EXHIBIT 10.5
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SEC]
MEMORANDUM OEM MANUFACTURING AGREEMENT
This Memorandum OEM Manufacturing Agreement ("MOEMMA") is made and
effective as of this 9th day of January, 2002, by and among EchoStar Satellite
Corporation ("ESC"), having a place of business at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, EchoStar Technologies Corporation ("ETC"), having a
place of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
Thomson multimedia, Inc. ("Licensee"), having a place of business at ▇▇▇▇▇-▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
INTRODUCTION
This MOEMMA confirms the terms and conditions upon which: (i) Licensee
shall manufacture (under license from ETC) Licensee Receivers, and (ii) Licensee
shall manufacture (under license from ETC) ETC Receivers.
1. DEFINITIONS
In addition to any other defined terms in this MOEMMA and except as
otherwise expressly provided for in this MOEMMA, the following terms shall have
the following meanings:
1.1 "Affiliate" shall mean, with respect to a party, any person or
entity directly or indirectly controlling, controlled by, or under common
control with such party.
1.2 "DBS" shall mean direct broadcast satellite.
1.3 "DISH Network" shall mean the DBS network owned and operated in the
United States by ESC and its Affiliates.
1.4 "DTH" shall mean direct-to-home.
1.5 "ETC Receiver Specifications" shall mean those specifications
defining Dish Network broadcast reception requirements, Receiver performance
requirements, Receiver mechanical configuration, and other Receiver form, fit,
look, feel and function as specified by ETC from time to time.
1.6 "ETC Receivers" shall mean Receivers that are manufactured in
strict conformance with the ETC Receiver Specifications by Licensee or on behalf
of Licensee by a Permitted Contractor and branded with such trademarks as ETC
may designate from time to time in its sole judgment.
1.7 "ETC Technology" shall have the meaning ascribed to that term in
Section 2.1 below.
1.8 "License" shall have the meaning ascribed to that term in Section
2.2 below.
1.9 "License Fee" shall have the meaning ascribed to that term in
Section 2.4 below.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
1.10 "Licensed Technology" shall have the meaning ascribed to that term
in Section 2.2 below.
1.11 "Licensee Receivers" shall mean Receivers that are manufactured in
strict conformance with the ETC Receiver specifications by Licensee or on behalf
of Licensee by a Permitted Contractor. Licensee shall be entitled to apply
Licensee branding to Licensee Receivers in accordance with ETC's trademark usage
guidelines, as such guidelines may change from time to time upon written notice
to Licensee.
1.12 "Permitted Subcontractor" shall have the meaning ascribed to that
term in Section 2.3.3 below.
1.13 "Receiver" shall mean a digital DBS receiver that: (i) is a
stand-alone set top box or integrated with another consumer electronics device
in a set top box configuration; (ii) is solely compatible with DISH Network; and
(iii) is intended for resale solely in the Territory.
1.14 *** shall mean ***
1.15 "Territory" shall mean the geographic boundaries of the
continental United States.
2. LICENSE
2.1 Background. ETC and its Affiliates have designed, developed and
acquired through license, and continue to design, develop and attempt to acquire
through license, certain intellectual property and other proprietary technology
for the design, development and manufacture of current and next generation
Receivers (the "ETC Technology"). The preceding sentence shall not be construed
as limiting the right of Licensee to directly license from third parties any
technology proprietary to such third party for purposes unrelated to Licensee's
relationship with ETC and ESC.
2.2 Grant of License. Subject to the terms and conditions set forth
below (including without limitation payment of the License Fee pursuant to
Section 2.4 below and the restrictions set forth in Section 2.3 below), ETC
hereby grants to Licensee a limited, non-exclusive, non-transferable,
non-sublicensable, indivisible license (the "License") to use the ETC Technology
that is owned exclusively by ETC and its Affiliates and the ETC Technology that
ETC and its Affiliates have the right to sublicense to Licensee (collectively,
the "Licensed Technology") solely for the purposes of manufacturing ETC
Receivers and Licensee Receivers in strict conformance with ETC Receiver
Specifications (absent prior written agreement by ETC to deviations from the ETC
Receiver Specifications, which agreement shall not be unreasonably withheld)
and, provided that the parties can agree upon mutually acceptable terms, selling
such ETC Receivers and Licensee Receivers directly to ETC, its Affiliates and
designees; provided that the License to use any ETC Technology that is not owned
exclusively by ETC or its Affiliates shall be subject to the standard terms and
conditions applicable to the disclosure and use of such information, which may
include, among other things, the payment of additional license fees and/or
royalties by the Licensee or ETC as is mutually agreed upon by the parties.
2.3 License Restrictions.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
2.3.1 Licensee will not be entitled to manufacture any
Licensee Receivers under any third party brand names, without the prior written
consent of ETC and ESC, which consent may be withheld in ETC and ESC's sole
judgment. ETC shall commence delivery of Licensed Technology to Licensee
following payment of the first installment of the License Fee by Licensee. In no
event shall a party be obligated to provide any technology or other information
to another party unless the provision of such technology and information is in
full compliance with applicable laws and regulations of the United States,
including, but not limited to, those relating to the export of technology.
2.3.2 Licensee shall not be entitled to use any ETC Technology
for any purpose not expressly set forth in this MOEMMA without ETC's prior
written consent, which consent ETC may withhold in its sole judgment.
Specifically, and without limitation of the foregoing, Licensee shall
manufacture the Licensee Receivers and ETC Receivers so that *** absent specific
prior written agreement of the parties to the contrary. In addition, absent
specific prior written agreement of the parties to the contrary, Licensee shall
be expressly prohibited from *** Licensee shall further be prohibited from ***
without ETC's prior written consent, which consent may be withheld in ETC's sole
judgment. ETC shall use its reasonable commercial efforts to compile for
Licensee a list of ETC Technology which is proprietary to ETC, provided the
parties recognize such list will not be entirely comprehensive.
2.3.3 Licensee shall have no right to grant sublicenses with
respect to the Licensed Technology, without the prior written consent of ETC,
which consent may be withheld in ETC's sole judgment. Licensee may subcontract
the manufacture of Licensee Receivers and ETC Receivers upon ETC's prior written
approval of the subcontract manufacturer suggested by Licensee (a "Permitted
Subcontractor"), which approval shall not be unreasonably withheld. Licensee
shall bear full responsibility for all acts and omissions of any Permitted
Subcontractor relating to the manufacture of the Licensee Receivers and ETC
Receivers, to the same extent as if any such act or omission were committed by
Licensee
2.4 License Fee. In consideration for the License and related technical
assistance to be furnished to Licensee by ETC, effort expended by ETC, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Licensee irrevocably and absolutely agrees to pay to ETC
the amount of *** (the "License Fee"). The License Fee shall be payable in ***
equal installments of *** . The first such installment shall be made and
actually received by ETC on or before *** and each subsequent installment shall
be made and actually received by ETC on the last business day of ***
Notwithstanding any provision of this MOEMMA to the contrary, all installments
shall be paid by Licensee to ETC regardless of whether this MOEMMA has
previously expired or terminated and regardless of the reason for any such
expiration or termination. While it is the intention of the parties to attempt
to negotiate an agreement providing for the permitted sale by Licensee of
various Receivers, a minimum volume commitment from Licensee, and other matters,
unless and until such agreement is finalized and signed by the parties Licensee
shall have no right whatsoever to sell or otherwise distribute any Receivers,
and neither ETC nor ESC shall be obligated to manufacture, sell or deliver any
Smart Cards or Receivers to Licensee or to purchase any Receivers from Licensee.
In the event that for any reason an agreement for the sale by Licensee of
Receivers has not been executed by Licensee, ETC and ESC within sixty (60) days
of the date of this MOEMMA, then notwithstanding anything else in this MOEMMA to
the contrary, this MOEMMA shall terminate. Notwithstanding the above, Licensee
none-the-less hereby acknowledges and agrees that its obligation to pay the ***
Licensee fee is unconditional and absolute regardless of whether an agreement
providing for the permitted sale by Licensee of various Receivers is ever
finalized. Licensee further acknowledges and agrees that, in the event that ETC
and/or any of its Affiliates commences any suit,
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
action or other proceeding to recover all or any portion of the Licensee Fee,
EchoStar and its Affiliates shall be entitled to recover their costs, expenses
and reasonable attorney fees incurred in connection therewith, in addition to
all other sums allowed by law.
2.5 Smart Cards.
2.5.1 Smart Cards. Licensee shall purchase all Smart Cards
necessary to develop and manufacture Licensee Receivers and ETC Receivers and to
fulfill its warranty obligations regarding Licensee Receivers and ETC Receivers
under the terms of this MOEMMA exclusively from ETC. ETC shall supply Licensee,
at the price specified below, with a float of Smart Cards for use in the
fulfillment of its warranty obligations regarding Licensee Receivers and ETC
Receivers hereunder in a quantity per 1,000 sales of Licensee Receivers and ETC
Receivers to end users that is consistent with ETC's Smart Card warranty
replacement history; provided, however, that ETC shall provide Smart Cards in
excess of that quantity in the event that Licensee can adequately justify its
need therefore for use in the fulfillment of its warranty obligations regarding
Licensee Receivers and ETC Receivers hereunder. ETC shall supply Licensee with
such additional quantity of Smart Cards, at the price specified below, as ETC
following consultation with Licensee determines is reasonably necessary for use
in the development of Licensee Receivers and ETC Receivers. Licensee
acknowledges and agrees that Smart Cards are only being made available to
Licensee under this Section 2.5.1 in order for Licensee to develop and
manufacture Licensee Receivers and ETC Receivers and to fulfill its reasonable
warranty obligations regarding Licensee Products and ETC Receivers under the
terms of this MOEMMA. In view of the potential for a subscriber to defraud ESC
by improperly obtaining a replacement Smart Card under a false warranty claim,
Licensee agrees that it will not use Smart Cards provided by ETC under this
Section 2.5.1 for any purpose whatsoever other than to develop and manufacture
Licensee Receivers and ETC Receivers and to fulfill its warranty obligations
regarding Licensee Products and ETC Receivers under the terms of this MOEMMA.
Licensee further acknowledges and agrees that, with respect to Smart Cards that
have been lost, end users must purchase replacement Smart Cards directly from
ETC (or such other entity as ETC may designate from time to time in writing)
subject to such terms and conditions and at such prices as ETC may determine
from time to time in its sole judgment. Specifically but not by limitation,
under no circumstances shall Licensee sell Smart Cards other than a single Smart
Card integrated with the manufacture of each Licensee Receiver and each ETC
Receiver without prior written consent or direction from ETC. Licensee agrees to
provide ETC with a written report matching the identification number of each
replacement Smart Card with the serial number of the Licensee Receiver or ETC
Receiver, as the case may be, into which it is installed prior to returning the
Licensee Receiver or ETC Receiver, as the case may be, to the end-user. In
addition, Licensee shall notify ETC of the disposition and identification number
of all Smart Cards that Licensee has replaced but not returned to ETC within two
(2) business days of such replacement.
2.5.2 Subject to Section 2.5.1 above, ETC agrees to supply
Smart Cards to Licensee to manufacture or have manufactured ETC Receivers and
Licensee Receivers at the price of *** per Smart Card.
2.5.3 Subject to Section 2.5.1 above, ETC agrees to supply
Smart Cards to Licensee to: (i) develop ETC Receivers and Licensee Receivers,
and (ii) perform or have performed warranty repair of Licensee Receivers and ETC
Receivers at the initial price of *** per Smart Card. ***
2.6 Purchases by ETC.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
2.6.1 Licensee agrees to manufacture and sell to ETC, and ETC
agrees to purchase from Licensee, *** Receivers *** commencing with ETC approval
of the first mass production run of Receivers by Licensee, provided that
Licensee can meet ETC's reasonable manufacture and delivery requirements and
further provided that ETC's agreement to purchase shall terminate and be of
absolutely no force or effect if for any reason whatsoever an agreement for the
sale by Licensee of Receivers has not been executed by Licensee, ETC and ESC
within *** of the date of this MOEMMA. Notwithstanding the above, Licensee shall
not be obligated to include *** provided that Licensee shall be obligated to
include *** Notwithstanding the above, EchoStar shall not be entitled to include
*** provided that EchoStar shall be entitled to include ***
2.6.2 ETC shall be entitled to choose, in its sole judgment
from available Receiver models, the ETC Receiver models that it will purchase.
ETC's purchase obligations under Section 2.6.1 shall be contingent upon: (i) the
ETC Receivers meeting ETC's quality and compatibility standards; *** Licensee
shall have no right whatsoever to affix any Licensee branding or other marks to
ETC Receivers without ETC's prior written consent, which consent may be withheld
in ETC's sole judgment.
2.6.3 Except as expressly set forth to the contrary herein,
the purchase of ETC Receivers and Licensee Receivers by ETC under this Section
2.6 shall be subject to Licensee's standard OEM supply terms and conditions,
including but not limited to warranty, lead time/forecasting and support, and
such additional terms and conditions as may be agreed upon by the parties in the
Definitive Agreement. Licensee will only be authorized to sell ETC Receivers and
Licensee Receivers to ETC and such other persons and entities as ETC may approve
from time to time in writing in ETC's sole judgment.
2.6.4 All invoices to ETC hereunder shall be payable, in
immediately available funds, within *** from the date of invoice, which shall be
issued no earlier than the ship date for the ETC Receivers and/or Licensee
Receivers covered by the invoice.
2.7 Responsibilities. Licensee shall be solely responsible for the
manufacture of the Licensee Receivers and ETC Receivers. Notwithstanding the
foregoing, ETC shall provide Licensee with a reasonable amount of technical
assistance from ETC relating to the development, manufacture and testing of the
Licensee Receivers and ETC Receivers, particularly as relates to the Licensed
Technology.
2.8 Expenses/Intellectual Property Ownership. All costs and expenses
incurred by a party in connection with the manufacture and sale of the Licensee
Receivers and the ETC Receivers shall be the sole responsibility of such party.
Each party shall solely own any intellectual party developed solely by such
party. The respective rights of the parties to any derivative works,
enhancements and modifications of any technology supplied by the other party
shall be mutually agreed upon in the Definitive Agreement. Notwithstanding the
foregoing, Licensee shall be solely responsible for any and all costs and
expenses incurred in connection with any non-recurring expenses (NREs)
associated with equipping Licensee's factory with the necessary tooling for such
activities.
2.9 Serial Numbers and Smart Card Numbers. For the purpose of
facilitating the activation of programming for Licensee Receivers and ETC
Receivers by ESC, Licensee will provide ESC with a list, on paper and electronic
media in the format acceptable to ESC, which includes the serial number of each
Licensee Receiver and ETC Receiver and the corresponding Smart Card number for
each Licensee Receiver and ETC Receiver prior to delivery to ETC, its Affiliates
or its designee.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
2.10 Written Materials. Licensee agrees that it will include within the
consumer packaging for each Licensee Receiver and ETC Receiver, at Licensee's
sole cost and expense (except that ETC shall be responsible for providing such
items to Licensee or reimbursing Licensee for the direct costs of printing such
items), copies of such written materials as ETC then currently includes within
the consumer packaging for substantially similar Receivers packaged by or on
behalf of ETC and its Affiliates. Licensee agrees to include such written
materials in the same manner as the then-current method used to include such
written materials with each substantially similar Receiver packaged by or on
behalf of ETC and its Affiliates, as such method may change from time to time in
ETC's sole judgment. The Licensee may include within the consumer packaging for
each Licensee Receiver, at Licensee's sole expense inclusive of direct material
costs, promotional material relevant to Licensee's business which is
non-conflicting with ETC's business, subject to ETC's approval not to be
unreasonably withheld.
2.11 Call Center Costs. In the event that the proportion of problem
calls received by or on behalf of ESC with respect to a particular model
Licensee Receiver or ETC Receiver, as the case may be, is noticeably greater
than the proportion of problem calls received by or on behalf of ESC with
respect to the Receiver model manufactured by or on behalf of ETC performing
substantially similar functions as the relevant model Licensee Product or ETC
Product, as the case may be, then Licensee agrees to promptly review the problem
with ETC and to jointly establish a corrective course of action to correct the
root cause of the problem ***
2.12 Software and Other Changes. In the event Licensee is notified in a
timely manner of the need to effect software or other changes to ETC or Licensee
Receivers as a result of system or similar changes initiated by ETC or ESC, but
Licensee does not effect such changes within substantially the same time period
as ETC implements changes to its Receivers generally for the applicable
change(s), and if as a result of such failure to implement the change(s) the
proportion of problem calls received by or on behalf of ESC with respect to
particular models of Licensee or ETC Receivers is noticeably greater than the
proportion of problem calls received by or on behalf of ESC with respect to the
Receiver models manufactured by or on behalf of ETC performing substantially
similar functions, ***
2.13 Warranty.
2.13.1 Licensee Receivers.
(a) Licensee shall warrant to each end-user of a
Licensee Receiver that such Licensee Receiver will be free from defects in
materials and workmanship (labor and parts) for a period of *** from the date of
activation of the relevant Licensee Receiver by such end-user. In addition,
Licensee will provide ***
(b) In the event that Licensee Receivers are returned
to ETC or any of its affiliates for service or repair, ETC shall be entitled to
*** In the event that Licensee refuses to service or repair such Licensee
Receivers, such refusal shall constitute a breach of this MOEMMA, and in
addition to any other remedies available to ETC (including without limitation
termination of this MOEMMA pursuant to Section 3.2(ii)), ETC shall be entitled
to service and repair such Licensee Receivers and charge Licensee at its
standard rates for such service and repair. In the event that the defined path
for servicing Licensee Receivers is through direct return to the Licensee, and
not ETC, then ETC agrees to minimize the errant return of Licensee Receivers to
ETC through substantially the same methods ETC utilizes to minimize the errant
return of other Receivers not manufactured by ETC. In the event Licensee
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
has not cured the delinquent service time problem within 30 additional days,
then such failure shall constitute a breach of this MOA, entitling ETC to
terminate this MOA pursuant to Section 3.2 (ii) in addition to any other
remedies available to ETC.
2.13.2 ETC Receivers.
(a) Licensee warrants to ETC that each ETC Receiver
will be free from defects in materials and workmanship (labor and parts) for a
period of *** from the date of shipment by Licensee or a Permitted Subcontractor
to ETC, its Affiliates or its designee.
(b) In the event that Licensee fails to repair or
replace (with new or remanufactured product at the Licensee's sole discretion)
defective in-warranty ETC Receivers within *** after ETC delivers such ETC
Receivers to Licensee, the Licensee and ETC shall work in good faith to cure the
delinquent service time, ***
2.14 *** Licensee and ETC agree to work in good faith to
attempt to establish commercial plans regarding Licensee sales of ***
3. TERM AND TERMINATION
3.1 Term. This MOEMMA shall commence on the date first written above
and shall continue for three (3) years thereafter, unless terminated sooner as
provided in this MOEMMA (the "Term"). This MOEMMA is not automatically
renewable.
3.2 Termination. This MOEMMA may be terminated by a party upon the
occurrence of any of the following with respect to another party: (i) the other
party commits a payment default which is not cured within ten (10) days of
receipt of written notice from the first party, or (ii) the other party defaults
on any duty or obligation or breaches any representation, warranty or covenant
in this MOEMMA, and such default or breach is not cured within thirty (30) days
of receipt of written notice from the first party.
4. CONFIDENTIALITY
4.1 General.
4.1.1 The negotiations leading to the MOEMMA and the
negotiations leading to the Definitive Agreement (as defined in Section 5
below), together with all terms and conditions of each, as well as all
financial, business, technical and other proprietary information disclosed or
provided by any party to this MOEMMA and the Definitive Agreement and any
Affiliates thereof, and all information generated therefrom including
evaluations thereof ("Confidential Information") shall be kept and treated as
strictly confidential and shall only be used by a party (and the persons and
entities to whom such party is permitted to disclose such information under this
MOEMMA and the Definitive Agreement) as necessary for such party to perform its
duties and obligations under this MOEMMA and the Definitive Agreement, in each
case for a period of *** years after initial disclosure.
4.1.2 Notwithstanding anything to the contrary set forth
herein, the parties shall have the right to disclose the fact of the existence
of the Definitive Agreement, if and when signed, together with the minimum
amount of other information deemed necessary by securities counsel to either
party if such securities counsel in good faith determines that public disclosure
of the information is necessary
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
under federal or state securities laws applicable to such party. Disclosure of
such information shall be coordinated in advance with the other party. Any such
disclosure shall not permit the disclosing party to issue any press release or
otherwise discuss or further disseminate the information contained in the
securities filing in any manner.
***
4.5 Savings Clause. The terms and conditions set forth in this Section
4 are in addition to, and not in lieu of, any agreements of the parties
respecting confidentiality executed by the parties on or before the date hereof.
5. DEFINITIVE AGREEMENT
5.1 Terms. The parties agree to enter into a definitive agreement
memorializing the terms and conditions set forth herein and such other terms and
conditions as the parties may otherwise agree to (the "Definitive Agreement").
As soon as practicable after the date first set forth above, the parties agree
to promptly and diligently negotiate in good faith and use their respective
reasonable commercial efforts to agree on the Definitive Agreement, which shall
reflect the terms, conditions and intent of this MOEMMA and shall contain
customary terms, conditions, representations, warranties and covenants for each
party that would be found in agreements memorializing similar transactions. ***
6. MISCELLANEOUS
6.1 Notice. Any notice required or permitted to be given hereunder
shall be in writing and shall be sent by facsimile transmission, or by first
class certified mail, postage prepaid, or by overnight courier service, charges
prepaid, to the party notified, addressed to such party at the address set forth
below, or sent by facsimile to the fax number set forth below, or such other
address or fax number as such party may have substituted by written notice to
the other parties. The sending of such notice with confirmation of receipt
thereof (in the case of facsimile transmission) or receipt of such notice (in
the case of delivery by mail or by overnight courier service) shall constitute
the giving thereof:
If to Licensee: Thomson multimedia, Inc.
▇▇▇▇▇-▇▇. ▇▇▇▇▇▇▇▇ ▇▇. ***
Indianapolis, IN 46290
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
***
With a copy to: Thomson multimedia, Inc.
▇▇▇▇▇-▇▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, Senior Counsel
If to ETC: EchoStar Technologies Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice
President
***
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
With a copy to: EchoStar Technologies Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior
Vice President and General Counsel
***
If to ESC: EchoStar Satellite Corporation
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice
President
***
With a copy to: EchoStar Satellite Corporation
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior
Vice President and General Counsel
***
6.2 Amendment and Waiver. Except as expressly provided to the contrary
by this MOEMMA, no waiver or modification of any of the terms or conditions of
this MOEMMA shall be effective unless in writing and signed by both parties. The
failure or delay of either party to exercise any right hereunder shall not be
deemed to be a waiver of such right, and the delay or failure of either party to
give notice of, or to terminate this MOEMMA for, breach or default shall not be
deemed to be a waiver of the right to do so for that or any subsequent breach or
default or for the persistence in a breach or default of a continuing nature.
6.3 Assignment. ETC and ESC may assign their respective rights and
delegate their respective duties under this MOEMMA in whole or in part at any
time. Licensee may not assign any rights or delegate any duties under this
MOEMMA without the prior written consent of ETC and ESC, which consent may be
withheld in their sole judgment. Any attempt to do so without such consent shall
be void.
6.4 Counterparts. This MOEMMA may be signed in counterparts, each of
which shall constitute an original and all of which together shall constitute
one and the same agreement.
6.5 Survival. Any provision of this MOEMMA which logically would be
expected to survive termination or expiration of the MOEMMA shall survive.
IN WITNESS WHEREOF, the parties hereto have caused this MOEMMA to be
executed by their duly authorized officers or representatives as of the date
first written above.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY
EXHIBIT 10.5
ECHOSTAR SATELLITE CORPORATION
By:
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer and President
ECHOSTAR TECHNOLOGIES CORPORATION
By:
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Executive Vice President
THOMSON MULTIMEDIA, INC. (LICENSEE)
By:
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
By:
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24.b-2 under
the Securities Exchange Act.
CONFIDENTIAL AND PROPRIETARY