(Continued)
If the Hughes/ EchoStar merger agreement is terminated by Hughes or EchoStar because GM failed to obtain the requisite GM common stockholder approval at a duly called meeting, or failed to obtain the required number of written consents, in each case under the circumstances described in the Hughes/ EchoStar merger agreement, then Hughes will pay to EchoStar, in cash, the $600 million termination fee if:
• at any time after the date of the Hughes/ EchoStar merger agreement, a competing transaction has been publicly disclosed, which competing transaction has not been withdrawn or abandoned at the time of the GM common stockholder vote; and
• within 15 months of such termination, GM or Hughes enters into definitive agreements with respect to, or completes, any competing transaction.
If the Hughes/ EchoStar merger agreement is terminated:
• by Hughes because the waiting period applicable to the completion of the Hughes/ EchoStar merger under the Hart-Scott-Rodino Act has not expired or been terminated within the time period described above at “—Hughes/ EchoStar Merger Agreement—Termination;”
• by Hughes because FCC approval has not been obtained and become final within the time period described above at “—Hughes/ EchoStar Merger Agreement—Termination;” or
• by Hughes or EchoStar because there is in place a permanent injunction or other order preventing the completion of the Hughes/ EchoStar merger, in an action brought by a governmental authority under U.S. federal or state antitrust laws or FCC rules, which has become final and non-appealable;
then EchoStar will pay to Hughes, in cash, a termination fee and expense reimbursement equal to $600 million. However, if the termination of the Hughes/ EchoStar merger agreement was caused by or was the result of Hughes’ failure to comply with its obligations to use its best efforts to satisfy specified conditions in the Hughes/ EchoStar merger agreement relating to antitrust requirements and governmental approvals, EchoStar is obligated to pay to Hughes only $300 million of the termination fee at the time of termination and the parties may elect to resolve the dispute over the remaining $300 million in accordance with the Hughes/EchoStar merger agreement. In addition, EchoStar will not be obligated to pay the $600 million fee if it is willing to accept a settlement with the antitrust authorities or the FCC but Hughes is not willing to accept such a settlement and instead terminates the Hughes/EchoStar merger agreement.
If the Hughes/ EchoStar merger agreement is terminated by Hughes or EchoStar because GM failed to obtain the requisite GM common stockholder approval at a duly called meeting, or failed to obtain the required number of written consents, in each case under the circumstances described in the Hughes/ EchoStar merger agreement, then Hughes will pay to EchoStar, in cash, the $600 million termination fee if:
• at any time after the date of the Hughes/ EchoStar merger agreement, a competing transaction has been publicly disclosed, which competing transaction has not been withdrawn or abandoned at the time of the GM common stockholder vote; and
• within 15 months of such termination, GM or Hughes enters into definitive agreements with respect to, or completes, any competing transaction.
If the Hughes/ EchoStar merger agreement is terminated:
• by Hughes because the waiting period applicable to the completion of the Hughes/ EchoStar merger under the Hart-Scott-Rodino Act has not expired or been terminated within the time period described above at “—Hughes/ EchoStar Merger Agreement—Termination;”
• by Hughes because FCC approval has not been obtained and become final within the time period described above at “—Hughes/ EchoStar Merger Agreement—Termination;” or
• by Hughes or EchoStar because there is in place a permanent injunction or other order preventing the completion of the Hughes/ EchoStar merger, in an action brought by a governmental authority under U.S. federal or state antitrust laws or FCC rules, which has become final and non-appealable;
then EchoStar will pay to Hughes, in cash, a termination fee and expense reimbursement equal to $600 million. However, if the termination of the Hughes/ EchoStar merger agreement was caused by or was the result of Hughes’ failure to comply with its obligations to use its best efforts to satisfy specified conditions in the Hughes/ EchoStar merger agreement relating to antitrust requirements and governmental approvals, EchoStar is obligated to pay to Hughes only $300 million of the termination fee at the time of termination and the parties may elect to resolve the dispute over the remaining $300 million in accordance with the Hughes/EchoStar merger agreement. In addition, EchoStar will not be obligated to pay the $600 million fee if it is willing to accept a settlement with the antitrust authorities or the FCC but Hughes is not willing to accept such a settlement and instead terminates the Hughes/EchoStar merger agreement.
