exv10w22



 





Exhibit 10.22




FORM OF




ECHOSTAR HOLDING CORPORATION

2008 STOCK INCENTIVE PLAN




Section 1. Purpose




     The purpose of this Stock Incentive Plan (the “Plan”) is to promote the interests of EchoStar
Holding Corporation (the “Company”) and its Subsidiaries by aiding the Company in attracting and
retaining Participants capable of assuring the future success of the Company, to offer such
personnel incentives to put forth maximum efforts for the success of the Company’s business and to
afford such personnel an opportunity to acquire a proprietary interest in the Company.



Section 2. Definitions




     As used in the Plan, the following terms shall have the meanings set forth below:



     (a) “Award” shall mean an award granted to a Participant in accordance with the terms of this
Plan in the form of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Awards, Dividend Equivalents or Other Stock-Based Awards granted under the Plan, or any
combination of the foregoing.



     (b) “Award Agreement” shall mean any written agreement, contract or other instrument or
document evidencing any Award granted under the Plan.



     (c) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and any
regulations promulgated thereunder.



     (d) “Committee” shall mean the committee described in Section 3 of the Plan.



     (e) “Company” shall mean EchoStar Holding Corporation, a Nevada corporation, and any successor
corporation.



     (f) “Dividend Equivalent” shall mean any right granted under Section 6(e) of the Plan.



     (g) “Echostar” shall mean EchoStar Communications Corporation, a Nevada corporation, and any
successor corporation.



     (h) “Employee Matters Agreement” shall mean the agreement entered into by the Company and
EchoStar as of [                    ].



     (i) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     (j) “Key Employee” shall mean any person, including officers and directors, in the regular
full-time employment of the Company or a Subsidiary who, in the opinion of the Committee, is,



 









 






or is expected to be, primarily responsible for the management, growth or protection of some part
or all of the business of the Company and its Subsidiaries or otherwise to contribute substantially
to the success of the Company and its Subsidiaries.




     (k) “Fair Market Value” shall mean, with respect to Shares, the final closing price, as quoted
by the National Association of Securities Dealers Automated Quotation System (“NASDAQ”) or any
other exchange on which the Shares are traded, for the date in question. If Fair Market Value is in
reference to property other than Shares, the Fair Market Value of such other property shall be
determined by such methods or procedures as shall be established from time to time by the
Committee.



     (l) “Incentive Stock Option” shall mean an option granted under Section 6(a) of the Plan that
is intended to meet the requirements of Section 422 of the Code or any successor provision.



     (m) “Non-employee Director” shall mean a director of the Company who is a “non-employee
director” within the meaning of Rule 16b-3.



     (n) “Non-Qualified Stock Option” shall mean an option granted under Section 6(a) of the Plan
that is not intended to be an Incentive Stock Option.



     (o) “Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option, and shall
include Restoration Options.



     (p) “Other Stock-Based Award” shall mean any right granted under Section 6(f) of the Plan.



     (q) “Outside Director” shall mean a director of the Company who is an “outside director”
within the meaning of Section 162(m) of the Code.



     (r) “Participant” shall mean (1) any Key Employee designated to be granted an Award under the
Plan by the Committee, (2) a consultant or advisor currently providing services to the Company or
Subsidiary (by contract or otherwise) designated to be granted an Award under the Plan by the
Committee, or (3) any employee of the Company or Subsidiary designated to be granted an Award under
the Plan by the Committee if such grant is part of a broad-based performance incentive program. In
addition, in connection with the spin-off of the Company, certain current and former employees and
consultants and advisors of Echostar will be considered Participants in connection with their
receipt of Replacement and Substitute Awards.



     (s) “Performance Award” shall mean any right granted under Section 6(d) of the Plan.



     (t) “Person” shall mean any individual, corporation, partnership, association or trust.



     (u) “Plan” shall mean this 2008 Stock Incentive Plan, as amended from time to time.



     (v) “Replacement and Substitute Award” shall mean an Option or Restricted Stock Unit granted
in connection with the spin-off of the Company to certain current and former employees
and consultants and advisors of Echostar pursuant to the terms of the Employee Matters Agreement.



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     (w) “Restoration Option” shall mean any Option granted under Section 6(a)(iv) of the Plan
which confers upon the Participant the right to receive a new Option upon the payment of the
exercise price of a previously held Option by delivery of previously owned Shares.



     (x) “Restricted Stock” shall mean any Share granted under Section 6(c) of the Plan, subject to
such restrictions as the Committee deems appropriate or desirable.



     (y) “Restricted Stock Unit” shall mean any unit granted under Section 6(c) of the Plan
evidencing the right to receive a Share (or a cash payment equal to the Fair Market Value of a
Share) at some future date.



     (z) “Retirement” shall mean becoming eligible to receive immediate retirement benefits under a
retirement or pension plan of the Company or any Subsidiary.



     (aa) “Rule 16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended, or any successor rule or regulation.



     (bb) “Shares”
shall mean shares of Class A Common Stock, $0.001 par value, of the Company or
such other securities or property as may become subject to Awards pursuant to an adjustment made
under Section 4(c) of the Plan.



     (cc) “Stock Appreciation Right” shall mean any right granted under Section 6(b) of the Plan.



     (dd) “Subsidiary” shall mean any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company if each of the corporations other than the last corporation
in the unbroken chain owns 50% or more of the voting stock or other equity interests in one of the
other corporations in such chain.



     (ee) “Ten-Percent Stockholder” shall mean an individual who owns (within the meaning of
Section 422(b)(6) of the Code) stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company or of a Subsidiary.



     (ff) “Total Disability” shall mean the complete and permanent inability of an employee
Participant to perform such Participant’s duties under the terms of the Participant’s employment
with the Company or any Subsidiary, as determined by the Committee upon the basis of such evidence,
including independent medical reports and data, as the Committee deems appropriate or necessary.



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Section 3. Administration.




     (a) Power and Authority of the Committee.



          (i) The Committee. The Committee shall consist of at least two directors of the Company and
may consist of the entire Board of Directors; provided, however, that (i) if the Committee consists
of less than the entire Board of Directors, each member shall be a Non-employee Director and (ii)
to the extent necessary for any Award intended to qualify as performance-based compensation under
Section 162(m) of the Code, to so qualify, each member of the Committee, whether or not it consists
of the entire Board of Directors, shall be an Outside Director. The Committee may determine the
extent to which any Stock Option under the Plan is required to comply, or not comply, with Section
409A of the Code.




          (ii) Power and Authority. Subject to the express provisions of the Plan and to applicable law,
the Committee shall have full power and authority to: (i) designate Participants; (ii) determine
the type or types of Awards to be granted to each Participant under the Plan; (iii) determine the
number of Shares to be covered by (or with respect to which payments, rights or other matters are
to be calculated in connection with) each Award; (iv) determine the terms and conditions of any
Award or Award Agreement which may be based on various factors such as length of employment and/or
performance of the Participant or the Company (such performance criteria may include but are not
limited to Company’s achievement of specified financial or other performance metrics, such as
subscriber growth); (v) amend the terms and conditions of any Award or Award Agreement and
accelerate the exercisability of Options or the lapse of restrictions relating to Restricted Stock,
Restricted Stock Units or other Awards; (vi) determine whether, to what extent and under what
circumstances Awards may be exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited or suspended; (vii) determine whether, to what extent and under
what circumstances cash, Shares, other securities, other Awards, other property and other amounts
payable with respect to an Award under the Plan shall be deferred either automatically or at the
election of the holder thereof or the Committee; (viii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan; (ix) establish, amend, suspend
or waive such rules and regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan; and (x) make any other determination and take any other action
that the Committee deems necessary or desirable for the administration of the Plan. The Committee’s
selection of a person to participate in this Plan at any time shall not require the Committee to
select such person to participate in this Plan at any other time. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations and other decisions under
or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may
be made at any time and shall be final, conclusive and binding upon any Participant, any holder or
beneficiary of any Award and any employee of the Company or any Subsidiary. The Committee’s
decisions and determinations under the Plan need not be uniform and may be made selectively among
Participants, whether or not such Participants are similarly situated.




     (b) Delegation. The Committee may, in its sole discretion, delegate such powers and
duties under the Plan as it deems appropriate; provided, however, that the Committee shall not
delegate its powers and duties under the Plan with regard to executive officers or directors of the
Company or any Subsidiary who are subject to Section 16 of the Exchange Act.



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     (c) Replacement and Substitute Awards. In exercising its power and authority
hereunder with respect to Replacement and Substitute Awards held by current and former employees
and directors of EchoStar (and their respective transferees), the Committee shall (i) act in good
faith and (ii) cooperate with and give due regard to any information provided by Echostar. In
addition, with respect to such Replacement and Substitute Awards, the Company shall not, without
the prior written consent of the Echostar Compensation Committee, take any discretionary action to
accelerate vesting of any such awards.



Section 4. Shares Available for Awards.




     (a) Shares Available. Subject to adjustment as provided in Section 4(c), the number of
Shares that may be issued subject to Awards under the Plan shall not
exceed 16,000,000; provided,
however, that during the term of the Plan (i) no Participant may be granted Awards (other than
Awards described in clause (ii) below) in the aggregate in
respect of more than 800,000 Shares in any one calendar year and (ii) the maximum amount that any Participant may receive in any
one calendar year in respect of Performance Awards granted pursuant to Section 6(d) may not exceed
the Fair Market Value of 400,000 Shares. Shares to be issued under the Plan may be either
Shares reacquired and held in the treasury or authorized but unissued Shares. If any Shares covered
by an Award or to which an Award relates are not purchased or are forfeited, or if an Award
otherwise terminates without delivery of any Shares, then the number of Shares counted against the
aggregate number of Shares available under the Plan with respect to such Award, to the extent of
any such forfeiture or termination, shall again be available for granting Awards under the Plan.
The Company shall at all times keep available out of authorized but
unissued and/or reacquired Shares the number of
Shares to satisfy Awards granted under the Plan.



     (b) Accounting for Awards. For purposes of this Section 4, if an Award entitles the
holder thereof to receive or purchase Shares, the number of Shares covered by such Award or to
which such Award relates shall be counted on the date of grant of such Award against the aggregate
number of Shares available under Section 4(a) above for granting Awards under the Plan.



     (c) Adjustments. In the event that the Committee shall determine that any dividend or
other distribution (whether in the form of cash, Shares, other securities or other property),
recapitalization, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other securities of the Company
or other similar corporate transaction or event affects the Shares such that an adjustment is
determined by the Committee to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan, then the Committee
shall, in such manner as it may deem equitable, adjust any or all of (i) the number and type of
Shares (or other securities or other property) which thereafter may be made the subject of Awards,
(ii) the number and type of Shares (or other securities or other property) subject to outstanding
Awards and (iii) the purchase or exercise price with respect to any Award; provided,



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however, that the number of Shares covered by any Award or to which such Award relates shall always
be a whole number.




Section 5. Eligibility of Key Employees.




     Any Key Employee, including any Key Employee who is an officer or director of the Company or
any Subsidiary, shall be eligible to be designated a Participant; provided, however, a director of
the Company who is not also an employee of the Company or a Subsidiary shall not be designated as
an Participant. In determining which Key Employees shall receive an Award and the terms of any
Award, the Committee may take into account the nature of the services rendered by the respective
Key Employees, their present and potential contributions to the success of the Company or such
other factors as the Committee, in its sole discretion, shall deem relevant. Notwithstanding the
foregoing, an Incentive Stock Option may only be granted to full or part-time employees (which term
as used herein includes, without limitation, officers and directors who are also employees) of the
Company and its Subsidiaries.



Section 6. Awards.




     (a) Options. The Committee is hereby authorized to grant Options to Participants with
the following terms and conditions and with such additional terms and conditions not inconsistent
with the provisions of the Plan as the Committee shall determine, which terms and conditions shall
be set forth in a form approved by the Committee.



          (i) Exercise Price. The exercise price per Share purchasable under an Option shall be
determined by the Committee; provided, however, that, the exercise price of an Option shall not be
less than 100% of the Fair Market Value of a Share on the date of grant of such Option (110% in the
case of an Incentive Stock Option granted to a Ten-Percent Stockholder); provided, further, that
the aggregate Fair Market Value, determined at the time an Incentive Stock Option is granted, of
the Shares with respect to which Incentive Stock Options may be exercisable for the first time by
an employee Participant in any calendar year under all plans of the Company and any parent
corporation of the Company and any Subsidiary shall not exceed $100,000.




          (ii) Option Term. The term of each Option shall be for a period of ten years from the date of
grant of any Incentive Stock Option (5 years in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder) and ten years and three months from the date of grant of a Non-Qualified
Stock Option, unless an earlier expiration date shall be stated in the Option or the Option shall
cease to be exercisable pursuant to this Section 6. If an employee Participant’s employment with
the Company and all Subsidiaries terminates other than by reason of such Participant’s death, Total
Disability or Retirement, the Participant’s Option shall terminate and cease to be exercisable upon
termination of employment, unless the Committee shall determine otherwise.




          (iii) Time and Method of Exercise. The Committee shall determine the time or times at which an
Option may be exercised in whole or in part and the method or methods by which, and the form or
forms (including, without limitation, cash, Shares, promissory notes, other securities, other
Awards or other property, or any combination thereof, having a Fair Market Value on the




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exercise date equal to the relevant exercise price) in which, payment of the exercise price with
respect thereto may be made or deemed to have been made. The Committee may also permit the holders
of Options, in accordance with such procedures as the Committee may in its sole discretion
establish, including those set forth in Section 6(g) hereof, to exercise Options and sell Shares
acquired pursuant to a brokerage or similar arrangement approved in advance by the Committee, and
to use the proceeds from such sale as payment of the exercise price of such Options.




          (iv) Restoration Options. The Committee may grant Restoration Options, separately or together
with another Option, pursuant to which, subject to the terms and conditions established by the
Committee and any applicable requirements of Rule 16b-3 or any other applicable law, the
Participant would be granted a new Option when the payment of the exercise price of the Option to
which such Restoration Option relates is made by the delivery of Shares owned by the Participant
pursuant to the relevant provisions of the Plan or agreement relating to such Option, which new
Option would be an Option to purchase the number of Shares not exceeding the sum of (A) the number
of Shares so provided as consideration upon the exercise of the previously granted Option to which
such Restoration Option relates and (B) the number of Shares, if any, tendered or withheld as
payment of the amount to be withheld under applicable tax laws in connection with the exercise of
the Option to which such Restoration Option relates pursuant to the relevant provisions of the Plan
or agreement relating to such Option. Restoration Options may be granted with respect to Options
previously granted under the Plan or any other stock option plan of the Company, and may be granted
in connection with any Option granted under the Plan or any other stock option plan of the Company
at the time of such grant; provided, however, that Restoration Options may not be granted with
respect to any Option granted to a Non-employee Director under any other stock option plan of the
Company.




          (v) Incentive and Non-Qualified Stock Options. Each Option granted pursuant to the Plan shall
specify whether it is an Incentive Stock Option or a Non-Qualified Stock Option, provided that the
Committee may in the case of the grant of an Incentive Stock Option give the Participant the right
to receive in its place a Non-Qualified Stock Option.




     (b) Stock Appreciation Rights. The Committee is hereby authorized to grant Stock
Appreciation Rights to Participants subject to the terms of the Plan and any applicable Award
Agreement. A Stock Appreciation Right granted under the Plan shall confer on the holder thereof a
right to receive upon exercise thereof the excess of (i) the Fair Market Value of one Share on the
date of exercise (or, if the Committee shall so determine, at any time during a specified period
before or after the date of exercise) over (ii) the grant price of the Stock Appreciation Right as
specified by the Committee, which price shall not be less than 100% of the Fair Market Value of one
Share on the date of grant of the Stock Appreciation Right. Subject to the terms of the Plan and
any applicable Award Agreement, the grant price, term, methods of exercise, dates of exercise,
methods of settlement and any other terms and conditions of any Stock Appreciation Right shall be
as determined by the Committee. The Committee may impose such conditions or restrictions on the
exercise of any Stock Appreciation Right as it may deem appropriate.



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     (c) Restricted Stock and Restricted Stock Units. The Committee is hereby authorized to
grant Awards of Restricted Stock and Restricted Stock Units to Participants with the following
terms and conditions and with such additional terms and conditions not inconsistent with the
provisions of the Plan as the Committee shall determine:



          (i) Restrictions. Shares of Restricted Stock and Restricted Stock Units shall be subject to
such restrictions as the Committee may impose (including, without limitation, any limitation on the
right to vote a Share of Restricted Stock or the right to receive any dividend or other right or
property with respect thereto), which restrictions may lapse separately or in combination at such
time or times, in such installments or otherwise as the Committee may deem appropriate (the
“Restricted Period”).




          (ii) Stock Certificates. Any Restricted Stock granted under the Plan shall be evidenced by
issuance of a stock certificate or certificates, which certificate or certificates shall be held by
the Company. Such certificate or certificates shall be registered in the name of the Participant
and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable
to such Restricted Stock. Except as otherwise provided in this Section 6(c), no Shares of
Restricted Stock received by a Participant shall be sold, exchanged, transferred, pledged,
hypothecated or otherwise disposed of during the Restricted Period. In the case of Restricted Stock
Units, no Shares shall be issued at the time such Awards are granted.




          (iii) Forfeiture; Delivery of Shares. Except as otherwise determined by the Committee, upon
termination of a Participant’s employment (as determined under criteria established by the
Committee) during the applicable Restricted Period, all Shares of Restricted Stock and all
Restricted Stock Units held by such Participant at such time subject to restriction shall be
forfeited and reacquired by the Company; provided, however, that in the cases of death, Total
Disability or Retirement, or in circumstances where the Committee finds that a waiver would be in
the best interest of the Company, the Committee may waive in whole or in part any or all remaining
restrictions with respect to Shares of Restricted Stock or Restricted Stock Units. Any Share
representing Restricted Stock that is no longer subject to restrictions shall be delivered to the
holder thereof promptly after the applicable restrictions lapse or are waived. Upon the lapse or
waiver of restrictions and the restricted period relating to Restricted Stock Units evidencing the
right to receive Shares, such Shares shall be issued and delivered to the holders of the Restricted
Stock Units.




     (d) Performance Awards. The Committee is hereby authorized to grant Performance Awards
to Participants subject to the terms of the Plan and any applicable Award Agreement. A Performance
Award granted under the Plan (i) may be denominated or payable in cash, Shares (including, without
limitation, Restricted Stock), other securities, other Awards or other property and (ii) shall
confer on the holder thereof the right to receive payments, in whole or in part, upon the
achievement of such performance goals during such performance periods as the Committee shall
establish. Subject to the terms of the Plan and any applicable Award Agreement, the performance
goals to be achieved during any performance period, the length of any performance period, the
amount of any Performance Award granted, the amount of any payment or transfer to be made pursuant
to any Performance Award and any other terms and conditions of any Performance Award shall be
determined by the Committee.



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     (e) Dividend Equivalents. The Committee is hereby authorized to grant to Participants
Dividend Equivalents under which such Participants shall be entitled to receive payments (in cash,
Shares, other securities, other Awards or other property as determined in the discretion of the
Committee) equivalent to the amount of cash dividends paid by the Company to holders of Shares with
respect to a number of Shares determined by the Committee. Subject to the terms of the Plan and any
applicable Award Agreement, such Dividend Equivalents may have such terms and conditions as the
Committee shall determine.



     (f) Other Stock-Based Awards. The Committee is hereby authorized to grant to
Participants such other Awards that are denominated or payable in, valued in whole or in part by
reference to, or otherwise based on or related to, Shares (including, without limitation,
securities convertible into Shares), as are deemed by the Committee to be consistent with the
purpose of the Plan; provided, however, that such grants must comply with applicable law and, in
the case of executive officers and directors of the Company, Rule 16b-3. Subject to the terms of
the Plan and any applicable Award Agreement, the Committee shall determine the terms and conditions
of such Awards. Shares or other securities delivered pursuant to a purchase right granted under
this Section 6(f) shall be purchased for such consideration, which may be paid by such method or
methods and in such form or forms (including without limitation, cash, Shares, promissory notes,
other securities, other Awards or other property or any combination thereof), as the Committee
shall determine, the value of which consideration, as established by the Committee, shall not be
less than 100% of the Fair Market Value of such Shares or other securities as of the date such
purchase right is granted.



     (g) General.



          (i) No Cash Consideration for Awards. Awards shall be granted for no cash consideration or for
such minimal cash consideration as may be required by applicable law.




          (ii) Awards May Be Granted Separately or Together. Awards may, in the discretion of the
Committee, be granted either alone or in addition to, in tandem with, or in substitution for, any
other Award or any award granted under any plan of the Company or any Subsidiary other than the
Plan. Awards granted in addition to or in tandem with other Awards or in addition to or in tandem
with awards granted under any such other plan of the Company or any Subsidiary may be granted
either at the same time as, or at a different time from, the grant of such other Awards or awards.




          (iii) Forms of Payment under Awards. Subject to the terms of the Plan and of any applicable
Award Agreement, payments or transfers to be made by the Company or a Subsidiary upon the grant,
exercise or payment of an Award may be made in such form or forms as the Committee shall determine
(including, without limitation, cash, Shares, promissory notes, other securities, other Awards or
other property or any combination thereof), and may be made in a single payment or transfer, in
installments or on a deferred basis, in each case in accordance with rules and procedures
established by the Committee. Such rules and procedures may include, without limitation, provisions
for the payment or crediting of reasonable interest on installment or deferred payments or the
grant or crediting of Dividend Equivalents with respect to installment or deferred payments.




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          (iv) Cashless Exercise. Options may be exercised in whole or in part upon delivery to the
Secretary of the Company of an irrevocable written notice of exercise. The date on which such
notice is received by the Secretary shall be the date of exercise of the Option, provided that
within three business days of the delivery of such notice the funds to pay for exercise of the
Option are delivered to the Company by a broker acting on behalf of the optionee either in
connection with the sale of the Shares underlying the Option or in connection with the making of a
margin loan to the optionee to enable payment of the exercise price of the Option. In connection
with the foregoing, the Company will provide a copy of the notice of exercise of the Option to the
aforesaid broker upon receipt by the Secretary of such notice and will deliver to such broker,
within three business days of the delivery of such notice to the Company, a certificate or
certificates (as requested by the broker) representing the number of Shares underlying the Option
that have been sold by such broker for the optionee.




          (v) Limits on Transfer of Awards. No Award and no right under any such Award shall be
transferable by a Participant otherwise than by will, the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Code; provided, however, that,
if so determined by the Committee, a Participant may, in the manner established by the Committee,
designate a beneficiary or beneficiaries to exercise the rights of the Participant and receive any
property distributable with respect to any Award upon the death of the Participant. Each Award or
right under any Award shall be exercisable during the Participant’s lifetime only by the
Participant or, if permissible under applicable law, by the Participant’s guardian or legal
representative. No Award or right under any such Award may be pledged, alienated, attached or
otherwise encumbered, and any purported pledge, alienation, attachment or encumbrance thereof shall
be void and unenforceable against the Company or any Subsidiary.




          (vi) Term of Awards. Unless otherwise expressly set forth in the Plan, the term of each Award
shall be for such period as may be determined by the Committee.




          (vii) Restrictions; Securities Listing. All certificates for Shares or other securities
delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or
the rules, regulations and other requirements of the Securities and Exchange Commission and any
applicable federal or state securities laws, and the Committee may cause a legend or legends to be
placed on any such certificates to make appropriate reference to such restrictions. If the Shares
or other securities are traded on NASDAQ or a securities exchange, the Company shall not be
required to deliver any Shares or other securities covered by an Award unless and until such Shares
or other securities have been admitted for trading on NASDAQ or such securities exchange.




Section 7. Amendment and Termination; Adjustments.




     Except to the extent prohibited by applicable law and unless otherwise expressly provided in
an Award Agreement or in the Plan:



     (a) Amendments to the Plan. The Board of Directors of the Company may amend, alter,
suspend, discontinue or terminate the Plan; provided, however, that, notwithstanding any other



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provision of the Plan or any Award Agreement, without the approval of the stockholders of the
Company, no such amendment, alteration, suspension, discontinuation or termination shall be made
that, absent such approval;




          (i) would violate the rules or regulations of NASDAQ or any securities exchange that are
applicable to the Company; or




          (ii) would cause the Company to be unable, under the Code, to grant Incentive Stock Options
under the Plan.




     (b) Amendments to Awards. The Committee may waive any conditions of or rights of the
Company under any outstanding Award, prospectively or retroactively. The Committee may not amend,
alter, suspend, discontinue or terminate any outstanding Award, prospectively or retroactively,
without the consent of the Participant or holder or beneficiary thereof, except as otherwise herein
provided (for clarification purposes, in no event shall the consent
of the participant or holder or beneficiary be required in order for
the Committee to effectuate a “lock-up”).



     (c) Correction of Defects, Omissions and Inconsistencies. The Committee may correct
any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the
manner and to the extent it shall deem desirable to carry the Plan into effect.



Section 8. Income Tax Withholding; Tax Bonuses.




     (a) Withholding. In order to comply with all applicable federal or state income tax
laws or regulations, the Company may take such action as it deems appropriate to ensure that all
applicable federal or state payroll, withholding, income or other taxes, which are the sole and
absolute responsibility of a Participant, are withheld or collected from such Participant. In order
to assist a Participant in paying all or a portion of the federal and state taxes to be withheld or
collected upon exercise or receipt of (or the lapse of restrictions relating to) an Award, the
Committee, in its discretion and subject to such additional terms and conditions as it may adopt,
may permit the Participant to satisfy such tax obligation by (i) electing to have the Company
withhold a portion of the Shares otherwise to be delivered upon exercise or receipt of (or the
lapse of restrictions relating to) such Award with a Fair Market Value equal to the amount of such
taxes or (ii) delivering to the Company shares other than Shares issuable upon exercise or receipt
of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to the
amount of such taxes.



     (b) Tax Bonuses. The Committee, in its discretion, shall have the authority, at the
time of grant of any Award under this Plan or at any time thereafter, to approve cash bonuses to
designated Participants to be paid upon their exercise or receipt of (or the lapse of restrictions
relating to) Awards in order to provide funds to pay all or a portion of federal and state taxes
due as a result of such exercise or receipt (or the lapse of such restrictions). The Committee
shall have full authority in its discretion to determine the amount of any such tax bonus.



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Section 9. General Provisions




     (a) No Rights to Awards. No Key Employee, Participant or other Person shall have any
claim to be granted any Award under the Plan, and there is no obligation for uniformity of
treatment of Key Employees, Participants or holders or beneficiaries of Awards under the Plan. The
terms and conditions of Awards need not be the same with respect to any Participant or with respect
to different Participants.



     (b) Award Agreements. No Participant will have rights under an Award granted to such
Participant unless and until an Award Agreement shall have been duly executed on behalf of the
Company.



     (c) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall
prevent the Company or any Subsidiary from adopting or continuing in effect other or additional
compensation arrangements, and such arrangements may be either generally applicable or applicable
only in specific cases.



     (d) No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ of the Company or any Subsidiary, nor will it
affect in any way the right of the Company or a Subsidiary to terminate such employment at any
time, with or without cause. In addition, the Company or a Subsidiary may at any time dismiss a
Participant from employment free from any liability or any claim under the Plan, unless otherwise
expressly provided in the Plan or in any Award Agreement.



     (e) Assignability. No Award granted under this Plan, nor any other rights acquired by
a Participant under this Plan, shall be assignable or transferable by a Participant, other than by
will or the laws of descent and distribution or pursuant to a qualified domestic relations order as
defined by the Code, Title I of the Employee Retirement Income Security Act, or the rules
promulgated thereunder.



     (f) Governing Law. The validity, construction and effect of the Plan or any Award, and
any rules and regulations relating to the Plan or any Award, shall be determined in accordance with
the laws of the State of Colorado.



     (g) Severability. If any provision of the Plan or any Award is or becomes or is deemed
to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to applicable laws, or if it cannot be so construed or deemed amended without,
in the determination of the Committee, materially altering the purpose or intent of the Plan or the
Award, such provision shall be stricken as to such jurisdiction or Award, and the remainder of the
Plan or any such Award shall remain in full force and effect.



     (h) No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Subsidiary and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company or any Subsidiary pursuant to an Award, such
right shall be no greater than the right of any unsecured general creditor of the Company or any
Subsidiary.



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     (i) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant
to the Plan or any Award, and the Committee shall determine whether cash shall be paid in lieu of
any fractional Shares or whether such fractional Shares or any rights thereto shall be canceled,
terminated or otherwise eliminated.



     (j) Transfers and Leaves of Absence. Solely for the purposes of the Plan: (a) a
transfer of an employee Participant’s employment without an intervening period from the Company to
a Subsidiary or vice versa, or from one Subsidiary to another, shall not be deemed a termination of
employment, and (b) an employee Participant who is granted in writing a leave of absence shall be
deemed to have remained in the employ of the Company or a Subsidiary, as the case may be, during
such leave of absence.



     (k) Headings. Headings are given to the Sections and subsections of the Plan solely as
a convenience to facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision thereof.



     (l) Replacement and Substitute Awards. Notwithstanding anything in this Plan to the
contrary, any Option or Award that is intended to be a Replacement or Substitute Award granted in
connection with the spin-off of the Company shall be subject to the same terms and conditions as
the original EchoStar award to which it relates; provided, however that such awards shall be
administered by the Committee. In this regard, all employment with EchoStar shall be taken into
account for purposes of determining the vesting and exercisability provisions of such Options
and/or Awards.



Section 10. Effective Date of the Plan.




     The Plan shall be effective as of [                    ], subject to approval by the stockholders of
the Company on or before that date or within one year thereafter.



Section 11. Term of the Plan.




     Unless the Plan shall have been discontinued or terminated as provided in Section 7(a), the
Plan shall terminate on [                    ]. No Award shall be granted after the termination of the
Plan. However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement,
any Award theretofore granted may extend beyond the termination of the Plan, and the authority of
the Committee provided for hereunder with respect to the Plan and any Awards, and the authority of
the Board of Directors of the Company to amend the Plan, shall extend beyond the termination of the
Plan.



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