. Duties of Directors and Officers Regarding Potential Business Opportunities; No
Liability for Certain Acts or Omissions. If a director or officer of the Corporation or any
Subsidiary of the Corporation is offered, or otherwise acquires knowledge of, a potential
transaction or matter that may constitute or present a business opportunity for the Corporation or
any of its Subsidiaries (any such transaction or matter, and any such actual or potential business
opportunity, a “Potential Business Opportunity”), such director or officer shall, to the fullest
extent permitted by law, have no duty or obligation to refer such Potential Business Opportunity to
the Corporation or any of its Subsidiaries, or to refrain from referring such Potential Business
Opportunity to any other person, or to give any notice to the Corporation or any of its
Subsidiaries regarding such Potential Business Opportunity (or any matter relating thereto), and
such director or officer will not be liable to the Corporation or any of its Subsidiaries, as a
director, officer, stockholder or otherwise, for any failure to refer such Potential Business
Opportunity to the Corporation or any of its Subsidiaries, or for referring such Potential Business
Opportunity to any other person, or for any failure to give any notice to the
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Corporation or any of its Subsidiaries regarding such Potential Business Opportunity or any
matter relating thereto, unless all of the following conditions are satisfied: (A) the
Corporation has expressed an interest in such business opportunity as determined from time to time
by the Corporation’s Board of Directors as evidenced by resolutions appearing in the Corporation’s
minutes; (B) such Potential Business Opportunity was expressly offered to such director or officer
solely in his or her capacity as a director or officer of the Corporation or as a director or
officer of any Subsidiary of the Corporation; and (C) such opportunity relates to a line of
business in which the Corporation or any Subsidiary of the Corporation is then directly engaged.
In the event the preceding conditions are satisfied with respect to a particular Potential Business
Opportunity, then such Potential Business Opportunity shall be offered first to the Corporation.
In the event the preceding conditions are satisfied and the Corporation declines to pursue such
Potential Business Opportunity, the directors, officers and other members of management of the
Corporation shall be free to engage in such Potential Business Opportunity on their own and this
paragraph shall not limit the right of any director, officer or other member of management of the
Corporation to continue a business existing prior to the time that such area of interest is
designated by the Corporation. This paragraph shall not be construed to release any employee of
this Corporation (other than a director, officer or member of management) from any duties which may
be owed to this Corporation.
4. Amendment of Article VIII. No alteration, amendment or repeal, or adoption of any
provision inconsistent with, any provision of this Article VIII shall have any effect upon (a) any
agreement between the Corporation or a Subsidiary thereof and EchoStar or a Subsidiary thereof that
was entered into before such time or any transaction entered into in connection with the
performance of any such agreement, whether such transaction is entered into before or after such
time, (b) any transaction entered into between the Corporation or a Subsidiary thereof and EchoStar
or a Subsidiary thereof before such time, (c) the allocation of any business opportunity between
the Corporation or a Subsidiary thereof and EchoStar or a Subsidiary thereof before such time, or
(d) any duty or obligation owed by any director or officer of the Corporation or any Subsidiary of
the Corporation (or the absence of any such duty or obligation) with respect to any potential
business opportunities of the Corporation or any Subsidiary of the Corporation which such director
or officer was offered, or of which such director or officer otherwise became aware, before such
time.
5. Renunciation. In addition to, and notwithstanding the foregoing provisions of
this Article VIII, a potential transaction or business opportunity (1) that the Corporation or its
Subsidiaries is not financially able, contractually permitted or legally able to undertake, or (2)
that is, from its nature, not in the line of the Corporation’s or its Subsidiaries’ business, is of
no practical advantage to the Corporation or its Subsidiaries or that is one in which the
Corporation or its Subsidiaries has no interest or reasonable expectancy, shall not, in any such
case, be deemed to constitute a corporate opportunity belonging to the Corporation, or any of its
Subsidiaries, and the Corporation, on behalf of itself and each Subsidiary, to the fullest extent
permitted by law, hereby renounces any interest therein.
6. Termination. Notwithstanding anything in these Articles of Incorporation to the
contrary, the provisions of Sections 2 and 4(a)-(c) of this Article VIII shall automatically
terminate, expire and have no further force and effect from and after the date on which no the
Corporation director or officer is also an EchoStar director, officer or employee.
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7. Deemed Notice. Any person or entity purchasing or otherwise acquiring or
obtaining any interest in any capital stock of the Corporation shall be deemed to have notice and
to have consented to the provisions of this Article VIII.
8. Severability. The invalidity or unenforceability of any particular provision, or
part of any provision, of this Article VIII shall not affect the other provisions or parts hereof,
and this Article VIII shall be enforced to the maximum extent permissible, and the remaining
provisions of this Article VIII shall be unaffected thereby and will remain in full force and
effect.
ARTICLE IX
Indemnification of Officers, Directors and Others
1. To the full extent permitted by the NRS, the Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit in proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee, fiduciary or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys’ fees), judgments, fines an amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding, if he conducted himself in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
2. The Corporation shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, employee, fiduciary or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
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3. To the extent that a director, officer, employee, fiduciary or agent of a corporation has
been wholly successful on the merits or otherwise in defense of any action, suit or proceeding
referred to in paragraphs 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him in connection therewith.
4. Any indemnification under paragraphs 1 and 2 of this Article IX (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee, fiduciary or agent is proper
in the circumstances because he has met the applicable standard of conduct set forth in paragraphs
1 and 2. Such determination shall be made: (1) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or proceeding; or (2) if
such quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or (3) by the shareholders.
5. Expenses (including attorneys fees) incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation as they are incurred and in advance of the final
disposition of such action, suit or proceeding as authorized in the manner provided in paragraph 4
of this Article IX upon receipt of an undertaking by or on behalf of the director, officer,
employee or agent to repay such amount if it shall ultimately be determined by a final order of a
court of competent jurisdiction that he or she is not entitled to be indemnified by the
Corporation.
6. The Corporation shall have the power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, fiduciary or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
any liability asserted against him and incurred by him in any such capacity or arising out of his
status as such, whether or not the Corporation would have the power to indemnify him against such
liability under the provisions of this Article IX.
7. In addition to the forgoing, the Corporation shall have the power to indemnify current or
former directors, officer, employees and agents to the fullest extent provided by law.
ARTICLE X
Director Liability
To the fullest extent permitted by the NRS, as the same exists or may hereafter be amended, a
director of this Corporation shall not be liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director.
The address of the registered office of the Corporation is 502 East John Street, Carson City,
Nevada89706. The name of the Corporation’s resident agent at that address is CSC Services of
Nevada, Inc. Either the registered office or the registered agent may be changed in the manner
permitted by law.
