REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of December 29, 2000, by and among EchoStar DBS Corporation, a Colorado
corporation ("EchoStar"), DBS Industries, Inc., a Delaware corporation ("DBSI"),
E-Sat, Inc., a Colorado corporation ("E-Sat") and Newstar Limited, a Bermuda
corporation ("Newstar") (hereinafter individually referred to as a "Party" or
collectively referred to as the "Parties"; DBSI, E-Sat and Newstar, together
with any of their Affiliates, are hereinafter sometimes referred to as the "DBSI
Parties").
WHEREAS, the Parties have entered into a Share Purchase Agreement dated
July 30, 1999 (the "Share Purchase Agreement") pursuant to which DBSI agreed to
purchase from EchoStar shares of E-Sat common stock owned by EchoStar sufficient
in number such that after such purchase DBSI would own eighty and one-tenth
percent (80.1%) of the equity ownership of E-Sat and EchoStar would own nineteen
and nine-tenths percent (19.9%) of the equity ownership of E-Sat (the "Shares"),
and EchoStar agreed to sell the Shares to DBSI, subject to the terms and
conditions of the Share Purchase Agreement;
WHEREAS, it is a condition to the closing of the purchase and sale of the
Shares that the Parties enter into a formal registration rights agreement, in a
form reasonably agreeable to DBSI and EchoStar, to memorialize those certain
one-time piggyback registration rights granted to EchoStar and those certain
related duties and obligations imposed on the DBSI Parties under the Share
Purchase Agreement with regard to EchoStar's E-Sat equity securities; and
WHEREAS, EchoStar and the DBSI Parties desire to enter into this Agreement
to satisfy the aforementioned condition by memorializing the aforementioned
rights, duties and obligations in a formal registration rights agreement
agreeable to all Parties;
NOW THEREFORE, in consideration of the above recitals, the mutual covenants
made herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINTIONS. In addition to the capitalized terms defined elsewhere
herein, the following terms shall have the meanings ascribed to them below:
1.1 "Affiliate" mean, with respect to a particular person or entity, any
person or entity directly or indirectly controlling, controlled by or under
common control with such person or entity.
1.2 "Registrable Securities" means any securities issued by the
Corporation.
1.3 "Registration Statement" means a registration form filed with the
Securities and Exchange Commission with respect to all or a part of the
Registrable Securities.
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2. PIGGYBACK REGISTRATION RIGHTS. Subsequent to the transfer of the Shares
to DBSI, EchoStar shall have a one time right (a piggyback right) to register
its E-Sat equity securities if E-Sat determines to register any of its
securities for its own account or the account of others, other than a
registration relating solely to "employee benefit plans", an SEC Rule 145
transaction, or a registration that does not permit secondary sales. DBSI shall
cause E-Sat to give EchoStar written notice of its intention to register equity
securities not less than thirty (30) days prior to the anticipated time of
filing. All fees and expenses incident to the registration of EchoStar's E-Sat
equity securities and incurred by the DBSI Parties and shall be borne by them
whether or not the Registration Statement is filed or becomes effective and
whether or not any Registrable Securities are sold pursuant to the Registration
Statement.
3. ENFORCEMENT OF AGREEMENT. The DBSI Parties acknowledge and agree that
any breach by any of them of this Agreement shall cause EchoStar irreparable
harm which will not be adequately compensable by money damages. Accordingly, in
the event of a breach or threatened breach by any or all of the DBSI Parties of
any provision of this Agreement, EchoStar shall be entitled to the remedies of
specific performance, injunction or other preliminary or equitable relief,
including the right to compel any and all such breaching Parties, as
appropriate, to register EchoStar's E-Sat equity securities in accordance with
the provisions of this Agreement, in addition to such other rights remedies as
may be available to EchoStar for any such breach or threatened breach, including
but not limited to the recovery of money damages.
4. TERM. This Agreement shall commence as of the Closing (as such term is
defined in Section 1.2 of the Share Purchase Agreement) and shall terminate
solely upon delivery by EchoStar of a written notice to E-Sat to terminate this
Agreement.
5. GENERAL PROVISIONS.
5.1 Waiver. The failure or delay of any party to exercise or enforce
any right or remedy hereunder or to insist upon strict performance of any
provision of this Agreement shall not be construed as a waiver of such right or
remedy or any subsequent breach or default of the same or similar nature. The
delay or failure of either Party to give notice of, or to terminate this
Agreement for, breach or default shall not be deemed to be a waiver of the right
to do so for that or any subsequent breach or default or for the persistence in
a breach or default of a continuing nature. All rights and remedies reserved to
either party shall be cumulative and shall not be in limitation of any other
right or remedy which such party may have at law or in equity.
5.2 Audit Rights. EchoStar shall have the right, at its sole cost and
expense, to inspect and audit, with reasonable frequency and upon reasonable
prior written notice to the DBSI Parties, the books and records of the DBSI
Parties relating to this Agreement for the purpose of determining the DBSI
Parties' compliance with their duties and obligations under this Agreement.
5.3 Successor Interests. This Agreement is binding upon the heirs,
legal representatives, successors and permitted assigns of the DBSI Parties and
EchoStar. EchoStar
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may assign this Agreement in whole or in part at any time without the consent of
the DBSI Parties. This Agreement and any of the DBSI Parties rights and
obligations hereunder shall not be assigned or otherwise transferred by the DBSI
Parties, in whole or in part, to any person or entity that does not succeed to
all of the right, title and interest in and to all assets of the assignor
necessary for such person or entity to fulfill the obligations of the DBSI
Parties under this Agreement and the Share Purchase Agreement, and which does
not specifically agree to assume and fulfill all such obligations. No such
assignment shall relieve the DBSI Parties of their obligations under this
Agreement and the Share Purchase Agreement.
5.4 Governing Law.
5.4.1 The relationship between the Parties including all
disputes and claims, whether arising in contract, tort, or under statute, shall
be governed by and construed in accordance with the laws of the State of
Colorado without giving any effect to its conflict of law provisions. All
Parties hereto for themselves, their successors and assigns warrant and
represent that they have had the advice of the counsel of their choosing and
that they have been informed of and understand the rights and obligations
contained within this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting Party shall
not be employed in the interpretation of this Agreement or any amendments or
Exhibits hereto.
5.4.2 Any and all disputes arising out of, or in connection with, the
interpretation, performance or the nonperformance of this Agreement or any and
all disputes arising out of, or in connection with, transactions in any way
related to this Agreement and/or the relationship between the Parties (including
but not limited to the termination of this Agreement or the relationship and
each Party's rights thereunder or disputes under rights granted pursuant to
statutes or common law, including those in the state in which a particular Party
is located) shall be litigated solely and exclusively before the United States
District Court for the District of Colorado. The Parties consent to the in
personam jurisdiction of said court for the purposes of any such litigation, and
waive, fully and completely, any right to dismiss and/or transfer any action
pursuant to 28 U.S.C.S. 1404 or 1406 (or any successor statute). In the event
the United States District Court for the District of Colorado does not have
subject matter jurisdiction of said matter, then such matter shall be litigated
solely and exclusively before the appropriate state court of competent
jurisdiction located in Arapahoe County, State of Colorado.
5.5 Severability. The parties agree that each provision of this
Agreement shall be construed as separable and divisible from every other
provision and that the enforceability of any one provision shall not limit the
enforceability, in whole or in part, of any other provision hereof. In the event
that a court of competent jurisdiction determines that any term or provision
herein, or the application thereof to any person, entity, or circumstance, shall
to any extent be invalid or unenforceable, the remaining terms and provisions of
this Agreement shall not be affected thereby, and shall be interpreted as if the
invalid term or provision were not a part hereof.
5.6 Entire Agreement. This Agreement sets forth the entire, final and
complete understanding between the parties hereto relevant to the subject matter
of this
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Agreement, and it supersedes and replaces all prior and contemporaneous
understandings, representations and agreements, written, oral, and implied,
relevant to the subject matter of this Agreement. Except as expressly provided
by this Agreement, no waiver or modification of any of the terms or conditions
of this Agreement shall be effective unless in writing and signed by both
parties.
5.7 Survival. Any provision of this Agreement which logically would be
expected to survive termination or aspiration, shall survive for a reasonable
time period under the circumstances) whether or not specifically provided in
this Agreement.
5.8 Compliance with Law. The parties dial) comply with, and agree that
this Agreement is subject to, all applicable federal, state, and local laws,
rules and regulations, and all amendments thereto, now enacted or hereafter
promulgated in force during the term of this Agreement.
5.9 Force Majeure. Notwithstanding anything to the contrary in this
Agreement, neither party shall be liable to the other for failure to fulfill its
obligations hereunder if such failure is caused by or arises out of an act of
force majeure including acts of God, war, riot, natural disaster, or any other
reason beyond the reasonable control of the party whose performance is prevented
during the period of such occurrence.
5.10 Remedies Cumulative. It is agreed that the rights and remedies
herein provided in case of default or breach by any party to this Agreement are
cumulative and shall not affect in any manner any other remedies that any other
party may have by reason of such default or breach. The exercise of any right or
remedy herein provided shall be without prejudice to the right to exercise any
other right or remedy provided herein, at law, or in equity.
5.11 Notice. Any notice to be given hereunder shall be in writing and
shall be sent by facsimile transmission, or by first class certified mail,
postage prepaid, or by overnight courier service, charges prepaid, to the party
notified, addressed to such party at the following address, or sent by facsimile
to the following tax number, or such other address or fax number as such party
may have substituted by written notice to the other parties. The sending of such
notice with confirmation of receipt thereof (in the case of facsimile
transmission) or receipt of such notice (in the case of delivery by mail or by
overnight courier service) shall constitute the giving thereof:
If to the DBSI Parties: DBS Industries, Inc.
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
With copies to: Xxxxxx Eng Linn & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000)000-0000
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If to EchoStar: EchoStar DBS Corporation
0000 X. Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
5.12 Counterparts and Signatures. This Agreement may be executed in
one or more counterparts and each counterpart shall be deemed to be an original
hereof. The signature pages of each counterpart may be detached from such
counterpart and attached to a single document which shall for all purposes be
treated as an original. The Parties further agree that signatures transmitted by
facsimile or other electronic means shall have equal dignity with original
signatures.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the date
first written above.
ECHOSTAR DBS CORPORATION
By: _________________________
Xxxxx X. Xxxxxxxxx
Senior Vice President and General Counsel
DBS INDUSTRIES, INC.
By: _________________________
Xxxx X. Xxxxxxxx
President and CEO
NEWSTAR LIMITED
By: _________________________
Xxxx X. Xxxxxxxx
Director
E-SAT, INC.
By: ________________________
Xxxx X. Xxxxxxxx on behalf of DBS Industries, Inc.,
a shareholder, and as an Executive Officer of E-Sat, Inc.
By: ________________________
Xxxxx X. Xxxxxxxxx on behalf of EchoStar DBS Corporation, Inc.,
a shareholder, and as an Executive Officer of E-Sat, Inc.
