Exhibit 10.4


 


Allocation Agreement


Between


DISH Network Corporation


and


EchoStar Corporation


 


This Allocation Agreement (this “Agreement”) is entered into
as of August 4, 2009, by and between DISH Network Corporation (“DISH”),
a Nevada corporation, and EchoStar Corporation (“SATS”), a Nevada
corporation.


 


WHEREAS, the parties desire to enter into an agreement
to allocate between DISH and SATS certain liabilities and expenses arising out
of the litigation with Tivo Inc. (“Tivo”);


 


NOW THEREFORE,
in consideration of the mutual promises, covenants, agreements and undertakings
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, DISH and SATS hereby agree, intending
to be legally bound, as follows:


 


1.             Indemnification
by DISH.  DISH shall indemnify, defend
and hold harmless SATS, each member of the Company Group and each of their
respective current and former directors, officers and employees, and each of
the heirs, executors, successors and assigns of any of the foregoing
(collectively, the “SATS Indemnified Parties”), from and against any and
all liabilities and costs of defense arising out of or relating to the
litigation with Tivo, including any litigation arising from any further
design-around.


 


2.             Payment.  SATS shall pay DISH an
amount equal to its $5,000,000 intellectual property liability limit under that
certain Receiver Agreement between EchoStar Technologies L.L.C. (a subsidiary
of SATS) and EchoSphere L.L.C. (a subsidiary of DISH), dated December 31,
2007 (the “Receiver Agreement”); provided that, such $5,000,000 payment
shall not exhaust SATS’ potential liability under the Receiver Agreement for
other intellectual property claims.


 


3.             Intellectual Property.  DISH and SATS shall jointly own (50/50) any
intellectual property developed in connection with any further design-around
and shall have a royalty-free, perpetual license to use such intellectual
property with any manufacturer.


 


5.             Further Assurances.  DISH and SATS agree to execute or cause to be
executed by the appropriate parties and deliver, as appropriate, such other
agreements, instruments and other documents as may be necessary or desirable in
order to effect the purposes of this Agreement as provided for in Section 4.2
of that certain Separation Agreement by and between DISH and SATS dated December 31,
2007 (the “Separation Agreement”).


 


6.             Capitalized
Terms. 
Capitalized terms used herein, but not otherwise defined, shall have the
meaning ascribed to them in the Separation Agreement.


 


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7.             Dispute Resolution.  Any dispute
arising under this agreement shall be settled in accordance with the provisions of Article VIII of the
Separation Agreement.


 


8.             Governing Law.  This Agreement
and the legal relations between the parties hereto shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws rules thereof to the extent such rules would
require the application of the law of another jurisdiction.


 


9.                             Entire
Agreement.  This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof and supersede all previous
agreements, negotiations, discussions, understandings, writings, commitments
and conversations between the parties hereto with respect to such subject
matter. No agreements or understandings exist between the parties hereto other
than those set forth or referred to herein or therein.


 


10.                           Severability.  If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof or thereof, or the application of such provision to Persons
or circumstances or in jurisdictions other than those as to which it has been
held invalid or unenforceable, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, so long as the economic
or legal substance of the transactions contemplated hereby or thereby, as the
case may be, is not affected in any manner adverse to any party hereto or
thereto. Upon such determination, the parties hereto shall negotiate in good
faith in an effort to agree upon such a suitable and equitable provision to
effect the original intent of the parties hereto.


 


11.           Waiver.


 


(a)  Any term or provision of this Agreement may be waived, or the
time for its performance may be extended, by the party or the parties hereto
entitled to the benefit thereof.  Any
such waiver shall be validly and sufficiently given for the purposes of this
Agreement if, as to any party hereto, it is in writing signed by an authorized
representative of such party.


 


(b)  Waiver by any party hereto of any default by the other party
hereto of any provision of this Agreement shall not be construed to be a waiver
by the waiving party of any subsequent or other default, nor shall it in any
way affect the validity of this Agreement or any party hereof or prejudice the
rights of the other party thereafter to enforce each and ever such
provision.  No failure or delay by any
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.


 


12.           Controlling Documents. To the extent that the provisions of this Allocation
Agreement, conflict with the provisions of the Separation Agreement or any
other agreement between DISH and any of its subsidiaries on the one hand, and
SATS and any of its subsidiaries, on the other hand, the provisions of this
Allocation Agreement shall govern.


 


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13.           Specific Performance.  The
parties hereto agree that the remedy at law for any breach of this Agreement
may be inadequate, and that, as between DISH and SATS, any party hereto by whom
this Agreement is enforceable shall be entitled to specific performance in
addition to any other appropriate relief or remedy.  Such party may, in its sole discretion, apply
to a court of competent jurisdiction for specific performance or injunctive or
such other relief as such court may deem just and proper in order to enforce
this Agreement as between DISH and SATS, or prevent any violation hereof, and,
to the extent permitted by Applicable Law, as between DISH and SATS, each party
hereto waives any objection to the imposition of such relief.


 


14.           Amendments.  No provisions of this Agreement shall be
deemed amended, modified or supplemented by any party hereto, unless such
amendment, supplement or modification is in writing and signed by the
authorized representative of the party against whom it is sought to enforce such
amendment, supplement or modification.


 


15.           Notices.  All notices or other communications required or
permitted to be given hereunder shall be in writing, shall be delivered by hand
or sent by facsimile or sent, postage prepaid, by registered, certified or
express mail or overnight courier service and shall be deemed given when so
delivered by hand or facsimile (upon receipt of confirmation), or if mailed,
one day after mailing, as follows:


 


If to DISH:                             9601 S. Meridian Blvd.

Englewood, CO 80112

Attention: General Counsel

Fax: (303) 723-1699


 


If to SATS:                            100 Inverness Terrace East

Englewood, CO 80112

Attention: General Counsel

Fax: (303) 723-1699


 


16.           Headings; Construction.   The
captions of sections and subsections in this Agreement are provided for convenience
only and shall not be considered in resolving questions of interpretation or
construction of this Agreement. DISH and SATS hereby acknowledge and agree that
the rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments hereof.


 


17.           Counterparts.   This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties thereto and delivered
to the other party or parties.


 


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WHEREFORE,
the parties have signed this Agreement effective as of the date first set forth
above.


 


 


	
   

  	
   

  	
  DISH NETWORK
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
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  ECHOSTAR CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
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