pre14c
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
þ Preliminary
Information Statement
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14c-5(d)(2))
o Definitive
Information Statement
ECHOSTAR COMMUNICATIONS CORPORATION
(Name of Registrant As Specified In
Its Charter)
Payment of Filing Fee (Check the appropriate box):
Fee computed on table below per Exchange Act
Rules 14c-5(g)
and 0-11.
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(1)
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Title of each class of securities to which transaction applies
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(Set forth the amount on which the filing fee is calculated and
state how it was determined):
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(4)
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Proposed maximum aggregate value of transaction:
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$
$
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o |
Fee paid previously with preliminary materials:
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Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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ECHOSTAR
COMMUNICATIONS CORPORATION
9601 South Meridian Boulevard
Englewood, Colorado 80112
[ ],
2007
NOTICE OF STOCKHOLDER ACTION TO
BE TAKEN
PURSUANT TO THE WRITTEN CONSENT
OF THE MAJORITY STOCKHOLDER
WE ARE
NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
This Information Statement is furnished to the stockholders of
EchoStar Communications Corporation
(“EchoStar,” “we,”
“us,” “our” or the
“Company”), a Nevada corporation, in connection
with the approval by our Board of Directors and a stockholder
holding a majority of the Company’s voting power to amend
the Company’s Articles of Incorporation to:
(i) change the name of the Company to “DISH Network
Corporation” to reflect the Company’s decision to
focus on its direct broadcast satellite subscription television
service following an anticipated spin-off of certain portions of
the Company’s business and assets;
(ii) adopt provisions relating to “corporate
opportunities” to clarify the rights of the Company and the
duties of our directors and officers in anticipation of
agreements between, and overlap among the directors and officers
of, the Company and an independent corporation created in
connection with the spin-off; and
(iii) adopt provisions clarifying the procedures for the
conversion of Class B Common Stock and Class C Common
Stock that are held in uncertificated form into Class A
Common Stock.
Stockholders of record at the close of business on
[ ]
are entitled to notice of this stockholder action by written
consent. A stockholder representing a majority of the voting
power of our issued and outstanding shares of common stock has
consented in writing to the action to be taken. Accordingly,
your approval is not required and is not being sought and you
will not have dissenter’s rights. The accompanying
information statement is provided solely for your benefit.
Please read this notice carefully. It describes the change in
the Company’s name, the adoption of provisions relating to
corporate opportunities and certain changes to conversion rights
into our Articles of Incorporation and contains certain related
information.
Pursuant to
Rule 14c-2
under the Securities Exchange Act of 1934, as amended, the
amendments cannot become effective until twenty (20) days
after the date this Information Statement is mailed to the
Company’s stockholders. We anticipate that the amendments
will become effective on or after
[ ].
By Order of the Board of Directors,
R. Stanton Dodge
Executive Vice President, General Counsel and Secretary
INFORMATION
STATEMENT
pursuant to Section 14 of
the
Securities and Exchange Act of 1934 and
Regulation 14C and Schedule 14C
thereunder
This Information Statement is circulated to advise the
stockholders of action taken without a meeting upon the written
consent of a stockholder representing a majority of the voting
power of the outstanding shares of the common stock of the
Company.
WE ARE
NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
GENERAL
This Information Statement has been filed with the Securities
and Exchange Commission (“SEC”) and is being
furnished to the holders of the outstanding shares of
Class A Common Stock, par value $0.01 and Class B
Common Stock, par value $0.01 (collectively, the “Common
Stock”), of EchoStar Communications Corporations, a
Nevada corporation as of
[ ]
(the “Record Date”). The purpose of this
Information Statement is to provide notice that a stockholder
holding a majority of the voting power of the Company’s
Common Stock, has, by written consent, approved amendments to
our Articles of Incorporation to change the Company’s name
from “EchoStar Communications Corporations” to
“DISH Network Corporation” (the “Name
Change”), to adopt certain corporate opportunities
provisions into our Articles of Incorporation (the
“Corporate Opportunities Amendment”), to adopt
certain changes to the conversion rights provisions of our
Articles of Incorporation (the “Conversion Rights
Amendment” and, together with the Name Change and the
Conversion Rights Amendment, the “Amendment”).
This Information Statement will be mailed on or about
[ ]
to those persons who were stockholders of the Company as of the
close of business on the Record Date,
[ ].
The Amendment is expected to become effective on or after
[ ].
The Company will pay all costs associated with the distribution
of this Information Statement, including the costs of printing
and mailing.
As a stockholder holding a majority of the voting power of the
Company’s Common Stock has already approved the Amendment
by written consent, the Company is not seeking approval for the
Amendment from any of the Company’s remaining stockholders,
and the Company’s remaining stockholders will not be given
an opportunity to vote on the Amendment. All necessary corporate
approvals have been obtained, and this Information Statement is
being furnished solely for the purpose of providing advance
notice to the Company’s stockholders of the Amendment as
required by the Securities Exchange Act of 1934 (the
“Exchange Act”).
REASONS
FOR THE NAME CHANGE
The Company is changing its name to “DISH Network
Corporation” to reflect the Company’s decision to
focus on its direct broadcast satellite subscription television
service in connection with an anticipated spin-off of certain
portions of its business. The Company’s new name, DISH
Network Corporation, will reflect the publicly recognized name
of its subscription television service. In the spin-off, the
Company plans to transfer certain lines of business and assets
to a new wholly-owned subsidiary of the Company, which will be
initially named “EchoStar Holding Company”
(“EHC”) and upon effectiveness of the spin-off
will become an independent company. The spun-off portions of the
Company will include the Company’s broadcast satellite
receiver, antennae and commercial satellite lines of business
and assets, which currently operate under the
“EchoStar” name. In addition, it is anticipated that
as part of the transfer of assets in the spin-off, EHC will
receive all rights to the trade name and trademark
“EchoStar” and will subsequently change its name to
“EchoStar Communications Corporation.”
REASONS
FOR THE CORPORATE OPPORTUNITIES AMENDMENT
The Company is amending its Articles of Incorporation to adopt
certain corporate opportunities provisions to delineate both the
rights of the Company and the duties of our directors and
officers with respect to transactions between the Company and
EHC and as to any potential transactions that our directors and
officers become aware of, which could be considered business
opportunities of the Company. The Company is adopting these
provisions in anticipation of the overlap among the directors
and officers of the Company and EHC, and in consideration of
this overlap, recognizing that, as the Company and EHC may
engage in related areas of business and as a result compete for
business opportunities, clear and defined guidelines on the
conduct and affairs of the Company and our directors and
officers as they relate to such matters are essential.
In addition to certain other related matters, the new corporate
opportunities provisions set forth the following guidelines on
transactions with EHC and the scope of the doctrine of corporate
opportunities:
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no transaction that the Company has entered into with EHC while
EHC was a wholly-owned subsidiary of the Company shall be void
or voidable because of the relationship between the two
companies, the presence of any EHC director or officer at a
board meeting which authorized any such transaction or that such
director or officer’s vote were counted in such
authorization;
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•
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the Company may enter into future transactions with EHC,
including agreements not to compete and agreements causing each
company’s directors and officers to allocate business
opportunities between the Company and EHC; and
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•
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the Company’s director’s and officers are subject to
the doctrine of corporate opportunities only with respect to
business opportunities in which the Company has expressed an
interest as determined by our board of directors and appearing
in our Company minutes.
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The new provisions regarding corporate opportunities will define
and regulate the conduct and affairs of the Company and our
directors and officers in connection with the matters described
above to the fullest extent allowed by Nevada law and will be
adopted in accordance with Section 78 of the Nevada Revised
Statutes (the “NRS”). Notwithstanding these new
provisions regarding corporate opportunities, the Company’s
Board of Directors has adopted a written policy for the review
and approval of transactions involving related parties, such as
EHC, directors, executive officers and their immediate family
members. In order to survey these transactions, the Company
distributes questionnaires to its officers and directors on a
quarterly basis. The Company’s General Counsel directs the
appropriate review of all potential related-party transactions
and schedules their presentation at the next regularly-scheduled
meetings of the Audit Committee and the Board of Directors. Both
the Audit Committee and the Board of Directors must approve
these transactions, with all interested parties abstaining from
the vote. Once each calendar year, the Audit Committee and the
Board of Directors undertake a review of all recurring potential
related-party transactions. Both the Audit Committee and the
Board of Directors must approve the continuation of each such
transaction, with all interested parties abstaining. For the
entire text of the new corporate opportunities provisions, see
the Certificate of Amendment of Articles of Incorporation
attached below as Annex 1.
REASONS
FOR CONVERSION RIGHTS AMENDMENT
The Company is amending its Articles of Incorporation to conform
to the Direct Registration System (recently- adopted Nasdaq
Marketplace Rule 4350(l)) and to adopt certain provisions
to clarify the procedures for the conversion of Class B
Common Stock and Class C Common Stock held in the form of
uncertificated shares into Class A Common Stock.
The new conversion rights provision will provide that holders of
uncertificated shares of Class B Common Stock and
Class C Common Stock shall effect conversion of their
shares by instructing the Company’s transfer agent to
surrender such shares to the Company and that upon conversion of
the Company’s uncertificated shares, the Company shall
instruct the Company’s transfer agent to effect a book
entry transfer to reflect such Class A Common Stock
issuable upon conversion.
2
ACTION
TAKEN BY MEETING
The Company’s Board of Directors approved the Amendment at
a meeting on October 16, 2007 and fixed
[ ]
as the Record Date for determining the stockholders entitled to
give written consent to the Amendment at a meeting on
[ ].
The Amendment has been approved by the written consent of a
stockholder holding a majority of the voting power of the
Company’s Common Stock.
Pursuant to Section 78.390 of the NRS, the approval of a
majority of the Company’s voting power is required in order
to effect the Amendment. Section 78.320(2) of the NRS
eliminates the need to hold a special meeting of the
Company’s stockholders to approve the Amendment by
providing that, unless the Company’s Articles of
Incorporation or Bylaws state otherwise, any action required or
permitted to be taken at a meeting of the stockholders may be
taken without a meeting if, before or after the action, a
written consent is signed by stockholders holding at least a
majority of the Company’s voting power. In order to
eliminate the costs and management time involved in holding a
special meeting and in order to effect the Amendment as early as
possible, the Company’s Board of Directors resolved to
proceed with the Amendment by written consent of a majority of
the Company’s stockholders entitled to vote thereon.
EXPECTED
DATE FOR EFFECTING THE AMENDMENT
Under Section 14(c) of the Exchange Act and
Rule 14c-2
promulgated thereunder, the Amendment cannot be effected until
20 days after the date this Information Statement is sent
to the Company’s stockholders. This Information Statement
will be sent on or about
[ ]
(the “Mailing Date”) to the stockholders of the
Company as of the Record Date. The Company expects to effect the
Amendment by filing a Certificate of Amendment with the Nevada
Secretary of State no earlier than 20 days after the
Mailing Date. The effective date of the Amendment is expected to
be on or about
[ ]
(the “Effective Date”).
Pursuant to Subsection 78.390(5) of the NRS and the consent
resolution adopted by the stockholder, notwithstanding the fact
that the Amendment has been approved by the Company’s
majority stockholder, the Company’s Board of Directors may,
by resolution, abandon the Name Change, the Corporate
Opportunities Amendment
and/or the
Conversion Rights Amendment at any time prior to the Effective
Date without any further action by the Company’s
stockholders.
OUTSTANDING
VOTING STOCK OF THE COMPANY
The Board of Directors of the Company fixed the close of
business on
[ ]
as the Record Date for determining the stockholders entitled to
receive copies of this Information Statement. As of the Record
Date, there were
[ ] shares
of Class A Common Stock outstanding and
238,435,208 shares of Class B Common Stock. The
Company’s Class A Common Stock (“Class A
Shares”) and Class B Common Stock
(“Class B Shares”) constitute the only
outstanding classes of voting securities of the Company. Each of
the Class A Shares is entitled to one vote per share on
each proposal to be considered by our shareholders. Each of the
Class B Shares is entitled to ten votes per share on each
proposal to be considered by our shareholders. The holders of
Class A Shares and Class B Shares vote together
without regard to class.
3
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, to the best of our knowledge,
the beneficial ownership of our voting securities as of
November 30, 2007 for (i) each person known to us to
be the beneficial owner of more than 5% of any class of our
voting securities, (ii) each of our directors,
(iii) each of our chief executive officer, chief financial
officer and three other most highly compensated persons acting
as one of our executive officers (collectively, the
“Named Executive Officers”) and (iv) all
of our executive officers and directors as a group. Unless
otherwise indicated, each person listed in the following table
(alone or with family members) has sole voting and dispositive
power over the shares listed opposite such person’s name.
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Amount and Nature
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of Beneficial
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Percentage
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Name(1)
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Ownership
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of Class
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Class A Common Stock(2):
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Charles W. Ergen(3),(4)
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209,354,741
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50.0
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%
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Cantey Ergen(5)
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208,554,741
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49.9
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%
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David K. Moskowitz(6)
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27,015,268
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11.4
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%
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Barclays Global Investors, NA.(7)
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21,901,450
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10.4
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%
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Dodge & Cox(8)
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14,654,084
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7.0
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%
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Fairholme Capital Management, L.L.C.(9)
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13,713,642
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6.5
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%
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Harris Associates L.P.(10)
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10,403,450
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5.0
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%
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James DeFranco(11)
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6,253,456
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3.0
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%
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Michael T. Dugan(12)
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524,480
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*
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David J. Rayner(13)
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322,250
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*
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Carl E. Vogel(14)
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320,417
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*
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Tom A. Ortolf(15)
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121,200
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*
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C. Michael Schroeder(16)
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85,100
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*
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O. Nolan Daines(17)
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72,535
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*
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Steven R. Goodbarn(18)
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70,000
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*
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Bernard L. Han(19)
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70,000
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*
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Gary S. Howard(20)
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60,100
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*
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All Directors and Executive Officers as a Group
(19 persons)(21)
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245,947,106
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58.2
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%
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Class B Common Stock (22):
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Charles W. Ergen
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208,059,154
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87.3
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%
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Cantey Ergen(23)
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208,059,154
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87.3
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%
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Trusts(24)
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26,130,903
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11.0
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%
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All Directors and Executive Officers as a Group
(19 persons)(21)
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234,190,057
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98.2
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%
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Less than 1%. |
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(1) |
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Except as otherwise noted below, the address of each such person
is 9601 S. Meridian Blvd., Englewood, CO 80112. |
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(2) |
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As of the close of business on November 30, 2007, there
were 210,061,810 outstanding shares of Class A Common
Stock. The following table sets forth, to the best knowledge of
the Company, the actual ownership of the Company’s
Class A Common Stock (including options exercisable within
60 days) as of the close of business on November 30,
2007 by: (i) each person known by the Company to be the
beneficial owner of more than five percent of any class of the
Company’s voting shares; (ii) each director of the
Company; (iii) each Named Executive Officer; and
(iv) all directors and executive officers as a group: |
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Amount and Nature
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of Beneficial
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Percentage
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Name(1)
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Ownership
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of Class
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Class A Common Stock:
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Barclays Global Investors, NA
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21,901,450
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10.4
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%
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Dodge & Cox
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14,654,084
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7.0
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%
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Fairholme Capital Management, L.L.C.
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13,713,642
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6.5
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%
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Harris Associates L.P.
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10,403,450
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5.0
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%
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James DeFranco
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6,253,456
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3.0
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%
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Charles W. Ergen
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1,295,587
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*
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David K. Moskowitz
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884,365
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*
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Michael T. Dugan
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524,480
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*
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Cantey Ergen
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495,587
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*
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David J. Rayner
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322,250
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*
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Carl E. Vogel
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320,417
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*
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Tom A. Ortolf
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121,200
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*
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C. Michael Schroeder
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85,100
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*
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O. Nolan Daines
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72,535
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*
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Steven R. Goodbarn
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70,000
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*
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Bernard L. Han
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70,000
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*
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Gary S. Howard
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60,100
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*
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All Directors and Executive Officers as a Group (19 persons)
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11,757,049
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5.5
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%
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Less than 1%. |
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(3) |
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Mr. Ergen is deemed to own beneficially all of the
Class A Shares owned by his spouse, Mrs. Ergen.
Mr. Ergen’s beneficial ownership includes:
(i) 448,652 Class A Shares; (ii) 18,521
Class A Shares held in the Company’s 401(k) Employee
Savings Plan, (which we refer to as the 401(k) Plan);
(iii) the right to acquire 800,000 Class A Shares
within 60 days upon the exercise of employee stock options;
(iv) 235 Class A Shares held by Mrs. Ergen;
(v) 1,004 Class A Shares held in the 401(k) Plan held
by Mrs. Ergen; (vi) 27,175 Class A Shares held as
custodian for his children; and (vii) 208,059,154
Class A Shares issuable upon conversion of
Mr. Ergen’s Class B Shares. Mr. Ergen’s
beneficial ownership of Class A Shares excludes 30,376,054
Class A Shares issuable upon conversion of Class B
Shares held by certain trusts established by Mr. Ergen for
the benefit of his family. |
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(4) |
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The percentage of total voting power held by Mr. Ergen is
approximately 80% after giving effect to the exercise of
Mr. Ergen’s options exercisable within 60 days. |
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(5) |
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Mrs. Ergen beneficially owns all of the Class A Shares
owned by her spouse, Mr. Ergen, except for
Mr. Ergen’s right to acquire 800,000 Class A
Shares within 60 days upon the exercise of employee stock
options. |
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(6) |
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Mr. Moskowitz’s beneficial ownership includes:
(i) 124,854 Class A Shares; (ii) 17,713
Class A Shares held in the 401(k) Plan; (iii) the
right to acquire 700,000 Class A Shares within 60 days
upon the exercise of employee stock options; (iv) 1,328
Class A Shares held as custodian for his minor children;
(v) 8,184 Class A Shares held as trustee for
Mr. Ergen’s children; (vi) 30,000 Class A
Shares held by a charitable foundation for which
Mr. Moskowitz is a member of the Board of Directors;
(vii) 2,286 Class A Shares held in the employee stock
purchase plan; and (viii) 26,130,903 Class A Shares
issuable upon |
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conversion of the Class B Shares held by certain trusts
established by Mr. Ergen for the benefit of
Mr. Ergen’s family for which Mr. Moskowitz is
trustee. |
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(7) |
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The address of Barclays Global Investors, N.A.
(“Barclays”) is 45 Fremont Street, San Francisco,
California, 94105. The shares listed as beneficially owned by
Barclays includes 17,295,435 shares owned by Barclays
Global Investors, N.A., of which Barclays has sole voting power
as to 15,358,895 shares, as well as
(i) 894,105 shares owned by Barclays Global
Fund Advisors, (ii) 2,443,128 shares owned by
Barclays Global Investors, LTD., (iii) 245,697 shares
owned by Barclays Global Investors Japan Trust and Banking
Company Limited and (iv) 1,023,085 shares owned by
Barclays Global Investors Japan Limited. This information is
based solely upon a Schedule 13G filed on May 9, 2007. |
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(8) |
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The address of Dodge & Cox is 555 California Street,
40th Floor, San Francisco, California, 94104. Of the shares
beneficially owned, Dodge & Cox has sole voting power
as to 13,878,279 shares. This information is based solely
upon a Schedule 13G filed on February 8, 2007. |
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(9) |
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The address of Fairholme Capital Management, L.L.C.
(“Fairholme”) is 1001 Brickell Bay Drive,
Suite 3112, Miami, Florida, 33131. Of the shares
beneficially owned, Fairholme has shared voting power as to
10,684,224 shares and shared dispositive power as to all
13,713,642 shares. This information is based solely upon a
Schedule 13G filed on February 14, 2007. |
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(10) |
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The address of Harris Associates L.P. (“Harris”) is
Two North LaSalle Street, Suite 500, Chicago, Illinois,
60602. Of the shares beneficially owned, Harris has shared
voting power as to 10,403,450 shares and shared dispositive
power as to 9,775,000. This information is based solely upon a
Schedule 13G filed on February 14, 2007. |
| |
|
(11) |
|
Mr. DeFranco’s beneficial ownership includes:
(i) 3,762,752 Class A Shares; (ii) 18,521
Class A Shares held in the 401(k) Plan; (iii) the
right to acquire 164,000 Class A Shares within 60 days
upon the exercise of employee stock options; (iv) 50,000
Class A Shares held as custodian for his minor children;
(v) 8,183 Class A Shares held in the names of his
children; and (vi) 2,250,000 Class A Shares controlled
by Mr. DeFranco as general partner of a partnership. |
| |
|
(12) |
|
Mr. Dugan’s beneficial ownership includes:
(i) 430 Class A Shares; (ii) 3,030 Class A
Shares held in the 401(k) Plan; and (iii) the right to
acquire 521,020 Class A Shares within 60 days upon the
exercise of employee stock options. |
| |
|
(13) |
|
Mr. Rayner’s beneficial ownership includes: (i) 5
Class A Shares; (ii) 252 Class A Shares held in
the 401(k) Plan; and (iii) the right to acquire 321,993
Class A Shares within 60 days upon the exercise of
employee stock options. |
| |
|
(14) |
|
Mr. Vogel’s beneficial ownership includes:
(i) 10,165 Class A Shares; (ii) 252 Class A
Shares held in the 401(k) Plan; and (iii) the right to
acquire 310,000 Class A Shares within 60 days upon the
exercise of employee stock options. |
| |
|
(15) |
|
Mr. Ortolf’s beneficial ownership includes:
(i) 200 Class A Shares held in the name of one of his
children; (ii) 61,000 Class A Shares held by a
partnership of which Mr. Ortolf is a partner; and
(iii) the right to acquire 60,000 Class A Shares
within 60 days upon the exercise of nonemployee director
stock options; |
| |
|
(16) |
|
Mr. Schroeder’s beneficial ownership includes:
(i) 15,100 Class A Shares; and (ii) the right to
acquire 70,000 Class A Shares within 60 days upon the
exercise of nonemployee director stock options. |
| |
|
(17) |
|
Mr. Daines’ beneficial ownership includes: (i) 15
Class A Shares; (ii) 519 Class A Shares held in
the 401(k) Plan; and (iii) the right to acquire 72,000
Class A Shares within 60 days upon the exercise of
employee stock options. |
| |
|
(18) |
|
Mr. Goodbarn’s beneficial ownership includes:
(i) 5,000 Class A Shares; and (ii) the right to
acquire 65,000 Class A Shares within 60 days upon the
exercise of nonemployee director stock options. |
| |
|
(19) |
|
Mr. Han’s beneficial ownership includes the right to
acquire 70,000 Class A Shares within 60 days upon the
exercise of employee stock options. |
6
|
|
|
|
(20) |
|
Mr. Howard’s beneficial ownership includes:
(i) 100 Class A Shares owned by his spouse; and
(ii) the right to acquire 60,000 Class A Shares within
60 days upon the exercise of nonemployee director stock
options. |
| |
|
(21) |
|
Includes: (i) 4,440,838 Class A Shares;
(ii) 90,615 Class A Shares held in the 401(k) Plan;
(iii) the right to acquire 4,774,014 Class A Shares
within 60 days upon the exercise of employee stock options;
(iv) 2,311,000 Class A Shares held in a partnership;
(v) 234,059,154 Class A Shares issuable upon
conversion of Class B Shares; (vi) 101,570
Class A Shares held in the name of, or in trust for,
children and other family members; (vii) 30,000
Class A Shares held by a charitable foundation for which
Mr. Moskowitz is a member of its board of directors;
(viii) 100 Class A Shares held by a spouse; and
(ix) 8,912 Class A Shares held in the employee stock
purchase plan. Class A and Class B Common Stock
beneficially owned by both Mr. and Mrs. Ergen is only
included once in calculating the aggregate number of shares
owned by directors and executive officers as a group. |
| |
|
(22) |
|
As of the close of business on November 30, 2007, there
were 238,435,208 outstanding shares of Class B Common
Stock. On November 9, 2007, 4,245,151 shares of
Class B Common Stock were contributed to trusts the
beneficiaries of which are members of Mr. Ergen’s
family. Neither Mr. Ergen nor any of the Directors and
Executives Officers are the trustee of these trusts. |
| |
|
(23) |
|
Mrs. Ergen beneficially owns all of the Class B Shares
owned by her spouse, Mr. Ergen. |
| |
|
(24) |
|
Held by certain trusts established by Mr. Ergen for the
benefit of Mr. Ergen’s family of which
Mr. Moskowitz is trustee. |
AMENDMENT
OF THE COMPANY’S ARTICLES OF INCORPORATION
A Certificate of Amendment to the Company’s Articles of
Incorporation is expected to be filed with the Nevada Secretary
of State with respect to the Amendment 20 days after the
date that this Information Statement is sent to the
Company’s stockholders. The Effective Date of the Amendment
is expected to be
[ ].
However, the Company’s Board of Directors reserves the
right to abandon the Name Change
and/or the
Corporate Opportunities Amendment at any time prior to the
Effective Date if they deem it appropriate to do so.
DISSENTER’S
RIGHTS OF APPRAISAL
The Nevada Revised Statutes do not provide for dissenter’s
rights in connection with the proposed Amendment to our Articles
of Incorporation.
INTEREST
OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
No director, executive officer, nominee for election as a
director, associate of any director, executive officer or
nominee or any other person has any substantial interest, direct
or indirect, by security holdings or otherwise, in the proposed
Amendment to our Articles of Incorporation or in any action
covered by the related resolutions adopted by the Board of
Directors, which is not shared by all other stockholders.
HOUSEHOLDING
AND WHERE YOU CAN FIND MORE INFORMATION
We have adopted a procedure approved by the SEC called
“householding.” Under this procedure, service
providers that deliver our communications to shareholders may
deliver a single copy of our proxy statements, annual reports
and/or
information statements to multiple shareholders sharing the same
address, unless one or more of these shareholders notifies us
that they wish to continue receiving individual copies. This
householding procedure will reduce our printing costs and
postage fees.
We will deliver promptly upon written or oral request a separate
copy of this Information Statement to a shareholder at a shared
address to which a single copy of the document was delivered.
Please notify our transfer agent at the address provided below
to receive a separate copy of this Information Statement.
7
If you are eligible for householding, but you and other
shareholders with whom you share an address currently receive
multiple copies of our proxy statements, annual reports
and/or
information statements, or if you hold stock in more than one
account, and in either case you wish to receive only a single
copy for your household, please contact our transfer agent,
Computershare Investor Services, at 350 Indiana Street,
Suite 800, Golden, Colorado 80401, telephone number
303-262-0600.
As a reporting company, we are subject to the informational
requirements of the Exchange Act and accordingly file our annual
report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
proxy statements and other information with the SEC. The Public
may read and copy any materials filed with the SEC at the
SEC’s Public Reference Room at 100 F Street, NE,
Washington, DC 20549. Please call the SEC at (800) SEC-0330
for further information on the Public Reference Room. As an
electronic filer, our public filings are maintained on the
SEC’s Internet site that contains reports, proxy and
information statements, and other information regarding issuers
that file electronically with the SEC. The address of that
website is
http://www.sec.gov.
In addition, our annual report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K
and amendments to those reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Exchange Act may be accessed
free of charge through our website as soon as reasonably
practicable after we have electronically filed such material
with, or furnished it to, the SEC. The address of that website
is
http://www.echostar.com.
You should rely only on the information contained in, or
incorporated by reference as an Annex to, this Information
Statement. We have not authorized anyone else to provide you
with different information. You should not assume that the
information in this Information Statement is accurate as of any
date other than December 6, 2007, or such earlier date as
is expressly set forth herein.
By Order of the Board of Directors
R. Stanton Dodge
Dated: December 6, 2007
8
Annex 1
Certificate of Amendment of Articles of Incorporation
CERTIFICATE
OF AMENDMENT OF
ARTICLES OF INCORPORATION
OF
ECHOSTAR COMMUNICATIONS CORPORATION
(Pursuant to Sections 78.385 and 78.390 of the Nevada
Revised Statutes)
The undersigned, being a duly authorized officer of EchoStar
Communications Corporation, a Nevada corporation (the
“Corporation”), pursuant to
Sections 78.385 and 78.390 of the Nevada Revised Statutes
(the “NRS”) DOES HEREBY CERTIFY:
FIRST: The original Articles of Incorporation
of the Corporation (the “Articles of
Incorporation”) were filed with the Secretary of State
of the State of Nevada on the 26th day of April, 1995; a
Restated Articles of Incorporation of the Corporation was filed
with the Secretary of State of the State of Nevada on the
20th day of June, 1995; a Certificate of Amendment of
Articles of Incorporation of the Corporation were filed with the
Secretary of State of the State of Nevada on the 20th day
of June, 1995; a Certificate of Amendment of Articles of
Incorporation of the Corporation was filed with the Secretary of
State of the State of Nevada on the 30th day of June, 1999;
a Certificate of Amendment of Articles of Incorporation of the
Corporation was filed with the Secretary of State of the State
of Nevada on the 21st day of October, 1999; a Certificate
of Amendment of Articles of Incorporation of the Corporation was
filed with the Secretary of State of the State of Nevada on the
7th day of February, 2000; a Certificate of Amendment of
Articles of Incorporation of the Corporation was filed with the
Secretary of State of the State of Nevada on the 29th day
of March, 2000; and a Certificate of Amendment of Articles of
Incorporation of the Corporation was filed with the Secretary of
State of the State of Nevada on the 19th day of May, 2003.
SECOND: Pursuant to Section 78.390 of the
NRS, the Board of Directors of the Corporation duly adopted
resolutions (i) setting forth a proposed amendment (the
“Amendment”) to the Articles of Incorporation
of the Corporation, (ii) recommending the Amendment to the
stockholders of the Corporation, and (iii) seeking the
required consent and approval, under the NRS, of the holders of
a majority of the outstanding shares of the Corporation entitled
to vote thereon.
THIRD: Thereafter, pursuant to resolutions of
the Board of Directors of the Corporation, the Amendment was
submitted to the holders of a majority of the shares of
outstanding capital stock of the Corporation entitled to vote
thereon, and pursuant to Section 78.320 of the NRS the
holders of a majority of such shares voted to authorize the
amendment to the Articles of Incorporation of the Corporation.
FOURTH: Article I of the Articles of
Incorporation is hereby amended to provide as follows:
Name
The name of the corporation shall be DISH NETWORK CORPORATION
(the “Corporation”).
FIFTH: Article V of the Articles of
Incorporation is hereby amended to provide as follows:
Voting
and Conversion Rights
1. Voting Rights.
(a) Except as otherwise required by law or, in any
Preferred Stock Statement and Certificate of Designations,
Preferences and Rights (“Certificate of
Designations”), with respect to all matters upon which
stockholders are entitled to vote or to which stockholders are
entitled to give consent, the holders of any
A-1
outstanding shares of Class A Common Stock, Class B
Common Stock, Class C Common Stock and Preferred Stock
shall vote together without regard to class, and every holder of
any outstanding shares of the Class A Common Stock and
Class C Common Stock shall be entitled to cast one vote in
person or by proxy for each share of the Class A Common
Stock and Class C Common Stock held by such holder; every
holder of any outstanding shares of Class B Common Stock
shall be entitled to cast ten votes in person or by proxy for
each share of Class B Common Stock held by such holder; and
every holder of any outstanding shares of Preferred Stock shall
be entitled to cast, in person or by proxy for each share of
Preferred Stock held by such holder, the number of votes
specified in the applicable Certificate of Designations;
provided however, in the event of a “Change
in Control” of the Corporation, the holders of any
outstanding shares of Class C Common Stock shall be
entitled to cast ten votes in person or by proxy for each share
of Class C Common Stock held by such holder. As used
herein, a “Change of Control” of the Corporation
means: (i) any transaction or series of transactions, the
result of which is that the Principals and their Related Parties
(as such terms are hereinafter defined), or an entity controlled
by the Principals and their Related Parties, cease to be the
“beneficial owners” (as defined in Rule 13(d)
(3) under the Securities Exchange Act of 1934) of at
least 30% of the total equity interests of the Corporation and
to have the voting power to elect at least a majority of the
Board of Directors of the Corporation; or (ii) the first
day on which a majority of the members of the Board of Directors
of the Corporation are not continuing directors.
“Principals” means Charles W. Ergen, James DeFranco,
and David K. Moskowitz. “Related Parties” means, with
respect to any Principal: (y) the spouse and each immediate
family member of such Principal; and (z) each trust,
corporation, partnership or other entity of which such Principal
beneficially holds an 80% or more controlling interest.
(b) A quorum for the purpose of shareholder meeting shall
consist of a majority of the voting power of the Corporation. If
a quorum is present, the effective vote of a majority of the
voting power represented at the meeting and entitled to vote on
the subject matter shall be the act of the shareholders, unless
the vote of a greater proportion or number is required by any
provisions contained in the NRS. Notwithstanding any provisions
contained in the NRS requiring the vote of shares possessing
two-thirds of the voting power of the Corporation to take
action, absent a provision herein to the contrary, in the case
of such provisions the affirmative vote of a majority of the
voting power shall be the act of the shareholders.
(c) Holders of Common Stock shall not be entitled to
cumulate their votes in the election of directors and shall not
be entitled to any preemptive rights to acquire shares of any
class or series of capital stock of the Corporation. Subject to
any preferential rights of holders of Preferred Stock, holders
of Common Stock shall be entitled to receive their pro
rata shares, based upon the number of shares of Common Stock
held by them, of such dividends or other distributions as may be
declared by the Board of Directors from time to time and of any
distribution of the assets of the Corporation upon its
liquidation, dissolution or winding up, whether voluntary or
involuntary.
2. Conversion Rights.
(a) Each share of Class B Common Stock and
Class C Common Stock shall be convertible at the option of
the holder thereof into Class A Common Stock of the
Corporation in accordance with this Article V. In
order to exercise the conversion privilege, a holder of
Class B Common Stock or Class C Common Stock shall
surrender the certificate evidencing such Class B Common
Stock or Class C Common Stock to the Corporation at its
principal office, duly endorsed to the Corporation or, in the
case of uncertificated shares, instruct the Corporation’s
transfer agent to surrender such shares to the Corporation and,
in either case, accompanied by written notice to the Corporation
that the holder thereof elects to convert a specified portion or
all of such shares. Class B Common Stock or Class C
Common Stock converted at the option of the holder shall be
deemed to have been converted on the day of surrender of the
certificate representing such shares for conversion in
accordance with the foregoing provisions or, in the case of
uncertificated shares, on the day in which the
Corporation’s transfer agent receives instruction to effect
a book entry transfer to the Corporation, and at such time the
rights of the holder of such Class B Common Stock or
Class C Common Stock, as such holder, shall cease and such
holder shall be treated for all purposes as the record holder of
Class A Common Stock issuable upon conversion. As promptly
as practicable on or after the conversion date, the Corporation
shall issue and mail or deliver to such holder a certificate or
certificates for the number of Class A Common Stock
issuable upon conversion or shall instruct the
Corporation’s transfer agent to effect a book entry
transfer
A-2
to reflect such Class A Common Stock issuable upon
conversion, computed to the nearest one hundredth of a full
share, and a certificate or certificates or book entry transfer
for the balance of Class B Common Stock or Class C
Common Stock surrendered, if any, not so converted into
Class A Common Stock.
(b) The Class B Common Stock and Class C Common
Stock shall be convertible into one share of Class A Common
Stock for each share of Class B Common Stock or
Class C Common Stock so converted (the “Conversion
Rate”). In the event the Corporation shall at any time
subdivide or split its outstanding Class A Common Stock,
into a greater number of shares or declare any dividend payable
in Class A Common Stock, the Conversion Rate in effect
immediately prior to such subdivision, split or dividend shall
be proportionately increased, and conversely, in case the
outstanding Class A Common Stock of the Corporation shall
be combined into a smaller number of shares, the Conversion Rate
in effect immediately prior to such combination shall be
proportionately decreased.
(c) Upon any adjustment of the Conversion Rate then and in
each such case the Corporation shall give written notice
thereof, by first-class mail, postage prepaid, addressed to the
registered holders of Class B Common Stock and Class C
Common Stock at the addresses of such holders as shown on the
books of the Corporation, which notice shall state the
Conversion Rate resulting from such adjustment and the increase
or decrease, if any, in the number of shares receivable at such
price upon the conversion of Class B Common Stock or
Class C Common Stock, setting forth in reasonable detail
the method of calculation and the facts upon which such
calculation is based.
(d) The holders of Class B Common Stock and
Class C Common Stock shall have the following rights to
certain properties received by the holders of Class A
Common Stock:
(i) In case the Corporation shall declare a dividend or
distribution upon Class A Common Stock payable other than
in cash out of earnings or surplus or other than in Class A
Common Stock, then thereafter each holder of Class B Common
Stock or Class C Common Stock upon the conversion thereof
will be entitled to receive the number of shares of Class A
Common Stock into which such Class B Common Stock or
Class C Common Stock shall be converted, and, in addition
and without payment therefor, the property which such holder
would have received as a dividend if continuously since the
record date for any such dividend or distribution such holder:
(A) had been the record holder of the number of
Class A Common Stock then received; and (B) had
retained all dividends or distributions originating directly or
indirectly from such Class A Common Stock.
(ii) If any capital reorganization or reclassification of
the capital stock of the Corporation, or consolidation or merger
of the Corporation with another corporation, or the sale of all
or substantially all of its assets to another corporation shall
be effected in such a way that holders of Class A Common
Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for a Class A Common, then,
as a condition of such reorganization, reclassification,
consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holders of Class B Common Stock
and Class C Common Stock shall thereafter have the right to
receive, in lieu of Class A Common Stock of the
Corporation immediately theretofore receivable upon the
conversion of such Class B Common Stock and Class C
Common Stock, such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for a number
of outstanding Class A Common Stock equal to the number of
Class A Common Stock immediately theretofore receivable
upon the conversion or such Class B Common Stock and
Class C Common Stock had such reorganization,
reclassification, consolidation, merger or sale not taken place,
and in any such case appropriate provision shall be made with
respect to the rights and interests of the holders of the
Class B Common Stock and Class C Common Stock to the
end that the provisions hereof (including without limitation
provisions for adjustments of the Conversion Rate and of the
number of shares receivable upon the conversion of such
Class B Common Stock and Class C Common Stock) shall
thereafter be applicable, as nearly as may be, in relation to
any shares of stock, securities or assets thereafter receivable
upon the conversion of such Class B Common Stock and
Class C Common Stock. The Corporation shall not effect any
such reorganization, reclassification, consolidation, merger or
sale, unless prior to the consummation thereof the surviving
corporation (if other than the Corporation), the corporation
resulting from such consolidation or the corporation purchasing
such assets
A-3
shall assume by written instrument executed and mailed to the
registered holders of the Class B Common Stock and
Class C Common Stock at the last address of such holders
appearing on the books of the Corporation, the obligation to
deliver to such holders such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such
holders may be entitled to receive.
(e) In case at any time:
(iii) the Corporation shall pay any dividend payable in
stock upon Class A Common Stock or make any distribution
(other than regular cash dividends to the holders of
Class A Common Stock); or
(iv) the Corporation shall offer for subscription pro
rata to the holders of Class A Common Stock any
additional shares of stock of any class or other rights; or
(v) there shall be any capital reorganization,
reclassification of the capital stock of the Corporation, or
consolidation or merger of the Corporation with, or sale of all
or substantially all of its assets, to another corporation
(provided however, that this provision shall not
be applicable to the merger or consolidation of the Corporation
with or into another corporation if, following such merger or
consolidation, the shareholders of the Corporation immediately
prior to such merger or consolidation own at least 80% of the
equity of the combined entity); or
(vi) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of the aforesaid cases, the Corporation
shall give written notice, by first-class mail, postage prepaid,
addressed to the holders of Class B Common Stock and
Class C Common Stock at the addresses of such holders as
shown on the books of the Corporation, of the date on which:
(A) the books of the Corporation shall close or a record
shall be taken for such dividend, distribution or subscription
rights; or (B) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up shall take place, as the case may be. Such notice shall also
specify the date as of which the holders of Class A Common
Stock of record shall participate in such dividend,
distribution, or subscription rights, or shall be entitled to
exchange their Class A Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up, as the case may be. Such written notice shall be given at
least 20 days prior to the action in question and not less
than 20 days prior to the record date or the date on which
the Corporation’s transfer books are closed in respect
thereto.
SIXTH: Article VIII of the Articles of
Incorporation is hereby amended to provide as follows:
Corporate
Opportunity
1. Certain Acknowledgements;
Definitions. The provisions of this
Article VIII shall, to the fullest extent permitted by law,
delineate the doctrine of “corporate opportunities,”
as it applies to the Corporation, define the conduct of certain
affairs of the Corporation and its Subsidiaries and the
Corporation’s and its Subsidiaries’ directors and
officers as they may involve EchoStar Holding Corporation
(“EchoStar”) and its Subsidiaries, and the powers,
rights, duties and liabilities of the Corporation and its
Subsidiaries and the Corporation’s and its
Subsidiaries’ directors, officers and employees in
connection therewith. In recognition and anticipation that
(a) directors and officers of the Corporation and its
Subsidiaries may serve as directors, officers and employees of
EchoStar and its Subsidiaries, (b) the Corporation and its
Subsidiaries, directly or indirectly, may engage and are
expected to continue to engage in the same, similar or related
lines of business as those engaged in by EchoStar and its
Subsidiaries and other business activities that overlap with or
compete with those in which EchoStar and its Subsidiaries may
engage, (c) the Corporation and its Subsidiaries may have
an interest in the same areas of business opportunity as
EchoStar and its Subsidiaries, (d) the Corporation and its
Subsidiaries may engage in material business transactions with
EchoStar and its Subsidiaries, including, without limitation,
receiving services from, providing services to or being a
significant customer or supplier to EchoStar and its
Subsidiaries, and that the Corporation, EchoStar
and/or one
or more of their respective Subsidiaries may benefit from such
transactions, and (e) as a consequence of the foregoing, it
is in the best interests of the
A-4
Corporation that the rights of the Corporation and its
Subsidiaries, and the duties of any directors or officers of the
Corporation or any of its Subsidiaries, be determined and
delineated in respect of (x) any transactions between the
Corporation and its Subsidiaries, on the one hand, and EchoStar
and its Subsidiaries, on the other hand, and (y) any
potential transactions or matters that may be presented to
officers and directors of the Corporation and its Subsidiaries,
or of which such officers or directors may otherwise become
aware, which potential transactions or matters may constitute
business opportunities of the Corporation or any of its
Subsidiaries, and in recognition of the benefits to be derived
by the Corporation and its Subsidiaries through its continued
contractual, corporate and business relations with EchoStar and
its Subsidiaries and of the benefits to be derived by the
Corporation and its Subsidiaries by the possible service as
directors or officers of the Corporation and its Subsidiaries of
persons who may also serve from time to time as directors,
officers and employees of EchoStar or any of its Subsidiaries,
the provisions of this Article VIII shall, to the fullest
extent permitted by law, regulate and define the conduct of the
business and affairs of the Corporation and its Subsidiaries in
relation to EchoStar and its Subsidiaries, and as such conduct
and affairs may involve EchoStar’s and its Subsidiaries
directors, officers and employees, and the powers, rights,
duties and liabilities of the Corporation and its Subsidiaries
and their respective officers and directors in connection
therewith and in connection with any potential business
opportunities of the Corporation and its Subsidiaries. Any
person purchasing or otherwise acquiring any shares of capital
stock of the Corporation, or any interest therein, shall be
deemed to have notice of and to have consented to the provisions
of this Article VIII. For purposes of this
Article VIII, “Control” and derivative terms
means the possession of the power to direct or cause the
direction of the management and policies of a person, whether
through the possession of voting securities, by contract or
otherwise; and “Subsidiary” means, with respect to any
person, any other person that such first person directly or
indirectly Controls. References in this Article VIII to
“directors,” “officers” or
“employees” of any person shall be deemed to include
those persons who hold similar positions or exercise similar
powers and authority with respect to any such person that is a
limited liability company, partnership, joint venture or other
non-corporate entity or any close corporation governed directly
by its stockholders.
2. Certain Agreements and Transactions
Permitted. No contract, agreement,
arrangement or transaction (or any amendment, modification or
termination thereof) entered into between the Corporation
and/or any
of its Subsidiaries, on the one hand, and EchoStar
and/or any
of its Subsidiaries, on the other hand, before EchoStar ceased
to be a wholly-owned subsidiary of the Corporation shall be void
or voidable or be considered unfair to the Corporation or any of
its Subsidiaries for the reason that EchoStar or any of its
Subsidiaries is a party thereto, or because any directors,
officers or employees of EchoStar or a Subsidiary of EchoStar
are a party thereto, or because any directors, officers or
employees of EchoStar or a Subsidiary of EchoStar were present
at or participated in any meeting of the board of directors, or
committee thereof, of the Corporation, or the board of
directors, or committee thereof, of any Subsidiary of the
Corporation, that authorized the contract, agreement,
arrangement or transaction (or any amendment, modification or
termination thereof), or because his, her or their votes were
counted for such purpose. The Corporation may from time to time
enter into and perform, and cause or permit any of its
Subsidiaries to enter into and perform, one or more contracts,
agreements, arrangements or transactions (or amendments,
modifications or supplements thereto) with EchoStar or any
Subsidiary thereof pursuant to which the Corporation or a
Subsidiary thereof, on the one hand, and EchoStar or a
Subsidiary thereof, on the other hand, agree to engage in
contracts, agreements, arrangements or transactions of any kind
or nature with each other, or agree to compete, or to refrain
from competing or to limit or restrict their competition, with
each other, including to allocate and cause their respective
directors, officers and employees (including any such persons
who are directors, officers or employees of both) to allocate
opportunities between, or to refer opportunities to, each other.
To the fullest extent permitted by law, no such contract,
agreement, arrangement or transaction (nor any such amendments,
modifications or supplements), nor the performance thereof by
the Corporation, EchoStar or any Subsidiary of the Corporation
or EchoStar, shall be considered contrary to any fiduciary duty
owed to the Corporation (or to any Subsidiary of the
Corporation, or to any stockholder of the Corporation or any of
its Subsidiaries) by any director or officer of the Corporation
(or by any director or officer of any Subsidiary of the
Corporation) who is also a director, officer or employee of
EchoStar or any Subsidiary thereof. To the fullest extent
permitted by law, no director or officer of the Corporation or
any Subsidiary of the Corporation who is also a director,
officer or employee of EchoStar or any Subsidiary thereof shall
have or be under any fiduciary duty to the
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Corporation (or to any Subsidiary of the Corporation, or to any
stockholder of the Corporation of any of its Subsidiaries) to
refrain from acting on behalf of the Corporation or EchoStar, or
any of their respective Subsidiaries, in respect of any such
contract, agreement, arrangement or transaction or performing
any such contract, agreement, arrangement or transaction in
accordance with its terms and each such director or officer of
the Corporation or any Subsidiary of the Corporation who is also
a director, officer or employee of EchoStar or any Subsidiary
thereof shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and shall be deemed
not to have breached his or her duties of loyalty to the
Corporation and their respective stockholders, and not to have
derived an improper personal benefit therefrom.
3. Duties of Directors and Officers Regarding
Potential Business Opportunities; No Liability for Certain Acts
or Omissions. If a director or officer of the
Corporation or any Subsidiary of the Corporation is offered, or
otherwise acquires knowledge of, a potential transaction or
matter that may constitute or present a business opportunity for
the Corporation or any of its Subsidiaries (any such transaction
or matter, and any such actual or potential business
opportunity, a “Potential Business Opportunity”), such
director or officer shall, to the fullest extent permitted by
law, have no duty or obligation to refer such Potential Business
Opportunity to the Corporation or any of its Subsidiaries, or to
refrain from referring such Potential Business Opportunity to
any other person, or to give any notice to the Corporation or
any of its Subsidiaries regarding such Potential Business
Opportunity (or any matter relating thereto), and such director
or officer will not be liable to the Corporation or any of its
Subsidiaries, as a director, officer, stockholder or otherwise,
for any failure to refer such Potential Business Opportunity to
the Corporation or any of its Subsidiaries, or for referring
such Potential Business Opportunity to any other person, or for
any failure to give any notice to the Corporation or any of its
Subsidiaries regarding such Potential Business Opportunity or
any matter relating thereto, unless all of the following
conditions are satisfied: (A) the Corporation has expressed
an interest in such business opportunity as determined from time
to time by the Corporation’s Board of Directors as
evidenced by resolutions appearing in the Corporation’s
minutes; (B) such Potential Business Opportunity was
expressly offered to such director or officer solely in his or
her capacity as a director or officer of the Corporation or as a
director or officer of any Subsidiary of the Corporation;
and (C) such opportunity relates to a line of
business in which the Corporation or any Subsidiary of the
Corporation is then directly engaged. In the event the preceding
conditions are satisfied with respect to a particular Potential
Business Opportunity, then such Potential Business Opportunity
shall be offered first to the Corporation. In the event the
preceding conditions are satisfied and the Corporation declines
to pursue such Potential Business Opportunity, the directors,
officers and other members of management of the Corporation
shall be free to engage in such Potential Business Opportunity
on their own and this paragraph shall not limit the right of any
director, officer or other member of management of the
Corporation to continue a business existing prior to the time
that such area of interest is designated by the Corporation.
This paragraph shall not be construed to release any employee of
this Corporation (other than a director, officer or member of
management) from any duties which may be owed to this
Corporation.
4. Amendment of
Article VIII. No alteration, amendment
or repeal, or adoption of any provision inconsistent with, any
provision of this Article VIII shall have any effect upon
(a) any agreement between the Corporation or a Subsidiary
thereof and EchoStar or a Subsidiary thereof that was entered
into before such time or any transaction entered into in
connection with the performance of any such agreement, whether
such transaction is entered into before or after such time,
(b) any transaction entered into between the Corporation or
a Subsidiary thereof and EchoStar or a Subsidiary thereof before
such time, (c) the allocation of any business opportunity
between the Corporation or a Subsidiary thereof and EchoStar or
a Subsidiary thereof before such time, or (d) any duty or
obligation owed by any director or officer of the Corporation or
any Subsidiary of the Corporation (or the absence of any such
duty or obligation) with respect to any potential business
opportunities of the Corporation or any Subsidiary of the
Corporation which such director or officer was offered, or of
which such director or officer otherwise became aware, before
such time.
5. Renunciation. In addition to,
and notwithstanding the foregoing provisions of this
Article VIII, a potential transaction or business
opportunity (1) that the Corporation or its Subsidiaries is
not financially able, contractually permitted or legally able to
undertake, or (2) that is, from its nature, not in the line
of the
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Corporation’s or its Subsidiaries’ business, is of no
practical advantage to the Corporation or its Subsidiaries or
that is one in which the Corporation or its Subsidiaries has no
interest or reasonable expectancy, shall not, in any such case,
be deemed to constitute a corporate opportunity belonging to the
Corporation, or any of its Subsidiaries, and the Corporation, on
behalf of itself and each Subsidiary, to the fullest extent
permitted by law, hereby renounces any interest therein.
6. Termination. Notwithstanding
anything in these Articles of Incorporation to the contrary, the
provisions of Sections 2 and 4(a)-(c) of this
Article VIII shall automatically terminate, expire and have
no further force and effect from and after the date on which no
Corporation director or officer is also an EchoStar director,
officer or employee.
7. Deemed Notice. Any person or
entity purchasing or otherwise acquiring or obtaining any
interest in any capital stock of the Corporation shall be deemed
to have notice and to have consented to the provisions of this
Article VIII.
8. Severability. The invalidity or
unenforceability of any particular provision, or part of any
provision, of this Article VIII shall not affect the other
provisions or parts hereof, and this Article VIII shall be
enforced to the maximum extent permissible, and the remaining
provisions of this Article VIII shall be unaffected thereby
and will remain in full force and effect.
SEVENTH: The Amendment was duly adopted in
accordance with the provisions of Sections 78.320, 78.385
and 78.390 of the NRS.
[Signature
Page Follows]
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IN WITNESS WHEREOF, I have hereunto set my hand to this
Certificate of Amendment of Articles of Incorporation on this
[ ] day of
[ ].
Name: R. Stanton Dodge
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Title:
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Executive Vice President, General Counsel
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and Secretary
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