exv10w24



 





Exhibit 10.24




FORM OF




ECHOSTAR HOLDING CORPORATION

2008 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN




I. Purpose




     The EchoStar Holding Corporation Non-employee Director Stock Option Plan (the “Plan”) provides
for the grant of Stock Options to Non-employee Directors of EchoStar Holding Corporation (the
“Company”) in order to advance the interests of the Company through the motivation, attraction and
retention of its Non-employee Directors.



II. Non-Incentive Stock Options




     The Stock Options granted under the Plan shall be non-statutory stock options (“NSOs”) which
are intended to be options that do not quality as “incentive stock options” under Section 422 of
the Internal Revenue Code of 1986, as amended (the “Code”).



III. Administration




     A. Committee. The Plan shall be administered by the Board of Directors of the Company (the
“Board”) or by a committee of two or more directors (the “Committee”). The Committee or the Board,
as the case may be, shall have full authority to administer the Plan, including authority to
interpret and construe any provision of the Plan and any Stock Option granted thereunder, and to
adopt such rules and regulations for administering the Plan as it may deem necessary in order to
comply with the requirements of the Code or in order to conform to any regulations or to any change
in any law or regulation applicable thereto. The Board may reserve to itself any of the authority
granted to the Committee as set forth herein, and it may perform and discharge all of the functions
and responsibilities of the Committee at any time that a duly constituted Committee is not
appointed and serving. All references in this Plan to the “Committee” shall be deemed to refer to
the Board of Directors whenever the Board is discharging the powers and responsibilities of the
Committee. 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.



     B. Actions of Committee. All actions taken and all interpretations and determinations made by
the Committee in good faith (including determinations of Fair Market Value) shall be final and
binding upon all Participants, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, and all members of the Committee shall, in addition to their rights
as directors, be fully protected by the Company with respect to any such action, determination or
interpretation.



     C. In exercising its power and authority hereunder with respect to Replacement and Substitute
Awards, as defined in Section IV below, held by certain current and former directors of EchoStar
Communications Corporation, including any subsidiary or affiliate (collectively, “EchoStar”) (and
their respective transferees), the Company 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.




IV. Definitions




     A. “Stock Option.” A Stock Option is the right granted under the Plan to a Non-employee
Director to purchase, at such time or times determined by the
Committee pursuant to the plan and at such price or prices (“Option Price”) as are
determined pursuant to the Plan, the number of shares of Common Stock
determined by the Committee pursuant to the plan.



     B. “Common Stock.” A share of Common Stock means a share of authorized but unissued or
reacquired Class A Common Stock (par value $0.001 per share) of the Company.



     C. “Fair Market Value.” If the Common Stock is not traded publicly, the Fair Market Value of a
share of Common Stock on any date shall be determined, in good faith, by the Board or the Committee
after such consultation with outside legal, accounting and other experts as the Board or the
Committee may deem advisable, and the Board or the Committee shall maintain a written record of its
method of determining such value. If the Common Stock is traded publicly, the Fair Market Value of
a share of Common Stock on any date shall be the average of the representative closing bid and
asked prices, as quoted by the National Association of Securities Dealers through NASDAQ (its
automated system for reporting quotes), for the date in question or, if the Common Stock is listed
on the NASDAQ National Market System or is listed on a national stock exchange, the officially
quoted closing price on NASDAQ or such exchange, as the case may be, on the date in question.



     D. “Non-employee Director.” A Non-employee Director is a director of the Company who is not
also an employee of the Company.



     E. “Participant.” A participant is a Non-employee Director to whom a Stock Option is granted.
In addition, in connection with the spin-off of the Company, certain current and former
non-employee directors of EchoStar will be considered Participants in connection with their receipt
of Replacement and Substitute Awards.



     F. “Replacement and Substitute Award” shall mean a Stock Option granted in connection with the
spin-off of the Company to certain current and former non-employee directors of EchoStar pursuant
to the terms of the employee matters agreement entered into between the Company and EchoStar,
effective [                    ].



V. Option Grants




     A. Number of Shares. Upon the initial election or appointment of a Non-employee Director to
the Board, the Non-employee Director shall be granted Stock Options to purchase an amount of shares
of Common Stock to be determined by the Committee (subject to adjustment pursuant to Section VI.B.
hereof) effective as of the last day of the calendar quarter in which



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such person is elected or
appointed to the Board of Directors. The Committee in its discretion shall have the ability to make
further grants to Participants.




     B. Price. The purchase price per share of Common Stock for the shares to be purchased pursuant
to the exercise of any Stock Option shall be 100% of the Fair Market Value of a share
of Common Stock as of the last day of the calendar quarter in which the Non-employee Director
receiving the Stock Option is granted the Stock Option.



     C. Terms. Each Stock Option shall be evidence by a written agreement (“Option Agreement”)
containing such terms and provisions as the Committee may determine, subject to the provisions of
the Plan.



VI. Shares of Common Stock Subject to the Plan




     A. Maximum Number. The maximum aggregate number of shares of Common Stock that may be made
subject to Stock Options shall be 250,000 authorized but unissued or
reacquired shares. If any shares of Common
Stock subject to Stock Options are not purchased or otherwise paid for before such Stock Options
expire, such shares may again be made subject to Stock Options.



     B. Capital Changes. In the event any changes are made to the shares of Common Stock (whether
by reason of merger, consolidation, reorganization, recapitalization, stock dividend in excess of
ten percent (10%) at any single time, stock split, combination of shares, exchange of shares,
change in corporate structure or otherwise), appropriate adjustments shall be made in: (i) the
number of shares of Common Stock theretofore made subject to Stock Options, and in the purchase
price of such shares; and (ii) the aggregate number of shares which may be made subject to Stock
Options. If any of the foregoing adjustments shall result in a fractional share, the fraction shall
be disregarded, and the Company shall have no obligation to make any cash or other payment with
respect to such a fractional share.



VII. Exercise of Stock Options




     A. Time of Exercise. Subject to the provisions of the Plan, the Committee, in its discretion,
shall determine the time when a Stock Option, or a portion of a Stock Option, shall become
exercisable, and the time when a Stock Option, or a portion of a Stock Option, shall expire. Such
time or times shall be set forth in the Option Agreement evidencing such Stock Option. A Stock
Option shall expire, to the extent not exercised, no later than five years after the date on which
it was granted. The Committee may accelerate the vesting of any Participant’s Stock Option by
giving written notice to the Participant. Upon receipt of such notice, the Participant and the
Company shall amend the Option Agreement to reflect the new vesting schedule. The acceleration of
the exercise period of a Stock Option shall not affect the expiration date of that Stock Option.



     B. Six-Month Holding Period. The shares of Common Stock issued upon the exercise of a Stock
Option may not be sold or otherwise disposed of within six months after the date of the grant of
the Stock Option.



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     C. Exchange of Outstanding Stock. The Committee, in its sole discretion, may permit a
Participant to surrender to the Company shares of Common Stock previously acquired by the
Participant as part or full payment for the exercise of a Stock Option. Such surrendered shares
shall be valued at their Fair Market Value on the date of exercise.



     D. Use of Promissory Note. The Committee may, in its sole discretion, impose terms and
conditions, including conditions relating to the manner and timing of payments, on the exercise of
Stock Options. Such terms and conditions may include, but are not limited to, permitting a
Participant to deliver to the Company his promissory note as full or partial payment for the
exercise of a Stock Option.



     E. Stock Restriction Agreement. The Committee may provide that shares of Common Stock issuable
upon the exercise of a Stock Option shall, under certain conditions, be subject to restrictions
whereby the Company has a right of first refusal with respect to such shares or a right or
obligation to repurchase all or a portion of such shares, which restrictions may survive a
Participant’s term as a director of the Company. The acceleration of time or times at which a Stock
Option becomes exercisable may be conditioned upon the Participant’s agreement to such
restrictions.



     F. Termination of Director Status Before Exercise. If a Participant’s term as a director of
the Company shall terminate for any reason other than the Participant’s disability, any Stock
Option then held by the Participant, to the extent then exercisable under the applicable Option
Agreement(s), shall remain exercisable after the termination of his director status for a period of
three months (but in no event beyond five years from the date of grant of the Stock Option). If the
Participant’s director status is terminated because the Participant is disabled within the meaning
of Section 22(e)(3) of the Code, any Stock Option then held by the Participant, to the extent then
exercisable under the applicable Option Agreement(s), shall remain exercisable after the
termination of his employment for a period of twelve months (but in no event beyond five years from
the date of grant of the Stock Option). If the Stock Option is not exercised during the applicable
period, it shall be deemed to have been forfeited and of no further force or effect.



     G. Disposition of Forfeited Stock Options. Any shares of Common Stock subject to Stock Options
forfeited by a Participant shall not thereafter be eligible for purchase by Participant but may be
made subject to Stock Options granted to other Participants.



VIII. No Effect Upon Stockholder Rights




     Nothing in this Plan shall interfere in any way with the right of the stockholders of the
Company to remove the Participant from the Board pursuant to the Nevada General Corporation Law and
the Company’s Certificate of Incorporation and Bylaws.



IX. No Rights as a Stockholder




     A Participant shall have no rights as a stockholder with respect to any shares of Common Stock
subject to a Stock Option. Except as provided in Section VI.B., no adjustment shall be made in the
number of shares of Common Stock issued to a Participant, or in any other rights of



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the Participant
upon exercise of a Stock Option by reason of any dividend, distribution or other right granted to
stockholders for which the record date is prior to the date of exercise of the Participant’s Stock
Option.




X. Assignability




     No Stock Option 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 (“ERISA”), or the rules thereunder. In
the event of the Participant’s death, the Stock Option may be exercised by the personal
representative of the Participant’s estate or, if no personal representative has been appointed, by
the successor or successors in interest determined under the Participant’s will or under the
applicable laws of descent and distribution.



XI. Merger or Liquidation of the Company




     If the Company or its stockholders enter into an agreement to dispose of all, or substantially
all, of the assets or outstanding capital stock of the Company by means of a sale or liquidation,
or a merger or reorganization in which the Company is not the surviving corporation, all Stock
Options outstanding under the Plan as of the day before the consummation of such sale, liquidation,
merger or reorganization, to the extent not exercised, shall for all purposes under this Plan
become exercisable in full as of such date even though the dates of exercise established pursuant
to Section VII.A. have not yet occurred, unless the Board shall have prescribed other terms and
conditions to the exercise of the Stock Options, or otherwise modified the Stock Options.



XII. Amendment




     The Board may, from time to time, alter, amend, suspend or discontinue the Plan, including
where applicable, any modifications or amendments as it shall deem advisable in order to conform to
any regulation or to any change in any law or regulation applicable thereto; provided, however,
that no such action shall adversely affect the rights and obligations with respect to Stock Options
at any time outstanding under the Plan (for clarification purposes,
in no event shall a “lock-up” be deemed to adversely affect
any rights or obligations with respect to any stock options); and provided further that no such action shall, without the
approval for the stockholders of the Company, (i) materially increase the maximum number of shares
of Common Stock that may be made subject to Stock Options (unless necessary to effect the
adjustments required by Section VI.B.), or (ii) materially modify the requirements as to
eligibility for participation in the Plan. Subject to the foregoing, the provisions of Article V of
the Plan which set forth the number of shares of Common Stock for which Stock Options shall be
granted, the timing of Stock Option grants and the Stock Option exercise price shall not be amended
more than once every six (6) months other than to comport with changes in the Code, ERISA, or the
rules thereunder.



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XIII. Registration of Optioned Shares




     The Stock Options shall not be exercisable unless the purchase of such optioned shares is
pursuant to an applicable effective registration statement under the Securities Act of 1933, as
amended (the “Act”), or unless, in the opinion of counsel to the Company, the proposed purchase of
such optioned shares would be exempt from the registration requirements of the Act and from the
registration or qualification requirements of applicable state securities laws.



XIV. Brokerage Arrangements




     The Committee, in its discretion, may enter into arrangements with one or more banks, brokers
or other financial institutions to facilitate the disposition of shares acquired upon exercise of
Stock Options including, without limitation, arrangements for the simultaneous exercise of Stock
Options and sale of the shares acquired upon such exercise.



XV. Nonexclusivity of the Plan




     Neither the adoption of the Plan by the Board nor the submission of the Plan to stockholders
of the Company for approval shall be construed as creating any limitations on the power of
authority of the Board to adopt such other or additional compensation arrangements of whatever
nature as the Board may deem necessary or desirable or preclude or limit the continuation of any
other plan, practice or arrangement for the payment of compensation or fringe benefits to
Non-employee Directors, which the Company now has lawfully put into effect.



XVI. Replacement and Substitute Awards.



     Notwithstanding anything in this Plan to the contrary, any Stock Option 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
service with EchoStar shall be taken into account for purposes of determining the vesting and
exercisability provisions of such Stock Options.



XVII. Effective Date




     This Plan was originally adopted by the Board of Directors and became effective on
[                    ].




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