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EXHIBIT 4.2
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$1,000,000,000
5 3/4% CONVERTIBLE SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of May 31, 2001
by and between
EchoStar Communications Corporation
and
UBS WARBURG LLC
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This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of May 31, 2001 by and between EchoStar Communications Corporation, a
Nevada corporation (the "COMPANY"), and UBS Warburg LLC (the "INITIAL
PURCHASER"). The Company proposes to issue and sell to the Initial Purchaser
(the "INITIAL PLACEMENT") $1,000,000,000 in aggregate principal amount of its
5 3/4% Convertible Subordinated Notes due 2008 (the "FIRM NOTES"). The Company
also proposes to issue and sell to the Initial Purchaser not more than
$150,000,000 principal amount of its 5 3/4% Convertible Subordinated Notes due
2008 (the "ADDITIONAL NOTES" and, together with the Firm Notes, the "NOTES"). As
an inducement to the Initial Purchaser to enter into the purchase agreement,
dated as of May 24, 2001 (the "PURCHASE AGREEMENT"), and in satisfaction of a
condition to the Initial Purchaser's obligations thereunder, the Company agrees
with the Initial Purchaser (i) for the benefit of the Initial Purchaser and (ii)
for the benefit of the holders from time to time of the Notes whose names appear
in the register maintained by the Registrar in accordance with the provisions of
the Indenture (as defined in Section 1 hereof) (including the Initial
Purchaser), as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGREEMENT" means this Registration Rights Agreement.
"CLOSING DATE" has the meaning set forth in the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Class A Common Stock of the Company, par value
$0.01 per share, issuable upon the conversion of the Notes.
"COMPANY" means EchoStar Communications Corporation.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"FILING DELAY PERIOD" means the period commencing on the date of receipt by
a Holder of Transfer Restricted Securities of any notice from the Company of the
existence of any fact or
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event of the kind described in Section 4(b)(2)(v) and ending on the date that is
not more than sixty (60) days after such notice is received.
"HOLDER" has the meaning set forth in Section 2 hereof.
"INDENTURE" means the Indenture, dated as of May 31, 2001, between the
Company and the Trustee, relating to the Notes, as the same may be amended from
time to time in accordance with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"INITIAL PURCHASER" means UBS Warburg LLC.
"LOSSES" has the meaning set forth in Section 7(d) hereof.
"MAJORITY HOLDERS" means the Holders of a majority of the aggregate
principal amount of securities registered under a Shelf Registration Statement.
"NOTES" has the meaning set forth in the preamble hereto.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of Transfer Restricted Securities covered by such Shelf
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"SHELF REGISTRATION" means a registration effected pursuant to Section 3
hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 3 hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of
the Company pursuant to the provisions of Section 3 hereof that covers some or
all of the Transfer Restricted Securities as applicable, on an appropriate form
under Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, and in each case, including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SUPPLEMENT DELAY PERIOD" means any period commencing on the date of
receipt by a Holder of Transfer Restricted Securities of any notice from the
Company of the existence of any fact or event of the kind described in Section
4(b)(2) hereof and ending on the date of receipt by such Holder of an amended or
supplemented Shelf Registration Statement or Prospectus, as contemplated by
Section 4(h) hereof, or the receipt by such Holder of written notice from the
Company (the "ADVICE") that the use of the Prospectus may be resumed, and the
receipt of copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus.
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"TRANSFER RESTRICTED SECURITIES" means each Note and the Common Stock
issuable upon conversion thereof until (i) the date on which such Note or the
Common Stock issuable upon conversion thereof has been effectively registered
under the Act and disposed of in accordance with the Shelf Registration
Statement, (ii) the date on which such Note or Common Stock issuable upon
conversion thereof is distributed to the public pursuant to Rule 144 under the
Act (or any similar provision then in effect) or is saleable pursuant to Rule
144(k) under the Act or (iii) the date on which such Note or the Common Stock
issuable upon the conversion thereof otherwise ceases to be outstanding.
"TRUSTEE" means the trustee with respect to the Notes under the Indenture.
"UNDERWRITER" means any underwriter of Notes in connection with an offering
thereof under a Shelf Registration Statement.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such person becomes the registered holder of such Transfer
Restricted Securities under the Indenture and includes broker-dealers that hold
Transfer Restricted Securities (i) as a result of market making activities and
other trading activities and (ii) which were acquired directly from the Company
or an Affiliate of the Company.
SECTION 3. SHELF REGISTRATION
The Company shall within 90 days (plus up to an additional 60 days allowed
as a result of a Filing Delay Period) of the date of original issuance of the
Notes, file with the Commission and thereafter shall use its reasonable best
efforts to cause to be declared effective under the Act on or prior to 270 days
(plus any additional days allowed as a result of a Supplement Delay Period)
after the date of original issuance of the Notes, a Shelf Registration Statement
relating to the offer and sale of the Transfer Restricted Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement. Each Holder
of Transfer Restricted Securities agrees to keep its receipt of a notice of the
commencement of the Filing Delay Period confidential.
The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the Closing Date
or such shorter period that will terminate when (i) all the Transfer Restricted
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, (ii) the date on which, in the opinion of
counsel to the Company, all of the Transfer Restricted Securities then held by
the Holders may be sold by such Holders in the public United States securities
markets in the absence of a registration statement covering such sales or (iii)
the date on which there ceases to be outstanding any Transfer Restricted
Securities (in any such case, such period being called the "SHELF REGISTRATION
PERIOD"). The Company shall be deemed not to have used its reasonable best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Transfer Restricted Securities covered thereby not being able to offer and sell
such securities during that period, unless (i) such
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action is required by applicable law, (ii) such action is taken by the Company
in good faith and for valid business reasons (not including avoidance of the
Company's obligations hereunder), including the acquisition or divestiture of
assets, so long as the Company promptly thereafter complies with the
requirements of Section 4(h) hereof, if applicable or (iii) such action is taken
because of any fact or circumstance giving rise to a Supplement Delay Period.
SECTION 4. REGISTRATION PROCEDURES
In connection with any Shelf Registration Statement, the following
provisions shall apply:
(a) The Company shall ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any amendment
or supplement thereto complies in all material respects with the Act and the
rules and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made,
not misleading.
(b) (1) The Company shall advise the Initial Purchaser and the Holders of
Transfer Restricted Securities named in any Shelf Registration Statement, and,
if requested by the Initial Purchaser or any such Holder, confirm such advice in
writing when a Shelf Registration Statement and any amendment thereto has been
filed with the Commission and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective.
(2) The Company shall advise the Initial Purchaser and the Holders of
Transfer Restricted Securities named in any Shelf Registration Statement, which
have provided in writing to the Company a telephone or facsimile number and
address for notices, and, if requested by the Initial Purchaser or any such
Holder, confirm such advice in writing:
(i) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the Prospectus included therein or for
additional information;
(ii) of the initiation by the Commission of proceedings relating to a
stop order suspending the effectiveness of the Shelf Registration
Statement;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included therein for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
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(v) of the existence of any fact and the happening of any event
(including, without limitation, pending negotiations relating to, or the
consummation of, a transaction or the occurrence of any event which would
require additional disclosure of material non-public information by the
Company in the Shelf Registration Statement as to which the Company has a
bona fide business purpose for preserving confidential or which renders the
Company unable to comply with Commission requirements) that, in the opinion
of the Company, makes untrue any statement of a material fact made in its
Shelf Registration Statement, the Prospectus or any amendment or supplement
thereto or any document incorporated by reference therein or requires the
making of any changes in the Shelf Registration Statement or the Prospectus
so that, as of such date, the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading,
provided, that the foregoing obligation shall only arise if the Company has
been notified by the Trustee or Transfer Agent that the Shelf Registration
Statement is being used to effect transfers of Transfer Restricted
Securities as provided by Section 4(o) below.
Such advice may be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made.
(c) The Company shall use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
(d) The Company shall use its best efforts to furnish to each selling
Holder named in any Shelf Registration Statement who so requests in writing and
who has provided to the Company an address for notices, without charge, at least
one conformed copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and, if the Holder so requests
in writing, all exhibits and schedules (including those incorporated by
reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Transfer Restricted Securities named in any Shelf Registration
Statement and who has provided to the Company an address for notices, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
contained in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; subject to any notice by the
Company in accordance with Section 5(b) hereof, the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders for the purposes of offering and resale of the Transfer Restricted
Securities covered by the Prospectus in accordance with the applicable
regulations promulgated under the Act.
(f) Prior to any offering of Transfer Restricted Securities pursuant to any
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Holders of Transfer Restricted Securities named therein and their
respective counsel in connection with the registration or qualification of such
Transfer Restricted Securities for offer and sale under the securities or blue
sky laws of such jurisdictions of the United States as any such Holders
reasonably request in writing not later than the date that is five business days
prior to the date
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upon which this Agreement specifies that the Shelf Registration Statement shall
become effective; provided, however, that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general or unlimited
service of process or to taxation in any such jurisdiction where it is not then
so subject.
(g) The Company shall cooperate with the Holders of Transfer Restricted
Securities to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request in writing at least two
business days prior to sales of securities pursuant to such Shelf Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraph (b)(2)(v) of
this Section 4, the Company shall promptly prepare a post-effective amendment to
any Shelf Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that as thereafter delivered
to purchasers of the Transfer Restricted Securities covered thereby, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that
in the event of a material business transaction (including, without limitation,
pending negotiations relating to such a transaction) which would, in the opinion
of counsel to the Company, require disclosure by the Company in the Shelf
Registration Statement of material non-public information for which the Company
has a bona fide business purpose for not disclosing, then for so long as such
circumstances exist, the Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder.
(i) Not later than the effective date of any such Shelf Registration
Statement hereunder, the Company shall cause to be provided a CUSIP number for
the Notes registered under such Shelf Registration Statement, and provide the
applicable trustee with certificates for such Notes in a form eligible for
deposit with The Depository Trust Company.
(j) The Company shall make generally available to its security holders in a
regular filing on Form 10-Q or 10-K, an earnings statement satisfying the
provisions of Rule 158 (which need not be audited) for the twelve-month period
commencing after effectiveness of the Shelf Registration Statement, provided
that the Company shall be allowed to fulfill its obligations pursuant to this
Section 4(j) by publicly filing such reports on the Commission's XXXXX database.
(k) The Company may require each Holder of Transfer Restricted Securities,
which are to be sold pursuant to any Shelf Registration Statement, to furnish to
the Company within 20 business days after written request for such information
has been made by the Company, such information regarding the Holder and the
distribution of such securities as the Company may from time to time reasonably
require for inclusion in such Shelf Registration Statement and such other
information as may be necessary or advisable in the reasonable opinion of the
Company and its counsel in connection with such Shelf Registration Statement. No
Holder of Transfer Restricted Securities shall be entitled to be named as a
selling Holder in the Shelf Registration Statement as of the effective time of
such Shelf Registration Statement (or in the first prospectus
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supplement filed thereafter in the case of an expedited filing that the Company
expects to file and obtain effectiveness within 30 days of this Agreement), and
no holder of Transfer Restricted Securities shall be entitled to use the
Prospectus forming a part thereof for offers and resales of Transfer Restricted
Securities at any time, unless such Holder has returned a completed and signed
notice and questionnaire to the Company by the deadline for response set forth
therein. The Company shall not be required to take any action to name such
Holder as a selling Holder in the Shelf Registration Statement until such Holder
has returned a completed and signed notice and questionnaire to the Company.
Following its receipt of such notice and questionnaire, the Company will, as
promptly as possible, but not prior to the next required amendment or supplement
to the Shelf Registration Statement, include the Transfer Restricted Securities
covered thereby in the Shelf Registration Statement (if not previously
included). No Holder of Transfer Restricted Securities shall be entitled to the
benefit of any Special Interest (as set forth in the Notes) under the Indenture
and the Notes or be entitled to use the Prospectus unless and until such Holder
has furnished the information required by this Section 4(k) and all such
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
(l) The Company shall, if requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement, such
information as the Majority Holders reasonably agree should be included therein
in order to effect their distribution of the Notes and shall make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, however, that the Company shall not be
required to take any action pursuant to this Section 4(l) that would, in the
opinion of counsel for the Company, violate applicable law or to include
information the disclosure of which at the time would have an adverse effect on
the business or operations of the Company and/or its subsidiaries, as determined
in good faith by the Company.
(m) The Company shall enter into such agreements and take all other
reasonably appropriate actions in order to expedite or facilitate the
registration or the disposition of the Transfer Restricted Securities, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification and contribution provisions and procedures no
less favorable than those set forth in Section 7 (or such other provisions and
procedures acceptable to the Majority Holders), with respect to all parties to
be indemnified pursuant to Section 7 from Holders of Notes to the Company.
(n) The Company shall upon receipt of a reasonable request in writing
therefor:
(i) make reasonably available at reasonable times prior to the
effectiveness of the related Shelf Registration Statement for inspection by
representatives of the Holders of Transfer Restricted Securities to be
registered thereunder and any attorney, accountant or other agent retained
by the Holders, at the office where normally kept during normal business
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by the Holders' attorneys, accountants or other agents
in connection with any such Shelf Registration Statement as is customary
for similar due diligence examinations; provided,
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however, that the foregoing inspection and information gathering shall be
coordinated by one counsel designated by the Holders and that such persons
shall first agree in writing with the Company that any information that is
designated in writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential by such
person, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality;
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Majority Holders), addressed to each selling
Holder covering such matters (in form, scope and substance) as those
matters set forth in Section 9(e)(i), (x), (xi) and (xii) of the Purchase
Agreement;
(iii) obtain "cold comfort" letters (or, in the case of any person
that does not satisfy the conditions for receipt of a "cold comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed-upon
procedures letter") and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed where reasonably practicable to each
selling Holder of Transfer Restricted Securities registered thereunder and
the underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(iv) deliver such documents and certificates as may be reasonably
requested by the Majority Holders, including those to evidence compliance
with Section 4(h).
The foregoing actions set forth in clauses (ii), (iii) and (iv) of
this Section 4(n) shall, if reasonably requested by the Majority Holders,
be performed upon the effectiveness of such Shelf Registration Statement
and the effectiveness of each post-effective amendment thereto.
(v) The Company may offer securities of the Company other than the
Notes under the Shelf Registration Statement, except where such offer would
conflict with the terms of the Purchase Agreement.
(o) The Company shall provide instructions to the Trustee or Transfer
Agent, as applicable, to notify the Company of any requested transfer of
Transfer Restricted Securities using the Shelf Registration Statement and to
only effect such transfer upon confirmation from the Company or its counsel that
the Shelf Registration Statement conforms to the requirements of Section 4(a)
above.
SECTION 5. HOLDERS' AGREEMENTS
Each Holder of Transfer Restricted Securities, severally but not jointly,
by the acquisition of such Transfer Restricted Securities, agrees:
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(a) To furnish the information required to be furnished pursuant to Section
4(k) hereof within the time period set forth therein.
(b) That upon receipt of a notice of the commencement of a Filing Delay
Period, it will keep to fact of such notice confidential.
(c) That upon receipt of a notice of the commencement of a Supplement Delay
Period, it will keep the fact of such notice confidential, forthwith discontinue
disposition of its Transfer Restricted Securities pursuant to the Shelf
Registration Statement, and will not deliver any Prospectus forming a part
thereof until receipt of the amended or supplemented Shelf Registration
Statement or Prospectus, as applicable, as contemplated by Section 4(h) hereof,
or until receipt of the Advice. If a Supplement Delay Period occurs, the Shelf
Registration Period shall be extended by the number of days which the Supplement
Delay Period comprises; provided that the Shelf Registration Period shall not be
extended if the Company has received an opinion of counsel (which counsel, if
different from counsel to the Company referred to in Section 9(e) of the
Purchase Agreement, shall be reasonably satisfactory to the Majority Holders of
the Transfer Restricted Securities named in the Shelf Registration Period and
which opinion shall be in writing if the Majority Holders so request) to the
effect that the Transfer Restricted Securities can be freely tradeable without
the continued effectiveness of the Shelf Registration Statement.
(d) If so directed by the Company in a notice of the commencement of a
Supplement Delay Period, each Holder of Transfer Restricted Securities will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering the Transfer Restricted Securities.
(e) Sales of such Transfer Restricted Securities pursuant to a Shelf
Registration Statement shall only be made in the manner set forth in such
currently effective Shelf Registration Statement.
SECTION 6. REGISTRATION EXPENSES
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 3 and 4 hereof and will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection with any Shelf Registration Statement. Notwithstanding the foregoing
or anything in this Agreement to the contrary, each Holder shall pay all
underwriting discounts and commission of any underwriters with respect to any
Transfer Restricted Securities sold by it.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) In connection with any Shelf Registration Statement and to the extent
permitted by law, the Company agrees to indemnify and hold harmless each Holder
of Transfer Restricted Securities covered thereby (including each Initial
Purchaser), the directors, officers, employees, partners, representatives and
agents of each such Holder and each person who controls any such Holder within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of
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them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement as originally filed
or in any amendment thereof, or in any preliminary Prospectus or Prospectus, or
in any amendment thereof or supplement thereto, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such Holder specifically for
inclusion therein and (ii) the Company will not be liable to any indemnified
party under this indemnity agreement with respect to the Shelf Registration
Statement or Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified party results solely from an untrue statement of a
material fact contained in, or the omission of a material fact from, the Shelf
Registration Statement or Prospectus, which untrue statement or omission was
corrected in an amended or supplemented Shelf Registration Statement or
Prospectus, if the person alleging such loss, claim, damage or liability was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the amended or supplemented Shelf Registration Statement or Prospectus if the
Company had previously furnished copies thereof to such indemnified party and if
delivery of a prospectus is required by the Act and was not so made. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Holder of Transfer Restricted Securities covered by a Shelf
Registration Statement (including each Initial Purchaser) severally agrees to
indemnify and hold harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers who signs such Shelf Registration Statement and (iv) each
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company by or on behalf of
such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have. In no event shall any
Holder, its directors, officers or any person who controls such Holder be liable
or responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Shelf Registration Statement exceeds (i) the amount
paid by such Holder for such Transfer Restricted Securities and (ii) the amount
of any damages that such Holder, its directors, officers or any person who
controls such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, the indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure to so notify the indemnifying party (i) will
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not relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to assume
the defense of any such claim and to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified party in
any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party, and the indemnified party
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party did not employ
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party authorized the indemnified party to employ separate
counsel at the expense of the indemnifying party. The indemnifying party shall
indemnify and hold harmless the indemnified party from and against all losses,
claims, damages and liabilities by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party has received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party has failed to comply with such
reimbursement request. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party has requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, an indemnifying party
shall not be liable for any settlement of the nature contemplated by the
immediately preceding sentence effected without its consent if such indemnifying
party (i) reimburses such indemnified party in accordance with such request to
the extent that it considers such request to be reasonable and (ii) provides
written notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case, prior to the date of settlement. An indemnifying
party shall not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding for which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action),
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
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(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall to the extent permitted by law have a
joint and several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "LOSSES") to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Shelf Registration Statement that resulted in such Losses; provided,
however, that in no case shall any Initial Purchaser be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission
applicable to such Note, as set forth in Section 2(a) of the Purchase Agreement.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits, but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (in each case, before deducting expenses) as set forth in Section 2 of
the Purchase Agreement and (y) the total amount of additional interest that the
Company was not required to pay as a result of registering the securities
covered by the Shelf Registration Statement that resulted in such Losses.
Benefits received by the Initial Purchaser shall be deemed to be equal to the
total purchase discounts and commissions as set forth in Section 2 of the
Purchase Agreement, and benefits received by any other Holders shall be deemed
to be equal to the value of the Transfer Restricted Securities sold by such
Holders under the Shelf Registration Statement. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who has signed the Shelf Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 7 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive the sale by a Holder of Transfer Restricted
Securities.
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SECTION 8. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 9. MISCELLANEOUS
(a) No Inconsistent Agreements. The Company has not, as of the date hereof,
entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Notes; provided, however, that with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Company shall obtain the written consent of each such Initial Purchaser
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to depart from the provisions hereof, with respect to a
matter, which relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and does not directly or
indirectly affect the rights of other Holders, may be given by the Majority
Holders, determined on the basis of Notes being sold rather than registered
under such Shelf Registration Statement.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section 9(c),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the registrar under the Indenture;
(ii) with a copy in like manner to the Initial Purchaser;
(iii) if to the Initial Purchaser, initially at the respective
addresses set forth in the Purchase Agreement; and
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(iv) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
Upon the date of filing of a Shelf Registration Statement notice shall be
delivered to the Initial Purchaser and shall be addressed to: Attention: Xxxxx
Xxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx Xxx Xxxx 00000 (in the form attached hereto
as Exhibit A).
The Initial Purchaser or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon, the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Notes. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Notes and any such Holder
may specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State (without reference to the
conflict of law rules thereof).
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Notes is required
hereunder, Notes held by the Company or its Affiliates (other than subsequent
Holders of Notes if such subsequent Holders are deemed to be Affiliates solely
by reason of their holdings of such Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and
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understanding of the parties hereto with respect to the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration
rights granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ECHOSTAR COMMUNICATIONS CORPORATION
By: /s/ XXXXX X. XXXXXXXXX, ESQ.
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Esq.
Title: Senior Vice President and General
Counsel
UBS WARBURG LLC
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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EXHIBIT A
NOTICE OF FILING OF
SHELF REGISTRATION STATEMENT
To: UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax:
From: EchoStar Communications Corporation
5 3/4% Convertible Subordinated Notes due 2008
Date: ___, 200_
For your information only (NO ACTION REQUIRED):
Today, ______, ____, we filed a Shelf Registration Statement with the
Securities and Exchange Commission.
