EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
between
ECHOSTAR COMMUNICATIONS CORPORATION,
and
VIVENDI UNIVERSAL, S.A.
_____________________________
Dated as of
January 22, 2002
_____________________________
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions...................................................1
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.01. Piggy-Back Registration.......................................4
SECTION 2.02. Demand Registration...........................................6
SECTION 2.03. Other Matters in Connection with Registrations................7
SECTION 2.04. Certain Delay Rights..........................................7
SECTION 2.05. Expenses......................................................9
SECTION 2.06. Registration and Qualification................................9
SECTION 2.07. Underwriting.................................................12
SECTION 2.08. Indemnification and Contribution.............................13
SECTION 2.09. Holdback Agreements..........................................15
SECTION 2.10. Priority Rights of Holders...................................16
SECTION 2.11. Holder Covenants.............................................16
SECTION 2.12. Termination..................................................17
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Amendments and Waivers.......................................17
SECTION 3.02. Notices......................................................17
SECTION 3.03. Interpretation...............................................18
SECTION 3.04. Severability.................................................19
SECTION 3.05. Counterparts.................................................19
SECTION 3.06. Entire Agreement; No Third-Party Beneficiaries...............19
SECTION 3.07. Governing Law................................................19
SECTION 3.08. Assignment...................................................19
SECTION 3.09. Enforcement..................................................19
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REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of January 22, 2002,
between ECHOSTAR COMMUNICATIONS CORPORATION, a
Nevada corporation (the "Company"), and the
Holders, as defined herein.
WHEREAS, pursuant to the Investment Agreement dated as of December
14, 2001 (the "Investment Agreement"), between the Company and Vivendi
Universal, S.A., a societe anonyme organized under the laws of France (the
"Investor"), and as a condition to the willingness of the Investor to
consummate the transactions contemplated by the Investment Agreement, the
Company has agreed to grant to the Holders (as defined below) certain
registration rights with respect to their respective Registrable Securities
(as defined below).
NOW, THEREFORE, in consideration of the premises and the
consummation of the transactions contemplated by this Agreement and the
Investment Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions.
The following terms, when used in this Agreement, shall have the
following meanings:
"affiliate" of any person means another person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first person.
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee of that board.
"Class A Common Stock" means the Class A common stock, par value
$0.01 per share, of the Company.
"Commission" means the Securities and Exchange Commission or any
successor governmental body or agency.
"control" (including the terms "controlling," "controlled by" and
"under common control with") means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
"CVR Agreement" means the Contingent Value Rights Agreement dated as
of January 22, 2002, between the Company and the Investor.
"Demand Registration" has the meaning ascribed thereto in Section
2.02(a)(i).
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"Demand Request" has the meaning ascribed thereto in Section
2.02(a).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 2.04.
"Effective Period" means the period from the date on which the
Merger Agreement is terminated in accordance with its terms until the first
date on which all Registrable Securities are eligible for sale in their
entirety pursuant to Rule 144 in a 150-day period, based on the then average
trading volume of such Registrable Securities.
"Governmental Authority" means any federal, state or local court or
governmental or regulatory agency or authority or applicable stock exchange or
trading market.
"Holder" means a person who owns Registrable Securities and is:
(i) the Investor;
(ii) a wholly owned subsidiary of the Investor; or
(iii) any transferee which has acquired from the Investor or a
wholly owned subsidiary of the Investor (x) Class A Common Stock that
represented 20% or more of the Class A Common Stock issuable upon
conversion of all the Preferred Stock (defined below) on the date of
issuance of such Preferred Stock, as adjusted for stock splits,
combinations, subdivisions and other similar changes to the capital
structure of the Company; plus, at any time after the Maturity Date, the
Change of Control Date or the Default Payment Date, as applicable (each
as defined in the CVR Agreement) (y) at least 20% of the Class A Common
Stock, if any, issued pursuant to the settlement of the contingent value
rights issued pursuant to the CVR Agreement (the "CVRs").
"Inspectors" has the meaning ascribed thereto in Section 2.06(h).
"Investment Agreement" has the meaning ascribed thereto in the
recitals of this Agreement.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" or "Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Merger Agreement" means the Agreement and Plan of Merger dated as
of October 28, 2001, by and between the Company and Xxxxxx Electronics
Corporation, a Delaware corporation, as it may be amended from time to time.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Entity or other
entity.
"Piggy-back Registration" has the meaning ascribed thereto in
Section 2.01(a).
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"Preferred Stock" means the Series D mandatorily convertible
participating preferred stock, par value $0.01 per share, issued pursuant to
the Investment Agreement.
"Records" has the meaning ascribed thereto in Section 2.06(h).
"Registrable Securities" means Class A Common Stock (x) issued or
issuable upon conversion of any Preferred Stock issued pursuant to the
transactions contemplated by the Investment Agreement, or (y) Class A Common
Stock issued pursuant to the settlement of the CVRs pursuant to the CVR
Agreement.
As used in this definition of Registrable Securities, (A) the term
"Class A Common Stock" shall include any shares of stock or other securities
into which or for which shares of Class A Common Stock may hereafter be
changed, converted or exchanged and any other shares or securities issued to
holders of Class A Common Stock (or such shares of stock or other securities
into which or for which shares of Class A Common Stock are so changed,
converted or exchanged) upon any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transaction or event and (B) the term "Preferred Stock" shall include any
shares of stock or other securities into which or for which shares of
Preferred Stock may hereafter be changed, converted or exchanged and any other
shares or securities issued to holders of Preferred Stock (or such shares of
stock or other securities into which or for which shares of Preferred Stock
are so changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, share dividend, share exchange, merger,
consolidation or similar transaction or event.
As to any particular Registrable Securities, such Registrable
Securities shall cease to be Registrable Securities as soon as (A) such
Registrable Securities have been sold or otherwise disposed of pursuant to a
registration statement that was filed with the Commission in accordance with
this Agreement and declared effective under the 1933 Act, (B) based on an
opinion of counsel reasonably acceptable to the Company and the Holder of such
Registrable Securities, such Registrable Securities are eligible for sale in
their entirety pursuant to Rule 144 in a 150-day period, based on the then
average trading volume of such Registrable Securities, (C) such Registrable
Securities shall have been otherwise sold, transferred or disposed of by a
Holder to any person that is not a Holder or (D) such Registrable Securities
shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to the
Company's performance of or compliance with the provisions of this Agreement,
including (i) the fees, disbursements and expenses of the Company's counsel
and accountants (including in connection with the delivery of opinions and
comfort letters); (ii) all expenses and fees of compliance with securities and
blue sky laws; (iii) all expenses and fees, including filing fees, in
connection with the preparation, printing and filing of one or more
registration statements (and amendments thereto) pursuant to this Agreement;
(iv) the cost of producing or printing any agreements among underwriters and
underwriting agreements and any blue sky memoranda and legal investment
memoranda; (v) the expenses and fees, including filing fees, incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the Registrable Securities to be disposed of or the terms of
any disposition of Registrable Securities; (vi) all fees and expenses payable
in connection with the quotation of any Registrable Securities on any
automated
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interdealer quotation system or the listing of any Registrable Securities on
any securities exchange on which the Class A Common Stock is then quoted or
listed; (vii) all transfer agents' and registrars' expenses and fees in
connection with any offering or disposition of Registrable Securities; (viii)
all security engraving and security printing expenses; (ix) all messenger and
delivery expenses and fees; provided, however, that Registration Expenses
shall exclude (w) all transfer taxes, if any, relating to the sale or
disposition of the Registrable Securities; (x) all underwriting discounts and
underwriting commissions, if any, in connection with the sale of any
Registrable Securities; (y) the fees and expenses of counsel and other
advisors for any Holder and (z) all out-of-pocket expenses of the
underwriters, if any, including fees and expenses of counsel for the
underwriters.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the 1933 Act.
"Section 2.04 Period" has the meaning ascribed thereto in Section
2.04.
"Section 2.06(e) Period" has the meaning ascribed thereto in Section
2.06(e).
"Selling Holder" means any Holder who sells Registrable Securities
pursuant to a public offering registered pursuant to this Agreement.
Internal References. Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to this Agreement.
ARTICLE II
Registration Rights
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SECTION 2.01. Piggy-Back Registration. (a) Whenever during the
Effective Period the Company shall propose to file a registration statement
under the 1933 Act relating to its Class A Common Stock (other than pursuant
to a registration statement on Form S-4 (or any other registration statement
registering shares to be issued in a merger, consolidation, acquisition or
similar transaction) or Form S-8 or any successor forms, or an offering of
securities in connection with an exchange offer to existing stockholders or
otherwise pursuant to a dividend reinvestment plan, stock purchase plan or
other employee benefit plan), whether or not for its own account, the Company
shall (i) provide a written notice at least 30 days prior to the filing
thereof to each Holder, specifying the approximate date on which the Company
proposes to file such registration statement and advising such Holder of its
right to have any or all (subject to Section 2.01(b)) of the Registrable
Securities held by such Holder included among the securities to be covered
thereby and (ii) at the written request of any such Holder received by the
Company within 20 days after the date of such written notice from the Company,
include (subject to Section 2.01(b) and such Holder's compliance with Section
2.11(c)) among the securities covered by such registration statement the
number of Registrable Securities that such Holder shall have requested be so
included (a "Piggy-back Registration"). The Company shall require the lead or
managing underwriter, if any, of any proposed underwritten offering to permit
the
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Holders of Registrable Securities requested to be covered by the
registration statement for such offering to include (subject to Section
2.01(b) and such Holder's compliance with Section 2.11(c)) such securities in
such offering on the same terms and subject to the same conditions as any
similar securities included therein; provided, however, that the Company shall
not be required under this Section 2.01(a) to use any efforts to cause any
lead or managing underwriter of any such offering to permit any such Holder to
include any such securities in such offering unless such Holder accepts the
terms of any underwriting agreed upon between the Company (and any other
Holder whose securities are included in such offering) and such underwriter
(and any other underwriter) and performs such Holder's obligations thereunder.
(b) Each Holder of Registrable Securities desiring to participate in
a Piggy-back Registration may include shares of Class A Common Stock in any
registration statement relating to such offering to the extent that the
inclusion of such shares of Class A Common Stock shall not reduce the number
of shares of Class A Common Stock to be offered and sold by the Company
pursuant thereto. If the Company or lead or managing underwriter for an
underwritten offering pursuant to Section 2.01(a) determines that marketing
factors require a limitation on the number of shares of Class A Common Stock
to be offered and sold by the stockholders of the Company in such offering,
there shall be included in the offering only that number of shares of Class A
Common Stock of stockholders of the Company that the Company or such lead or
managing underwriter reasonably and in good faith believes will not jeopardize
the success of the offering of all the shares of Class A Common Stock that the
Company desires to sell for its own account (including a material reduction in
the price per share of the shares of Class A Common Stock to be sold).
In such event, and provided the lead or managing underwriter has so
notified the Company in writing (if applicable), the number of shares of Class
A Common Stock to be offered and sold by stockholders of the Company,
including Holders of Registrable Securities desiring to participate in such
offering, shall be allocated among such stockholders of the Company pro rata
on the basis of the relative number of shares requested to be included therein
by each such stockholder.
(c) Nothing in this Section 2.01 shall create any liability on the
part of the Company to the Holders of Registrable Securities if the Company
for any reason should decide not to file a registration statement proposed to
be filed pursuant to Section 2.01(a) or to withdraw a registration statement
filed pursuant to Section 2.01(a) subsequent to its filing, regardless of any
action whatsoever that a Holder may have taken, whether as a result of the
issuance by the Company of any notice under this Section 2.01 or otherwise;
provided that the Investor shall be entitled to initiate or continue such
registration as a Demand Registration pursuant to Section 2.02 following such
failure to file or withdrawal to the extent that such registration by the
Investor would otherwise satisfy the requirements of Section 2.02 and provided
further that the Company shall be obligated to pay all Registration Expenses
to the extent incurred in connection with any such registration statement
proposed to be filed or withdrawn subsequent to its filing.
(d) A request by Holders to include Registrable Securities in a
proposed underwritten offering pursuant to Section 2.01(a) shall not be deemed
to be a request for a Demand Registration.
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SECTION 2.02. Demand Registration. (a) Upon written notice to the
Company from the Investor at any time during the Effective Period (the "Demand
Request") requesting that the Company effect the registration under the 1933
Act of any or all of the Registrable Securities held by the Investor or any
other Holder, which notice shall specify the intended method or methods of
disposition of such Registrable Securities, the Company shall prepare and, as
promptly as is practicable, and in any event within 60 days after such
request, file with the Commission a registration statement with respect to
such Registrable Securities and thereafter use its best efforts to cause such
registration statement to be declared effective under the 1933 Act for
purposes of dispositions in accordance with the intended method or methods of
disposition stated in such request. Notwithstanding any other provision of
this Agreement to the contrary:
(i) the Investor may exercise its rights to request registration in
respect of Registrable Securities held by the Investor or any other
Holder under this Section 2.02(a) on not more than four occasions (each
such registration being referred to herein as a "Demand Registration");
and
(ii) the Company shall not be required to effect more than one
Demand Registration in any calendar year.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a Demand Registration requested by the Investor pursuant to this
Section 2.02 shall not be deemed to have been effected, and, therefore, not
requested and the rights of the Investor shall be deemed not to have been
exercised for purposes of Section 2.02(a), (i) if the Investor has not
received notice (confirmed by the Commission) that such Demand Registration
has become effective under the 1933 Act or (ii) if such Demand Registration,
after it became effective under the 1933 Act, was not maintained effective
under the 1933 Act (other than as a result of any stop order, injunction or
other order or requirement of the Commission or other Governmental Entity
solely on the account of a material misrepresentation or omission of the
Investor) for at least 120 days (or such shorter period ending when all the
Registrable Securities covered thereby have been disposed of pursuant thereto
(but in no event before the expiration of the 90-day period referred to in
Section 4(3) of the 1933 Act and Rule 174 promulgated thereunder, if
applicable)).
The time periods referred to in the preceding sentence shall be
extended, with respect to any Demand Registration, by the number of days in
any Section 2.04 Period and/or Section 2.06(e) Period applicable to such
Demand Registration.
If a Demand Request is made by the Investor during the Effective
Period but the related Demand Registration shall be deemed not to have been
exercised under the circumstances set forth in this Section 2.02(b), then the
Investor shall be deemed not to have used one of its rights to request a
Demand Registration under this Section 2.02 and shall continue to have such
right.
(c) The Company shall have the same rights to piggy-back any shares
of Class A Common Stock on a Demand Registration initiated pursuant to this
Section 2.02 as a Holder of Registrable Securities would have in a Piggy-back
Registration, and other stockholders of the Company may exercise any
piggy-back registration rights granted to them by the Company with
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respect to such Demand Registration; provided however, that notwithstanding
anything to the contrary in this Agreement, if the lead or managing
underwriter referred to in Section 2.03 determines that marketing factors
require a limitation on the number of shares of Class A Common Stock to be
offered and sold pursuant to such Demand Registration, there shall be included
in the offering only that number of shares of Class A Common Stock that such
lead or managing underwriter reasonably and in good faith believes will not
jeopardize the success of the offering (including a material reduction in the
price per share of the Registrable Securities to be sold). In such event, the
shares of Class A Common Stock to be included in such Demand Registration
shall be apportioned (i) first, to any Registrable Securities that the Holders
propose to sell in such Demand Registration, pro rata among such Holders on
the basis of the relative number of Registrable Securities requested to be
included therein by each such Holder, (ii) second, to any Class A Common Stock
that the Company proposes to sell in such Demand Registration and (iii) third,
among any shares of Class A Common Stock that other stockholders of the
Company propose to sell in such Demand Registration, pro rata among such
stockholders on the basis of the relative number of shares requested to be
included therein by each such stockholder.
SECTION 2.03. Other Matters in Connection with Registrations. In the
event that any Demand Registration shall involve, in whole or in part, an
underwritten offering, the Investor shall have the right to designate an
underwriter or underwriters as the lead or managing underwriter or
underwriters of such underwritten offering, subject to the approval of
Company, which approval shall not be unreasonably withheld.
SECTION 2.04. Certain Delay Rights. Notwithstanding any other
provision of this Agreement to the contrary, if at any time while a
registration statement relating to a Piggy-back Registration or a Demand
Registration is effective, the Company provides written notice to each Holder
of Registrable Securities covered by any such registration statement that the
Board of Directors has determined, in its reasonable business judgment, that
it would be materially disadvantageous to the Company (because the sale of
Registrable Securities covered by such registration statement or the
disclosure of information therein or in any related prospectus or prospectus
supplement would materially interfere with or otherwise adversely affect in
any material respect any acquisition, financing, corporate reorganization or
other material transaction or development involving the Company (a
"Disadvantageous Condition")) for sales of Registrable Securities thereunder
to then be permitted, and setting forth in general terms the reasons for such
determination, the Company may refrain from maintaining current the prospectus
contained in such registration statement until such Disadvantageous Condition
no longer exists (notice of which the Company shall promptly deliver to each
Holder or Registrable Securities covered by such registration statement).
Furthermore, notwithstanding any other provision of this Agreement
to the contrary, with respect to any registration statement filed, or to be
filed, pursuant to Section 2.01 or 2.02, if the Company provides written
notice to each Holder of Registrable Securities to be covered by such
registration statement that the Board of Directors has determined, in its
reasonable business judgment, that it would be materially disadvantageous to
the Company (because of a Disadvantageous Condition) for such a registration
statement to be maintained effective, or to be filed or to become effective,
and setting forth in general terms the reasons for such determination, the
Company shall be entitled to cause such registration statement to be
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withdrawn or the effectiveness of such registration statement to be
terminated, or, in the event no registration statement has been filed, the
Company shall be entitled to not file such registration statement, until such
Disadvantageous Condition no longer exists (notice of which the Company shall
promptly deliver to each Holder of Registrable Securities covered, or to be
covered, by such registration statement).
With respect to each Holder of Registrable Securities covered by any
registration statement relating to a Piggy-back Registration or a Demand
Registration, upon receipt by such Holder of any notice from the Company of a
Disadvantageous Condition, such Holder shall forthwith discontinue use of the
prospectus and any prospectus supplement under such registration statement and
shall suspend sales of Registrable Securities until such Disadvantageous
Condition no longer exists. Furthermore, if so directed by the Company by such
notice, such Holder will deliver to the Company all copies (other than
permanent file copies) then in such Holder's possession of the prospectus and
prospectus supplements then covering such Registrable Securities at the time
of receipt of such notice. In the event that the Company makes an election
under this Section 2.04, each Holder agrees to keep confidential the fact of
such election and any information provided by the Company in connection
therewith.
Notwithstanding any other provision of this Agreement to the
contrary, (i) the maintaining current of a prospectus (and the suspension of
sales of Registrable Securities) in connection with a Demand Registration may
not be delayed under this Section 2.04 for more than a total of 90 days in any
twelve-month period and (ii) neither the filing nor the effectiveness of any
registration statement under Section 2.02 may be delayed for more than a total
of 90 days pursuant to this Section 2.04. The time period during which any
registration statement under Section 2.02 must be maintained effective
pursuant to Section 2.02(b) shall be extended by the number of days in any
delay period imposed pursuant to this Section 2.04 (a "Section 2.04 Period").
In no event shall the Company be entitled to delay the maintaining current of
a prospectus (and the suspension of sales of Registrable Securities) in
connection with any Demand Registration or to delay the filing or
effectiveness of any registration statement under Section 2.02 unless the
Company shall (i) concurrently prohibit sales by other security holders under
registrable statements covering securities held by such other securityholders
and (ii) forbid purchases and sales of securities of the Company in the open
market by senior executives of the Company, other than pursuant to a "written
plan for trading securities", as such phrase is used under Rule 10b5-1 under
the Exchange Act.
In the event any registration statement in respect of a Demand
Registration is withdrawn or the effectiveness of such registration statement
is terminated, or a registration statement is not filed in respect of a Demand
Registration, in each case pursuant to this Section 2.04, then the Investor
shall have the right to withdraw its request for such Demand Registration at
any time following receipt of any notice from the Company of a Disadvantageous
Condition, and, if the Investor so withdraws its request, the Investor shall
be deemed not to have used one of its rights to request a Demand Registration
under Section 2.02 and shall continue to have such right.
SECTION 2.05. Expenses. Except as otherwise provided in this
Agreement, the Company shall pay all Registration Expenses with respect to
each registration under this Agreement.
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SECTION 2.06. Registration and Qualification. If and whenever the
Company is required by the provisions of this Agreement to effect the
registration of any Registrable Securities under the 1933 Act as provided in
Section 2.01 or 2.02, the Company shall as promptly as practicable (but
subject, in the case of any registration as provided in Section 2.02, to the
provisions thereof):
(a) prepare and file with the Commission (within 60 days after such
request) a registration statement (as well as any necessary supplements and
amendments thereto) which counsel for the Company shall deem appropriate on
such form as shall be available for the sale of such Registrable Securities in
accordance with the intended method of distribution thereof and use its best
efforts to cause such registration statement to become effective and remain
effective until the earlier to occur of (i) such time as all Registrable
Securities covered by such registration statement have been disposed of in
accordance with the intended methods of disposition set forth in such
registration statement (but in no event before the expiration of the 90-day
period referred to in Section 4(3) of the 1933 Act and Rule 174 promulgated
thereunder, if applicable) and (ii) 120 days after such registration statement
becomes effective which period shall be extended in the case of any Demand
Registration by the number of days in any Section 2.04 Period and/or Section
2.06(e) Period applicable to such Demand Registration; provided, however,
that, before filing a registration statement or prospectus or any amendments
or supplements thereto, or comparable statements under securities or blue sky
laws of any jurisdiction, the Company shall (x) provide counsel selected by
the Investor with an opportunity to participate in the preparation of such
registration statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the Commission, which shall
be subject to the review and approval (which approval shall not be
unreasonably withheld) of such counsel, and (y) notify each Selling Holder and
such counsel of any stop order issued or, to the best knowledge of the
Company, threatened by the Commission and take all reasonable action required
to prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective until the earlier to occur of (i) such time as all Registrable
Securities covered by such registration statement have been disposed of in
accordance with the intended methods of disposition set forth in such
registration statement (but in no event before the expiration of the 90-day
period referred to in Section 4(3) of the 1933 Act and Rule 174 promulgated
thereunder, if applicable) and (ii) 120 days after such registration statement
becomes effective which period shall be extended in the case of any Demand
Registration by the number of days in any Section 2.04 Period and/or Section
2.06(e) Period applicable to such Demand Registration, and comply with the
provisions of the 1933 Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance with
the intended methods of disposition set forth in such registration statement;
(c) furnish, without charge, to each Holder of such Registrable
Securities and to any underwriter of such Registrable Securities, prior to the
filing of such registration statement, copies of such registration statement
as proposed to be filed and thereafter such number of copies of such
registration statement, each amendment and supplement thereto (in each case,
including all exhibits thereto), the prospectus included in such registration
statement (including each
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preliminary prospectus), in conformity with the requirements of the 1933 Act,
such documents incorporated by reference in such registration statement or
prospectus and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the sale of the Registrable
Securities by the Selling Holders;
(d) use its commercially reasonable efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of
such jurisdictions as each Holder of Registrable Securities covered by such
Registration Statement requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable each such Holder to
consummate the disposition of the Registrable Shares held by such Holder in
such jurisdictions; provided that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction in which it would not
otherwise be required to qualify but for this Section 2.06(d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(e) promptly notify each Selling Holder in writing (i) at any time
when a prospectus relating to such Registrable Securities is required to be
delivered under 1933 Act, upon discovery that, or upon the occurrence of any
event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made or (ii) of any request by the Commission or any other
Governmental Entity for any amendment of or supplement to any registration
statement or other document relating to such offering, and in either such case
the Company shall promptly prepare a supplement or amendment to such
prospectus and furnish to each Selling Holder a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made (the number of days from (x) the date the written notice
contemplated by this paragraph (e) is given by the Company to (y) the date on
which the Company delivers to the Selling Holders the supplement or amendment
contemplated by this paragraph (e) is referred to in this Agreement as a
"Section 2.06(e) Period");
(f) use its commercially reasonable efforts to cause such
Registrable Securities to be registered with or approved by such other
Governmental Entities as may be necessary by virtue of the business and
operations of the Company to enable each Holder of Registrable Securities
covered by such Registration Statement to consummate the disposition of the
Registrable Securities held by such Holder;
(g) enter into and perform customary agreements (including an
underwriting agreement in customary form, if the offering is underwritten) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities, and each Selling
Holder shall also enter into and perform its obligations under such
agreements;
11
(h) make available for inspection by any lead or managing
underwriter participating in any disposition pursuant to such registration
statement, any Selling Holder, counsel selected by the Investor and any
attorney, accountant or other agent retained by any lead or managing
underwriter, or the Investor (collectively, the "Inspectors") all financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable the
Inspectors to exercise their due diligence responsibility and cause the
Company's officers, directors and employees and the independent public
accountants of the Company to supply all information reasonably requested by
any such Inspector in connection with such registration statement. Any Records
that the Company determines, in good faith, to be confidential and in respect
of which the Company notifies each Selling Holder that such Records are
confidential shall not be disclosed by the Inspectors unless (x) the
disclosure of such Records is necessary to avoid or correct a misstatement or
omission in the applicable registration statement (in which case, the Selling
Holders shall cooperate with the Company in seeking confidential treatment of
such Records) or (y) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction. Each Selling
Holder agrees that it shall, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of such Records;
(i) in the event such sale is effected pursuant to an underwritten
offering, obtain a "comfort" letter or comfort letters from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as counsel for the lead
or managing underwriter or counsel for the Investor reasonably requests;
(j) furnish, at the request of any Selling Holder, on the date such
Registrable Securities are delivered to any underwriter for sale pursuant to
such registration or, if such Registrable Securities are not being sold
through any underwriter, on the date the registration statement with respect
to such Registrable Securities becomes effective, an opinion, dated as of such
date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to each Selling
Holder, covering such legal matters with respect to the registration as any
Selling Holder may reasonably request and are customarily included in such
opinions;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to each Selling
Holder, as soon as reasonably practicable, an earnings statement covering a
period of 12 months beginning after the effective date of the registration
statement, in a manner which satisfies the provisions of Section 11(a) of the
1933 Act;
(l) cause all such Registrable Securities to be quoted on each
interdealer quotation system or listed on each securities exchange, if any, on
which other securities of the same class issued by the Company are then quoted
or listed (subject to notice of issuance); provided that the applicable
listing requirements are satisfied;
12
(m) use its commercially reasonable efforts to assist the Selling
Holders in the marketing of Registrable Securities in connection with
underwritten offerings (including, to the extent reasonably consistent with
work commitments, using reasonable efforts to have officers of the Company
participate in "road shows" and analyst or investor presentations scheduled in
connection with such registration provided that the Selling Holders shall give
such officers reasonable advance notice concerning the scheduling of any such
presentations);
(n) if requested, furnish for delivery in connection with the
closing of any offering of Registrable Securities pursuant to a registration
effected pursuant to Section 2.01 or 2.02 unlegended certificates representing
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the Selling Holders or the underwriters;
(o) promptly notify the Selling Holders of any stop order issued or,
to the Company's knowledge, threatened to be issued by the Commission and take
all reasonable actions required to prevent the entry of such stop order or to
remove it if entered;
(p) cause the Registrable Securities to be included in any
registration statement not later than the effective date of such registration
statement;
(q) cooperate with each Selling Holder and each Underwriter
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.;
(r) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act; and
(s) keep each Selling Holder reasonably advised as to the initiation
and progress of such registration.
SECTION 2.07. Underwriting. If requested by the underwriters for any
underwritten offering of Registrable Securities pursuant to a registration
requested under Section 2.02(a), the Company shall enter into an underwriting
agreement with such underwriters for such offering, which agreement will
contain such representations and warranties by the Company and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including indemnification and
contribution provisions substantially to the effect and to the extent provided
in Section 2.08, and agreements as to the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Sections
2.06(i) and 2.06(j), respectively. Such underwriting agreement shall also
contain such representations and warranties by such Selling Holders and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including indemnification
and contribution provisions substantially to the effect and to the extent
provided in Section 2.08.
SECTION 2.08. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each Holder, its officers, directors, agents, trustees, stockholders and each
person, if any, who controls each Holder (within the meaning of either Section
15 of the 1933 Act or Section 20 of the 0000 Xxx) and any
13
investment advisor of such Holder from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and reasonable attorneys' fees, disbursements and expenses) arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or any amendment thereof, any
preliminary prospectus or prospectus (as amended or supplemented if the
Company shall have furnished any amendment or supplements thereto) relating to
the Registrable Securities or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such untrue statement or omission or alleged
untrue statement or omission was made (x) in reliance upon and in conformity
with any information furnished to the Company in writing by such Holder or, if
applicable, the underwriters, legal counsel, or other agents of such Holder,
expressly for use therein, (y) in any prospectus used after such time as the
Company advised such Holder in writing that the filing of a post-effective
amendment or supplement thereto was required, other than such prospectus as so
amended or supplemented or (z) in any prospectus used after such time as the
obligation of the Company to keep such prospectus effective and current shall
have expired or (ii) any violation by the Company of the 1933 Act or the 1934
Act in connection with such registration. The Company shall also indemnify any
underwriters of the Registrable Securities, their officers and directors and
each person that controls such underwriters (within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 0000 Xxx) to the same extent
and subject to the same limitations as provided in this Section 2.08 with
respect to the indemnification of the Holders; and provided further that the
Company shall not be liable for an underwriter's failure to send or give a
copy of the final prospectus or supplement to the persons asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to
such person if such statement or omission was corrected in such final
prospectus or supplement.
(b) In connection with any registration statement pursuant to which
Registrable Securities owned by any Holders are being registered as provided
in Section 2.01 or 2.02, each such Holder shall furnish to the Company in
writing such information with respect to such Holder as the Company may
reasonably request for use in connection with any such registration statement
or related prospectus and agrees to indemnify and hold harmless the Company,
its officers, directors, agents, trustees and stockholders and each person, if
any, that controls the Company (within the meaning of either Section 15 of the
1993 Act or Section 20 of the 0000 Xxx) from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and reasonable attorneys' fees, disbursements and expenses)
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any registration statement or any amendment
thereof, any preliminary prospectus or prospectus (as amended or supplemented
if the Company shall have furnished any amendment or supplement thereto)
relating to the Registrable Securities or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but
only insofar as such losses, claims, damages, liabilities and expenses are
caused by information furnished in writing to the Company by such Holder, or,
if applicable, the underwriters, legal counsel, or other agents of such
Holder, expressly for use therein; provided however that in no event shall any
Holder be required to indemnify any person described in this Section 2.08(b)
in an amount in excess of the
14
amount of the net proceeds received by such Holder in connection with sales of
Registrable Securities covered by any such registration under the Securities
Act.
(c) Each party indemnified under paragraph (a) or (b) above shall,
promptly after receipt of notice of a claim or action against such indemnified
party in respect of which indemnity may be sought hereunder, notify the
indemnifying party in writing of the claim or action; provided that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party on account of the indemnity
agreement contained in paragraph (a) or (b) above except to the extent that
the indemnifying party was actually substantially prejudiced by such failure,
and in no event shall such failure relieve the indemnifying party from any
other liability that it may have to such indemnified party. If any such claim
or action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, unless based on the advice of counsel
to such indemnified party a conflict of interest between such indemnified
party and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action and the prompt undertaking of such defense with counsel reasonably
acceptable to the indemnified party, the indemnifying party shall not be
liable to the indemnified party under this Section 2.08 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof. Any indemnifying party against whom indemnity may be sought
under this Section 2.08 shall not be liable to indemnify an indemnified party
if such indemnified party settles such claim or action without the consent of
the indemnifying party (such consent not to be unreasonably withheld, delayed
or conditional). The indemnifying party may not agree to any settlement of any
such claim or action, other than solely for monetary damages for which the
indemnifying party shall be responsible hereunder, the result of which any
remedy or relief shall be applied to or against the indemnified party, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld. In any action hereunder as to which the indemnifying
party has assumed the defense thereof, the indemnified party shall continue to
be entitled to participate in the defense thereof, with counsel of its own
choice, but the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof unless (i) the
indemnifying party agrees to pay such costs or (ii) the indemnifying party
fails to promptly assume and continue the defense of such claim or action with
counsel reasonably satisfactory to the indemnified party.
(d) If the indemnification provided for in this Section 2.08 from an
indemnifying party shall for any reason be unavailable to an indemnified party
(other than in accordance with its terms) in respect of any loss, claim,
damage, liability or expense referred to herein, then such indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage, liability or expense in such proportion as is appropriate to
reflect the relative fault of such indemnifying party on the one hand and of
such indemnified party on the other hand in connection with the statements or
omissions (or actions) that resulted in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand
and the indemnified party on the other hand shall be determined by reference
to, among other things, whether the untrue or
15
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage, liability or expense in respect thereof
referred to above in this paragraph (d), shall be deemed to include, for
purposes of this paragraph (d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.08 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this paragraph (d).
Notwithstanding any other provision of this Section 2.08, no Holder shall be
required to contribute any amount in excess of the amount by which the
proceeds of the offering received by such Holder exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Each Holder's
obligation to contribute is several in the proportion that the proceeds of the
offering received by such Holder bears to the total proceeds of the offering,
and not joint.
(e) The obligations of the parties under this Section 2.08 shall be
in addition to any liability that any party may otherwise have to any other
party.
SECTION 2.09. Holdback Agreements. (a) From the date of this
Agreement to the date on which the Merger Agreement is terminated in
accordance with its terms, each Holder agrees not to effect (and to cause its
controlled affiliates not to effect) any sale or distribution (including any
open market sales and any offerings made in reliance on Rule 144A under the
1933 Act or similar distribution) of any Registrable Securities or any other
equity security of the Company, or any securities convertible into or
exchangeable or exercisable for Registrable Securities or other equity
securities of the Company, including a sale pursuant to Rule 144 and any
hedging or derivative transaction involving such securities.
(b) To the extent not inconsistent with applicable law, in the event
that any Registrable Securities shall be registered in connection with an
underwritten offering, each Holder agrees not to effect (and to cause its
controlled affiliates not to effect) any public sale or distribution
(including any open market sales and any offerings made in reliance on Rule
144A under the 1933 Act or similar distribution) of Registrable Securities or
any other equity security of the Company, or any securities convertible into
or exchangeable or exercisable for Registrable Securities or other equity
securities of the Company, including a sale pursuant to Rule 144 and any
hedging or derivative transaction involving any such securities, during the 14
days prior to, and during the 90-day period beginning on, the later of (i) the
effective date of such registration or (ii) the commencement of a public
distribution of such Registrable Securities pursuant to such
16
registration, in each case if and to the extent requested by the Company or
the lead or managing underwriter of such underwritten offering.
(c) In connection with any registration of Registrable Securities in
connection with an underwritten offering, the Company agrees not to effect any
public sale or distribution of any of its equity securities, or any securities
convertible into or exchangeable or exercisable for its equity securities
(except pursuant to a registration statement on Form S-4 or Form S-8 or any
successor or similar forms thereto) during the 20 days prior to, and during
the 90-day period beginning on, the later of (i) the effective date of such
registration or (ii) the commencement of a public distribution of such
Registrable Securities pursuant to such registration.
(d) In the event of a proposed offering of debt or equity securities
by the Company for its own account at any time during the Effective Period,
whether or not such offering is to be registered under the 1933 Act or any
Registrable Securities shall be registered in connection therewith, if
requested in writing by the Company, each Holder agrees not to effect (and to
cause its controlled affiliates not to effect) any public sale or distribution
(including any open market sales and offerings made in reliance on Rule 144A
under the 1933 Act or similar distribution) of Registrable Securities or any
other equity security of the Company, or any securities convertible into or
exchangeable or exercisable for Registrable Securities or other equity
securities of the Company, including a sale pursuant to Rule 144 and any
hedging or derivative transaction involving any such securities, for such
period prior to or following such offering, not to exceed 75 days in any
calendar year, as the Company may so request.
SECTION 2.10. Priority Rights of Holders. The Company hereby agrees
not to enter into any agreement for the registration, sale or distribution of
any of the Company's securities with terms that conflict with the terms set
forth in this Agreement with respect to each Holder.
SECTION 2.11. Holder Covenants. Each Holder hereby covenants and
agrees that:
(a) it will not sell any Registrable Securities under any
registration statement covering Registrable Securities until is has received
notice from the Company that such registration statement and any
post-effective amendments thereto have become effective; provided that the
Company shall notify each Holder promptly when such registration statement and
any post-effective amendments thereto have become effective;
(b) it will comply with the prospectus delivery requirements of the
Securities Act as applicable to it in connection with the sales of Registrable
Securities pursuant to a registration statement;
(c) it shall promptly furnish to the Company such information
regarding the Holder, the Registrable Securities held by it and the
distribution proposed by the Holder as the Company may request in writing and
shall otherwise cooperate with the Company to the extent such information or
cooperation is required in connection with any registration, qualification or
compliance referred to in this Agreement;
17
(d) it shall notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished to the Company or of
the happening of any event, in either case as a result of which any prospectus
relating to such registration contains an untrue statement of a material fact
regarding the Holder or the distribution of such Registrable Securities or
omits to state any material fact regarding the Holder or the distribution of
such Registrable Securities 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, and to furnish to the Company promptly any
additional information required to correct and update any previously furnished
information or required such that such prospectus shall not contain, with
respect to the Holder or the distribution of such Registrable Securities, 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.
SECTION 2.12. Termination. Effective immediately upon the
consummation of the transactions contemplated by the Merger Agreement, this
Agreement (other than Article III, which shall survive such termination) shall
thereupon automatically terminate and become null and void without any further
action on the part of any party hereto.
ARTICLE III
Miscellaneous
-------------
SECTION 3.01. Amendments and Waivers. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto. By an instrument in writing, the Investor, on the one hand, or
the Company, on the other hand, may waive compliance by the other with any
term or provision of this Agreement that such other party was or is obligated
to comply with or perform.
SECTION 3.02. Notices. All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be delivered
by hand or sent by facsimile or sent, postage prepaid, by registered,
certified or express mail or overnight courier service and shall be deemed
given when so delivered by hand or facsimile (upon receipt of confirmation),
or if mailed, one day after mailing, as follows:
(a) If to the Company, to:
EchoStar Communications Corporation
0000 Xxxxx Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxxxx, General Counsel
18
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx and Xxxx X. X'Xxxxx
(b) If to the Investor or any other Holder, to:
Vivendi Universal
00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Fax: 00-0-0000-0000
Attention: Xx. Xxxxxxxxx Hannezo
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx
SECTION 3.03. Interpretation. (a) The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(b) For all purposes hereof:
"including" means including, without limitation.
"subsidiary" of any person means another person, an amount of the
voting securities, other voting rights or voting partnership interests of
which is sufficient to elect at least a majority of its board of directors or
other governing body (or, if there are no such voting interests, 50% or more
of the equity interests of which) is owned directly or indirectly by such
first person.
SECTION 3.04. Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall
19
be added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
SECTION 3.05. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 3.06. Entire Agreement; No Third-Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) except for the provisions of
Section 2.08, is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
SECTION 3.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York regardless of
the laws that might otherwise apply under applicable principles of law
thereof.
SECTION 3.08. Assignment. Except as provided in clause (ii) or (iii)
of the definition of Holder, neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law or otherwise, by any of the parties without the
prior written consent of the other parties. Any purported assignment without
such consent shall be void. Subject to the preceding sentences, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
SECTION 3.09. Enforcement. The parties agree that irreparable damage
would occur and that the parties would not have any adequate remedy at law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any New York state court, any
Federal court located in the State of New York or any Colorado state court or
Federal court located in the State of Colorado, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any New York state court or any Federal court located in the
State of New York or any Colorado state court or Federal court located in the
State of Colorado in the event any dispute arises out of this Agreement, (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (iii) agrees that it
will not bring any action relating to this Agreement in any court other than a
New York state court or any Federal court sitting in the State of New York or
any Colorado state court or Federal court located in the State of Colorado and
(iv) waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any transaction contemplated
hereby.
IN WITNESS WHEREOF, the Company and the Holders have caused
this Agreement to be duly executed as of the day and year first above written.
ECHOSTAR COMMUNICATIONS CORPORATION,
by /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and
General Counsel
VIVENDI UNIVERSAL, S.A.,
by /s/ Xxxx-Xxxxx Xxxxxxx
------------------------------------
Name: Xxxx-Xxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer