UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of
the Securities Exchange Act of 1934
Check the appropriate box:

Preliminary Information Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2))

Definitive Information Statement
DISH Network Corporation
(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):

No fee required.

Fee paid previously with preliminary materials

Fee computed on table in exhibit required by Item 25(b) of Schedule 14A (17 CFR 240.14a-101) per Item 1 of this Schedule and Exchange Act Rules 14c-5(g) and 0-11

 
JOINT INFORMATION STATEMENT/PROSPECTUS AND
NOTICE OF ACTION BY WRITTEN CONSENT
WE ARE NOT ASKING YOU FOR A PROXY AND YOU
ARE REQUESTED NOT TO SEND US A PROXY
TO THE STOCKHOLDERS OF DISH NETWORK CORPORATION
November 7, 2023
To Our Stockholders:
On behalf of board of directors of DISH Network Corporation, a Nevada corporation (“DISH Network”), I am pleased to enclose the joint information statement/prospectus relating to the proposed combination of EchoStar Corporation, a Nevada corporation (“EchoStar”) and DISH Network.
On October 2, 2023, EchoStar, DISH Network and EAV Corp., a Nevada corporation and a wholly owned subsidiary of EchoStar (“Merger Sub”), entered into an Amended and Restated Agreement and Plan of Merger (the “Merger Agreement”). The Merger Agreement provides, among other things, that subject to the satisfaction or waiver of the conditions set forth therein, EchoStar will acquire DISH Network by means of a merger of Merger Sub with and into DISH Network (the “Merger”), with DISH Network surviving the Merger as a wholly owned subsidiary of EchoStar. The Merger Agreement amends and restates in its entirety the Agreement and Plan of Merger entered into by and among EchoStar, DISH Network and Eagle Sub Corp., a Nevada corporation and a wholly owned subsidiary of DISH Network, on August 8, 2023.
On the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger (the “Effective Time”), (i) each share of DISH Network Class A Common Stock, par value $0.01 per share (“DISH Network Class A Common Stock”), and each share of DISH Network Class C Common Stock, par value $0.01 per share (“DISH Network Class C Common Stock”), in each case outstanding immediately prior to the Effective Time, will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock, par value $0.001 per share (“EchoStar Class A Common Stock”), equal to 0.350877 (the “Exchange Ratio”) (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the articles of incorporation of DISH Network in effect as of the date of the Merger Agreement) and (ii) each share of DISH Network Class B Common Stock, par value $0.01 per share (“DISH Network Class B Common Stock” and, together with DISH Network Class A Common Stock and DISH Network Class C Common Stock, “DISH Network Common Stock”), outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock, par value $0.001 per share (the “EchoStar Class B Common Stock” and, together with the EchoStar Class A Common Stock, the “EchoStar Common Stock”), equal to the Exchange Ratio. Any shares of DISH Network Common Stock that are held in DISH Network’s treasury or held directly by EchoStar or Merger Sub immediately prior to the Effective Time will be cancelled and cease to exist and no consideration will be paid or payable in respect thereof. The EchoStar Common Stock to be issued to the Ergen DISH Stockholders (as defined in the Merger Agreement) as part of the Merger consideration will be issued through a private placement exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”).
EchoStar Class A Common Stock currently trades on the Nasdaq Global Select Market (“NASDAQ”) under the ticker symbol “SATS.” On November 3, 2023, the last practicable trading day before the date of this joint information statement/prospectus, the closing price of the EchoStar Class A Common Stock was $15.44 per share. You should be aware that because the number of shares being issued as consideration in the Merger is fixed, the value of the consideration holders of DISH Network Class A Common Stock will receive in the Merger will fluctuate as the market price of EchoStar Class A Common Stock changes.
Concurrently with the entry into the Merger Agreement, the Ergen Stockholders, EchoStar and DISH Network entered into an Amended and Restated Support Agreement (the “Support Agreement” and, together with the Merger Agreement, the “Transaction Agreements”) pursuant to which the Ergen Stockholders
 

 
agreed, among other things: (a) not to transfer shares of EchoStar Common Stock or DISH Network Common Stock prior to the earlier of the Effective Time and the termination of the Merger Agreement in accordance with the terms thereof, subject to certain limited exceptions; and (b) to comply with certain obligations of the parties contained in the Merger Agreement. The Support Agreement amends and restates in its entirety the Support Agreement entered into by and among the Ergen Stockholders, EchoStar and DISH Network on August 8, 2023.
After careful consideration, a special transaction committee of independent directors (the “DISH Network Special Committee”) of the board of DISH Network (the “DISH Network Board”) unanimously (i) determined that the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, are fair to and in the best interests of DISH Network and its stockholders (other than the Ergen DISH Stockholders (as defined in the Merger Agreement)); and (ii) recommended that the DISH Network Board adopt resolutions approving, adopting and declaring advisable the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, and recommending that DISH Network’s stockholders approve and adopt the Merger Agreement. The DISH Network Board, acting upon the unanimous recommendation of the DISH Network Special Committee, unanimously (i) duly and validly authorized and approved the execution, delivery and performance of the Merger Agreement and the consummation of the Merger by DISH Network; (ii) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, are fair to and in the best interests of DISH Network and its stockholders, (iii) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, and (iv) directed that the Merger Agreement be submitted to a vote of DISH Network’s stockholders and recommended in accordance with the Nevada Revised Statutes (the “NRS”) 92A.120 that the DISH Network stockholders approve and adopt the Merger Agreement.
The Merger Agreement must be adopted and approved by the affirmative vote of the holders of a majority of DISH Network Common Stock entitled to vote thereon. The Ergen DISH Stockholders, who beneficially owned, as of October 31, 2023, approximately 90.3% of the voting power of the outstanding shares of DISH Network Common Stock, have delivered a written consent (the “Ergen DISH Written Consent”) adopting and approving the Merger Agreement. Accordingly, the delivery of the Ergen DISH Written Consent was sufficient to adopt and approve the Merger Agreement on behalf of the DISH Network stockholders. Therefore, your vote is not required and is not being sought. We are not asking you for a proxy, and you are requested not to send us a proxy.
In reviewing this document, you should carefully consider the risk factors set forth in the section entitled “Risk Factors” beginning on page 22 of this document.
On behalf of DISH Network, thank you for your consideration and continued support.
Charles W. Ergen
Chairman
DISH Network Corporation
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the Merger or the securities to be issued in connection therewith, passed upon the adequacy or accuracy of the accompanying joint information statement/prospectus or determined if the accompanying joint information statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
The date of this joint information statement/prospectus is November 7, 2023.
 

 
IMPORTANT NOTE ABOUT THIS JOINT INFORMATION STATEMENT/PROSPECTUS
This joint information statement/prospectus, which forms a part of a registration statement on Form S-4 filed with the U.S. Securities and Exchange Commission (the “SEC”) by EchoStar (File No. 333-274837), constitutes a prospectus of EchoStar under Section 5 of the Securities Act of 1933, as amended (the “Securities Act”) with respect to the EchoStar Class A Common Stock to be issued to DISH Network stockholders (other than the Ergen DISH Stockholders) pursuant to the Merger Agreement. This joint information statement/prospectus also constitutes an information statement of each of EchoStar and DISH Network under Section 14(c) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), informing stockholders of EchoStar and DISH Network, respectively, of the approval of the EchoStar Share Issuance pursuant to the Ergen EchoStar Written Consent and the approval of the Merger Agreement pursuant to the Ergen DISH Written Consent. This joint information statement/prospectus incorporates important business and financial information about DISH Network and EchoStar from other documents that DISH Network and EchoStar have filed with the SEC and that are not included in or delivered with this joint information statement/prospectus. DISH Network and EchoStar are subject to the informational requirements of the Exchange Act and accordingly file their annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and other information with the SEC. For a listing of documents incorporated by reference herein and for information on obtaining copies of filings made by DISH Network or EchoStar, please see the section titled “Where You Can Find More Information” beginning on page 158 of this joint information statement/prospectus.
DISH Network and EchoStar have not authorized anyone to give any information or make any representation about the Merger, DISH Network or EchoStar that is different from, or in addition to, the information contained in this joint information statement/prospectus or in any of the materials that have been incorporated by reference into this joint information statement/prospectus. Therefore, if anyone distributes any such information, you should not rely on it. If you are in a jurisdiction where offers to exchange or sell or solicitations of offers to exchange or purchase the securities offered by this joint information statement/prospectus are not permitted, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this joint information statement/prospectus does not extend to you. The information contained in this joint information statement/prospectus speaks only as of the date of this joint information statement/prospectus or, in the case of information in a document incorporated by reference, as of the date of such document, unless the information specifically indicates that another date applies. For further information relating to the Merger and the shares of EchoStar Class A Common Stock to be issued in connection with the Merger, reference is made to the registration statement of which this joint information statement/prospectus forms a part and its exhibits. Each statement contained herein is qualified in its entirety by reference to the underlying documents. You are encouraged to read the entire registration statement. DISH Network and EchoStar have all contributed to the information relating to the transactions contained in this joint information statement/prospectus. All information contained in or incorporated by reference into this joint information statement/prospectus concerning DISH Network has been furnished by DISH Network. All information contained in or incorporated by reference into this joint information statement/prospectus concerning EchoStar and Merger Sub has been furnished by EchoStar.
 

 
JOINT INFORMATION STATEMENT/PROSPECTUS
TABLE OF CONTENTS
1
5
13
13
14
14
14
15
16
16
16
17
17
18
18
18
19
19
21
22
22
27
29
30
31
31
31
32
54
60
70
74
86
89
89
89
90
 
i

 
90
90
90
91
91
91
91
92
92
93
95
96
97
97
97
98
100
102
104
105
105
106
106
106
107
107
109
110
111
111
111
112
113
114
115
117
127
127
128
132
132
134
 
ii

 
138
138
139
139
139
140
141
141
142
145
146
157
157
157
157
158
 
iii

 
FREQUENTLY USED TERMS
Certain terms that are defined in and frequently used throughout this joint information statement/prospectus may be helpful for you to have in mind at the outset. Unless otherwise specified or if the context so requires, the following terms have the meanings set forth below for purposes of this joint information statement/prospectus:

“Beneficial Owners’ Record Date” means October 31, 2023.

“Closing” means the consummation of the Merger.

“Closing Date” means the date on which the Closing occurs.

“Code” means the Internal Revenue Code of 1986, as amended.

“DISH DBS” means DISH DBS Corporation, a Colorado corporation and wholly owned subsidiary of DISH Network.

“DISH Hedging Instruments” mean the instruments representing rights to purchase shares of DISH Network Class A Common Stock from the applicable dealer issued under the DISH Hedging Instruments Agreements.

“DISH Hedging Instruments Agreements” mean those certain Base Note Hedge Transaction Confirmations, dated as of August 2, 2016, and Additional Note Hedge Transaction Confirmations, dated as of August 3, 2016, between DISH Network and each of Deutsche Bank AG, London Branch, Barclays Bank PLC, JPMorgan Chase Bank, National Association, London Branch and Goldman, Sachs & Co. with respect to the issuance of instruments representing rights to purchase shares of DISH Network Class A Common Stock from the applicable dealer entered into in connection with the issuance of DISH Network’s 338% Convertible Notes due 2026, as each may be supplemented, amended, replaced, refinanced or otherwise modified from time to time.

“DISH Network Articles of Incorporation” means the articles of incorporation of DISH Network in effect as of the date of the Merger Agreement.

“DISH Network Board” means the board of directors of DISH Network.

“DISH Network Bylaws” means the bylaws of DISH Network in effect as of the date of the Merger Agreement.

“DISH Network Class A Common Stock” means the Class A Common Stock, par value $0.01 per share, of DISH Network.

“DISH Network Class A Stockholders” means the holders of DISH Network Class A Common Stock as of the Effective Time.

“DISH Network Class B Common Stock” means the Class B Common Stock, par value $0.01 per share of DISH Network.

“DISH Network Class C Common Stock” means the Class C Common Stock, par value $0.01 per share, of DISH Network, no shares of which are outstanding as of the date of this joint information statement/prospectus.

“DISH Network Common Stock” means DISH Network Class A Common Stock, DISH Network Class B Common Stock and DISH Network Class C Common Stock.

“DISH Network Convertible Notes” means the convertible notes issued under the DISH Network Convertible Notes Indentures.

“DISH Network Convertible Notes Indentures” mean that certain Indenture, dated as of August 8, 2016, among DISH Network and U.S. Bank National Association, pursuant to which DISH Network issued 338% Convertible Notes due 2026; that certain Indenture, dated as of March 17, 2017, among DISH Network and U.S. Bank National Association, pursuant to which DISH Network issued 238% Convertible Notes due 2024; and that certain Indenture, dated as of December 21, 2020, among DISH Network and U.S. Bank National Association, pursuant to which DISH Network
 
1

 
issued 0% Convertible Notes due 2025, as each may be supplemented, amended, replaced, refinanced or otherwise modified from time to time.

“DISH Network Options” means options to purchase shares of DISH Network Class A Common Stock from DISH Network.

“DISH Network RSU Awards” means restricted stock units representing the right to vest in and be issued shares of DISH Network Class A Common Stock from DISH Network.

“DISH Network Special Committee” means the special transaction committee of independent and disinterested directors established by the DISH Network Board to, among other things, evaluate the advisability of a potential transaction between EchoStar and DISH Network and, if appropriate, review, evaluate and negotiate the Merger Agreement and the transactions contemplated thereby.

“DISH Network Warrants” means the warrants to purchase shares of DISH Network Class A Common Stock from DISH Network issued under the DISH Network Warrants Agreements.

“DISH Network Warrants Agreements” mean those certain Base Warrant Transaction Confirmations, dated as of August 2, 2016, and Additional Warrant Transaction Confirmations, dated as of August 3, 2016, between DISH Network and each of Deutsche Bank AG, London Branch, Barclays Bank PLC, JPMorgan Chase Bank, National Association, London Branch and Goldman, Sachs & Co. with respect to the issuance of warrants to purchase shares of DISH Network Class A Common Stock from DISH Network entered into in connection with the issuance of DISH Network’s 338% Convertible Notes due 2026, as each may be supplemented, amended, replaced, refinanced or otherwise modified from time to time.

“EchoStar Articles of Incorporation” means the articles of incorporation of EchoStar in effect as of the date of the Merger Agreement, as may be amended from time to time.

“EchoStar Board” means the board of directors of EchoStar.

“EchoStar Bylaws” means the bylaws of EchoStar in effect as of the date of the Merger Agreement, as may be amended from time to time.

“EchoStar Class A Common Stock” means the Class A Common Stock, par value $0.001 per share, of EchoStar.

“EchoStar Class B Common Stock” means the Class B Common Stock, par value $0.001 per share, of EchoStar.

“EchoStar Class C Common Stock” means the Class C Common Stock, par value $0.001 per share, of EchoStar, no shares of which are outstanding as of the date of this prospectus.

“EchoStar Class D Common Stock” means the Class D Common Stock, par value $0.001 per share, of EchoStar, no shares of which are outstanding as of the date of this prospectus.

“EchoStar Common Stock” means the EchoStar Class A Common Stock and EchoStar Class B Common Stock.

“EchoStar Options” means options to purchase shares of EchoStar Class A Common Stock from EchoStar.

“EchoStar RSU Award” means each award of restricted stock units representing the right to vest in and be issued shares of EchoStar Class A Common Stock by EchoStar.

“EchoStar Share Issuance” means the issuance of EchoStar Common Stock in connection with the Merger on the terms and subject to the conditions set forth in Merger Agreement.

“EchoStar Special Committee” means the special transaction committee of independent and disinterested directors established by the EchoStar Board to, among other things, explore, review, consider and evaluate a potential corporate transaction between EchoStar and DISH Network, including by exploring, reviewing, considering and evaluating any alternative to a potential corporate transaction between EchoStar and DISH Network that the special transaction committee deemed appropriate, and if the special transaction committee determines that it is advisable to further
 
2

 
investigate or pursue a potential corporate transaction between EchoStar and DISH Network, conduct negotiations concerning a potential corporate transaction between EchoStar and DISH Network.

“Effective Time” means the time at which the Merger becomes effective pursuant to the terms of the Merger Agreement.

“Ergen DISH Stockholders” means Charles W. Ergen, Cantey M. Ergen, Ergen Two-Year December 2021 DISH GRAT, Ergen Two-Year December 2022 DISH GRAT, Ergen Two-Year May 2023 DISH GRAT, Ergen Two-Year June 2023 DISH GRAT and Telluray Holdings, LLC.

“Ergen DISH Written Consent” means the written consent delivered by the Ergen DISH Stockholders in accordance with DISH Network’s bylaws and the NRS approving and adopting the Merger Agreement.

“Ergen EchoStar Stockholders” means Charles W. Ergen, Cantey M. Ergen, Ergen Two-Year March 2022 SATS GRAT, Ergen Two-Year June 2022 SATS GRAT, Ergen Two-Year December 2022 SATS GRAT, Ergen Two-Year June 2023 SATS GRAT and Telluray Holdings, LLC.

“Ergen EchoStar Written Consent” means the written consent delivered by the Ergen EchoStar Stockholders in accordance with EchoStar’s bylaws and the NRS approving the EchoStar Share Issuance in connection with the Merger on the terms and subject to the conditions set forth in the Merger Agreement.

“Ergen Stockholders” means the Ergen EchoStar Stockholders and the Ergen DISH Stockholders.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Exchange Ratio” means 0.350877.

“Evercore” means Evercore Group L.L.C., financial advisor to the EchoStar Special Committee.

“J.P. Morgan” means J.P. Morgan Securities LLC, financial advisor to the DISH Network Special Committee.

“Merger” means the acquisition of DISH Network by EchoStar by means of a merger of Merger Sub with and into DISH Network pursuant to the terms and subject to the conditions set forth in the Merger Agreement, with DISH Network surviving as a wholly owned subsidiary of EchoStar.

“Merger Agreement” means the Amended and Restated Agreement and Plan of Merger dated October 2, 2023 by and among DISH Network, EchoStar and Merger Sub.

“Merger Consideration” means (i) with respect to each share of DISH Network Class A Common Stock and DISH Network Class C Common Stock, a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock equal to the Exchange Ratio (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the DISH Network Articles of Incorporation); and (ii) with respect to each share of DISH Network Class B Common Stock, a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock equal to the Exchange Ratio.

“Merger Sub” means EAV Corp., a Nevada corporation and wholly owned subsidiary of EchoStar.

“NASDAQ” means the Nasdaq Global Select Market.

“NRS” means the Nevada Revised Statutes.

“Original Merger Agreement” means the Agreement and Plan of Merger entered into by and among EchoStar, DISH Network and Eagle Sub Corp., a Nevada corporation and a wholly owned subsidiary of DISH Network, on August 8, 2023.

“prospectus” means this joint information statement/prospectus.

“Required EchoStar Stockholder Vote” means the affirmative vote of a majority of the votes cast in person, by proxy at a meeting of EchoStar stockholders or by written consent in lieu of a special
 
3

 
meeting to the extent permitted by applicable legal requirements, in each case by the holders of EchoStar Common Stock entitled to vote thereon with respect to the EchoStar Share Issuance.

“Required DISH Network Stockholder Vote” means the affirmative vote of the holders of a majority of the voting power of the DISH Network Common Stock outstanding on the record date for a meeting of DISH Network stockholders duly called and held for such purpose by the holders of DISH Network Common Stock entitled to vote to adopt and approve the Merger Agreement and to approve the Merger or the written consent of such holders of DISH Network Common Stock in lieu of a meeting of DISH Network stockholders to the extent permitted by applicable legal requirements.

“Securities Act” means the Securities Act of 1933, as amended.

“Special Committee” means the DISH Network Special Committee or the EchoStar Special Committee, as the context requires.

“Support Agreement” means the Amended and Restated Support Agreement, dated as of October 2, 2023, by and among DISH Network, EchoStar and the Ergen Stockholders.

“Transaction Agreements” means the Merger Agreement and the Support Agreement.

“U.S. GAAP” means U.S. Generally Accepted Accounting Principles.
 
4

 
QUESTIONS AND ANSWERS ABOUT THE MERGER
The following are some of the questions that stockholders of DISH Network and EchoStar may have regarding the Merger and answers to those questions. These questions and answers, as well as the summary section that follows, are not meant to be a substitute for the information contained in the remainder of this prospectus, and this information is qualified in its entirety by the more detailed descriptions and explanations contained elsewhere in this prospectus. You are urged to read this prospectus in its entirety. Additional important information is also contained in the Annexes to this prospectus. You should pay special attention to the “Risk Factors” beginning on page 22 and “Special Note Regarding Forward-Looking Statements” beginning on page 30.
Why am I receiving this prospectus?
On October 2, 2023, DISH Network, EchoStar and Merger Sub entered into the Merger Agreement, pursuant to which EchoStar would acquire DISH Network by means of a merger of Merger Sub with and into DISH Network, with DISH Network surviving the Merger as a wholly owned subsidiary of EchoStar subject to the terms and conditions of the Merger Agreement.
On the terms and subject to the conditions set forth in the Merger Agreement, at the Effective Time, (i) each share of DISH Network Class A Common Stock and DISH Network Class C Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock equal to the Exchange Ratio (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the DISH Network Articles of Incorporation) and (ii) each share of DISH Network Class B Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock equal to the Exchange Ratio. No shares of DISH Network Class C Common Stock are outstanding as of the date of this prospectus.
We have included in this prospectus important information about the Merger, the Merger Agreement (a copy of which is attached as Annex A) and the Support Agreement (a copy of which is attached as Annex B). You should carefully read this information and the documents referred to therein in their entirety.
Please note that, pursuant to the NRS, the Bylaws of EchoStar and the Bylaws of DISH Network, as applicable, the delivery of the Ergen EchoStar Written Consent is sufficient to approve the EchoStar Share Issuance on behalf of stockholders of EchoStar, and the delivery of the Ergen DISH Written Consent is sufficient to adopt and approve the Merger Agreement on behalf of the stockholders of DISH Network. You are not being asked for a proxy, and you are requested not to send a proxy.
Why did the DISH Network Board and the EchoStar Board form special committees of independent directors?
Certain of DISH Network’s and EchoStar’s directors, executive officers and employees have interests in the Merger that are different from, or in addition to, the interests of the DISH Network stockholders and EchoStar stockholders, respectively. DISH Network and EchoStar are commonly controlled by Charles W. Ergen, who also serves as the Chairman of both companies. Mr. Ergen beneficially owns all of the outstanding shares of DISH Network Class B Common Stock and EchoStar Class B Common Stock. As a result, and taking into account his ownership of DISH Network Class A Common Stock and EchoStar Class A Common Stock, Mr. Ergen beneficially owns approximately 90.3% of the total voting power of DISH Network (assuming no conversion of the shares of DISH Network Class B Common Stock and after giving effect to the exercise of Mr. Ergen’s employee stock options that are either currently exercisable or may become exercisable within 60 days of the Beneficial Owners’ Record Date) and approximately 93.4% of the total voting power of EchoStar (assuming no conversion of the shares of EchoStar Class B Common Stock and after giving effect to the exercise of Mr. Ergen’s employee stock options that are either currently exercisable or may become exercisable within 60 days of the Beneficial Owners’ Record Date), respectively, as of the Beneficial Owners’ Record Date.
Cantey Ergen, Mr. Ergen’s spouse, is a director of and senior advisor to DISH Network. Mrs. Ergen beneficially owns all of the outstanding shares of DISH Network Class B Common Stock and EchoStar
 
5

 
Class B Common Stock. As a result, and taking into account her ownership of DISH Network Class A Common Stock and EchoStar Class A Common Stock, Mrs. Ergen beneficially owns approximately 90.3% of the total voting power of DISH Network (assuming no conversion of the shares of DISH Network Class B Common Stock and after giving effect to the exercise of Mrs. Ergen’s employee stock options that are either currently exercisable or may become exercisable within 60 days of the Beneficial Owners’ Record Date) and approximately 93.4% of the total voting power of EchoStar (assuming no conversion of the shares of EchoStar Class B Common Stock), respectively, as of the Beneficial Owners’ Record Date.
The DISH Network Board established the DISH Network Special Committee to, among other things, evaluate the advisability of a potential transaction between EchoStar and DISH Network and, if appropriate, review, evaluate and negotiate the Merger Agreement. In forming the DISH Special Committee and authorizing it to evaluate a potential transaction, the DISH Network Board also resolved that it would not recommend any contemplated transaction with EchoStar without a prior favorable recommendation by the DISH Network Special Committee.
Similarly, the EchoStar Board established the EchoStar Special Committee to, among other things, explore, review, consider and evaluate a potential corporate transaction between EchoStar and DISH Network and, if the EchoStar Special Committee determines that it is advisable to investigate further or pursue such a transaction, conduct the negotiations concerning such transaction. The EchoStar Board also resolved that it would not approve any transaction with DISH Network that the EchoStar Special Committee elects not to pursue. See “The Merger — Background of the Merger” beginning on page 32.
What will DISH Network stockholders receive in the Merger?
Upon consummation of the Merger, existing shares of DISH Network Common Stock will be converted into shares of EchoStar Common Stock. On the terms and subject to the conditions set forth in the Merger Agreement, at the Effective Time, (i) each share of DISH Network Class A Common Stock and DISH Network Class C Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock equal to the Exchange Ratio (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the DISH Network Articles of Incorporation) and (ii) each share of DISH Network Class B Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock equal to the Exchange Ratio. No shares of DISH Network Class C Common Stock are outstanding as of the date of this prospectus.
Will fractional shares of EchoStar Common Stock be issued in the Merger?
No. No fractional shares of EchoStar Common Stock will be issued to DISH Network stockholders. Following the Merger, DISH Network stockholders will receive cash in lieu of any fractional share of EchoStar Common Stock. See “The Merger — Merger Consideration” beginning on page 31.
Why are DISH Network stockholders not being asked to vote on the Merger?
Pursuant to the Merger Agreement and the NRS, the Merger must be approved, and the Merger Agreement must be adopted and approved, by the affirmative vote of the holders of a majority of DISH Network Common Stock entitled to vote thereon. This condition was satisfied following the execution and delivery of the Merger Agreement through the subsequent execution and delivery of the Ergen DISH Written Consent. No further approval of DISH Network stockholders is required to adopt the Merger Agreement or to approve the Merger. Therefore, your vote is not required and is not being sought. We are not asking you for a proxy, and you are requested not to send us a proxy. This prospectus is being provided to you for informational purposes only.
Did the DISH Network Board approve the Merger Agreement?
Yes. After careful consideration, the DISH Network Special Committee unanimously (i) determined that the Transaction Agreements and the transactions contemplated by the Transaction Agreements,
 
6

 
including the Merger, are fair to and in the best interests of DISH Network and its stockholders (other than the Ergen DISH Stockholders); and (ii) recommended that the DISH Network Board adopt resolutions approving, adopting and declaring advisable the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, and recommending that DISH Network’s stockholders approve and adopt the Merger Agreement. The DISH Network Board, acting upon the unanimous recommendation of the DISH Network Special Committee, unanimously (i) duly and validly authorized and approved the execution, delivery and performance of the Merger Agreement and the consummation of the Merger by DISH Network; (ii) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, are fair to and in the best interests of DISH Network and its stockholders, (iii) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, and (iv) directed that the Merger Agreement be submitted to a vote of DISH Network’s stockholders and recommended in accordance with NRS 92A.120 that the DISH Network stockholders approve and adopt the Merger Agreement. See “The Merger — Background of the Merger” beginning on page 32 and “The Merger — DISH Network’s Reasons for the Merger; Recommendation of the DISH Network Special Committee; Approval by the DISH Network Board” beginning on page 54.
Do any of the DISH Network directors or officers have interests in the Merger that may differ from or be in addition to the interests of DISH Network stockholders?
Yes. Some of DISH Network’s directors and officers have interests in the Merger that may be different from, or in addition to, the interests of DISH Network stockholders generally. The members of the DISH Network Special Committee and the DISH Network Board were aware of and considered these interests, among other matters, in deciding to recommend and approve, respectively, the terms of the Merger Agreement and the Merger. For a further discussion of these interests, please see “Interests of Affiliates in the Merger” beginning on page 141.
Will I be paid any dividends in respect of my shares of DISH Network Common Stock prior to the Merger?
Neither DISH Network nor EchoStar has historically paid regular dividends to its stockholders, and neither anticipates doing so prior to the Closing. The Merger Agreement prohibits each of DISH Network and EchoStar from declaring, setting aside or paying any dividends in respect of its capital stock without the prior written consent of the other party before the earlier of the Closing or the termination of the Merger Agreement in accordance with its terms.
How will shares of EchoStar Common Stock be distributed to DISH Network stockholders?
Holders of DISH Network Common Stock will receive shares of EchoStar Common Stock in book-entry form in exchange for the shares of DISH Network Common Stock that they hold immediately prior to the Effective Time. The exchange agent will send to you or your brokerage firm, bank, broker-dealer or other similar organization a letter of transmittal and instructions relating to your receipt of the Merger Consideration. After receiving proper documentation from you or your brokerage firm, bank, broker-dealer or other similar organization, the exchange agent will send book-entry statements evidencing your ownership of EchoStar Common Stock, cash payment in lieu of a fractional share (if any) and related tax information regarding the receipt of shares of EchoStar Common Stock and any such cash payment in lieu of a fractional share you received in the Merger. See “The Merger Agreement — Exchange of Shares” beginning on page 93.
What is the estimated total value of the consideration to be paid by EchoStar in the Merger?
Subject to adjustment under certain circumstances as set forth in the Merger Agreement and based on the estimated number of shares of EchoStar Common Stock and DISH Network Common Stock outstanding on October 2, 2023, EchoStar expects to issue approximately 103,662,473 shares of EchoStar Class A Common Stock and 83,661,430 shares of EchoStar Class B Common Stock in the Merger (with cash payments to any holder of DISH Network Common Stock in lieu of any fractional shares of EchoStar Common Stock). Based upon the reported closing sale price of $16.06 per share for EchoStar Class A
 
7

 
Common Stock on the NASDAQ on October 2, 2023 (the last full trading day before the public announcement of the signing of the Merger Agreement), the total value of the shares of EchoStar Class A Common Stock to be issued by EchoStar in the Merger would be approximately $1,664,700,000. The actual value of the EchoStar Class A Common Stock to be issued in the Merger will depend on the market price of shares of EchoStar Class A Common Stock at the time of the Merger. EchoStar Class B Common Stock and DISH Network Class B Common Stock are not listed or traded on a national securities exchange.
The EchoStar Common Stock to be issued to the Ergen DISH Stockholders as part of the Merger Consideration will be issued through a private placement exemption from registration under the Securities Act, and are not being registered on the registration statement of which this prospectus forms a part.
What percentage of EchoStar’s common stock will EchoStar stockholders and DISH Network stockholders own following the Merger?
Based on the estimated number of shares of EchoStar Common Stock and DISH Network Common Stock outstanding on the date of the Merger Agreement, DISH Network and EchoStar estimate that, upon completion of the Merger, former DISH Network stockholders will own approximately 69.1% of the outstanding EchoStar Common Stock and current EchoStar stockholders will own approximately 30.9% of the outstanding EchoStar Common Stock. DISH Network and EchoStar estimate that, upon completion of the Merger, former DISH Network stockholders and current EchoStar stockholders (in each case, other than the Ergen Stockholders) will hold approximately 73.1% and 26.9%, respectively, of the outstanding EchoStar Class A Common Stock held by all stockholders other than the Ergen Stockholders.
DISH Network and EchoStar estimate that, based on the estimated number of shares of EchoStar Common Stock and DISH Network Common Stock outstanding on October 2, 2023, the Ergen Stockholders’ ownership and voting power of EchoStar will change from approximately 59.5% of the outstanding EchoStar Common Stock and approximately 93.4% of the total voting power prior to the Merger to approximately 53.5% of the outstanding EchoStar Common Stock and approximately 91.3% of the total voting power upon completion of the Merger. Pursuant to the Support Agreement, the Ergen Stockholders agreed, for a period of three years following the Closing, not to vote or cause or direct to be voted any of their EchoStar Class A Common Stock that they owned as of the Closing except on matters where holders of EchoStar Class B Common Stock are not entitled to vote such that the Ergen Stockholders’ voting power of EchoStar will be approximately 90.4% for such three-year period.
Are there possible adverse effects on the value of EchoStar Class A Common Stock to be received by DISH Network Class A Stockholders?
The issuance of shares of EchoStar Class A Common Stock in connection with the Merger may negatively affect the market price of EchoStar Class A Common Stock. The market price of EchoStar Class A Common Stock will also be affected by, among other things, the performance of the post-Merger combined company and other risks associated with the Merger. You should be aware that because the number of shares being issued as consideration in the Merger is fixed, the market value of the consideration DISH Network Class A Stockholders will receive in the Merger will fluctuate as the market price of EchoStar Class A Common Stock changes.
These risks and other risk factors associated with the Merger are described in more detail in the section of this prospectus entitled “Risk Factors” beginning on page 22.
Are there risks associated with the Merger?
Yes. The material risks and uncertainties associated with the Merger are discussed in the section of this prospectus entitled “Risk Factors” beginning on page 22 and the section of this prospectus entitled “Special Note Regarding Forward-Looking Statements” beginning on page 30. Those risks include, among others, the possibility that the Merger will not be completed on the contemplated timeline or at all, the possibility that integration may not be successful or that the anticipated benefits of the Merger may not be realized and the uncertainty about the impact of the Merger and related costs on the value of EchoStar Class A Common Stock.
 
8

 
Are there any conditions to the consummation of the Merger?
Yes. The respective obligations of DISH Network and EchoStar to consummate the transactions contemplated by the Merger Agreement are subject to the satisfaction or waiver of a number of conditions, including:

the Required EchoStar Stockholder Vote having been obtained;

the Required DISH Network Stockholder Vote having been obtained;

the effectiveness of a registration statement on Form S-4 to register the issuance of EchoStar Class A Common Stock in connection with the Merger;

the expiration of a 20-day period (or such longer period as required by the applicable SEC rules and regulations) following the mailing of a prospectus to DISH Network’s and EchoStar’s stockholders;

no statute, rule or regulation that makes illegal the consummation of the Merger having been enacted, issued, enforced, promulgated or enacted and remaining in effect, and no order or injunction of a court of competent jurisdiction being in effect that prohibits the consummation of the Merger;

the satisfaction of the notification requirement under Section XVI of the Final Judgment in U.S. and Plaintiff States v. Deutsche Telekom AG, et al. of April 1, 2020 (Case No. 1:19-cv-02232-TJK);

the receipt of specified approvals required under domestic satellite and communication laws and regulations;

the shares of EchoStar Class A Common Stock to be issued pursuant to the Merger being approved for listing on the NASDAQ;

the accuracy of the other party’s representations and warranties, subject to certain materiality standards set forth in the Merger Agreement;

the compliance with the other party’s obligations under the Merger Agreement in all material respects; and

the absence of a material adverse effect on the other party since August 8, 2023.
The first condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery thereafter of the Ergen EchoStar Written Consent by the Ergen EchoStar Stockholders. The second condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery of the Ergen DISH Written Consent by the Ergen DISH Stockholders.
For a discussion of the conditions to the consummation of the Merger, see “The Merger Agreement — Conditions to the Completion of the Merger” beginning on page 107.
When will the Merger be completed?
Assuming timely satisfaction or waiver of the necessary closing conditions, as described in this prospectus, the parties expect the consummation of the Merger to occur as soon as the fourth quarter of 2023. The Closing Date will be at least 20 business days after the mailing of this prospectus to DISH Network stockholders and EchoStar stockholders, in accordance with the applicable SEC rules and regulations. The Merger will become effective at the time when the articles of merger have been duly filed with the Secretary of State of the State of Nevada or at such later time as may be agreed to by the parties in writing and specified in the articles of merger.
For a discussion of the conditions to the consummation of the Merger, see “The Merger Agreement — Conditions to the Completion of the Merger” beginning on page 107.
Can the Merger be terminated under the Merger Agreement?
The Merger Agreement may be terminated at any time prior to the Effective Time by mutual written consent of DISH Network and EchoStar. Additionally, the Merger Agreement provides that either DISH
 
9

 
Network or EchoStar may terminate the Merger Agreement under certain circumstances, including, subject to specified qualifications and exceptions, if: (a) the Merger is not completed by April 2, 2024, which will automatically be extended for an additional three-month period in the event that any required satellite and communications approvals have not been obtained or a legal restraint (solely in respect of any antitrust law or satellite and communications law) is in effect, but all other closing conditions have been satisfied (or, in the case of conditions to be satisfied at the Closing, are capable of being satisfied) as of such date; (b) a governmental entity of competent jurisdiction issues a final, non-appealable order or takes any other action that makes the Merger illegal or otherwise prohibited; (c) the other party has not provided the Ergen EchoStar Written Consent or Ergen DISH Written Consent, as the case may be, by 11:59 p.m. New York City Time, one day after the date of the Merger Agreement (provided, that this termination right is no longer available, as each of the Ergen EchoStar Written Consent and Ergen DISH Written Consent were delivered in a timely manner following entry into the Merger Agreement); or (d) the other party breaches its representations, warranties or covenants in the Merger Agreement in a way that would cause certain closing conditions not to be satisfied, subject to the right of the breaching party to cure the breach within 30 days. See “The Merger Agreement — Termination of the Merger Agreement” beginning on page 109.
Where will the shares of EchoStar Common Stock to be issued in the Merger be listed?
EchoStar Class A Common Stock is listed on the NASDAQ under the symbol “SATS.” After the consummation of the Merger, all shares of EchoStar Class A Common Stock issued in the Merger, and all other outstanding shares of EchoStar Class A Common Stock, will continue to be listed on the NASDAQ and trade under the same symbol.
EchoStar Class B Common Stock is not listed or traded on a national securities exchange, and the shares of EchoStar Class B Common Stock issued in the Merger will not be listed in connection with the Merger but will continue to be exchangeable for shares of EchoStar Class A Common Stock that are so listed in accordance with the EchoStar Articles of Incorporation.
What will EchoStar stockholders receive in connection with the Merger?
EchoStar stockholders will not receive any consideration in the Merger. All shares of EchoStar Common Stock issued and outstanding immediately before the Merger will remain issued and outstanding immediately after the consummation of the Merger. Immediately after consummation of the Merger, pre-Merger EchoStar stockholders will continue to own shares in EchoStar, which will also reflect the ownership of DISH Network and its subsidiaries.
No additional shares of EchoStar Common Stock will be issued to EchoStar stockholders (who are not also DISH Network stockholders) in connection with the Merger. After the consummation of the Merger, EchoStar stockholders will receive the expected commercial benefit of EchoStar’s ownership of DISH Network and its subsidiaries, subject to, among other things, the risk factors described herein. Please read “Risk Factors” beginning on page 22.
Will there be any change to the EchoStar Board or management after the consummation of the Merger?
Pursuant to the terms of the Merger Agreement, at the Effective Time, the EchoStar Board will consist of 11 directors, comprised of Messrs. Charles W. Ergen and Hamid Akhavan, six individuals who were members of the DISH Network Board immediately prior to the Effective Time and three individuals who were independent directors of the EchoStar Board immediately prior to the Effective Time. In addition to Messrs. Charles W. Ergen and Hamid Akhavan, Mrs. Cantey M. Ergen, Ms. Kathleen Q. Abernathy, Messrs. George R. Brokaw, Stephen J. Bye, James DeFranco and Mr. Tom A. Ortolf (each of whom are members of the DISH Network Board) and Mr. R. Stanton Dodge, Ms. Lisa W. Hershman and Mr. William D. Wade (each of whom are independent directors of the EchoStar Board) are currently expected to serve on the EchoStar Board at the Effective Time.
Mr. Hamid Akhavan, EchoStar’s Chief Executive Officer and President, will serve as President and Chief Executive Officer of EchoStar following completion of the Merger.
Mr. John W. Swieringa, DISH Network’s current President, Technology and Chief Operating Officer, is expected to serve as President, Technology and Chief Operating Officer of EchoStar following the completion of the Merger.
 
10

 
See “Directors and Management of EchoStar After the Merger” beginning on page 139.
Can EchoStar stockholders or DISH Network stockholders dissent and require appraisal of their shares?
No. Neither EchoStar stockholders nor DISH Network stockholders will have dissenters’ rights to be paid the value of their shares in cash in connection with the Merger. See “The Merger — No Dissenters’ Rights” beginning on page 90.
Why are EchoStar stockholders not being asked to vote on the Merger or the EchoStar Share Issuance in connection therewith?
In accordance with, among other things, the NRS and applicable Nevada law, the NASDAQ rules and the Merger Agreement, approval of the Merger and adoption and approval of the Merger Agreement by EchoStar does not require the affirmative vote or consent of EchoStar stockholders. The issuance of shares of EchoStar Class A Common Stock in connection with the Merger must be approved by the affirmative vote of a majority of the votes cast by the holders of EchoStar Common Stock entitled to vote thereon, which condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery of the Ergen EchoStar Written Consent. Therefore, your vote is not required and is not being sought. We are not asking you for a proxy, and you are requested not to send us a proxy. This prospectus is being provided to you for informational purposes only.
Did the EchoStar Board approve the Merger?
Yes. After careful consideration, the EchoStar Special Committee unanimously (i) declared and determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders), (ii) recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, and recommending that EchoStar’s stockholders approve the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement and (iii) declared and determined the Support Agreement and the transactions contemplated by the Support Agreement to be advisable and recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Support Agreement and the transactions contemplated by the Support Agreement. The EchoStar Board, acting upon the unanimous recommendation of the EchoStar Special Committee, unanimously (i) duly and validly authorized the execution, delivery and performance of the Merger Agreement and the consummation of the Merger by EchoStar, (ii) declared and determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders), (iii) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement, (iv) directed that the EchoStar Share Issuance be submitted to a vote of EchoStar’s stockholders, (v) recommended the approval of the EchoStar Share Issuance for purposes of the rules and regulations of NASDAQ by the holders of shares of EchoStar Common Stock and (vi) approved, adopted and declared advisable the Support Agreement and the transactions contemplated by the Support Agreement. See “The Merger — Background of the Merger” beginning on page 32 and “The Merger — EchoStar’s Reasons for the Merger; Recommendation of the EchoStar Special Committee; Approval by the EchoStar Board” beginning on page 70.
Do any of the EchoStar directors or officers have interests in the Merger that may differ from or be in addition to my interests as an EchoStar stockholder?
Yes. EchoStar stockholders should be aware that some of EchoStar’s directors and executive officers have interests in the Merger that may be different from, or in addition to, the interests of EchoStar stockholders generally. The members of the EchoStar Special Committee and EchoStar Board were aware of and considered these interests, among other matters, in deciding to recommend and approve, respectively,
 
11

 
the terms of the Merger Agreement and the Merger. For a further discussion of these interests, please see “Interests of Affiliates in the Merger — Interests of Directors and Officers of EchoStar in the Merger” beginning on page 142.
Will I owe U.S. federal income taxes as a result of the Merger?
For U.S. federal income tax purposes, the Merger is intended to be treated as a “reorganization” under Section 368(a) of the Code, and as discussed more fully under “Material U.S. Federal Income Tax Consequences” beginning on page 113, DISH Network expects to receive an opinion of counsel, to be filed by amendment as Exhibit 8.1 to this prospectus, that based on customary assumptions, representations and covenants, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Assuming that the Merger so qualifies, for U.S. federal income tax purposes, U.S. holders (as defined in the section titled “Material U.S. Federal Income Tax Consequences”) will not recognize any gain or loss as a result of the Merger, except with respect to any cash received in lieu of a fractional share of EchoStar Common Stock.
For additional information, please read the section titled “Material U.S. Federal Income Tax Consequences” beginning on page 113. The discussion of the material U.S. federal income tax consequences contained in this prospectus is intended to provide only a general discussion and is not a complete analysis or description of all potential U.S. federal income tax consequences of the Merger. Such consequences may vary with, or be dependent on, individual circumstances. In addition, it does not address the effects of any foreign, state or local tax laws or any U.S. federal tax laws other than U.S. federal income tax laws.
Where can I find more information about DISH Network and EchoStar?
DISH Network stockholders and EchoStar stockholders can find more information about the parties in “Information about DISH Network” beginning on page 127 and “Information about EchoStar” beginning on page 132, as well as from the various sources described in “Where You Can Find More Information” beginning on page 158.
Is there anything I should do now?
As described above, your vote is not being sought and you are requested not to send a proxy. However, you are urged to read this prospectus carefully and in its entirety, as it contains important information about the Merger.
If you are DISH Network stockholder, after the Merger is completed, your shares of DISH Network Common Stock will be converted into shares of EchoStar Common Stock. DISH Network Class A Stockholders will receive instructions at that time regarding exchanging your shares for shares of EchoStar Class A Common Stock. You do not need to take any action at this time.
If you are an EchoStar stockholder, you are not required to take any action with respect to your shares of EchoStar Common Stock. You will continue to hold your shares of EchoStar Common Stock after the Merger.
 
12

 
SUMMARY
This summary highlights selected information included in this prospectus. You should carefully read this entire prospectus and its Annexes and the other documents referred to in this prospectus. Additional important information about DISH Network, EchoStar, and their respective subsidiaries is also contained in the Annexes to, and the documents incorporated by reference into, this prospectus. For a description of, and instructions as to how to obtain, this information, see “Where You Can Find More Information” on page 158 of this prospectus. Each item in this summary includes a page reference directing you to a more complete description of that item.
Parties to the Merger Agreement (pages 127, 132 & 138)
DISH Network Corporation
DISH Network Corporation
9601 South Meridian Boulevard
Englewood, Colorado 80112
Phone: (303) 723-1000
DISH Network Corporation was organized in 1995 as a corporation under the laws of the State of Nevada. DISH Network started offering the DISH® branded pay-TV service in March 1996, the SLING® branded pay-TV service in January 2015 and retail wireless services in July 2020.
DISH Network Class A Common Stock is listed on the NASDAQ under the symbol “DISH.”
Additional information about DISH Network and its subsidiaries is included in the documents incorporated by reference in this prospectus. See the section entitled “Where You Can Find More Information” beginning on page 158.
EchoStar Corporation
EchoStar Corporation
100 Inverness Terrace East
Englewood, Colorado 80112
Phone: (303) 706-4000
EchoStar Corporation is a holding company that was organized in October 2007 as a corporation under the laws of the State of Nevada. EchoStar is an industry leader in both networking technologies and services, innovating to deliver the global solutions that power a connected future for people, enterprises and things everywhere. EchoStar provides internet services to consumer customers, which include home and small to medium-sized businesses, and satellite and multi-transport technologies and managed network services to enterprise customers, telecommunications providers, aeronautical service providers and government entities, including the U.S. Department of Defense.
EchoStar Class A Common Stock is listed on the NASDAQ under the symbol “SATS.”
Additional information about EchoStar and its subsidiaries is included in the section entitled “Information about EchoStar” beginning on page 132 and in the documents incorporated by reference in this prospectus. See the section entitled “Where You Can Find More Information” beginning on page 158.
EAV Corp.
EAV Corp.
100 Inverness Terrace East
Englewood, Colorado 80112
Phone: (303) 706-4000
EAV Corp., a wholly owned subsidiary of EchoStar, is a Nevada corporation that was formed on August 25, 2023 for the purpose of effecting the Merger. Upon completion of the Merger, Merger Sub will be merged with and into DISH Network, with DISH Network surviving as a wholly owned subsidiary of
 
13

 
EchoStar. Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the Merger Agreement in connection with the Merger.
The Merger and the Merger Agreement (pages 31 and 91)
The terms and conditions of the Merger described below are contained in the Merger Agreement, which is attached to this document as Annex A and is incorporated by reference herein in its entirety. You are encouraged to read the Merger Agreement carefully, as it is the legal document that governs the Merger.
Pursuant to the Merger Agreement, among other things, subject to the satisfaction or waiver of the conditions set forth therein, EchoStar will acquire DISH Network by means of a merger of Merger Sub with and into DISH Network, with DISH Network surviving the Merger as a wholly owned subsidiary of EchoStar. At the Effective Time, (i) each share of DISH Network Class A Common Stock and DISH Network Class C Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock equal to the Exchange Ratio (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the DISH Network Articles of Incorporation) and (ii) each share of DISH Network Class B Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock equal to the Exchange Ratio. No shares of DISH Network Class C Common Stock are outstanding as of the date of this prospectus.
DISH Network’s Reasons for the Merger; Recommendation of the DISH Network Special Committee; Approval by the DISH Network Board (page 54)
After careful consideration, the DISH Network Special Committee unanimously: (i) determined that the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, are fair to and in the best interests of DISH Network and its stockholders (other than the Ergen DISH Stockholders); and (ii) recommended that the DISH Network Board adopt resolutions approving, adopting and declaring advisable the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, and recommending that DISH Network’s stockholders approve and adopt the Merger Agreement. The DISH Network Board, acting upon the unanimous recommendation of the DISH Network Special Committee, unanimously (i) duly and validly authorized and approved the execution, delivery and performance of the Merger Agreement and the consummation of the Merger by DISH Network; (ii) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, are fair to and in the best interests of DISH Network and its stockholders, (iii) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, and (iv) directed that the Merger Agreement be submitted to a vote of DISH Network’s stockholders and recommended in accordance with NRS 92A.120 that the DISH Network stockholders approve and adopt the Merger Agreement.
For the factors considered by the DISH Network Special Committee and DISH Network Board in reaching the decision to recommend and approve the Transaction Agreements and the transactions contemplated thereby, including the Merger, see “The Merger — DISH Network’s Reasons for the Merger; Recommendation of the DISH Network Special Committee; Approval by the DISH Network Board” beginning on page 54.
Opinion of J.P. Morgan Securities LLC, Financial Advisor to the DISH Network Special Committee (page 60)
The DISH Network Special Committee retained J.P. Morgan to act as its financial advisor to provide an opinion solely as to the fairness, from a financial point of view, to DISH Network of the Exchange Ratio. On October 2, 2023, J.P. Morgan rendered its oral opinion (which was subsequently confirmed by delivery of a written opinion dated as of October 2, 2023) to the DISH Network Special Committee and the DISH Network Board, respectively, that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing
 
14

 
its opinion, the Exchange Ratio in the Merger was fair, from a financial point of view, to the holders of DISH Network Class A Common Stock (other than the Ergen DISH Stockholders).
The summary of the written opinion of J.P. Morgan set forth in this prospectus is qualified in its entirety by reference to the full text of such opinion, a copy of which is attached as Annex C and is incorporated by reference into this prospectus. J.P. Morgan’s written opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion. DISH Network stockholders are urged to read the opinion in its entirety.
J.P. Morgan’s written opinion was addressed to the DISH Network Special Committee and the DISH Network Board in connection with and for the purposes of its evaluation of the Merger, was directed only to the Exchange Ratio in the Merger and did not address any other aspect of the Merger.
J.P. Morgan acted as financial advisor to the DISH Network Special Committee with respect to providing its opinion in connection with the DISH Network Special Committee’s review of the Merger. DISH Network has agreed to pay J.P. Morgan a total transaction fee of $5.0 million, $2.0 million of which became payable to J.P. Morgan in connection with delivery by J.P. Morgan of its opinion to the DISH Network Special Committee and the DISH Network Board on August 7, 2023, and the remainder of which becomes payable upon the completion of the Merger. In addition, DISH Network may, in its sole discretion, based on its assessment of J.P. Morgan’s performance of its services, pay J.P. Morgan an additional fee of up to $5.0 million upon the completion of the Merger. In addition, DISH Network has agreed to reimburse J.P. Morgan for its expenses incurred in connection with its services, including the fees and disbursements of counsel, and will indemnify J.P. Morgan against certain liabilities arising out of J.P. Morgan’s engagement.
EchoStar’s Reasons for the Merger; Recommendation of the EchoStar Special Committee; Approval by the EchoStar Board (page 70)
After careful consideration, the EchoStar Special Committee unanimously (i) declared and determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders), (ii) recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, and recommending that EchoStar’s stockholders approve the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement and (iii) declared and determined the Support Agreement and the transactions contemplated by the Support Agreement to be advisable and recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Support Agreement and the transactions contemplated by the Support Agreement. The EchoStar Board, acting upon the unanimous recommendation of the EchoStar Special Committee, unanimously (i) duly and validly authorized the execution, delivery and performance of the Merger Agreement and the consummation of the Merger by EchoStar, (ii) declared and determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders), (iii) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement, (iv) directed that the EchoStar Share Issuance be submitted to a vote of EchoStar’s stockholders, (v) recommended the approval of the EchoStar Share Issuance for purposes of the rules and regulations of NASDAQ by the holders of shares of EchoStar Common Stock and (vi) approved, adopted and declared advisable the Support Agreement and the transactions contemplated by the Support Agreement.
For the factors considered by the EchoStar Special Committee and EchoStar Board in reaching the decision to recommend and approve the Transaction Agreements and the transactions contemplated thereby, including the Merger, see “The Merger — EchoStar’s Reasons for the Merger; Recommendation of the EchoStar Special Committee; Approval by the EchoStar Board” beginning on page 70.
 
15

 
Opinion of Evercore Group L.L.C., Financial Advisor to the EchoStar Special Committee (page 74)
The EchoStar Special Committee retained Evercore Group L.L.C. (“Evercore”) to act as its financial advisor in connection with the EchoStar Special Committee’s evaluation of strategic and financial alternatives, including the Merger. As part of this engagement, the EchoStar Special Committee requested that Evercore evaluate the fairness of the Exchange Ratio pursuant to the Merger Agreement, from a financial point of view, to EchoStar. At a meeting of the EchoStar Special Committee held on October 1, 2023, Evercore rendered to the EchoStar Special Committee its oral opinion, subsequently confirmed by delivery of a written opinion dated October 1, 2023, that as of the date of such opinion and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the Exchange Ratio was fair, from a financial point of view, to EchoStar.
The full text of the written opinion of Evercore, dated October 1, 2023, which sets forth, among other things, the procedures followed, assumptions made, matters considered and qualifications and limitations on the scope of review undertaken in rendering its opinion, is attached as Annex D and is incorporated herein by reference into this prospectus in its entirety. You are urged to read Evercore’s opinion carefully and in its entirety. Evercore’s opinion was addressed to, and provided for the information and benefit of, the EchoStar Special Committee (solely in its capacity as such) in connection with its evaluation of the proposed Merger. The opinion does not constitute a recommendation to the EchoStar Special Committee or to any other persons in respect of the Merger, including as to how any holder of shares of EchoStar Common Stock should vote or act in respect of the Merger. Evercore’s opinion does not address the relative merits of the Merger as compared to other business or financial strategies that might be available to EchoStar, nor does it address the underlying business decision of EchoStar to engage in the Merger.
For further information, see the section entitled “The Merger — Opinion of Evercore Group L.L.C., Financial Advisor to the EchoStar Special Committee” beginning on page 16 and the full text of the written opinion of Evercore attached as Annex D to this prospectus.
Regulatory Approvals (page 89)
In connection with the Merger, the parties intend to make all required filings with the SEC and NASDAQ, as well as filings necessary to obtain specified approvals required under domestic satellite and communication laws and regulations. The completion of the Merger is contingent on making these filings and obtaining these regulatory approvals or consents, to the extent such approvals or consents are required.
The Merger is not reportable under the Hart-Scott-Rodino (“HSR”) Antitrust Improvements Act of 1976, as amended, and therefore no HSR filings with respect to the Merger are required with the United States Federal Trade Commission or the United States Department of Justice Antitrust Division.
Conditions to the Completion of the Merger (page 107)
The completion of the Merger is subject to the satisfaction or waiver of certain customary closing conditions, including:

the Required EchoStar Stockholder Vote having been obtained;

the Required DISH Network Stockholder Vote having been obtained;

the effectiveness of a registration statement on Form S-4 to register the issuance of EchoStar Class A Common Stock in connection with the Merger;

the expiration of a 20-day period (or such longer period as required by the applicable SEC rules and regulations) following the mailing of a prospectus to DISH Network’s and EchoStar’s stockholders;

no statute, rule or regulation that makes illegal the consummation of the Merger having been enacted, issued, enforced, promulgated or enacted and remaining in effect, and no order or injunction of a court of competent jurisdiction being in effect that prohibits the consummation of the Merger;

the satisfaction of the notification requirement under Section XVI of the Final Judgment in U.S. and Plaintiff States v. Deutsche Telekom AG, et al. of April 1, 2020 (Case No. 1:19-cv-02232-TJK);
 
16

 

the receipt of specified approvals required under domestic satellite and communication laws and regulations;

the shares of EchoStar Class A Common Stock to be issued pursuant to the Merger being approved for listing on the NASDAQ;

the accuracy of the other party’s representations and warranties, subject to certain materiality standards set forth in the Merger Agreement;

the compliance with the other party’s obligations under the Merger Agreement in all material respects; and

the absence of a material adverse effect on the other party since August 8, 2023.
The first condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery thereafter of the Ergen EchoStar Written Consent by the Ergen EchoStar Stockholders. The second condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery of the Ergen DISH Written Consent by the Ergen DISH Stockholders.
Termination of the Merger Agreement (page 109)
The Merger Agreement may be terminated at any time prior to the Effective Time by mutual written consent of DISH Network and EchoStar. The Merger Agreement may also be terminated by either DISH Network or EchoStar if the Merger has not been consummated by April 2, 2024, subject to certain exceptions. Further, either party may terminate the Merger Agreement, subject to specified qualifications and exceptions, if there has been a breach of any representation, warranty, covenant or agreement made by the other party in the Merger Agreement, or any such representation and warranty shall have become untrue (subject to certain materiality qualifiers) after the date of the Merger Agreement.
Interests of Directors and Executive Officers (page 141)
Certain directors and executive officers of DISH Network and EchoStar have interests in the Merger that may be different from, or in addition to, the interests of DISH Network and EchoStar stockholders generally. The DISH Network Special Committee and DISH Network Board and the EchoStar Special Committee and EchoStar Board were aware of and considered these interests, among other matters, in deciding to recommend and approve, as applicable, the terms of the Merger Agreement and the Merger. See “Interests of Affiliates in the Merger” beginning on page 141.
Mr. and Mrs. Ergen each beneficially own approximately 90.3% of the total voting power of all classes of DISH Network’s outstanding equity securities entitled to vote on matters brought before DISH Network stockholders and approximately 93.4% of the total voting power of all classes of EchoStar’s outstanding equity securities entitled to vote on matters brought before EchoStar stockholders.
Other than Mr. and Mrs. Ergen, the directors and executive officers of DISH Network and their affiliates collectively hold less than 1% of the total voting power of all classes of DISH Network’s outstanding equity securities entitled to vote on matters brought before DISH Network stockholders. Similarly, other than Mr. Ergen, directors and executive officers of EchoStar and their affiliates collectively hold less than 1% of the total voting power of all classes of EchoStar’s outstanding equity securities entitled to vote on matters brought before EchoStar stockholders. See “Information about DISH Network — Security Ownership of Certain Beneficial Owners and Management of DISH Network” beginning on page 128 and “Information about EchoStar — Security Ownership of Certain Beneficial Owners and Management of EchoStar” beginning on page 134.
The Merger must be approved, and the Merger Agreement must be adopted and approved, by the Required DISH Network Stockholder Vote, which condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery thereafter of the Ergen DISH Written Consent by the Ergen DISH Stockholders.
The approval of the Merger Agreement and the Merger by EchoStar does not require the affirmative vote or consent of EchoStar stockholders. The EchoStar Share Issuance must be approved by the Required
 
17

 
EchoStar Stockholder Vote, which condition was satisfied following the execution and delivery of the Merger Agreement through the execution and delivery thereafter of the Ergen EchoStar Written Consent by the Ergen EchoStar Stockholders.
Comparison of Rights of DISH Network Stockholders and EchoStar Stockholders (page 146)
At the Effective Time, stockholders of DISH Network will become stockholders of EchoStar. DISH Network and EchoStar are both organized under the laws of the State of Nevada. The rights of the DISH Network stockholders receiving the Merger Consideration will continue to be governed by the NRS, but will also be governed by the EchoStar Articles of Incorporation and the EchoStar Bylaws. These EchoStar documents are in some respects different than the terms of the DISH Network Articles of Incorporation and the DISH Network Bylaws, which currently govern the rights of DISH Network stockholders. The key differences are described in the section titled “Comparison of Rights of DISH Network Stockholders and EchoStar Stockholders” beginning on page 146.
Holders of EchoStar Common Stock will continue to own the shares of EchoStar Common Stock that such holders owned prior to the Merger, subject to the same rights as prior to the Merger, except that their shares of EchoStar Common Stock will represent an interest in EchoStar that also reflects the ownership of DISH Network and its subsidiaries.
Accounting Treatment of the Merger (page 90)
DISH Network and EchoStar prepare their respective financial statements in accordance with U.S. GAAP.
Mr. and Mrs. Ergen are the controlling stockholders of each of EchoStar and DISH Network. Therefore, the Merger is being accounted for as a transaction between entities under common control in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 805, Business Combinations, Subtopic 50, Related Issues, with EchoStar considered as the receiving entity because EchoStar will issue equity in connection with the Merger. Accordingly, as of the Closing, EchoStar will record DISH Network’s net assets at their carrying value, with no additional goodwill or other intangible assets recognized.
Upon the Closing, the net assets of DISH Network will be combined with those of EchoStar at their historical carrying amounts and DISH Network and EchoStar will be presented on a combined basis for all historical periods that the companies were under common control. Shares of EchoStar Common Stock issued to holders of DISH Network Common Stock in exchange for the outstanding shares of DISH Network Common Stock will be recorded at par value and historical weighted average basic and the diluted shares of DISH Network will be adjusted by the Exchange Ratio. Intercompany transactions between EchoStar and DISH Network will be eliminated from all historical periods.
Material U.S. Federal Income Tax Consequences (page 113)
For U.S. federal income tax purposes, the Merger is intended to be treated as a “reorganization” within the meaning of Section 368(a) of the Code. Assuming that the Merger so qualifies, for U.S. federal income tax purposes, U.S. holders (as defined in the section titled “Material U.S. Federal Income Tax Consequences”) will not recognize any gain or loss as a result of the Merger, except with respect to any cash received in lieu of a fractional share of EchoStar Common Stock. For additional information, please read the section titled “Material U.S. Federal Income Tax Consequences” beginning on page 113.
The discussion of the material U.S. federal income tax consequences contained in this prospectus is intended to provide only a general discussion and is not a complete analysis or description of all potential U.S. federal income tax consequences of the Merger. Such consequences may vary with, or be dependent on, individual circumstances. In addition, it does not address the effects of any foreign, state or local tax laws or any U.S. federal tax laws other than U.S. federal income tax laws.
Tax matters are complicated and the tax consequences of the Merger will depend on the facts of your own situation. You are urged to consult your own tax advisor as to the specific tax consequences to you as a result of the Merger in your particular circumstances.
 
18

 
No Dissenters’ Rights (page 157)
Neither DISH Network stockholders nor EchoStar stockholders will have dissenters’ rights to be paid the value of their shares in cash in connection with the Merger.
Summary of Risk Factors (page 22)
You should consider carefully all the risk factors together with all of the other information included in this prospectus. Some of these risks include, but are not limited to, those described below and in more detail in the section titled “Risk Factors” beginning on page 22.

While the Merger is pending, DISH Network and EchoStar will be subject to business uncertainties as well as contractual restrictions under the Merger Agreement that may have an adverse effect on their respective businesses.

EchoStar and DISH Network will incur significant expenses in connection with the Merger, which may adversely affect each company’s business, financial condition and results of operation.

The Merger Agreement restricts DISH Network’s and EchoStar’s ability to pursue alternatives to the Merger.

Failure to attract, motivate and retain executives and other key employees could diminish the anticipated benefits of the Merger.

Certain of DISH Network’s and EchoStar’s directors, executive officers and employees have interests in the Merger that may be different from, or in addition to, the interests of the DISH Network stockholders and EchoStar stockholders, respectively.

DISH Network and EchoStar may be subject to lawsuits relating to the Merger, which may impact the timing of the Closing and the parties’ ability to close the Merger and may adversely impact their respective businesses.

The market value of DISH Network Class A Common Stock and EchoStar Class A Common Stock may vary significantly prior to the Merger, and DISH Network Class A Stockholders therefore cannot be sure of the value of the consideration they will receive in the Merger.

The Merger is subject to a number of conditions, including receipt of certain regulatory approvals. Failure to complete the Merger could adversely affect the market price of EchoStar Class A Common Stock and/or DISH Network Class A Common Stock, as well as EchoStar’s and/or DISH Network’s business, financial condition and results of operations.

DISH Network currently has significant indebtedness as compared to EchoStar. Following the Merger, EchoStar stockholders will hold equity interests in a company with substantially higher leverage than EchoStar had prior to the Merger.

EchoStar may operate DISH Network’s business different from how it has been operated in the past.

The unaudited pro forma condensed combined financial data for EchoStar and unaudited prospective financial information in this prospectus is presented for illustrative purposes only, and EchoStar’s actual financial position and operations after the Merger may differ materially from the unaudited pro forma financial data included in this prospectus.

The respective opinions of the financial advisors to the DISH Network Special Committee and the EchoStar Special Committee will not reflect changes in circumstances between the signing of the Merger Agreement and the completion of the Merger.

If the Merger does not qualify as a tax-free merger under the Code, then the DISH Network stockholders may be required to pay substantial U.S. federal income taxes.

The businesses of DISH Network and EchoStar may not be integrated successfully or such integration may be more difficult, time consuming or costly than expected. Operating costs, customer loss and business disruption, including, but not limited to, difficulties in maintaining relationships with employees, customers, suppliers or vendors, may be greater than expected following the Merger. Synergies from the Merger may not be realized within expected timeframes or at all.
 
19

 

The market price for shares of EchoStar Class A Common Stock after the completion of the Merger may be affected by factors different from, or in addition to, those that historically have affected or currently affect the market prices of shares of DISH Network Class A Common Stock and EchoStar Class A Common Stock.

Following the Merger, EchoStar will continue to be controlled by one principal stockholder.
In addition, each of DISH Network and EchoStar is subject to various risks associated with its business. Please carefully read this prospectus, the documents incorporated herein by reference and the documents to which you are referred. See “Risk Factors” beginning on page 22 and “Where You Can Find More Information” beginning on page 158.
 
20

 
COMPARATIVE MARKET PRICE DATA
Shares of DISH Network Class A Common Stock currently trade on the NASDAQ under the symbol “DISH.” Shares of DISH Network Class B Common Stock and DISH Network Class C Common Stock are not listed or traded on a national securities exchange. As of November 3, 2023, the latest practicable trading day before the date of this prospectus, there were 295,954,937 shares of DISH Network Class A Common Stock outstanding, 238,435,208 shares of DISH Network Class B Common Stock outstanding and no shares of DISH Network Class C Common Stock outstanding.
Shares of EchoStar Class A Common Stock currently trade on the NASDAQ under the symbol “SATS.” Shares of EchoStar Class B Common Stock, EchoStar Class C Common Stock and EchoStar Class D Common Stock are not listed or traded on a national securities exchange. As of November 3, 2023, the latest practicable trading day before the date of this prospectus, there were 36,219,803 shares of EchoStar Class A Common Stock outstanding, 47,687,039 shares of EchoStar Class B Common Stock outstanding and no shares of either EchoStar Class C Common Stock or EchoStar Class D Common Stock outstanding.
The following table presents trading information for DISH Network Class A Common Stock and EchoStar Class A Common Stock on October 2, 2023, the last trading day before public announcement of the Merger Agreement, and November 3, 2023, the latest practicable trading day before the date of this prospectus. There is no public market for shares of DISH Network Class B Common Stock or shares of EchoStar Class B Common Stock.
DISH Network Class A Common Stock
EchoStar Class A Common Stock
Date
High
Low
Close
High
Low
Close
October 2, 2023
$ 5.92 $ 5.57 $ 5.59 $ 16.87 $ 15.99 $ 16.06
November 3, 2023
$ 5.56 $ 5.28 $ 5.49 $ 15.76 $ 14.95 $ 15.44
For illustrative purposes, the following table provides EchoStar Class A Common Stock equivalent per share information on each of the specified dates. EchoStar Class A Common Stock equivalent per share amounts are calculated by multiplying the per share price of each share of EchoStar Class A Common Stock by the Exchange Ratio, and rounded up or down to the nearest cent.
EchoStar Class A Common Stock
DISH Network Class A Common Stock
Date
High
Low
Close
High
Low
Close
October 2, 2023
$ 16.87 $ 15.99 $ 16.06 $ 5.92 $ 5.61 $ 5.64
November 3, 2023
$ 15.76 $ 14.95 $ 15.44 $ 5.53 $ 5.25 $ 5.42
 
21

 
RISK FACTORS
In reviewing the Merger described in this prospectus, you should consider carefully the following risk factors, together with all of the other information included in, or incorporated by reference into, this prospectus. In addition, you should read and consider the risks associated with the businesses of DISH Network and EchoStar. These risks can be found in each of DISH Network’s and EchoStar’s Annual Report on Form 10-K for the year ended December 31, 2022, respectively, as well as each of their respective subsequent Quarterly Reports on Form 10-Q, all of which are incorporated by reference herein. Please see the section titled “Where You Can Find More Information” beginning on page 158. This prospectus also contains forward-looking statements that involve risks and uncertainties. Please read the section titled “Special Note Regarding Forward-Looking Statements” beginning on page 30.
The risks described below are the material risks, although not the only risks, relating to the Merger and each of DISH Network and EchoStar in relation to the Merger. The risks described below are not the only risks that DISH Network and EchoStar currently face or that EchoStar will face after the consummation of the Merger. Additional risks and uncertainties not currently known or that are currently expected to be immaterial may also materially and adversely affect EchoStar’s business, financial condition or results of operations or the market price of EchoStar Class A Common Stock following the consummation of the Merger.
Risks Related to the Merger
While the Merger is pending, DISH Network and EchoStar will be subject to business uncertainties as well as contractual restrictions under the Merger Agreement that may have an adverse effect on their respective businesses.
The Merger will occur only if stated conditions are met, many of which are outside of DISH Network’s and EchoStar’s control. In addition, each of DISH Network and EchoStar has the right to terminate the Merger Agreement under specified circumstances. Accordingly, there may be uncertainty regarding the completion of the Merger. Further, there may be uncertainty about the effect of the Merger on employees, commercial partners and customers. Such uncertainty could cause customers and others to defer or decline entering into or extending contracts with, or making other decisions concerning, DISH Network and/or EchoStar, or to seek to change existing business relationships with either of them. Such uncertainty also may impair DISH Network’s and/or EchoStar’s ability to retain and motivate key personnel. These uncertainties may have an adverse effect on the companies’ respective businesses and, consequently, on EchoStar following the completion of the Merger.
In addition, the Merger Agreement contains customary covenants which restrict each of DISH Network and EchoStar, without the consent of the other party, from taking certain specified actions until the Merger closes or the Merger Agreement terminates. These restrictions may prevent DISH Network and EchoStar from pursuing otherwise attractive business opportunities that may arise prior to the completion of the Merger or termination of the Merger Agreement. For further information, see “The Merger Agreement — Conduct of Business Prior to the Merger’s Completion” beginning on page 100.
EchoStar and DISH Network will incur significant expenses in connection with the Merger, which may adversely affect each company’s business, financial condition and results of operation.
EchoStar and DISH Network each expect to incur significant, nonrecurring costs in connection with the completion of the Merger and the integration of the operations of the two companies, and may incur additional costs to maintain employee morale and to retain key employees. These nonrecurring costs include significant fees and expenses relating to legal, accounting and financial advisory fees, regulatory filings and other costs associated with the Merger. These expenses, certain of which are payable whether or not the Merger is completed, may not be offset by any benefits ultimately realized as a result of the Merger and could adversely affect the business, financial condition and results of operations of each of EchoStar and DISH Network.
The Merger Agreement restricts DISH Network’s and EchoStar’s ability to pursue alternatives to the Merger.
The Merger Agreement contains provisions that make it more difficult for DISH Network and EchoStar to enter into alternative transactions with third parties. The Merger Agreement prohibits DISH
 
22

 
Network and EchoStar from soliciting alternative acquisition proposals from third parties, providing information to third parties in connection with an alternative acquisition proposal and engaging in discussions with third parties regarding alternative acquisition proposals. These provisions could discourage a potential third-party acquirer that might have an interest in DISH Network or EchoStar from considering or pursuing an alternative transaction with DISH Network or EchoStar, respectively, or proposing such a transaction, even if it were prepared to pay consideration with a higher per share value than the total value proposed to be paid in the Merger. Further, because the Required DISH Network Stockholder Vote and the Required Echo Stockholder Vote, respectively, was obtained by virtue of the delivery of the Ergen DISH Written Consent and Ergen EchoStar Written Consent, respectively, no other action by DISH Network stockholders and EchoStar stockholders is required to complete the Merger, and therefore DISH Network and EchoStar cannot solicit, initiate, facilitate or otherwise take any further action relating to any alternative acquisition proposal. For further information, please see “The Merger Agreement — No Solicitation of Acquisition Proposals” beginning on page 102.
Failure to attract, motivate and retain executives and other key employees could diminish the anticipated benefits of the Merger.
The success of the Merger will depend in part on the retention of personnel critical to the business and operations of DISH Network and EchoStar due to, for example, their technical skills or management expertise. Competition for qualified personnel can be intense and qualified personnel can be in high demand. Current and prospective employees of DISH Network and EchoStar may experience uncertainty about their future role with DISH Network and EchoStar until strategies with regard to these employees are announced or executed, which may impair DISH Network’s and EchoStar’s ability to attract, retain and motivate key management, technical and other personnel prior to and following the Merger. Employee retention may be particularly challenging during the pendency of the Merger. If DISH Network and EchoStar are unable to retain personnel, including key management, who are critical to the successful integration and future operations of the companies, DISH Network and EchoStar could face, among other risks, disruptions in their operations, loss of existing customers, loss of key information, expertise or know-how, and unanticipated additional recruitment and training costs. In addition, the loss of key personnel could diminish the anticipated benefits of the Merger.
Certain of DISH Network’s and EchoStar’s directors, executive officers and employees have interests in the Merger that may be different from, or in addition to, the interests of the DISH Network stockholders and EchoStar stockholders, respectively.
Certain of DISH Network’s and EchoStar’s directors, executive officers and employees have interests in the Merger that may be different from, or in addition to, the interests of the DISH Network stockholders and EchoStar stockholders, respectively. These interests include, among others, Mr. Ergen’s continuation as director and Chairman of EchoStar after the Merger, Hamid Akhavan, the Chief Executive Officer and President of EchoStar, serving as President and Chief Executive Officer of the combined company following the Merger, the continued employment of certain other executive officers of DISH Network and EchoStar after the Merger, the continued positions of certain directors of DISH Network and EchoStar as directors of EchoStar after the Merger, and directors’, executive officers’ and employees’ equity holdings in both DISH Network and EchoStar. With respect to DISH Network’s directors and executive officers, these interests also include the treatment of previously granted equity awards in the Merger and the rights to continuing indemnification and directors’ and officers’ liability insurance. For further discussion please see “Interests of Affiliates in the Merger — Interests of Directors and Executive Officers of DISH Network in the Merger” beginning on page 141 and “Interests of Affiliates in the Merger — Interests of Directors and Executive Officers of EchoStar in the Merger” beginning on page 142. The DISH Network Special Committee and the EchoStar Special Committee and the DISH Network Board and the EchoStar Board were aware of and considered these interests, among other matters, in deciding to recommend and approve, respectively, the terms of the Merger Agreement and the Merger.
DISH Network and EchoStar may be subject to lawsuits relating to the Merger, which may impact the timing of the Closing and the parties’ ability to close the Merger and may adversely impact their respective businesses.
DISH Network and EchoStar and their respective directors, officers and advisors may be subject to lawsuits relating to the Merger. Litigation is very common in connection with the sale of public companies,
 
23

 
and lawsuits are often brought in an effort to enjoin the relevant merger or seek monetary relief. In particular, the interests of DISH Network’s and EchoStar’s respective directors, executive officers and employees in the Merger may increase the risk of litigation intended to enjoin or prevent the Merger and the risk of other dissident stockholder activity related thereto. In the past, and in particular following the announcement of a significant transaction, periods of volatility in the overall market or declines in the market price of a company’s securities, stockholder litigation and dissident stockholder proposals have often been instituted against companies alleging conflicts of interest in business dealings with affiliated or related persons and entities. The affiliation between DISH Network and EchoStar and the interests of their respective directors, executive officers and employees in the Merger may precipitate such activities by dissident stockholders and, if instituted against DISH Network or EchoStar and/or their respective directors or officers, such activities could result in substantial costs, a material delay or prevention of the Merger and a diversion of management’s attention, even if the stockholder action is without merit or ultimately unsuccessful.
DISH Network and EchoStar cannot predict whether such lawsuits will be brought against DISH Network or EchoStar and/or their respective directors, executive officers and employees, or the outcome of such lawsuits or others, nor can either company predict the amount of time and expense that will be required to resolve such litigation. An unfavorable resolution of any such litigation surrounding the Transaction Agreements and the Merger could delay or prevent the completion of the Merger, which may adversely affect DISH Network’s and/or EchoStar’s business, financial condition and results of operations. Further, the defense or settlement of any lawsuit or claim that remains unresolved at the time the Merger is completed may adversely affect the combined company’s business, financial condition, results of operations and cash flows following the Merger.
The market value of DISH Network Class A Common Stock and EchoStar Class A Common Stock may vary significantly prior to the Merger, and DISH Network Class A Stockholders therefore cannot be sure of the value of the consideration they will receive in the Merger.
On the terms and subject to the conditions set forth in the Merger Agreement, at the Effective Time, (i) each share of DISH Network Class A Common Stock and DISH Network Class C Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock equal to the Exchange Ratio (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the DISH Network Articles of Incorporation) and (ii) each share of DISH Network Class B Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock equal to the Exchange Ratio.
DISH Network Class B Common Stock and EchoStar Class B Common Stock are not listed or traded on a national securities exchange, and there are no shares of DISH Network Class C Common Stock outstanding. The market value of DISH Network Class A Common Stock and EchoStar Class A Common Stock at the Effective Time may vary significantly from the market value of such stock on October 2, 2023 (the last full trading day before the public announcement of the signing of the Merger Agreement), the date the Merger Agreement was executed or the date of this prospectus. Because the Exchange Ratio will not be adjusted to reflect any changes in the market price of DISH Network Class A Common Stock or EchoStar Class A Common Stock, the market price of EchoStar Class A Common Stock issued to DISH Network Class A Stockholders in the merger and the market value of DISH Network Class A Common Stock converted in the Merger may each be higher or lower than the values of those shares on earlier dates. Accordingly, at any time prior to the completion of the Merger, the DISH Network Class A Stockholders will not know or be able to determine the value of EchoStar Class A Common Stock they will receive as consideration at the Effective Time. Similarly, EchoStar will not know or be able to determine the value of the EchoStar Class A Common Stock that will be paid to DISH Network Class A Stockholders as consideration at the Effective Time.
Changes in the market price of DISH Network Class A Common Stock and EchoStar Class A Common Stock may result from a variety of factors that are beyond the companies’ control, including, but not limited to, changes in their respective businesses, operations and prospects, governmental actions, legal
 
24

 
proceedings and developments and other matters generally affecting the securities market. Market assessments of the benefits of the Merger, the likelihood that the Merger will be completed and general and industry-specific market and economic conditions may also have an effect on the market price of DISH Network Class A Common Stock and EchoStar Class A Common Stock. Neither DISH Network nor EchoStar is permitted to terminate the Merger Agreement solely because of changes in the market prices of DISH Network Class A Common Stock or EchoStar Class A Common Stock. You are urged to obtain up-to-date prices for DISH Network Class A Common Stock and EchoStar Class A Common Stock.
The Merger is subject to a number of conditions, including receipt of certain regulatory approvals. Failure to complete the Merger could adversely affect the market price of EchoStar Class A Common Stock and/or DISH Network Class A Common Stock, as well as EchoStar’s and/or DISH Network’s business, financial condition and results of operations.
The respective obligations of DISH Network and EchoStar to consummate the transactions contemplated by the Merger Agreement are subject to the satisfaction or waiver of a number of conditions, including, among others, the receipt of certain regulatory approvals. As a condition to granting the necessary approvals or clearances, governmental authorities may impose requirements, limitations or costs or place restrictions on the conduct of the business of the combined company after the completion of the Merger. Any one of these requirements, limitations, costs, or restrictions could jeopardize or delay the completion, or reduce the anticipated benefits, of the Merger. In addition, there is no guarantee that the conditions to closing will be satisfied (or, if applicable, validly waived) in a timely manner or at all, in which case the Closing may be delayed or may not occur and the benefits expected to result from the Merger may not be achieved. If the Merger is not completed for any reason, the ongoing businesses of DISH Network and EchoStar may be adversely affected, and DISH Network and EchoStar will be subject to several risks and consequences, including, but not limited to, the following:

each of DISH Network and EchoStar will be required to pay certain costs relating to the Merger regardless of whether the Merger is completed, such as significant fees and expenses relating to financial advisory, legal, accounting, consulting and other advisory fees and expenses and regulatory filings; and

matters relating to the Merger may require substantial commitments of time and resources by EchoStar management and DISH Network management and the expenditure of significant funds in the form of fees and expenses, which could otherwise have been devoted to day-to-day operations and other opportunities that may have been beneficial to DISH Network and EchoStar as separate companies, as the case may be.
In addition, if the Merger is not completed, DISH Network and/or EchoStar may experience negative reactions from the financial markets and from their respective employees, commercial partners and customers.
DISH Network and EchoStar also could be subject to litigation, including litigation related to failure to complete the Merger, or to enforce the other parties’ obligations under the Merger Agreement.
If the Merger is not completed, DISH Network and EchoStar cannot assure their respective stockholders that the risks described above will not materially affect the stock price, business, financial condition and results of operations of EchoStar and/or DISH Network
DISH Network currently has significant indebtedness as compared to EchoStar. Following the Merger, EchoStar stockholders will hold equity interests in a company with substantially higher leverage than EchoStar had prior to the Merger.
As of September 30, 2023, EchoStar had consolidated long-term debt outstanding of $1.5 billion in principal amount and total assets of approximately $6.2 billion, and DISH Network had consolidated long-term debt outstanding of approximately $21.2 billion in principal amount and total assets of approximately $53.7 billion. After giving effect to the Merger, EchoStar and its subsidiaries will have consolidated long-term debt of approximately $22.7 billion in principal amount on a combined basis and total consolidated assets of approximately $59.8 billion on a pro forma basis. Therefore, after the completion of the Merger, EchoStar stockholders will hold equity interests in a company with substantially higher leverage than EchoStar had prior to the Merger. DISH Network’s indebtedness could have significant consequences, including, but not limited to:

making it more difficult for EchoStar to satisfy its obligations;
 
25

 

a dilutive effect on EchoStar’s outstanding equity capital or future earnings;

increasing EchoStar’s vulnerability to general adverse economic conditions, including, but not limited to, changes in interest rates;

requiring EchoStar to devote a substantial portion of its cash toward making interest and principal payments on its indebtedness, thereby reducing the amount of cash available for other purposes, resulting in limited financial and operating flexibility to changing economic and competitive conditions;

limiting EchoStar’s ability to raise additional capital because it may be more difficult for it to obtain debt financing on attractive terms or at all; and

placing EchoStar at a disadvantage compared to its competitors that are less leveraged.
EchoStar may operate DISH Network’s business different from how it has been operated in the past.
After the completion of the Merger, DISH Network will be a wholly owned subsidiary of EchoStar and will no longer be a publicly traded company. EchoStar may operate DISH Network’s business in a manner different from how DISH Network has operated in the past, and may pursue different strategic objectives than DISH Network has pursued to date as a separate public company. As a result, DISH Network’s prior results may not be indicative of DISH Network’s future performance as a subsidiary of EchoStar, and such results should not be relied upon as an indicator of DISH Network’s performance after the completion of the Merger.
The unaudited pro forma condensed combined financial data for EchoStar and unaudited prospective financial information in this prospectus is presented for illustrative purposes only, and EchoStar’s actual financial position and operations after the Merger may differ materially from the unaudited pro forma financial data included in this prospectus.
The unaudited condensed combined pro forma financial data for EchoStar and the unaudited prospective financial information included in this prospectus are presented for illustrative purposes only and do not necessarily reflect the operating results or financial position that would have occurred if the Merger had been consummated on the dates indicated, nor are they necessarily indicative of the results of operations or financial condition that may be expected for any future period or date. Specifically, the preparation of the pro forma financial information includes transaction accounting adjustments that are based on estimates and assumptions. These transaction accounting adjustments are preliminary, subject to further revision as additional information becomes available and additional analyses are performed, and have been made solely for the purpose of providing unaudited pro forma condensed combined financial statements. Differences will exist between these preliminary estimates and the final Merger accounting, expected to be completed after the Closing, and these differences could have a material impact on the accompanying unaudited pro forma condensed combined financial statements EchoStar’s future results of operations and financial position. EchoStar has elected not to present the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur and has only presented transaction accounting adjustments in the pro forma financial statements. Therefore, the pro forma financial statements do not reflect any cost savings or associated costs to achieve such savings from operating efficiencies, synergies or other restructuring that may result from the Merger. Accordingly, such information should not be relied upon as an indicator of future performance, financial condition or liquidity.
The actual financial positions and results of operations of DISH Network and EchoStar prior to the Merger and that of EchoStar following the Merger may be different, possibly materially, from the unaudited pro forma combined financial statements or unaudited prospective financial information included in this prospectus. In addition, the assumptions used in preparing the unaudited pro forma combined financial statements and unaudited prospective financial information included in this prospectus may not prove to be accurate and may be affected by other factors. For more information see the sections entitled “The Merger — Certain Unaudited Prospective Financial Information” and “Unaudited Pro Forma Condensed Combined Financial Information” beginning on pages 86 and 117, respectively.
 
26

 
The respective opinions of the financial advisors to the DISH Network Special Committee and the EchoStar Special Committee will not reflect changes in circumstances between the signing of the Merger Agreement and the completion of the Merger.
The DISH Network Special Committee and the EchoStar Special Committee have received opinions from their respective financial advisors in connection with the signing of the Merger Agreement, but have not obtained updated opinions from their respective financial advisors as of the date of this prospectus. Changes in the operations and prospects of DISH Network or EchoStar, general market and economic conditions and other factors that may be beyond the control of DISH Network or EchoStar, and on which the financial advisors’ opinions were based, may significantly alter the value of DISH Network or EchoStar or the prices of the shares of DISH Network Class A Common Stock or of the shares of EchoStar Class A Common Stock by the Closing. The opinions do not speak as of the time the Merger will be completed or as of any date other than the date of such opinions. Because neither the DISH Network Special Committee nor the EchoStar Special Committee currently anticipates asking their respective financial advisors to update their opinions, the opinions will not address the fairness of the Merger Consideration or the Exchange Ratio, as applicable, from a financial point of view at the Closing. For a description of the opinions that the DISH Network Special Committee and the EchoStar Special Committee received from their respective financial advisors, see the sections entitled “The Merger — Opinion of J.P. Morgan Securities LLC, Financial Advisor to the DISH Network Special Committee” beginning on page 14 and “The Merger — Opinion of Evercore Group L.L.C., Financial Advisor to the EchoStar Special Committee” beginning on page 16. Copies of the opinions of J.P. Morgan and Evercore are attached as Annexes C and D, respectively, to this prospectus, and each is incorporated by reference herein in its entirety.
If the Merger does not qualify as a tax-free merger under the Code, then the DISH Network stockholders may be required to pay substantial U.S. federal income taxes.
Pursuant to the Merger Agreement, DISH Network and EchoStar will cooperate in good faith and use their respective reasonable best efforts to obtain an opinion of DISH Network’s (or the DISH Network Special Committee’s) tax counsel to be issued to DISH Network with respect to the treatment of the Merger as a “reorganization” within the meaning of Section 368(a) of the Code (a “Tax Opinion”), but the receipt of such Tax Opinion is not a condition to the completion of the Merger. DISH Network expects to receive a Tax Opinion, to be filed by amendment as Exhibit 8.1 to this prospectus, that based on customary assumptions, representations and covenants, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. Even if DISH Network receives such Tax Opinion, if any of the assumptions, representations or covenants on which the Tax Opinion is based is or becomes incorrect, incomplete, inaccurate or is otherwise not complied with, the validity of the Tax Opinion may be adversely affected and the tax consequences of the Merger could differ from those described herein. An opinion of counsel represents counsel’s legal judgment and is not binding on the IRS or any court. The parties do not intend to request any ruling from the IRS as to the U.S. federal income tax consequences of the Merger, and there can be no assurance that the IRS will not assert, or a court would not sustain, a position contrary to the intended tax treatment of the Merger described above.
If the Merger were taxable, DISH Network stockholders would be considered to have made a taxable sale of their DISH Network Common Stock to EchoStar and, consequently, DISH Network stockholders would recognize taxable gain or loss on their receipt of EchoStar Common Stock (and cash in lieu of fractional shares) in the Merger.
For a more detailed description of the U.S. federal income tax consequences of the Merger, see the section entitled “Material U.S. Federal Income Tax Consequences” beginning on page 18.
Risks Related to the Business of EchoStar Following the Merger
The businesses of DISH Network and EchoStar may not be integrated successfully or such integration may be more difficult, time consuming or costly than expected. Operating costs, customer loss and business disruption, including, but not limited to, difficulties in maintaining relationships with employees, customers, suppliers or vendors, may be greater than expected following the Merger. Synergies from the Merger may not be realized within expected timeframes or at all.
The Merger involves the combination of two companies that, although under common control and subject to existing commercial relationships, currently operate as separate public companies. The combination
 
27

 
of two separate companies is complex, costly and time-consuming and may require significant management attention and resources which may divert attention from DISH Network’s and EchoStar’s respective ongoing businesses and operations. The failure to meet the challenges involved in combining the two companies and to realize the anticipated benefits of the Merger could cause an interruption of, or a loss of momentum in, the activities of DISH Network and/or EchoStar and could adversely affect the results of operations of the combined company following the Merger. The overall combination of the two companies may also result in material unanticipated problems, expenses, liabilities, competitive responses and loss of customer and other business relationships. The difficulties of combining the operations of the companies include, among others:

the diversion of management and employee attention to integration matters;

difficulties in integrating operations and systems, including, but not limited to, communications systems, administrative and information technology infrastructure and financial reporting and internal control systems;

challenges in conforming standards, controls, procedures and accounting and other policies, business cultures and compensation structures between the two companies;

difficulties in integrating employees and teams of the respective businesses, and attracting and retaining key personnel;

challenges in retaining and obtaining customers, suppliers and other commercial relationships;

difficulties in managing the expanded operations of a larger and more complex company; and

potential unknown liabilities, adverse consequences and unforeseen increased expenses associated with the Merger.
Many of these factors are outside of DISH Network’s and EchoStar’s control and any one of them could result in lower revenues, higher costs and diversion of management time and energy, which could materially impact the business, financial condition and results of operations of EchoStar after the Merger. In addition, even if the operations of the companies are integrated successfully, the full benefits of the Merger may not be realized, including, among others, the synergies, cost savings or sales or growth opportunities that are expected. These benefits may not be achieved within the anticipated time frame or at all. All of these factors could negatively impact the price of the EchoStar Class A Common Stock following the Merger. As a result, it cannot be assured that the combination of the two companies will result in the realization of the full benefits expected from the Merger within the anticipated time frames, or at all.
The market price for shares of EchoStar Class A Common Stock after the completion of the Merger may be affected by factors different from, or in addition to, those that historically have affected or currently affect the market prices of shares of DISH Network Class A Common Stock and EchoStar Class A Common Stock.
Upon consummation of the Merger, DISH Network Class A Stockholders will become holders of EchoStar Class A Common Stock. The businesses of DISH Network and its subsidiaries are different from those of EchoStar and its subsidiaries. Accordingly, after the consummation of the Merger, the results of operations of each company will be affected by some factors that are different from those currently or historically affecting the results of operations of EchoStar and those currently or historically affecting the results of operations of DISH Network. The results of operations of each company may also be affected by factors different from those that currently affect or have historically affected either company. For a discussion of the businesses of each of DISH Network and EchoStar and some important factors to consider in connection with those businesses, please see the sections entitled “Information about DISH Network” beginning on page 127 and “Information about EchoStar” beginning on page 132 and the documents and information included elsewhere in this prospectus or incorporated by reference into this prospectus and listed under the section entitled “Where You Can Find More Information” beginning on page 158.
Following the Merger, EchoStar will continue to be controlled by one principal stockholder.
DISH Network and EchoStar are each controlled by Mr. Ergen, who also serves as the Chairman of both companies and will continue to serve as the Chairman of EchoStar following the consummation of
 
28

 
the Merger. As of the Beneficial Owners’ Record Date, Mr. Ergen beneficially owns approximately 51.4% of the outstanding shares of DISH Network Class A Common Stock and 100% of the outstanding shares of DISH Network Class B Common Stock (which together constitute approximately 90.3% of the total voting power of DISH Network equity securities (assuming no conversion of the shares of DISH Network Class B Common Stock and after giving effect to the exercise of Mr. Ergen’s employee stock options that are either currently exercisable or may become exercisable within 60 days of the Beneficial Owners’ Record Date)), and also beneficially owns approximately 59.8% of the EchoStar Class A Common Stock and 100% of the EchoStar Class B Common Stock (which together constitute approximately 93.4% of the total voting power of EchoStar equity securities (assuming no conversion of the shares of EchoStar Class B Common Stock and after giving effect to the exercise of Mr. Ergen’s employee stock options that are either currently exercisable or may become exercisable within 60 days of the Beneficial Owners’ Record Date)).
Pursuant to the Support Agreement, Mr. Ergen and the other Ergen Stockholders have agreed not to vote, or cause or direct to be voted, the shares of EchoStar Class A Common Stock owned by them, other than with respect to any matter presented to the holders of EchoStar Class A Common Stock on which holders of EchoStar Class B Common Stock are not entitled to vote, for three years following the Closing, such that the Ergen Stockholders’ voting power of EchoStar will be approximately 90.4% for such three-year period. Through his beneficial ownership of DISH Network’s and EchoStar’s equity securities, Mr. Ergen has the ability to elect a majority of the directors and to control all other matters requiring the approval of DISH Network or EchoStar stockholders, and will continue to have such ability as to EchoStar following completion of the Merger. As a result of Mr. Ergen’s voting power, DISH Network and EchoStar currently each are, and following the Merger EchoStar will continue to be, a “controlled company” as defined in the NASDAQ listing rules and, therefore, not subject to certain NASDAQ requirements relating to director independence and nomination and board committee composition.
Following the Merger, EchoStar will continue to be controlled by its principal stockholder and it will be difficult for a third party to acquire EchoStar without Mr. Ergen’s approval, even if doing so may be beneficial to stockholders.
In addition, pursuant to the Support Agreement, prior to the Closing and at the request of the Ergen Stockholders, EchoStar and the Ergen Stockholders will enter into a registration rights agreement reasonably acceptable to the parties providing for the registration of the Ergen Stockholders’ shares of EchoStar Class A Common Stock or EchoStar Class B Common Stock received as part of the Merger Consideration and/or EchoStar Class B Common Stock held by such stockholders immediately prior to the Closing, at EchoStar’s sole cost and expense. The Ergen Stockholders have requested such entry into a registration rights agreement, which is expected to be entered into between EchoStar and the Ergen Stockholders on or prior to the Closing.
Other Risk Factors of DISH Network and EchoStar
In addition to the risks detailed herein, DISH Network and EchoStar are, and will continue to be, subject to the risks described in DISH Network’s and EchoStar’s respective Annual Reports on Form 10-K for the fiscal year ended December 31, 2022, as well as each of their respective subsequent Quarterly Reports on Form 10-Q, as, in each case, updated by any subsequent Current Reports on Form 8-K, all of which are filed with the SEC and are incorporated by reference into this prospectus. See “Where You Can Find More Information” beginning on page 158.
 
29

 
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act, and Section 21E of the Exchange Act, including, in particular, statements about plans, objectives and strategies, growth opportunities in a company’s industries and businesses, its expectations regarding future results, financial condition, liquidity and capital requirements, estimates regarding the impact of regulatory developments and legal proceedings, and other trends and projections. Forward-looking statements are not historical facts and may be identified by words such as “future,” “anticipate,” “intend,” “plan,” “goal,” “seek,” “believe,” “estimate,” “expect,” “predict,” “will,” “would,” “could,” “can,” “may,” and similar terms. These forward-looking statements are based on information available to DISH Network and EchoStar as of the date of this prospectus and represent management’s current views and assumptions. Forward-looking statements are not guarantees of future performance, events or results and involve known and unknown risks, uncertainties and other factors, which may be beyond the control of DISH Network or EchoStar. Accordingly, actual performance, events or results could differ materially from those expressed or implied in the forward-looking statements due to a number of factors, including, but not limited to, the following:

the impact of certain potential events on the timing of the Closing;

the outcome of any lawsuits relating to the Merger that may be instituted against DISH Network or EchoStar following the announcement of the Merger Agreement;

the inability to close the Merger, including due to failure to obtain regulatory approvals or to satisfy other conditions to the Closing;

the risk that the Merger disrupts the business, financial condition and/or results of operations of DISH Network or EchoStar;

the ability to realize synergies from the Merger within expected time-frames or at all, and the potential impact of the Merger on operating costs, customer loss and business disruption to, among other things, relationships with employees, customers, suppliers or vendors;

costs related to the Merger;

the tax treatment of the Merger;

the inability to attract, motivate and retain executives and other key employees of DISH Network and/or EchoStar;

other risks and uncertainties indicated from time to time in this prospectus relating to the Merger, including those specified in DISH Network’s and EchoStar’s respective filings with the SEC.
The foregoing list of factors is not exclusive. Additional information concerning these and other risk factors is contained in each of DISH Network’s and EchoStar’s most recently filed Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q, recent Current Reports on Form 8-K, and other SEC filings. All cautionary statements made or referred to herein should be read as being applicable to all forward-looking statements wherever they appear. You should consider the risks and uncertainties described or referred to herein and should not place undue reliance on any forward-looking statements. The forward-looking statements speak only as of the date made, and DISH Network and EchoStar expressly disclaim any obligation to update these forward-looking statements.
 
30

 
THE MERGER
This discussion of the Merger is qualified in its entirety by reference to the Merger Agreement, which is attached to this prospectus as Annex A and incorporated by reference herein in its entirety. You should read the entire Merger Agreement carefully as it is the legal document that governs the Merger.
Structure of the Merger
The Merger Agreement provides for the acquisition of DISH Network by EchoStar by means of a merger of Merger Sub with and into DISH Network, with DISH Network surviving the Merger as a wholly owned subsidiary of EchoStar. See “The Merger Agreement — Structure of the Merger” beginning on page 91.
The following diagram illustrates in simplified terms the current EchoStar structure and the expected structure of EchoStar following the completion of the Merger.
Current Structure of EchoStar
[MISSING IMAGE: fc_current-bwlr.jpg]
Post-Merger Structure of EchoStar
[MISSING IMAGE: fc_postmerger-bwlr.jpg]
Merger Consideration
On the terms and subject to the conditions set forth in the Merger Agreement, at the Effective Time, (i) each share of DISH Network Class A Common Stock and DISH Network Class C Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class A Common Stock equal to the Exchange Ratio (with all shares of DISH Network Class C Common Stock outstanding, if any, treated for purposes of this calculation as if converted into DISH Network Class A Common Stock at the effective conversion rate set forth in the DISH Network Articles of Incorporation) and (ii) each share of DISH Network Class B Common Stock outstanding immediately prior to the Effective Time will be converted into the right to receive a number of validly issued, fully paid and non-assessable shares of EchoStar Class B Common Stock equal to the Exchange Ratio. There are no shares of DISH Network Class C Common Stock outstanding
 
31

 
as of the date of this prospectus. Following the Merger, DISH Network stockholders will receive cash in lieu of any fractional share of EchoStar Common Stock.
Background of the Merger
The following chronology summarizes the key meetings and events that led to the signing of the Merger Agreement. The following chronology does not purport to catalogue every conversation among the DISH Network Board, EchoStar Board, their respective Special Committees or the representatives of each company, their respective advisors or any other persons. The dates noted below occurred in the year 2023 unless otherwise indicated.
The management and boards of directors of DISH Network and EchoStar regularly review the performance, strategy, competitive position, opportunities and prospects of their respective companies in light of, among other factors, the then-current business and economic environments, as well as developments in the industries in which the companies operate, and the opportunities and challenges facing participants in those industries. These reviews have included discussion and consideration of industry developments and potential strategic transactions, including business combinations, joint ventures, technology sharing and other strategic alternatives, and have provided opportunities for the boards of directors of DISH Network and EchoStar to make any and all inquiries they deem necessary and advisable.
On January 9, the DISH Network Board held a meeting. At the meeting, the DISH Network Board discussed potential business opportunities, including among others, opportunities that could arise or be enabled by working with EchoStar, whether effected through commercial arrangements, a combination with or acquisition of EchoStar or otherwise. The DISH Network Board discussed the possible rationale behind a potential transaction and the potential strategic synergies and certain potential conflicts of interest between DISH Network and EchoStar, including that Mr. Charles W. Ergen served as Chairman of each of the DISH Network Board and the EchoStar Board and owned, along with the other Ergen Stockholders, a controlling equity interest in each company. DISH Network management agreed to consult with counsel to determine whether the formation of a special transaction committee of independent directors was appropriate at this time.
On February 7, the DISH Network Board held a meeting. At the meeting, the DISH Network Board discussed potential business opportunities that could arise or be enabled by working with EchoStar, whether effected through commercial arrangements, a combination with or acquisition of EchoStar or otherwise. The DISH Network Board discussed the possible rationale behind a potential transaction with EchoStar and the potential strategic synergies and certain potential conflicts of interest between DISH Network and EchoStar, including that Mr. Ergen served as Chairman of each of the DISH Network Board and the EchoStar Board and owned, along with the other Ergen Stockholders, a controlling equity interest in each company. During the discussion, Mr. Ergen noted that he and the other Ergen Stockholders would consider supporting such a transaction if it had been vetted, negotiated and recommended by committees of independent directors of each of DISH Network and EchoStar. DISH Network management noted that, after review with counsel, management recommended forming a special transaction committee of independent directors at this time. Following discussion, the DISH Network Board resolved to form the DISH Network Special Committee, which consisted of three independent directors, Ms. Kathleen Q. Abernathy and Messrs. George R. Brokaw and Joseph T. Proietti, in order to, among other things, evaluate the prospect of working with EchoStar, including through a potential combination with or acquisition of EchoStar and, if it deemed advisable or appropriate, oversee the negotiation of the price, structure, form, terms and conditions of a potential combination with or acquisition of EchoStar. The DISH Network Board also authorized the committee to retain independent legal, financial and other advisors as it deemed appropriate.
On February 7, the DISH Network Special Committee instructed DISH Network management to conduct a preliminary analysis of EchoStar’s business based on publicly available information and present to the DISH Network Special Committee the results of their preliminary analysis of the EchoStar business and potential areas for further collaboration between DISH Network and EchoStar, including what nonpublic information was needed from EchoStar for DISH Network management to be able to complete its analysis.
 
32

 
On February 24, the DISH Network Special Committee held a meeting. Representatives of Wachtell, Lipton, Rosen & Katz (“Wachtell Lipton”), counsel to the DISH Network Special Committee, and members of DISH Network management, Timothy Messner, Executive Vice President, General Counsel and Corporate Secretary of DISH Network, and Thomas Cullen, Executive Vice President, Corporate Development of DISH Network, were present at the meeting by invitation of the DISH Network Special Committee. Mr. Cullen reviewed with the DISH Network Special Committee, based on an analysis of publicly available information, the potential business rationales in support of pursuing a potential strategic transaction between DISH Network and EchoStar at that time, information regarding EchoStar’s and DISH Network’s respective businesses, including, but not limited to, their respective S-Band portfolios, an analysis of potential synergies and dissynergies associated with a potential strategic transaction and open questions which would be helpful for DISH Network management to complete its analysis of a potential strategic transaction between DISH Network and EchoStar.
On February 27, the DISH Network Special Committee held a meeting. Representatives of Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. At the meeting, the DISH Network Special Committee discussed the presentation from DISH Network management at the prior meeting and discussed the potential benefits and risks of pursuing a strategic transaction involving EchoStar at that time, nonpublic information that may be needed in order for the DISH Network Special Committee to complete its analysis regarding the advisability of a strategic transaction, whether to engage financial or other advisors and the form and timing of outreach to EchoStar regarding a potential transaction. The DISH Network Special Committee also discussed with representatives of Wachtell Lipton the terms of a potential non-disclosure agreement that would be entered into with EchoStar if EchoStar were amenable to exploring the advisability of a potential strategic transaction involving the two companies. Members of the DISH Network Special Committee also noted that a transaction with EchoStar might take various forms, from a joint venture or asset purchase or another strategic transaction relating to the respective companies’ S-Band portfolios, to a full business combination, and that the DISH Network Special Committee should consider a range of alternatives. Following discussion, the DISH Network Special Committee determined to instruct management to inform EchoStar that DISH Network had formed a special transaction committee to consider the advisability of a potential strategic transaction and that the exchange of nonpublic information was needed in order for the DISH Network Special Committee to complete its analysis. The DISH Network Special Committee also determined to wait until the process had progressed further before deciding whether to engage a financial advisor.
On March 7, Ms. Abernathy, on behalf of the DISH Network Special Committee, indicated to W. Erik Carlson, President and Chief Executive Officer of DISH Network, and Mr. Messner that the DISH Network Special Committee’s work to date suggested there may be strategic benefits to a business combination involving DISH Network and EchoStar and that the DISH Network Special Committee understood, based on the February 7 meeting of the DISH Network Board, that Mr. Ergen would consider supporting a transaction if recommended by independent committees of both companies’ boards of directors. On that basis, Ms. Abernathy instructed Mr. Carlson and/or Mr. Messner to contact EchoStar senior management and discuss with them the potential formation of a special transaction committee of independent directors at EchoStar to review and, if appropriate, negotiate a transaction with the DISH Network Special Committee, subject to final board approval based on a committee recommendation. Ms. Abernathy requested that, in the event that the EchoStar special committee was formed, representatives of the EchoStar special committee contact either Ms. Abernathy or representatives of Wachtell Lipton to discuss potential next steps.
On March 7, Messrs. Messner and Carlson contacted Hamid Akhavan, Chief Executive Officer and President of EchoStar, and Dean Manson, Chief Legal Officer of EchoStar, to indicate that the DISH Network Board had formed the DISH Network Special Committee to, among other things, evaluate the prospect of a potential combination or other strategic transaction with EchoStar and, if appropriate, negotiate such a transaction with a special transaction committee of independent directors of the EchoStar Board.
From March 7 through March 14, each member of the DISH Network Special Committee completed and executed a questionnaire confirming his or her independence from DISH Network, EchoStar and the Ergen Stockholders and returned the questionnaire to representatives of Wachtell Lipton.
On March 8, Messrs. Akhavan and Manson informed the independent directors on the EchoStar Board that they had been contacted by Messrs. Messner and Carlson, and suggested that such directors
 
33

 
convene a meeting to further discuss the matters. Later on March 8, Messrs. Akhavan and Manson held a meeting with Mr. R. Stanton Dodge, Ms. Lisa W. Hershman, Messrs. C. Michael Schroeder, Jeffrey R. Tarr and William D. Wade, each independent directors on the EchoStar Board. At the meeting, Messrs. Akhavan and Manson informed the independent directors that Messrs. Messner and Carlson had contacted them to indicate that the DISH Network Board had formed the DISH Network Special Committee to, among other things, evaluate the prospect of a potential combination or other strategic transaction with EchoStar and, if appropriate, negotiate such a transaction with a special transaction committee of the EchoStar Board. The independent directors discussed, among other matters, that it could be advisable for them to potentially engage outside counsel and consider the potential formation of a special transaction committee of the EchoStar Board.
On March 21, Messrs. Dodge, Schroeder and Wade, each independent directors on the EchoStar Board, met with representatives of Cravath, Swaine & Moore LLP (“Cravath”). Mr. Manson and representatives of White & Case LLP (“White & Case”), counsel to EchoStar, were also present by invitation for certain portions of the meeting. The independent directors and Cravath discussed Cravath’s potential engagement as counsel to the special transaction committee of the EchoStar Board that was expected to be formed in connection with the exploration of a potential transaction with DISH Network.
From March 24 to March 29, representatives of Cravath conducted interviews with each of Messrs. Dodge, Schroeder, Tarr and Wade and Ms. Hershman to confirm his or her independence from EchoStar, DISH Network and the Ergen Stockholders.
On March 31, Messrs. Dodge, Schroeder, Tarr and Wade and Ms. Hershman, each independent directors on the EchoStar Board, met with representatives of Cravath. The independent directors discussed with Cravath considerations relating to the potential formation of a special transaction committee of the EchoStar Board and the potential retention of a financial advisor by such committee.
On April 3, the EchoStar Board held a meeting. Messrs. Akhavan and Manson and representatives of White & Case and Cravath were present at the meeting, by invitation of the EchoStar Board. At the meeting, a representative of White & Case reviewed with the EchoStar Board its fiduciary duties in the context of considering a potential strategic transaction between EchoStar and DISH Network. A representative of Cravath presented the EchoStar Board with the results of the interviews conducted by Cravath regarding the independence of each of Messrs. Dodge, Schroeder, Tarr and Wade and Ms. Hershman from EchoStar, DISH Network and the Ergen Stockholders. The EchoStar Board then discussed its preliminary thoughts regarding the potential rationale of a strategic transaction with DISH Network. Following discussion, the EchoStar Board resolved to form the EchoStar Special Committee, consisting of five independent directors, Messrs. Dodge, Schroeder, Tarr and Wade and Ms. Hershman, each of whom was determined by the EchoStar Board to be independent and disinterested under applicable law for purposes of a potential transaction with DISH Network, to, among other things, explore, review, consider and evaluate a potential transaction with DISH Network, including by exploring, reviewing, considering and evaluating any alternative to a potential transaction with DISH Network that the EchoStar Special Committee deems appropriate, and if the EchoStar Special Committee determines that it is advisable to investigate further or pursue the potential transaction with DISH Network, conduct negotiations with respect thereto.
Following the April 3 meeting of the EchoStar Board, representatives of Cravath, counsel to the EchoStar Special Committee, contacted representatives of six internationally recognized investment banks, including Evercore, about potentially advising the EchoStar Special Committee and scheduled meetings with each to present their respective qualifications to the EchoStar Special Committee.
On April 5, a representative of Cravath contacted representatives of Wachtell Lipton to discuss potential next steps with respect to exploring a potential transaction. Representatives of Wachtell Lipton noted they intended to share a draft non-disclosure agreement in short order and as a next step the DISH Network Special Committee expected that there would be a mutual exchange of key business due diligence information in order to inform the respective Special Committees’ review of the advisability of a strategic transaction between DISH Network and EchoStar.
Also on April 5, Mr. Brokaw, on behalf of the DISH Network Special Committee, contacted representatives of J.P. Morgan and another internationally recognized investment bank (“Investment
 
34

 
Bank B”) about potentially advising the DISH Network Special Committee, and scheduled meetings with each investment bank to present their respective qualifications to the DISH Network Special Committee.
From April 6 to April 13, the EchoStar Special Committee, with representatives of Cravath present by invitation of the EchoStar Special Committee (and with Messrs. Akhavan and Manson present for certain portions of the meeting by invitation of the EchoStar Special Committee), conducted interviews of the six internationally recognized investment banks previously contacted by Cravath to act as financial advisor to the EchoStar Special Committee. As part of these interviews, the EchoStar Special Committee requested disclosure from each potential financial advisor of any relationships or previous engagements with EchoStar, DISH Network or Mr. Ergen.
Also on April 6, Wachtell Lipton, on behalf of the DISH Network Special Committee, shared a draft non-disclosure agreement with Cravath, on behalf of the EchoStar Special Committee.
From April 13 to April 24, the EchoStar Special Committee held a number of meetings at which representatives of Cravath presented the terms of engagement proposed by each of the potential financial advisors, and at which Messrs. Akhavan and Manson were also present for certain portions by invitation of the EchoStar Special Committee. During the course of such meetings, the EchoStar Special Committee directed Mr. Dodge, Mr. Akhavan and representatives of Cravath to request revised proposals for terms of engagement and/or further information.
On April 14, DISH Network and EchoStar executed a non-disclosure agreement, which had been negotiated between representatives of Wachtell Lipton and Cravath on behalf of the respective Special Committees, to facilitate the parties’ exchange of certain non-public information and respective evaluation of a potential transaction.
On April 18, the DISH Network Special Committee held a meeting. Representatives of Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Mr. Cullen and representatives of J.P. Morgan and Investment Bank B were also present by invitation for certain portions of the meeting. Following discussions with representatives of each investment bank regarding such investment bank’s qualifications to be retained by the DISH Network Special Committee and from Mr. Cullen regarding DISH Network management’s preliminary assessment of the opportunity for a potential strategic transaction between DISH Network and EchoStar, the DISH Network Special Committee determined that it would be appropriate to engage a financial advisor and instructed the representatives of Wachtell Lipton to negotiate the terms of such engagement with J.P. Morgan, subject to final approval by the DISH Network Special Committee.
On April 26 and April 27, the EchoStar Special Committee held meetings. Representatives of Cravath were present at the meetings by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation for certain portions of the meetings. The EchoStar Special Committee discussed the interviews of the potential financial advisors, including the merits of each such prospective financial advisor, with input from Messrs. Akhavan and Manson. Following the discussions, the EchoStar Special Committee determined that it would be appropriate and advisable to retain Evercore as financial advisor to the EchoStar Special Committee and instructed the representatives of Cravath to negotiate the terms of such engagement with Evercore, subject to final approval by the EchoStar Special Committee. Thereafter, Evercore and the EchoStar Special Committee executed an engagement letter on May 3.
On April 28, the DISH Network Board held a regularly scheduled meeting. During the meeting, members of the DISH Network Special Committee provided an update to the DISH Network Board on the activities of the DISH Network Special Committee, including that the DISH Network Special Committee had engaged with independent counsel and met with prospective financial advisers. The members of the DISH Network Special Committee discussed, among other things, the benefits to be derived from, and the potential risks associated with, a potential strategic transaction with EchoStar, including, but not limited to, certain synergies, business initiatives and long-term strategic plans between DISH Network and EchoStar.
On May 4, the DISH Network Special Committee held a meeting. Representatives of Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of Wachtell Lipton presented an overview of the terms of the potential engagement of J.P. Morgan and J.P. Morgan’s disclosure regarding its relationships with DISH Network, EchoStar and the Ergen
 
35

 
Stockholders. After discussion, the DISH Network Special Committee determined to approve the engagement of J.P. Morgan on the terms discussed. J.P. Morgan, DISH Network and the DISH Network Special Committee executed an engagement letter on June 1.
Also on May 4, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Representatives of Cravath relayed an update, received from Wachtell Lipton, that the DISH Network Special Committee intended to engage J.P. Morgan as its financial advisor and that the EchoStar Special Committee could expect to receive a preliminary request for information from the DISH Network Special Committee in the near term. The EchoStar Special Committee authorized Evercore to liaise directly with EchoStar management in order to begin conducting financial and business due diligence on EchoStar in preparation for any potential request for information from the DISH Network Special Committee and for purposes of Evercore’s independent financial analyses in connection with the EchoStar Special Committee’s evaluation of potential strategic alternatives available to EchoStar. Thereafter, representatives of Evercore met with members of EchoStar management on May 5, with representatives of Cravath in attendance, to begin such financial and business due diligence.
On May 9, representatives of Wachtell Lipton, at the direction of the DISH Network Special Committee, sent representatives of Cravath a list of key business due diligence requests for EchoStar (the “DISH Initial RFI”) as well as a draft potential timeline for the exchange of information in the coming weeks.
Also on May 9, at the EchoStar Special Committee’s direction, representatives of Cravath shared the DISH Initial RFI and the draft potential timeline with EchoStar management, and EchoStar management began to gather information responsive to the DISH Initial RFI.
On May 10, representatives of Evercore, with representatives of Cravath in attendance, met with members of EchoStar management to discuss the initial financial information provided by EchoStar management to Evercore.
On May 11, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson and representatives of White & Case were also present by invitation for certain portions of the meeting. Representatives of Evercore provided the EchoStar Special Committee with an update on progress made to date in providing DISH Network with information responsive to the DISH Initial RFI. Representatives of Evercore also presented a draft of key business due diligence requests for DISH Network and, after reviewing, the EchoStar Special Committee directed Cravath to send such requests to Wachtell Lipton, on behalf of the DISH Network Special Committee. Mr. Akhavan also provided the EchoStar Special Committee with an update on EchoStar’s standalone strategy.
Later on May 11, representatives of Cravath, at the direction of the EchoStar Special Committee, sent representatives of Wachtell Lipton the list of key business due diligence requests for DISH Network (the “EchoStar Initial RFI”).
On May 15, representatives of J.P. Morgan, Wachtell Lipton and DISH Network management held an introductory call to discuss the EchoStar Initial RFI and the confidential financial information available.
On May 16, representatives of Evercore, at the direction of the EchoStar Special Committee, opened a virtual data room (the “EchoStar VDR”) to facilitate the provision of information responsive to the DISH Initial RFI.
On May 24, J.P. Morgan, at the direction of the DISH Network Special Committee, opened a virtual data room (the “DISH VDR”) to facilitate the provision of information responsive to the EchoStar Initial RFI.
On May 25, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation of the EchoStar Special Committee for certain portions of the meeting. Representatives of Evercore provided an update on the provision by EchoStar and DISH Network of
 
36

 
information responsive to the DISH Initial RFI and the EchoStar Initial RFI, respectively. Mr. Akhavan also provided the EchoStar Special Committee with an update on EchoStar’s standalone strategy.
On June 1, the EchoStar Special Committee held a meeting. Representatives of Cravath were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson, Jeffrey S. Boggs, Senior Vice President, Finance, of EchoStar, Paul Gaske, Chief Operating Officer of EchoStar, and representatives of Evercore, were also present by invitation of the EchoStar Special Committee for certain portions of the meeting. Representatives of Evercore provided an update on the provision by DISH Network of information responsive to the EchoStar Initial RFI. Messrs. Akhavan, Boggs and Gaske reviewed with the EchoStar Special Committee a draft five-year standalone business plan and financial model of EchoStar and then responded to questions from the EchoStar Special Committee regarding such business plan and financial model. The EchoStar Special Committee then asked Messrs. Akhavan, Boggs and Gaske to further refine the five-year standalone business plan and financial model in light of such discussions.
On June 6 and June 13, the EchoStar Special Committee held meetings. Representatives of Cravath were present at the meeting on June 6, and representatives of each of Cravath and Evercore were present at the meeting on June 13, in each case, by invitation of the EchoStar Special Committee. Over the course of such meetings, the EchoStar Special Committee continued to discuss EchoStar’s five-year standalone business plan and financial model.
On June 14, representatives of Cravath contacted representatives of Wachtell Lipton to inquire as to the DISH Network Special Committee’s contemplated next steps. Representatives of Wachtell Lipton indicated that the DISH Network Special Committee would like to receive additional information and analysis regarding potential benefits, risks, synergies and dissynergies associated with a strategic transaction, and also to evaluate financial due diligence, and was not yet prepared to make a determination as to whether to make a proposal regarding any transaction.
On June 15, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation for certain portions of the meeting. The EchoStar Special Committee discussed with Evercore and Mr. Akhavan the five-year standalone business plan and financial model of EchoStar, which had been refined following the June 1 meeting of the EchoStar Special Committee, and asked Mr. Akhavan to further refine the five-year standalone business plan and financial model in light of such discussions and to prepare a model relating to EchoStar’s S-Band business (the “S-Band Model”).
On June 16, representatives of Wachtell Lipton, at the direction of the DISH Network Special Committee, sent representatives of Cravath an updated potential timeline for the exchange of information in the coming weeks.
On June 19, representatives of J.P. Morgan, at the direction of the DISH Network Special Committee, sent representatives of Evercore a list of key synergy-related due diligence requests.
On June 20, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation for certain portions of the meeting, and Ms. Abernathy and Mr. Brokaw, as representatives of the DISH Network Special Committee, were also present by invitation for certain other portions of the meeting. The EchoStar Special Committee, Ms. Abernathy and Mr. Brokaw discussed the progress of the ongoing mutual due diligence process between the EchoStar Special Committee and the DISH Network Special Committee, and plans to continue engaging in discussions regarding a potential transaction, including progressing diligence over the next week. Following the exit of Ms. Abernathy and Mr. Brokaw from the meeting, Mr. Akhavan presented EchoStar’s five-year standalone business plan and financial model (the “EchoStar Core Business Model”) and the S-Band Model to the EchoStar Special Committee. Following discussion, the EchoStar Special Committee approved the EchoStar Core Business Model for use by Evercore and to be provided to the DISH Network Special Committee.
Later on June 20, the DISH Network Special Committee held a meeting. Representatives of Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Ms. Abernathy and Mr. Brokaw provided an update on the EchoStar Special Committee meeting from earlier that day, noting that the EchoStar Special Committee had been focused on the expected timeline for continued due diligence
 
37

 
and that Ms. Abernathy and Mr. Brokaw had conveyed the DISH Network Special Committee’s expectation that the companies would share projections with each other in the coming days, and that their respective management teams and financial advisors would meet in order to refine their respective analyses.
Later on June 20, at the direction of the DISH Network Special Committee, Mr. Cullen contacted Mr. Akhavan to discuss next steps for the ongoing mutual diligence process between the EchoStar Special Committee and the DISH Network Special Committee, and together scheduled in-person diligence sessions between the two management teams (with representatives of Evercore and J.P. Morgan to be in attendance) for the following week.
On June 21, representatives of Evercore, at the direction of the EchoStar Special Committee, uploaded the EchoStar Core Business Model to the EchoStar VDR.
On June 22, representatives of J.P. Morgan, at the direction of the DISH Network Special Committee, uploaded a financial model for DISH Network, which included a five-year plan and certain other internal projected financial data relating to DISH Network (the “DISH Model”) to the DISH VDR.
Later on June 22, the EchoStar Special Committee held a meeting. Mr. Manson and representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. The EchoStar Special Committee reviewed and discussed, and Evercore and Mr. Manson (on behalf of himself and Mr. Akhavan) presented their views on, the DISH Model and the S-Band Model.
On June 26, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan discussed the status of due diligence and an illustrative timeline for the completion of financial due diligence and the commencement of any discussions between the DISH Network Special Committee and the EchoStar Special Committee of potential strategic transactions between the companies if the DISH Network Special Committee determined to pursue discussions. The representatives of J.P. Morgan then discussed with the DISH Network Special Committee EchoStar’s business, DISH Network’s and EchoStar’s respective management forecasts and J.P. Morgan’s preliminary valuation analysis of a potential exchange ratio. The J.P. Morgan representatives indicated that, as previewed by Ms. Abernathy and Mr. Brokaw at the previous DISH Network Special Committee meeting, they were presently onsite to attend meetings with representatives of DISH Network management, EchoStar management and Evercore. After discussion, the DISH Network Special Committee determined to reconvene following the completion of the management meetings.
On June 26, June 27 and June 28, members of DISH Network management, including Mr. Cullen, and EchoStar management, including Mr. Akhavan, met, with representatives of J.P. Morgan and Evercore also present, to discuss the respective companies’ management forecasts, outstanding business due diligence items and sources of potential synergies and dissynergies in connection with a potential strategic transaction.
On June 27, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation for certain portions of the meeting. Representatives of Cravath noted that the EchoStar Special Committee had previously authorized Evercore via e-mail on June 23 to share the S-Band Model with the DISH Network Special Committee and its advisors as a working draft. Mr. Akhavan and Evercore shared views on the DISH Model, informed by discussions with DISH Network management and J.P. Morgan on June 26, including, among other matters, the cost and availability of the capital required to finance the DISH Model. Mr. Akhavan also summarized discussions with DISH Network management and J.P. Morgan regarding the EchoStar Core Business Model.
On June 29, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation for certain portions of the meeting. The EchoStar Special Committee received an update on the process of the ongoing mutual due diligence process between the EchoStar Special Committee and the DISH Network Special Committee. The representatives of Evercore presented a preliminary assessment of strategic alternatives available to EchoStar, including options for the potential monetization of EchoStar’s S-Band assets. The representatives of Evercore also provided their views on the DISH Model, informed by the information gathered by the management diligence sessions held on
 
38

 
June 26 to June 28, and presented their analysis of the potential synergies which may arise from a strategic transaction between EchoStar and DISH Network.
On June 30, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Mr. Cullen was also present by invitation of the DISH Network Special Committee for a portion of the meeting. Representatives of J.P. Morgan discussed with the DISH Network Special Committee DISH Network management’s preliminary view on potential synergies associated with a range of strategic transactions involving DISH Network and EchoStar, and also reviewed with the DISH Network Special Committee the projections presented by the respective management teams. Representatives of J.P. Morgan indicated that the DISH Network management team, together with the EchoStar management team, had developed a preliminary estimate of potential synergies across several categories: (a) cost synergies, including variable cost efficiencies, overhead and general & administrative expense savings and other cost opportunities; and (b) top-line revenue synergy opportunities. J.P. Morgan also summarized the management teams’ discussions about jointly developing a S-Band-dependent worldwide non-terrestrial-networks wireless business plan. The J.P. Morgan representatives discussed these potential synergies under different potential strategic transactions involving DISH Network and EchoStar. The J.P. Morgan representatives also discussed with the DISH Network Special Committee potential financial synergies in connection with a potential strategic transaction. In addition, the J.P. Morgan representatives noted that Evercore, on behalf of the EchoStar Special Committee, had shared the S-Band Model, which J.P. Morgan had reviewed with members of DISH Network and EchoStar management, as well as representatives of Evercore. Mr. Cullen then joined the meeting and discussed with the DISH Network Special Committee DISH Network management’s views on potential synergies and the S-Band Model. The DISH Network Special Committee asked questions of Mr. Cullen and the J.P. Morgan representatives throughout, and discussed the potential synergies (including potential financial synergies), the S-Band Model and preliminary pro forma analysis, and concluded that, based on, among other considerations, the information provided to date (including, but not limited to, at the prior meetings), the potential strategic benefits of a transaction involving DISH Network and EchoStar would best be captured through a merger of DISH Network and EchoStar as opposed to other potential strategic transactions. At the end of the meeting, the DISH Network Special Committee agreed to reconvene once outstanding valuation diligence items had been completed.
On July 3 and July 6, the DISH Network Special Committee held meetings. Representatives of Wachtell Lipton and J.P. Morgan were present at each meeting by invitation of the DISH Network Special Committee. At each meeting, the DISH Network Special Committee and J.P. Morgan discussed potential synergies (including potential financial synergies), the S-Band Model and J.P. Morgan’s preliminary valuation analysis of a potential exchange ratio. At the July 6 meeting, representatives of Wachtell Lipton provided an overview of potential key legal terms of a combination of DISH Network and EchoStar through an all-stock merger, including combined governance of the post-closing company, expected transaction approvals (stockholder and regulatory), conditions to closing and commitments that could be requested from the Ergen Stockholders.
On July 6, during trading hours, a media outlet, citing anonymous sources, reported that DISH Network and EchoStar had engaged advisers to evaluate a merger between DISH Network and EchoStar (the “media report”).
Later on July 6 and on July 11, the EchoStar Special Committee held meetings. Representatives of Cravath and Evercore were present at the meetings by invitation of the EchoStar Special Committee. On July 6, representatives of Evercore provided a summary of the market’s reaction to the media report as well as an overview of EchoStar’s recent stock performance and financial profile. Representatives of Evercore confirmed that their assessment of each of the EchoStar Core Business Model and the DISH Model was well-advanced and that they would be prepared to quickly react to any proposal received by the EchoStar Special Committee from the DISH Network Special Committee. On July 6 and July 11, the EchoStar Special Committee discussed the S-Band Model with Evercore, and representatives of Evercore provided views on the amount of capital required to finance the S-Band Model as a standalone company versus as a combined company following a potential merger with DISH Network. The EchoStar Special Committee further discussed and considered strategic alternatives available to EchoStar. The EchoStar Special Committee and Evercore also discussed various factors that may be considered in connection with an evaluation of the
 
39

 
future financial performance and prospect of DISH Network on a standalone basis, including the potential refinancing of DISH Network’s debt with near-term maturities and the impact of certain EBITDA-related line items in the DISH Model.
Also on July 11, the DISH Network Special Committee held a meeting. Representatives of Wachtell Lipton and J.P. Morgan were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan and Wachtell Lipton discussed with the DISH Network Special Committee the potential indicative terms to be conveyed to the EchoStar Special Committee to facilitate further discussion with respect to a potential merger transaction involving DISH Network and EchoStar. After discussion, the DISH Network Special Committee determined to instruct J.P. Morgan to convey to Evercore the following indicative terms (the “July 11 Discussion Terms”): (a) a fixed exchange ratio of 2.5379 shares of DISH Network Class A Common Stock or DISH Network Class B Common Stock, as applicable, for each share of EchoStar Class A Common Stock or EchoStar Class B Common Stock, as applicable; (b) proportionate board representation based on pro forma equity split; and (c) approval of the transaction by each company’s board of directors, the Special Committees and the Ergen Stockholders, but no other stockholders.
On July 12, representatives of Evercore, at the direction of the EchoStar Special Committee, provided a list of diligence questions relating to the DISH Model to representatives of J.P. Morgan, on behalf of the DISH Network Special Committee, in advance of a meeting between representatives of Evercore and members of DISH Network management on July 13.
On July 13, representatives of J.P. Morgan, at the direction of the DISH Network Special Committee, conveyed the July 11 Discussion Terms to representatives of Evercore, on behalf of the EchoStar Special Committee. Representatives of Evercore promptly informed the EchoStar Special Committee of the July 11 Discussion Terms.
On July 13, representatives of Evercore met with members of DISH Network management to discuss potential synergies which may arise as a result of a combination of DISH Network and EchoStar and subsequently with Mr. Ergen, in his capacity as Chairman of the DISH Network Board, and K. Jason Kiser, Vice President and Treasurer of DISH Network, to discuss DISH Network’s go-forward financing and capital allocation plans.
Later on July 13, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Representatives of Evercore provided an update on their discussions with DISH Network management and with Mr. Ergen. The EchoStar Special Committee reviewed and discussed the July 11 Discussion Terms with representatives of Cravath and Evercore. Representatives of Evercore noted that they were continuing to analyze the DISH Model, including sensitizing the underlying assumptions, so that the EchoStar Special Committee could conduct an informed review of the July 11 Discussion Terms.
On July 18, Mr. Kiser met with representatives of Evercore in order to answer follow-up questions regarding DISH Network’s go-forward financing and capital allocation plans. Following the discussion, Mr. Kiser met with representatives of J.P. Morgan to discuss the same.
On July 18, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. At the meeting, Representatives of Evercore presented a preliminary financial analysis in respect of the potential combination of DISH Network and EchoStar. The EchoStar Special Committee continued to review and discuss the July 11 Discussion Terms.
On July 19, with the authorization of the EchoStar Special Committee, representatives of Evercore met with members of DISH Network management to discuss the DISH Model.
On July 20, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. At the meeting, Evercore continued its presentation of a preliminary financial analysis in respect of the potential combination of DISH Network and EchoStar. The EchoStar Special Committee continued to review and discuss the July 11 Discussion Terms.
 
40

 
On July 26, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation of the EchoStar Special Committee for certain portions of the meeting. Representatives of Evercore presented preliminary financial analysis with respect to the DISH Model and discussed the impact of such analysis on the potential valuation of DISH Network and the hypothetical implied exchange ratio. The EchoStar Special Committee continued to discuss the July 11 Discussion Terms. Mr. Akhavan responded to questions from the EchoStar Special Committee regarding the DISH Model (including with respect to the assumptions underlying the revenue and adjusted operating income before depreciation and amortization (“OIBDA”) figures in light of the competitive environment in which DISH Network operates) and the fair market value of EchoStar’s S-Band assets. Following discussion, the EchoStar Special Committee directed Evercore to also use an adjusted version of the DISH Model in its financial analysis of DISH Network, as further discussed in the section entitled “The Merger — Certain Unaudited Prospective Financial Information — Summary of the DISH Network Management Forecasts”.
Later on July 26, the EchoStar Special Committee held a further meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Following the presentation by representatives of Evercore of a preliminary financial analysis in respect of the potential combination of DISH Network and EchoStar, the EchoStar Special Committee determined to instruct Evercore to convey to J.P. Morgan the following indicative terms (the “July 27 Discussion Terms”) to facilitate further discussion with respect to a potential all-stock merger: (a) a fixed exchange ratio of 3.0762 shares of DISH Network Class A Common Stock or DISH Network Class B Common Stock, as applicable, for each share of EchoStar Class A Common Stock or EchoStar Class B Common Stock, as applicable; (b) proportionate board representation based on pro forma equity split, with proportionate EchoStar representation to be rounded up to the nearest director; and (c) approval of the transaction by each company’s board, the Special Committees, the Ergen Stockholders and a majority of the EchoStar stockholders excluding the Ergen Stockholders (the “majority-of-the-minority approval condition”).
On July 27, representatives of Evercore, at the direction of the EchoStar Special Committee, conveyed the July 27 Discussion Terms to representatives of J.P. Morgan, on behalf of the DISH Network Special Committee. Representatives of J.P. Morgan promptly informed the DISH Network Special Committee of the July 27 Discussion Terms.
On July 28, the DISH Network Special Committee held a meeting. Representatives of Wachtell Lipton and J.P. Morgan were present at the meeting by invitation of the DISH Network Special Committee. At the meeting, the DISH Network Special Committee discussed the July 27 Discussion Terms, the value attributable to EchoStar’s S-Band portfolio and the majority-of-the-minority approval condition, including the requirements under Nevada law, and potential responses. The DISH Network Special Committee also asked questions of representatives of Wachtell Lipton regarding the potential terms of definitive documentation with respect to the potential transaction, including the conditions to closing, post-closing board composition, termination rights, restrictions on each party between signing and closing, the Ergen Stockholders’ potential commitment to support the transaction, the treatment of EchoStar equity awards, certain employee matters and certain other provisions. At the conclusion of the meeting, the DISH Network Special Committee agreed to reconvene following further financial due diligence regarding EchoStar’s S-Band portfolio and other items.
On July 28, the DISH Network Board held a regularly scheduled meeting. Mr. Messner and representatives of J.P. Morgan were present at the meeting by invitation of the DISH Network Board. During the meeting, representatives of J.P. Morgan presented an update on the status of negotiations and J.P. Morgan’s preliminary analysis of the transaction. Ms. Abernathy and Messrs. Brokaw and Proietti provided an update to the DISH Network Board regarding the status of the DISH Network Special Committee’s consideration of the potential transaction, including, among other considerations, the potential cost-of-capital synergies based on the pro forma credit profile of the combined company, and the DISH Network Special Committee’s preliminary conclusion that the potential transaction would be strategically beneficial to DISH Network. Ms. Abernathy and Messrs. Brokaw and Proietti also discussed the DISH Network Special Committee’s considerations related to the potential inclusion of the majority-of-the-minority approval condition.
 
41

 
On July 30, representatives of EchoStar management, DISH Network management, Evercore, J.P. Morgan, Cravath and Wachtell Lipton, each with the support of their respective Special Committees, met to further discuss the S-Band Model and the underlying assumptions related thereto.
On July 30, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan discussed with the DISH Network Special Committee the July 27 Discussion Terms, potential exchange ratios using different valuation methodologies, potential valuations of EchoStar’s S-Band portfolio and market reaction to the media report. Next, representatives of Wachtell Lipton presented regarding the terms of an initial draft merger agreement and support agreement for the transaction, including the conditions to closing, post-closing board composition, termination rights, restrictions on each party between signing and closing, the Ergen Stockholders’ commitment to support the transaction, the treatment of EchoStar equity awards, certain employee matters, the contemplated transaction structure (and different structuring alternatives) and certain other provisions. The DISH Network Special Committee also discussed with Wachtell Lipton and J.P. Morgan the consideration proposed to be paid to EchoStar stockholders and potential mechanisms to ensure that the Ergen Stockholders’ voting power at DISH Network would not materially increase as a result of the transaction. After discussion, the DISH Network Special Committee determined to provide an update to the remaining independent director of the DISH Network Board, Mr. Tom A. Ortolf, on the transaction process the following day and determined that, following such update, if Mr. Ortolf was supportive, representatives of Wachtell Lipton would share draft transaction documentation with Cravath (reflecting input from DISH Network management and Sullivan & Cromwell LLP, counsel to DISH Network (“S&C”)), and J.P. Morgan would inform Evercore that the DISH Network Special Committee would not continue further discussions with respect to a potential transaction based on the July 27 Discussion Terms but would instead propose the following indicative terms to facilitate further discussions (the “July 31 Discussion Terms”): (a) 2.7 shares of DISH Network Class A Common Stock or DISH Network Class B Common Stock, as applicable, for each share of EchoStar Class A Common Stock or EchoStar Class B Common Stock, as applicable; (b) acceptance of the terms that the post-closing board would have proportionate representation based on pro forma equity split, with proportionate EchoStar representation to be rounded up to the nearest director; and (c) no majority-of-the-minority approval condition.
On July 31, the non-employee directors of the DISH Network Board, including the members of the DISH Network Special Committee, held a meeting. Representatives of J.P. Morgan, S&C and Wachtell Lipton were present at the meeting by invitation of the non-employee directors of the DISH Network Board. The members of the DISH Network Special Committee and representatives of J.P. Morgan discussed the to-date analyses that had been conducted by and on behalf of the DISH Network Special Committee in order to evaluate a merger with EchoStar, the July 11 Discussion Terms, the July 27 Discussion Terms and the planned July 31 Discussion Terms, including an overview of potential synergies, the potential pro forma impact of financial synergies and the S-Band Model, and answered questions from Mr. Ortolf. Following discussion and deliberation, Mr. Ortolf indicated his support of the work being done by the DISH Network Special Committee and proceeding with the July 31 Discussion Terms and further work regarding a potential strategic transaction.
Later on July 31, representatives of J.P. Morgan, at the instruction of the DISH Network Special Committee, conveyed the July 31 Discussion Terms to Evercore. Representatives of Evercore promptly informed the EchoStar Special Committee of the July 31 Discussion Terms.
Also on July 31, representatives of Wachtell Lipton, at the instruction of the DISH Network Special Committee, sent a draft merger agreement, which structured the transaction as an acquisition by DISH Network of EchoStar, and a draft support agreement to representatives of Cravath, consistent with the terms discussed with the DISH Network Special Committee.
On August 1, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. The EchoStar Special Committee reviewed and discussed the July 31 Discussion Terms. Representatives of Cravath also informed the EchoStar Special Committee that Wachtell Lipton had sent a draft merger agreement and a draft support agreement to accompany the July 31 Discussion Terms. The EchoStar Special Committee instructed representatives of Evercore to propose the following indicative terms to facilitate further
 
42

 
discussion (the “EchoStar August 1 Discussion Terms”): (a) a fixed exchange ratio of 2.90 shares of DISH Network Class A Common Stock or DISH Network Class B Common Stock, as applicable, for each share of EchoStar Class A Common Stock or EchoStar Class B Common Stock; (b) proportionate representation based on pro forma equity split on the post-closing board, with proportionate EchoStar representation to be rounded up to the nearest director, with the proviso that Mr. Ergen, if appointed to the post-closing board, would not be counted towards the EchoStar representation; and (c) the majority-of-the-minority approval condition. The EchoStar Special Committee also instructed representatives of Cravath to begin preparing revised drafts of the merger agreement and support agreement. The EchoStar Special Committee also discussed the potential timing and public announcement of any transaction with DISH Network, including in relation to the upcoming earnings release for each of DISH Network and EchoStar.
Later on August 1, representatives of Evercore, at the instruction of the EchoStar Special Committee, conveyed to representatives of J.P. Morgan the EchoStar August 1 Discussion Terms. Representatives of J.P. Morgan promptly informed the DISH Network Special Committee of the EchoStar August 1 Discussion Terms.
On August 1, following receipt of the EchoStar August 1 Discussion Terms, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. The DISH Network Special Committee discussed with representatives of J.P. Morgan and Wachtell Lipton the EchoStar August 1 Discussion Terms, a range of exchange ratios that could be potentially acceptable to the DISH Network Special Committee and considerations with respect to the majority-of-the-minority approval condition. After discussion, the DISH Network Special Committee determined to instruct the representatives of J.P. Morgan to relay the following indicative terms to facilitate further discussion (the “DISH Network August 1 Discussion Terms”): (a) a fixed exchange ratio of 2.75 shares of DISH Network Class A Common Stock or DISH Network Class B Common Stock, as applicable, for each share of EchoStar Class A Common Stock or EchoStar Class B Common Stock; (b) proportionate representation based on pro forma equity split on the post-closing board, with proportionate EchoStar representation to be rounded up to the nearest director, with the proviso that Mr. Akhavan, if appointed to the post-closing board, would be counted towards the EchoStar representation; and (c) no majority-of-the-minority approval condition. At the meeting, the DISH Network Special Committee also discussed other matters relating to the transaction, including the potential timing and public announcement (including in relation to the upcoming earnings release for each of DISH Network and EchoStar), as well as the timing of decisions regarding certain senior management positions at the post-closing combined company. The DISH Network Special Committee determined that it would be in the best interest of DISH Network to provide the market and employees with clarity on the subject of post-closing leadership of the combined company. In that regard, the DISH Network Special Committee believed it would be important to consult with Mr. Ergen regarding the post-closing combined company senior management and, accordingly, instructed Mr. Brokaw, as Chairman of the Executive Compensation Committee of DISH Network and a member of the DISH Network Special Committee, to seek Mr. Ergen’s perspective on who should serve as the combined company President and Chief Executive Officer if a transaction were to proceed.
On August 1, representatives of J.P. Morgan, at the instruction of the DISH Network Special Committee, promptly informed Evercore of the DISH Network August 1 Discussion Terms. Representatives of Evercore promptly informed the EchoStar Special Committee of the DISH Network August 1 Discussion Terms.
On August 2, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. The EchoStar Special Committee discussed with representatives of Cravath and Evercore the DISH Network August 1 Discussion Terms, noting in particular: (a) the notional value attributed to EchoStar’s S-band assets by the exchange ratio proposed in the DISH Network August 1 Discussion Terms; and (b) in light of the significant amount of due diligence conducted in respect of DISH Network to date, the EchoStar Special Committee’s belief that DISH Network would be able to execute on its business plan to fulfill its financial obligations, which would ultimately be expected to benefit EchoStar’s stockholders if a transaction were consummated between the parties. Representatives of Cravath provided the EchoStar Special Committee with an overview of the terms of the draft merger agreement and support agreement. The EchoStar Special Committee determined to continue to progress negotiations in respect of the draft merger agreement and support
 
43

 
agreement shared by Wachtell Lipton on August 1 prior to responding to the DISH Network August 1 Discussion Terms. The EchoStar Special Committee instructed representatives of Cravath to continue to progress such negotiations and instructed Evercore to seek a discussion with J.P. Morgan, on behalf of the DISH Network Special Committee, regarding the management and board composition of the combined company, including any considerations relating to the potential involvement of Mr. Akhavan in the management and/or board of directors of the post-closing combined company. In the meantime, the EchoStar Special Committee determined to continue considering, and instructed Evercore to continue to consider, the DISH Network August 1 Discussion Terms and an appropriate response thereto.
On August 2, members of EchoStar management, including Mr. Manson, participated in a conference call with representatives of DISH Network management, including Mr. Messner, Cravath, S&C, White & Case, and Wachtell Lipton to discuss due diligence requests from DISH Network and its representatives, with a focus on legal due diligence.
On August 3, members of DISH Network management, including Mr. Messner, participated in a conference call with members of EchoStar management, including Mr. Manson, and representatives of Cravath, White & Case, Wachtell Lipton and S&C to discuss due diligence requests from EchoStar and its representatives, with a focus on legal due diligence.
On August 3, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Representatives of Evercore noted that, as directed by the EchoStar Special Committee, they had held high-level discussions regarding the management and board composition of the post-closing combined company with J.P. Morgan and reported that J.P. Morgan had indicated that the DISH Network Special Committee would view Mr. Akhavan, if appointed to the board of the post-closing combined company, as an appointee of EchoStar for the purposes of calculating pro forma board composition as between EchoStar and DISH Network. The EchoStar Special Committee reviewed and discussed the DISH Network August 1 Discussion Terms and potential responses thereto, including the terms that would need to be reflected in the subsequent draft of the merger agreement (such as the EchoStar Special Committee’s expectations regarding the inclusion of a majority-of-the-minority approval condition and certain restrictions on the operation of DISH Network’s business between signing and closing of the transaction).
Later on August 3, representatives of Cravath provided Mr. Tarr, who had been unable to attend the meeting of the EchoStar Special Committee earlier in the day, with an update regarding the discussions at such meeting. Following discussion, Mr. Tarr expressed his support for the views of the EchoStar Special Committee.
On August 3, representatives of Cravath, at the instruction of EchoStar Special Committee, sent comments on the draft merger agreement and support agreement (reflecting input from EchoStar management and White & Case, as was the case for subsequent drafts of such agreements delivered by Cravath) to representatives of Wachtell Lipton. The comments indicated that the EchoStar Special Committee expected there would be a majority-of-the-minority approval condition and also introduced, among other things, additional restrictions on the operation of DISH Network’s business between signing and closing of the transaction.
On August 3, Mr. Brokaw contacted Mr. Ergen, as previously directed by the DISH Network Special Committee at its August 1 meeting. Mr. Ergen indicated that, assuming a transaction were to be recommended by each Special Committee, supported by the Ergen Stockholders and ultimately consummated, he believed that Mr. Akhavan would be most qualified to serve as the President and Chief Executive Officer of the combined company.
On August 3 and 4, representatives of Wachtell Lipton discussed with members of the DISH Network Special Committee the comments to the draft merger agreement received from representatives of Cravath on August 3.
On August 4, members of EchoStar management, including Mr. Akhavan, participated in a conference call with members of the DISH Network Special Committee, Mr. Cullen and representatives of J.P. Morgan and Wachtell Lipton to discuss the launch of the JUPITER™ 3 ultra-high throughput satellite (“JUPITER 3”), the operation of which had been assumed in the EchoStar Core Business Model.
 
44

 
Participants of the meeting discussed, among other things, the status of the JUPITER 3 launch, the likelihood of success of the launch and EchoStar’s insurance coverage with respect to JUPITER 3.
On August 4, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Representatives of Evercore provided the EchoStar Special Committee with a brief update on the bring-down due diligence session regarding JUPITER 3 earlier in the day on August 4. Following discussion, the EchoStar Special Committee determined to instruct representatives of Evercore to relay the following indicative terms to facilitate further discussion (the “August 4 Discussion Terms”): (a) a fixed exchange ratio of 2.85 shares of DISH Network Class A Common Stock or DISH Network Class B Common Stock, as applicable, for each share of EchoStar Class A Common Stock or EchoStar Class B Common Stock; (b) no majority-of-the-minority approval condition; (c) Mr. Akhavan’s appointment as the President and Chief Executive Officer of the post-closing combined company; and (d) if Mr. Akhavan is appointed to serve on the post-closing combined company’s board, Mr. Akhavan would not be counted towards the EchoStar representation on such board. The EchoStar Special Committee determined that it would not require a majority-of-the-minority approval condition if the DISH Network Special Committee agreed to the exchange ratio proposed by the EchoStar Special Committee in the August 4 Discussion Terms and certain terms in the draft merger agreement as last proposed by the EchoStar Special Committee, including certain interim operating covenants on DISH Network, being largely retained and directed Evercore to relay this position to J.P. Morgan.
On August 4, representatives of Evercore, at the instruction of the EchoStar Special Committee, conveyed to representatives of J.P. Morgan the August 4 Discussion Terms. The representatives of Evercore also conveyed that the EchoStar Special Committee was prepared to accept the DISH Network Special Committee’s position that there be no majority-of-the-minority approval condition, but only if the DISH Network Special Committee were willing to transact at the exchange ratio set forth in the August 4 Discussion Terms and the EchoStar Special Committee’s proposed amendments to certain terms in the draft merger agreement, including certain interim operating covenants, were largely accepted. Representatives of J.P. Morgan promptly informed the DISH Network Special Committee of the August 4 Discussion Terms.
On the night of August 4, representatives of Wachtell Lipton, at the instruction of the DISH Network Special Committee, sent comments on the draft merger agreement to representatives of Cravath.
Also on the night of August 4, representatives of Wachtell Lipton, at the instruction of the DISH Network Special Committee, sent drafts of the merger agreement, support agreement and Ergen Stockholder written consents to counsel for the Ergen Stockholders. Representatives of Wachtell Lipton discussed with counsel for the Ergen Stockholders that the drafts reflected the current state of negotiations between the DISH Network Special Committee and the EchoStar Special Committee and that, while there was no assurance that terms would be agreed upon, the DISH Network Special Committee was requesting the Ergen Stockholders’ input on the draft documentation at this stage in order to inform the committee on whether there were additional issues from the Ergen Stockholders’ perspective that needed to be addressed were a transaction to be agreed upon.
On August 5, EchoStar management discussed with representatives of Cravath the concept of amending the structure of the potential transaction such that EchoStar would be the acquiring entity (instead of DISH Network). Between August 5 and August 7, representatives of Cravath discussed with EchoStar management and, subsequently, with representatives of Wachtell Lipton the feasibility of amending the transaction structure and the possibility of the parties potentially exploring alternative structures following the announcement of a transaction.
On August 5, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan discussed with the DISH Network Special Committee the August 4 Discussion Terms and J.P. Morgan’s preliminary financial analysis of the valuation implied by the exchange ratio in the August 4 Discussion Terms. Additionally, representatives of J.P. Morgan and Wachtell Lipton provided an overview of the status of the due diligence that had been conducted to date by each of them and DISH Network management, highlighting key financial due diligence and legal findings. The DISH Network Special Committee also discussed Mr. Ergen’s recommendation that, should a deal proceed, Mr. Akhavan be the President and Chief Executive Officer of the combined company, as indicated by Mr. Ergen on August 3
 
45

 
(subject to the conditions outlined by Mr. Ergen). The DISH Network Special Committee also discussed with representatives of Wachtell Lipton, among other things, potential terms of the President and Chief Executive Officer’s post-closing employment (including a discussion of the current terms of Mr. Carlson’s and Mr. Akhavan’s respective employment arrangements) and the potential timing of negotiating such employment arrangements. The DISH Network Special Committee also discussed whether, at this stage of the negotiations, it was appropriate to provide Mr. Ergen and the full DISH Network board with an update on the status of the proposed transaction and confirm with Mr. Ergen whether the Ergen Stockholders would likely be supportive of the proposed transaction. After discussion, the DISH Network Special Committee determined to update Mr. Ergen regarding the status of the negotiations and inquire whether Mr. Ergen may be supportive, and to request a meeting to update the full DISH Network Board. The DISH Network Special Committee also agreed that they were prepared to recommend in support of the August 4 Discussion Terms pending resolution of open issues in the definitive documentation and receipt of J.P. Morgan’s fairness opinion.
On August 5, following the meeting of the DISH Network Special Committee, representatives of J.P. Morgan, at the instruction of the DISH Network Special Committee, indicated to representatives of Evercore that the DISH Network Special Committee was prepared to accept the August 4 Discussion Terms, subject to agreeing on the terms of the definitive documentation.
On August 5, the EchoStar Special Committee held two meetings. Representatives of Cravath and Evercore were present at the meetings by invitation of the EchoStar Special Committee. Representatives of Evercore reported that representatives of J.P. Morgan had conveyed, at the direction of the DISH Network Special Committee, that the DISH Network Special Committee accepted the 2.85 exchange ratio. Representatives of Cravath also provided an update on the negotiation of terms of the draft merger agreement and support agreement, including with respect to certain interim operating covenants of DISH Network. Representatives of Cravath also noted to the EchoStar Special Committee that EchoStar management had suggested that the EchoStar Special Committee explore an alternative transaction structure whereby EchoStar would be the acquiring entity (instead of DISH Network). Following discussion, the EchoStar Special Committee expressed support for EchoStar management, Cravath and Evercore to continue discussions with respect thereto.
On August 5, representatives of Wachtell Lipton met with Mr. Ergen to discuss the potential terms of Mr. Akhavan’s employment as the President and Chief Executive Officer of the combined company, including as to base salary, bonus opportunity, equity awards and relocation. Representatives of Wachtell Lipton indicated to Mr. Ergen, at the instruction of the DISH Network Special Committee that, once the key terms of the transaction had been largely agreed between the DISH Network Special Committee and the EchoStar Special Committee, the DISH Network Special Committee desired that Mr. Ergen meet with Mr. Akhavan to discuss potential terms of his post-closing employment. Representatives of Wachtell Lipton also informed representatives of Cravath of the status of these discussions.
On August 5, representatives of Cravath, at the instruction of the EchoStar Special Committee, sent comments on the draft merger agreement and support agreement to representatives of Wachtell Lipton.
On August 6, the EchoStar Special Committee held a meeting. Representatives of Cravath, Evercore, White & Case and Messrs. Akhavan and Manson were present at the meeting by invitation of the EchoStar Special Committee. EchoStar’s management provided an overview of developments related to JUPITER 3. Representatives of Cravath provided an overview of the legal due diligence that had been undertaken in respect of DISH Network, including a description of certain outstanding litigation matters involving DISH Network.
On August 6, members of the DISH Network Special Committee contacted Mr. Ergen as directed by the DISH Network Special Committee at its previous meeting, and provided Mr. Ergen with an update regarding the transaction discussions to date. The members of the DISH Network Special Committee inquired as to whether Mr. Ergen, on behalf of the Ergen Stockholders, would support the transaction as currently proposed, if it were recommended by the DISH Network Special Committee and approved by the DISH Network Board, and advised Mr. Ergen that it would not recommend the proposed transaction to the DISH Network Board without securing support from the Ergen Stockholders. Mr. Ergen indicated that
 
46

 
the Ergen Stockholders were prepared to negotiate the terms of the support requested by the DISH Network Special Committee in connection with the proposed transaction.
On August 6, the DISH Network Board held a meeting. Mr. Messner and representatives of J.P. Morgan, S&C and Wachtell Lipton were present at the meeting by invitation of the DISH Network Board. Ms. Abernathy and Messrs. Brokaw and Proietti presented an overview of the process of their review of a potential strategic transaction with EchoStar, the status of the negotiations with the EchoStar Special Committee regarding a potential merger and the August 4 Discussion Terms. Next, representatives of S&C reviewed with the DISH Network Board its fiduciary duties, both generally and in the context of considering the potential merger, and presented an overview of the terms of the draft merger agreement and draft support agreement. Next, representatives of J.P. Morgan discussed with the DISH Network Board DISH Network management’s projections for DISH Network, EchoStar management’s projections for EchoStar, the status of due diligence and DISH Network management’s view of potential synergy opportunities, including potential financial synergies and J.P. Morgan’s preliminary financial analysis of the transaction. After discussion, Mr. and Mrs. Ergen left the meeting and the DISH Network Board (other than Mr. and Mrs. Ergen) met in executive session. In executive session, the DISH Network Board (other than Mr. and Mrs. Ergen) discussed the presentation and benefits and drawbacks of pursuing the potential transaction at this time and asked questions of the representatives of J.P. Morgan, S&C and Wachtell Lipton. After additional discussion, the DISH Network board determined to meet the next day after the next scheduled meeting of the DISH Network Special Committee, at which time it was expected the draft transaction documentation would be near final, in order to consider the recommendation, if any, of the DISH Network Special Committee in respect of the potential transaction.
On August 6, Mr. Ergen met with Mr. Akhavan to discuss the terms of Mr. Akhavan’s appointment as President and Chief Executive Officer of the combined company following closing of the transaction. Mr. Ergen indicated to Mr. Akhavan that, if a transaction were to be agreed upon, Mr. Ergen would be supportive of Mr. Akhavan serving as the President and Chief Executive Officer of the combined company. Mr. Ergen and Mr. Akhavan discussed potential terms of Mr. Akhavan’s employment, based on Mr. Ergen’s prior discussion with representatives of Wachtell Lipton, which terms Mr. Ergen noted would be subject to the review and approval of the DISH Network Board and the Executive Compensation Committee of the DISH Network Board.
On August 7, members of EchoStar management, including Mr. Manson, participated in a conference call with Mr. Messner and representatives of Cravath, J.P. Morgan, S&C, White & Case and Wachtell Lipton to further discuss the launch of JUPITER 3, including the status of the deployment of JUPITER 3.
On August 7, counsel for the Ergen Stockholders sent comments to representatives of Wachtell Lipton on the draft support agreement and draft written consents. Counsel for the Ergen Stockholders indicated that the Ergen Stockholders were willing to agree to a mechanism to ensure the Ergen Stockholders’ voting power in DISH Network did not materially increase as a result of the transaction. Specifically, the Ergen Stockholders would be willing to agree not to vote the shares of DISH Network Class A Common Stock owned by them on matters where holders of DISH Network Class A Common Stock and DISH Network Class B Common Stock were entitled to vote for a period of three years following closing of the merger. In addition, counsel for the Ergen Stockholders requested that the Ergen Stockholders would have registration rights with respect to the unregistered shares of DISH Network Common Stock they would receive in connection with the closing of the merger.
On August 7, the EchoStar Special Committee held a meeting. Representatives of Cravath were present at the meeting by invitation of the EchoStar Special Committee. Representatives of Evercore and Ballard Spahr LLP, Nevada counsel to the EchoStar Special Committee (“Ballard Spahr”), were also present by invitation of the EchoStar Special Committee for certain portions of the meeting. Representatives of Cravath led a discussion regarding the fiduciary duties of the EchoStar Special Committee in connection with the proposed transaction and summarized the key terms and provisions of the transaction documents. Prior to the meeting, representatives of Cravath had met with Mr. Tarr, who had been unable to attend this portion of the meeting, and discussed the fiduciary duties of the EchoStar Special Committee in connection with the proposed transaction and summarized the key terms and provisions of the transaction documents. Representatives of Evercore presented their financial analyses relating to the transaction. During the presentation, the EchoStar Special Committee asked questions relating to, and discussed with representatives
 
47

 
of Evercore, the positive performance of EchoStar Class A Common Stock on August 7, the closing price of which was approximately 21% higher than the closing price of the EchoStar Class A Common Stock on August 4. After such presentation and discussion, representatives of Evercore rendered Evercore’s oral opinion to the EchoStar Special Committee, which was subsequently confirmed by delivery of a written opinion dated August 7, that as of such date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the exchange ratio provided for in the initial merger agreement was fair, from a financial point of view, to the holders of EchoStar Class A Common Stock (other than the Ergen EchoStar Stockholders). After discussion, the EchoStar Special Committee unanimously: (a) declared and determined that the initial merger agreement and the transactions contemplated thereby, including the merger contemplated thereby, were fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders); and (b) recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the initial merger agreement and the transactions contemplated thereby, including the merger contemplated thereby, and recommending that the EchoStar stockholders approve and adopt the initial merger agreement.
On August 7, the EchoStar Board held a meeting. Mr. Manson and representatives of each of Cravath, White & Case, Ballard Spahr and Evercore were present at the meeting by invitation of the EchoStar Board. Representatives of White & Case led a discussion regarding the fiduciary duties of the EchoStar Board in connection with the proposed transaction and representatives of Cravath summarized the key terms and provisions of the transaction documents. Representatives of Evercore confirmed that Evercore had rendered its oral opinion to the EchoStar Special Committee, which was subsequently confirmed by delivery of a written opinion dated August 7, that as of such date and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the exchange ratio provided for in the initial merger agreement was fair, from a financial point of view, to the holders of EchoStar Class A Common Stock (other than the Ergen EchoStar Stockholders). Representatives of Cravath also informed the EchoStar Board of the EchoStar Special Committee’s recommendation that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the initial merger agreement and the transactions contemplated thereby, including the merger contemplated thereby, and recommending that the EchoStar stockholders approve and adopt the initial merger agreement. Following discussion, the EchoStar Board unanimously: (a) declared and determined that the merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, were fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders), (b) approved, adopted and declared advisable the initial merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, on the terms and subject to the conditions set forth in the initial merger agreement, and (c) directed that the initial merger agreement be submitted to a vote of EchoStar’s stockholders and recommended that the stockholders of EchoStar approve and adopt the initial merger agreement.
On August 7, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan rendered J.P. Morgan’s oral opinion to the DISH Network Special Committee, which was subsequently confirmed by J.P. Morgan’s written opinion to the DISH Network Special Committee and the DISH Network Board, dated August 7 that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the exchange ratio in the Transaction was fair, from a financial point of view, to DISH Network. Next, representatives of Wachtell Lipton provided an overview of the merger agreement and support agreement. Representatives of J.P. Morgan and Wachtell Lipton also provided an update on due diligence regarding the JUPITER 3 launch and the manner in which certain due diligence items were addressed in the merger agreement. After discussion, the DISH Network Special Committee unanimously (a) determined that the initial merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, were fair to and in the best interests of DISH Network and its stockholders (other than the Ergen Stockholders); and (b) recommended that the DISH Network Board adopt resolutions approving and declaring advisable the initial merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, and recommending that DISH Network’s stockholders approve the issuance of shares of DISH Network Common Stock in connection with the merger on the terms and subject to the conditions set forth in the initial merger agreement.
 
48

 
On August 7, following the meeting of the DISH Network Special Committee, the Executive Compensation Committee of the DISH Network Board held a meeting. Mr. Messner and representatives of Wachtell Lipton were present at the meeting by invitation of the Executive Compensation Committee of the DISH Network Board. Representatives of Wachtell Lipton presented the proposed terms of Mr. Akhavan’s post-closing employment as President and Chief Executive Officer of DISH Network. After discussion, the Executive Compensation Committee of the DISH Network Board determined to approve the proposed terms of Mr. Akhavan’s post-closing employment as President and Chief Executive Officer of DISH Network, conditioned on the closing of the merger contemplated by the initial merger agreement.
On August 7, following the meeting of the DISH Network Special Committee and the meeting of the Executive Compensation Committee of the DISH Network Board, the DISH Network Board held a meeting. Mr. Messner and representatives of J.P. Morgan, S&C and Wachtell Lipton were present at the meeting by invitation of the DISH Network Board. Representatives of J.P. Morgan rendered J.P. Morgan’s oral opinion to the DISH Network Board, which was subsequently confirmed by J.P. Morgan’s written opinion to the DISH Network Special Committee and the DISH Network Board, dated August 7 that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the exchange ratio in the Transaction was fair, from a financial point of view, to DISH Network. Next, representatives of Wachtell Lipton and S&C answered questions regarding the initial merger agreement and support agreement and related matters. Ms. Abernathy then presented to the rest of the DISH Network Board regarding the DISH Network Special Committee’s review of the advisability of the proposed transaction and its recommendation that the DISH Network Board adopt resolutions approving and declaring advisable the initial merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, and recommending that DISH Network’s stockholders approve the issuance of shares of DISH Network Common Stock in connection with the merger on the terms and subject to the conditions set forth in the initial merger agreement. The members of the DISH Network Special Committee answered questions from the other directors regarding the proposed transaction throughout the presentation. After discussion, acting upon the recommendation of the DISH Network Special Committee, the DISH Network Board unanimously: (a) determined that the initial merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, are fair to and in the best interests of DISH Network and its stockholders; (b) approved and declared advisable the initial merger agreement and the transactions contemplated by the initial merger agreement, including the merger contemplated thereby, on the terms and subject to the conditions set forth in the initial merger agreement; and (c) recommended that DISH Network’s stockholders approve the issuance of shares of DISH Network Common Stock in connection with the merger on the terms and subject to the conditions set forth in the initial merger agreement. The DISH Network Board further determined, subject to approval by the Executive Compensation Committee of the DISH Network Board of the relevant terms, to approve the appointment of Mr. Akhavan as the President and Chief Executive Officer of DISH Network, conditioned upon the closing of the merger contemplated by the initial merger agreement.
Throughout the day and night on August 7 and early in the morning on August 8, representatives of Wachtell Lipton and Cravath exchanged comments to the draft initial merger agreement, support agreement and the disclosure letters of each of DISH Network and EchoStar on behalf of the DISH Network Special Committee and EchoStar Special Committee, respectively.
Early in the morning on August 8, each of DISH Network, Eagle Sub Corp., EchoStar and the Ergen Stockholders executed and delivered the initial merger agreement and support agreement, as applicable.
In the morning on August 8, following the execution and delivery of the initial merger agreement and support agreement, the applicable Ergen Stockholders executed and delivered the Ergen DISH Written Consent and the Ergen EchoStar Written Consent, and Mr. Akhavan and DISH Network entered into an employment letter agreement, pursuant to which Mr. Akhavan would serve as President and Chief Executive Officer of DISH Network, effective as of the closing of the merger contemplated by the initial merger agreement.
In the morning on August 8, DISH Network and EchoStar issued a joint press release announcing the two companies had entered into the initial merger agreement and related agreements.
 
49

 
On August 11, members of DISH Network management and EchoStar management began discussing and considering, as contemplated by the parties prior to signing of the initial merger agreement, certain alternative structures and their potential benefits as compared to the structure provided for in the initial merger agreement. As a result of such discussions, management identified potential issues with the contemplated transaction structure, including (a) the need under the initial merger agreement either to manage DISH Network to ensure compliance with a leverage test necessary to incur EchoStar’s existing indebtedness under the DISH Network indentures or to designate EchoStar as an unrestricted subsidiary, which would impose operational restrictions, complicate the combined group’s integration efforts and impede its ability to fully realize potential synergies; (b) the possibility that subsequent developments in the ongoing negotiations and legal proceedings between DISH Network and T-Mobile relating to DISH Network’s option to purchase certain 800 MHz spectrum from T-Mobile, including developments since the announcement of the initial merger agreement, could affect the carrying value of that option and could also factor into the calculation of the leverage test; and (c) the potential impact on the availability and cost of future financings due to the need to meet the leverage tests in the DISH Network indentures at the time of such financings, and the resulting potential impact on DISH Network’s plans to invest in customer acquisition and 5G network buildout and deployment in DISH Network’s wireless business. The DISH Network and EchoStar management teams recognized that there would be enhanced financial and operational flexibility under the structure in which EchoStar would be the acquiring entity given that EchoStar would not initially be directly subject to financial covenants restricting debt financing that would support the operations of the combined company or other contractual obligations, and that this structure would provide additional structural flexibility to enhance shareholder value through potential future strategic transactions across the portfolio of businesses that will be operated by the combined company as a result of holding those businesses through separate intermediate corporate groups.
During the four weeks following the execution of the initial merger agreement, members of DISH Network management and EchoStar management and representatives of J.P. Morgan, Evercore, Wachtell Lipton, Cravath, S&C, White & Case and Steptoe & Johnson LLP, regulatory counsel to DISH Network, met to discuss alternative transaction structures in order to maximize financial and operational flexibility and value to stockholders of the combined company, including a structure whereby a wholly owned subsidiary of EchoStar would merge with and into DISH Network, upon consummation of which DISH Network would survive as a wholly owned subsidiary of EchoStar (the “revised structure”).
On August 24, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Messrs. Akhavan and Manson were also present by invitation of the EchoStar Special Committee for certain portions of the meeting. Representatives of Cravath updated the EchoStar Special Committee on the discussions being held with respect to the alternative transaction structures in the prior weeks, and there was a discussion regarding the potential benefits and drawbacks of pursuing an alternative transaction structure, including the revised structure. Representatives of Cravath confirmed that any change in structure would not be expected to change any of the previously agreed economic or governance terms of the transaction. The EchoStar Special Committee directed representatives of Evercore and Cravath to work to continue to analyze the potential benefits and drawbacks of pursuing an alternative structure, including the revised structure, and directed representatives of Cravath to work on preparing and negotiating revised transaction documents reflecting the revised structure.
On August 30, Messrs. Cullen, Messner and Kiser, Paul W. Orban, Executive Vice President and Chief Financial Officer of DISH Network, and representatives of S&C met with Mr. Ergen to discuss the possibility of revising the transaction structure and the potential merits and considerations associated with doing so. Mr. Akhavan was also present for part of the meeting.
On September 5, the DISH Network Special Committee held a meeting. Messrs. Cullen, Messner and Orban and representatives of J.P. Morgan, S&C and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Messrs. Cullen, Messner and Orban, together with representatives of S&C, presented regarding the work that had been done to consider alternative structures, including the revised structure, and indicated DISH Network management’s recommendation to amend and restate the merger agreement in order to pursue the revised structure due to, among other reasons, the enhanced financial and operational flexibility provided by the revised structure. Among other factors, Messrs. Cullen, Messner
 
50

 
and Orban discussed (a) the need under the initial merger agreement either to manage DISH Network to ensure compliance with a leverage test necessary to incur EchoStar’s existing indebtedness under the DISH Network indentures or to designate EchoStar as an unrestricted subsidiary, which would impose operational restrictions, complicate the combined group’s integration efforts and impede its ability to fully realize potential synergies; (b) the possibility that subsequent developments in the ongoing negotiations and legal proceedings between DISH Network and T-Mobile relating to DISH Network’s option to purchase certain 800 MHz spectrum from T-Mobile, including developments since the announcement of the initial merger agreement, could affect the carrying value of that option and could also factor into the calculation of the leverage test; and (c) the potential impact on the availability and cost of future financings due to the need to meet the leverage tests in the DISH Network indentures at the time of such financings, and the resulting potential impact on DISH Network’s plans to invest in customer acquisition and 5G network buildout and deployment in DISH Network’s wireless business. After discussion in executive session, the DISH Network Special Committee agreed that it needed additional time to consider the revised structure, and resolved to authorize its advisors and DISH Network management to continue working to consider the revised structure, including negotiating the terms of the proposed amendments to the merger agreement and support agreement.
On the evening of September 5, representatives of Cravath, at the instruction of the EchoStar Special Committee, sent a draft of the amended and restated merger agreement to representatives of Wachtell Lipton, which draft generally preserved the terms of the initial merger agreement (including with respect to the Exchange Ratio, which is the inverse of the previously agreed 2.85 exchange ratio (rounded to the nearest sixth decimal)), other than changes necessary to effect the revised structure.
On the evening of September 5, representatives of Wachtell Lipton, at the instruction of the DISH Network Special Committee, sent a draft of the amended and restated support agreement to representatives of Cravath, which draft generally preserved the terms of the initial support agreement, other than changes necessary to effect the revised structure.
On September 6, representatives of Wachtell Lipton, at the instruction of the DISH Network Special Committee, sent a draft of the amended and restated merger agreement and amended and restated support agreement to counsel for the Ergen Stockholders.
From September 6 to October 1, representatives of Wachtell Lipton and Cravath exchanged comments to the amended and restated transaction documents on behalf of the DISH Network Special Committee and EchoStar Special Committee, respectively.
On September 6, the EchoStar Special Committee held a meeting. Representatives of Cravath and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Representatives of Cravath updated the EchoStar Special Committee on the progress made on preparing revised transaction documents to implement the revised structure.
On September 7, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan presented J.P. Morgan’s preliminary financial analysis of the transaction reflecting the revised structure, including a valuation analysis of DISH Network and EchoStar and of the revised exchange ratio with respect to the revised structure. Representatives of Wachtell Lipton then provided an overview of the potential terms of the amended and restated merger agreement and amended and restated support agreement and the documentation and other workstreams required to be completed in connection with the revised structure, including due diligence, the potential timing between signing and closing of the proposed amendments (including regulatory approvals) and the communications plan with respect to the proposed amendments. The DISH Network Special Committee asked questions throughout, including as to whether J.P. Morgan expected it would be able to deliver an updated fairness opinion in connection with the revised structure. After discussion, the DISH Network Special Committee agreed that the full DISH Network Board should be provided an update regarding the discussions on the proposed amendments and that the DISH Network Special Committee in the meantime desired additional time to consider the revised structure. The DISH Network Special Committee resolved to authorize its advisors and DISH Network management to continue working to consider the revised structure, including negotiating
 
51

 
the terms of the revised structure, and instructed DISH Network management to coordinate scheduling of a meeting of the full DISH Network Board.
On September 8, members of EchoStar management, including Mr. Manson, members of DISH Network management, including Mr. Messner, and representatives of Cravath, S&C, White & Case and Wachtell Lipton participated in a conference call to discuss due diligence requests from each party, with a focus on legal due diligence and changes to due diligence responses since the execution of the initial merger agreement.
Also on September 8, members of EchoStar management and DISH Network management and representatives of J.P. Morgan and Evercore participated in a conference call to discuss due diligence requests from each party, with a focus on financial due diligence and changes to due diligence responses since the execution of the initial merger agreement.
On September 12, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan and Wachtell Lipton provided an update on the due diligence being conducted, the progress of negotiation of the amended documentation in connection with the revised structure and planned next steps, including the timing of the meeting with the full DISH Network Board. After discussion, the DISH Network Special Committee resolved to authorize its advisors and DISH Network management to continue working to consider the revised structure, including negotiating the terms of the proposed revised structure. The DISH Network Special Committee also resolved to provide Mr. Ortolf with an update on the work being done to consider the revised structure.
Following the September 12 meeting of the DISH Network Special Committee, a member of the DISH Network Special Committee contacted Mr. Ortolf to provide him with an update on the work being done by the DISH Network Special Committee, DISH Network and their respective advisors to consider the revised structure.
On September 15, members of EchoStar management, including Mr. Manson, members of DISH Network management, including Mr. Messner, and representatives of Cravath, S&C, White & Case and Wachtell Lipton participated in a conference call to discuss due diligence requests from each party, with a focus on legal due diligence and changes to due diligence responses since the prior conference call to discuss due diligence on September 8.
On September 15, the DISH Network Special Committee held a meeting to discuss the progress of negotiations of the amended documentation in connection with the revised structure and planned next steps. Representatives of J.P. Morgan and Wachtell Lipton were present at this meeting by invitation of the DISH Network Special Committee.
On September 30, members of EchoStar management, including Mr. Manson, members of DISH Network management, including Mr. Messner, and representatives of Cravath, S&C, White & Case and Wachtell Lipton participated in a conference call to discuss due diligence requests from each party, with a focus on legal due diligence and changes to due diligence responses since the prior conference call to discuss due diligence on September 15.
On October 1, the EchoStar Special Committee held a meeting. Representatives of each of Cravath, Ballard Spahr and Evercore were present at the meeting by invitation of the EchoStar Special Committee. Mr. Manson was present by invitation of the EchoStar Special Committee for certain portions of the meeting. Representatives of Cravath led a discussion regarding the fiduciary duties of the EchoStar Special Committee in connection with the proposed revised structure and summarized the key terms and provisions of the transaction documents. Also at this meeting, representatives of Evercore presented their financial analysis and rendered to the EchoStar Special Committee Evercore’s oral opinion, subsequently confirmed by delivery of a written opinion dated October 1, that, as of that date of such opinion and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the Exchange Ratio was fair, from a financial point of view, to EchoStar. After discussion, the EchoStar Special Committee unanimously: (a) declared and determined that the Merger Agreement and the transactions contemplated thereby, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders);
 
52

 
(b) recommended to the EchoStar Board that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, and recommending that EchoStar’s stockholders approve the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement; and (c) declared and determined the Support Agreement and the transactions contemplated thereby, to be advisable and recommended to the EchoStar Board that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Support Agreement and the transactions contemplated by the Support Agreement.
On October 1, the EchoStar Board held a meeting. Mr. Akhavan, Mr. Manson and representatives of each of Cravath, White & Case, Ballard Spahr and Evercore were present at the meeting by invitation of the EchoStar Board. Representatives of White & Case led a discussion regarding the fiduciary duties of the EchoStar Board in connection with the proposed transaction and representatives of Cravath summarized the key terms and provisions of the transaction documents. Representatives of Evercore confirmed that Evercore had rendered its oral opinion to the EchoStar Special Committee, which was subsequently confirmed by delivery of a written opinion dated October 1, that, as of that date of such opinion and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the Exchange Ratio was fair, from a financial point of view, to EchoStar. A member of the EchoStar Special Committee informed the EchoStar Board of the EchoStar Special Committee’s recommendation that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, and recommending that EchoStar’s stockholders approve the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement. Following discussion, the EchoStar Board unanimously: (a) declared and determined that the Merger Agreement and the transactions contemplated thereby, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders), (b) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement, (c) directed that the EchoStar Share Issuance be submitted to a vote of the stockholders of EchoStar, and (d) recommended that the stockholders of EchoStar approve the EchoStar Share Issuance for purposes of the rules and regulations of Nasdaq. The EchoStar Board further determined, in each case, conditioned upon the closing of the Merger, to approve (a) the terms pursuant to which Mr. Akhavan would continue serving as President and Chief Executive Officer of EchoStar, and (b) the appointment of Mr. Swieringa as President, Technology and Chief Operating Officer of EchoStar, including compensation-related terms in connection with such appointment.
On October 2, the DISH Network Special Committee held a meeting. Representatives of J.P. Morgan and Wachtell Lipton were present at the meeting by invitation of the DISH Network Special Committee. Representatives of J.P. Morgan rendered J.P. Morgan’s oral opinion to the DISH Network Special Committee, which was subsequently confirmed by J.P. Morgan’s written opinion to the DISH Network Special Committee and the DISH Network Board, dated October 2 that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the exchange ratio in the Transaction was fair, from a financial point of view, to the holders of DISH Network Class A Common Stock (other than the Ergen DISH Stockholders). Next, representatives of Wachtell Lipton provided an overview of the Merger Agreement and Support Agreement. After discussion, the DISH Network Special Committee unanimously (a) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, were fair to and in the best interests of DISH Network and its stockholders (other than the Ergen DISH Stockholders); and (b) recommended that the DISH Network Board adopt resolutions approving, adopting and declaring advisable the Merger Agreement and the transactions contemplated thereby, including the Merger, and recommending that the DISH Network stockholders approve and adopt the Merger Agreement and directing that DISH Network submit the Merger Agreement to a vote of the DISH Network stockholders.
On October 2, following the meeting of the DISH Network Special Committee, the DISH Network Board held a meeting. Mr. Messner and representatives of J.P. Morgan, S&C and Wachtell Lipton were present at the meeting by invitation of the DISH Network Board. Representatives of J.P. Morgan rendered
 
53

 
J.P. Morgan’s oral opinion to the DISH Network Board, which was subsequently confirmed by J.P. Morgan’s written opinion to the DISH Network Special Committee and the DISH Network Board, dated October 2 that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the exchange ratio in the Transaction was fair, from a financial point of view, to the holders of DISH Network Class A Common Stock (other than the Ergen DISH Stockholders). Next, representatives of Wachtell Lipton and S&C answered questions regarding the Merger Agreement and Support Agreement and related matters. Ms. Abernathy then presented to the rest of the DISH Network Board regarding the DISH Network Special Committee’s review of the advisability of the proposed transaction and its recommendation that the DISH Network Board adopt resolutions approving and declaring advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, and recommending that DISH Network’s stockholders approve and adopt the Merger Agreement. The members of the DISH Network Special Committee answered questions from the other directors regarding the proposed transaction throughout the presentation. After discussion, acting upon the recommendation of the DISH Network Special Committee, the DISH Network Board unanimously: (a) duly and validly authorized and approved the execution, delivery and performance of the Transaction Agreements and the consummation of the Merger by DISH Network, (b) determined that the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, are fair to and in the best interests of DISH Network and its stockholders, (c) approved, adopted and declared advisable the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement and (d) directed that the Merger Agreement be submitted to a vote of DISH Network’s stockholders and recommended in accordance with NRS 92A.120 that DISH Network’s stockholders approve and adopt the Merger Agreement.
Later on October 2, each of DISH Network, EchoStar, Merger Sub and the Ergen Stockholders executed and delivered the amended and restated merger agreement and amended and restated support agreement, as applicable. Following such execution and delivery, the applicable Ergen Stockholders executed and delivered the Ergen DISH Written Consent and the Ergen EchoStar Written Consent, and Mr. Akhavan and EchoStar entered into an employment letter agreement, which superseded his previous employment letter with DISH Network in its entirety and pursuant to which Mr. Akhavan would serve as President and Chief Executive Officer of EchoStar, effective as of the closing of the merger.
DISH Network’s Reasons for the Merger; Recommendation of the DISH Network Special Committee; Approval by the DISH Network Board
On February 7, 2023, at a meeting of the DISH Network Board, the DISH Network Board resolved to form the DISH Network Special Committee consisting of three independent directors, Ms. Kathleen Q. Abernathy and Messrs. George R. Brokaw and Joseph T. Proietti, in order to, among other things, evaluate the advisability of enhancing commercial relationships with EchoStar including through a potential combination with or acquisition of EchoStar and, if it deemed advisable or appropriate, oversee the negotiation of the price, structure, form, terms and conditions of a potential combination with or acquisition of EchoStar.
On October 2, 2023, at a meeting of the DISH Network Special Committee, the DISH Network Special Committee unanimously: (a) determined that the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, are fair to and in the best interests of DISH Network and its stockholders (other than the Ergen DISH Stockholders); and (b) recommended that the DISH Network Board adopt resolutions approving, adopting and declaring advisable the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, and recommending that DISH Network’s stockholders approve and adopt the Merger Agreement.
On October 2, 2023, at a meeting of the DISH Network Board, acting upon the unanimous recommendation of the DISH Network Special Committee, the DISH Network Board unanimously: (A) duly and validly authorized and approved the execution, delivery and performance of the Transaction Agreements and the consummation of the Merger by DISH Network, (B) determined that the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, are fair to and in the best interests of DISH Network and its stockholders, (C) approved, adopted and declared
 
54

 
advisable the Transaction Agreements and the transactions contemplated by the Transaction Agreements, including the Merger, on the terms and subject to the conditions set forth in the Merger Agreement and (D) directed that the Merger Agreement be submitted to a vote of DISH Network’s stockholders and recommended in accordance with NRS 92A.120 that DISH Network’s stockholders approve and adopt the Merger Agreement. See “The Merger — Background of the Merger” beginning on page 32 and “The Merger — DISH Network’s Reasons for the Merger; Recommendation of the DISH Network Special Committee; Approval by the DISH Network Board” beginning on page 54. In arriving at its determinations and recommendations, the DISH Network Special Committee reviewed and discussed a significant amount of information and consulted with members of DISH Network management and the DISH Network Special Committee’s independent legal advisors and financial advisors. The following are some of the significant factors that supported the DISH Network Special Committee’s recommendation that the DISH Network Board approve and declare advisable the Merger Agreement (which are presented below in no particular order and which were neither ranked nor weighted in any manner by the DISH Network Special Committee and are not exhaustive):

the expected business, assets, financial condition, results of operations, business plan and prospects following the Merger with EchoStar, including the enhanced operating profile of the combined company;

the DISH Network Special Committee’s belief that the overall potential long-term stockholder value creation potential for DISH Network stockholders of a Merger with EchoStar would exceed the value of DISH Network as a standalone company, given, among other things, the expectation that the Merger combining DISH Network’s satellite technology, streaming services and nationwide 5G network with EchoStar’s satellite communications solutions would strengthen the combined company’s go-to-market capability for private 5G networks, enhance retail wireless offerings (i.e., through EchoStar’s narrowband and IoT capability) and diversify the combined company’s portfolio of terrestrial and non-terrestrial wireless connectivity businesses;

the enhanced credit profile of the combined company, which should substantially lower the cost of capital for future debt financings for DISH Network and/or DISH DBS;

the enhanced credit flexibility for the combined company (vis-à-vis DISH Network prior to the Merger), including, but not limited to, the ability to avoid and/or delay refinancing certain portions of DISH Network’s and DISH DBS’s debt, or to refinance such debt on more attractive terms;

the enhanced financial and operational flexibility afforded by the revised transaction structure;

the creation of operational synergies and cost savings from the Merger, including, but not limited to, the specific savings associated with reducing procurement costs and optimizing headcount and the combined company’s ability to eliminate certain public company costs at DISH Network;

the potential for significant cost, capex, revenue and cost of capital synergies;

the geographic reach of the combined company’s S-Band portfolio;

the ability for the combined company to own certain in-orbit satellites (along with the governmental rights) that are operational and functional without the need for additional expenditures to develop and launch or lease satellites (which may not already be functional and/or in-orbit), including the recent successful launch of JUPITER-3;

the potential for the combined company to avoid certain costs associated with DISH Network’s ability to provide service at a number of its existing satellite broadcast locations, without disruption, in the event of the combined company desiring to migrate certain of its satellite operations from certain broadcast locations to other broadcast locations;

the benefits of adding long-lived satellite assets to the combined company’s portfolio (vis-à-vis DISH Network’s current portfolio), many of which have significant fuel life remaining and can be positioned to better meet the needs of DISH Network’s business and customers, and which provide increased redundancy for DISH Network’s broadcast operations (for example, certain of the EchoStar satellites have the ability to operate in a number of different configurations and have a number of years of remaining estimated useful life, which ultimately may provide the combined company with enhanced operational flexibility and cost-savings over the long term);
 
55

 

the opportunities for the combined company to sell (and upsell) to existing EchoStar and DISH Network customers, including government entities;

the belief of the DISH Network Special Committee that, at this time, the Merger is more favorable to DISH Network stockholders than the potential value that might result from the other strategic alternatives reasonably available to DISH Network (including joint ventures, commercial partnerships or obtaining additional capital by other means, which may require foregoing certain corporate opportunities by both DISH Network and EchoStar, governance, exit and monetization right considerations, multi-party agreements and yield limited overall impact);

the limited integration risks due to the particular nature of the assets and the specific role that they serve when utilized by the combined company;

the results of the due diligence review of EchoStar conducted by DISH Network management and the DISH Network Special Committee’s and DISH Network management’s advisors;

the likelihood of a streamlined integration resulting from overlapping ownership, governance and services already in place;

the fact that, because the Ergen Stockholders control both EchoStar and DISH Network, the Merger would not involve a change of control under the terms of each company’s significant contracts and obligations;

the fact that upon completion of the Merger, former DISH Network stockholders will own approximately 69.1% of the common stock of the combined company (based on the outstanding shares of DISH Network Common Stock and EchoStar Common Stock as of the date of the Merger Agreement), which will provide former DISH Network stockholders with an opportunity to participate, proportionate to their ownership of the combined company, in the future equity value of the combined company and the expected synergies resulting from the Merger;

the terms of the proposed Merger Agreement with EchoStar and Support Agreement with the Ergen DISH Stockholders, including the expectation that the Ergen DISH Stockholders who collectively own approximately 90.3% of the total voting power of DISH Network and approximately 93.4% of the total voting power of EchoStar, respectively, as of August 7, 2023 would deliver the requisite stockholder vote on each side shortly following signing of the Merger Agreement and the fact that no other stockholder approvals were required, providing DISH Network with strong deal certainty, and the limited restrictions on DISH Network’s ability to operate following signing of the Merger Agreement outside the ordinary course and the fact that if EchoStar were to receive an acquisition proposal, EchoStar may not engage with any person or entity making such acquisition proposal or their representatives due to the receipt of the Ergen EchoStar Written Consent;

the fact that the Ergen DISH Stockholders have agreed, pursuant to the terms and conditions of the Support Agreement as more fully described in the section entitled “The Support Agreement,” not to vote the shares of EchoStar Class A Common Stock owned by them (except on matters where holders of EchoStar Class B Common Stock are not entitled to vote) upon the Closing for three years, the intention of which was to ensure that, as a result of the Merger, the Ergen Stockholders’ voting power in EchoStar would not materially increase relative to current levels (as of the date of the Merger Agreement);

the DISH Network Special Committee’s assessment of the likelihood that the proposed Merger would be completed without undue delay based on, among other factors and after consulting with counsel, the timeline to obtain required regulatory approvals and satisfy the other conditions to closing;

the benefits that DISH Network was able to obtain as a result of the DISH Network Special Committee’s negotiations with the EchoStar Special Committee and the belief of the DISH Network Special Committee that this was the best-achievable exchange ratio to which EchoStar Special Committee would be willing to agree;

the risks associated with deferring or ceasing engagement with EchoStar;

the procedural safeguards and processes implemented to enable the DISH Network Special Committee to determine the fairness of the proposed Merger, including, but not limited to:
 
56

 

the independence of the DISH Network Special Committee members and its delegated power and responsibilities;

the confidential deliberations of the DISH Network Special Committee;

the DISH Network Board’s determination that it would not approve a Merger with EchoStar unless the DISH Network Special Committee recommended it;

the DISH Network Special Committee’s ability to reject a transaction with EchoStar if the DISH Network Special Committee determined to do so in its sole discretion;

the receipt of J.P. Morgan’s oral opinion to the DISH Network Special Committee, dated October 2, 2023, which was subsequently confirmed by J.P. Morgan’s written opinion to the DISH Network Special Committee and the DISH Network Board, dated as of October 2, 2023, attached hereto as Annex C, that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Exchange Ratio in the Merger was fair, from a financial point of view, to the DISH Network Class A Stockholders (other than the Ergen DISH Stockholders), as more fully described below in the section titled “The Merger — Opinion of J.P. Morgan Securities LLC, Financial Advisor to DISH Network Special Committee”;

the DISH Network Special Committee’s extensive deliberations, access to information and participation in connection with its consideration, evaluation, and negotiation of the proposed Merger;

the terms and conditions of the Merger Agreement and the Support Agreement, which were determined through arm’s-length negotiation between the DISH Network Special Committee and the EchoStar Special Committee and their respective representatives and advisors; and

the fact that the members of the DISH Network Special Committee are not receiving any compensation that is contingent on, or related to, their approval of any transaction.

the frequency and extent of the DISH Network Special Committee’s deliberations, and its access to DISH Network’s management and its advisors in connection with its evaluation of the Merger;

the fact that for U.S. federal income tax purposes, the Merger is intended to be treated as a “reorganization” under Section 368(a) of the Code, and the expectation that U.S. holders of DISH Network Common Stock generally will not recognize any gain or loss, except with respect to any cash received in lieu of a fractional share of EchoStar Common Stock; and

the DISH Network Special Committee’s determination that the potential benefits (including potential synergies) that it anticipates DISH Network and EchoStar stockholders could realize as a result of the Merger outweigh the uncertainties, risks and potentially negative factors relevant to the Merger considered by the DISH Network Special Committee (as described below).
These beliefs and expectations are based in part on the following factors that the DISH Network Special Committee considered (which are presented below in no particular order and which were neither ranked nor weighted in any manner by the DISH Network Special Committee and are not exhaustive):

the DISH Network Special Committee’s knowledge and understanding of DISH Network’s business, operations, assets and liabilities, financial condition, earnings, strategy and future prospects;

information and discussions with DISH Network management, in consultation with the DISH Network Special Committee’s advisors, regarding EchoStar’s business, operations, assets and liabilities, financial condition, earnings, strategy and future prospects, and the results of DISH Network management’s and the DISH Network Special Committee’s advisors’ due diligence review of EchoStar;

the historical, unaffected and then-current trading prices and volumes of the DISH Network Class A Common Stock and the EchoStar Class A Common Stock;

the publicly available financial and stock market data of certain other publicly traded companies in the media and communications and satellite industries that the DISH Network Special Committee, in
 
57

 
consultation with the DISH Network Special Committee’s advisors, considered to be comparable to each of DISH Network and EchoStar;

the DISH Network Special Committee’s assessment that, even in the event that DISH Network management’s financial plan could not be realized, the combined company would be equally if not more capable of realizing those improvements for the benefit of DISH Network through its position of greater scale and stability;

the DISH Network Special Committee’s determination that, after taking into consideration the above and other factors, the prospects of the combined company were more favorable than the standalone prospects for DISH Network;

the fixed exchange ratio in the Merger Agreement, which will not be reduced or increased in the event of a change in the trading price of DISH Network Class A Common Stock or EchoStar Class A Common Stock or the performance of each of DISH Network and EchoStar independently and relative to one another; and

the likelihood that the Merger would be completed based on, among other things, the conditions to closing and the assessment of the DISH Network Special Committee, after consulting with counsel, of the likelihood of obtaining all required regulatory approvals, and of the termination and remedy provisions under the Merger Agreement in the event that the Merger is not completed due to the failure to obtain required regulatory approvals or otherwise.
The DISH Network Special Committee weighed these factors against a number of uncertainties, risks and potentially negative factors relevant to the Merger, including, among others, the following (which are presented below in no particular order and which were neither ranked nor weighted in any manner by the DISH Network Special Committee):

that the fixed exchange ratio represented a 0.89% premium to DISH Network stockholders based on the closing prices of EchoStar Class A Common Stock and DISH Network Class A Common Stock on October 2, 2023 (the last full trading day before the public announcement of the signing of the Merger Agreement);

the challenges inherent in the combination of two business enterprises of the size and scope of DISH Network and EchoStar, including the possibility that anticipated synergies and other anticipated benefits of the Merger might not be achieved in the time frame contemplated or at all;

the inherent uncertainty of achieving, due to the scale, available capital and other factors that would be required in order to attain, DISH Network’s and EchoStar’s respective management’s internal financial projections, including those set forth in the section entitled “The Merger — Certain Unaudited Prospective Financial Information,” and the fact that EchoStar’s actual financial results in future periods could differ materially and adversely from the projected results;

the other numerous risks and uncertainties that could adversely affect DISH Network’s and EchoStar’s operating performance and financial results;

the operational and environmental risks relating to the JUPITER-3 satellite;

the risk that the Merger may not be completed, and the risk that announcing the Merger or the failure to complete the Merger could lead to negative effects on the business, financial results and stock price of DISH Network and EchoStar, or to negative perceptions of DISH Network and EchoStar among investors, customers, employees and other stakeholders;

the fact that changes in the regulatory landscape or new industry developments, including changes in consumer preferences, may adversely affect the business benefits anticipated to result from the Merger;

the potential implications for the process to obtain regulatory approval due to the revised transaction structure;

the adverse impact that business uncertainty prior to the closing and during the post-closing integration period could have on the ability of both DISH Network and EchoStar prior to the
 
58

 
closing, and EchoStar following the closing, to attract, retain and motivate key personnel, retain customers and maintain business relationships;

the significant costs involved in connection with completing the Merger and the risk that the Merger may divert management and employee focus and resources from operating DISH Network’s business, as well as other strategic opportunities, and that combining and integrating DISH Network and EchoStar may result in potential disruption;

the fact that the opinion of J.P. Morgan to the DISH Network Special Committee and the DISH Network Board as to the fairness to DISH Network Class A Stockholders (other than the Ergen DISH Stockholders), from a financial point of view, of the Exchange Ratio pursuant to the Merger Agreement speak only as of the date of the fairness opinion and does not take into account events occurring, or information that has become available, after such date, including any changes in the operations and prospects of DISH Network and EchoStar, general market and economic conditions and other factors which may be beyond the control of DISH Network and EchoStar and on which the fairness opinions were based, any of which may be material;

the restrictions in the Merger Agreement on the conduct of DISH Network’s business during the period between execution of the Merger Agreement and consummation of the Merger;

the fact that pursuant to the terms of the Merger Agreement, prior to the earlier of the effective time and the termination of the Merger Agreement, DISH Network is restricted from soliciting, initiating or knowingly facilitating or encouraging the submission of certain acquisition proposals with respect to DISH Network;

the interests, including financial interests, of the Ergen DISH Stockholders with respect to the Merger that are in addition to, or that may be different from, the interests of the DISH Network stockholders unaffiliated with the Ergen DISH Stockholders;

the interests, including financial interests, of DISH Network’s directors, officers and employees with respect to the Merger that may be in addition to, or that may be different from, their interests as DISH Network stockholders;

the risk that DISH Network may incur significant expenses in connection with the Merger; and

the risks of the type and nature described in the sections entitled “Risk Factors” and “Special Note Regarding Forward-Looking Statements.”
The DISH Network Special Committee concluded that the uncertainties, risks and potentially negative factors relevant to the Merger were outweighed by the potential benefits that it expected DISH Network and DISH Network stockholders would achieve as a result of the Merger.
DISH Network stockholders should be aware that certain of DISH Network’s directors and officers have interests in the Merger that may be different from, or in addition to, the interests of DISH Network stockholders generally. For a further discussion of these interests, please see “Interests of Affiliates in the Merger” beginning on page 141.
This discussion of the information and factors considered by the DISH Network Special Committee includes the principal positive and negative factors considered by the DISH Network Special Committee, but is not intended to be exhaustive and may not include all of the factors considered. In view of the wide variety of factors considered in connection with its evaluation of the Merger, and the complexity of these matters, the DISH Network Special Committee did not find it useful and did not attempt to quantify or assign any relative or specific weights to the various factors that the DISH Network Special Committee considered in reaching its determinations to approve the Merger Agreement, and the Merger, and to make its recommendations to the DISH Network Board (and, in turn, the DISH Network Board’s recommendation to the DISH Network stockholders). Rather, the DISH Network Special Committee viewed its decision to recommend the transaction as being based on the totality of the information presented to it and the factors it considered. In addition, individual members of the DISH Network Special Committee may have given differing weights to different factors. It should be noted that this explanation of the reasoning of the DISH Network Special Committee and certain information presented in this section is forward-looking in nature and, therefore, that information
 
59

 
should be read in light of the factors discussed in the section entitled “Special Note Regarding Forward-Looking Statements” beginning on page 30.
This explanation of DISH Network’s reasons for the Merger and other information presented in this section is forward-looking in nature and should be read in light of the sections entitled “Risk Factors” and “Special Note Regarding Forward-Looking Statements” beginning on pages 22 and 30, respectively.
Opinion of J.P. Morgan Securities LLC, Financial Advisor to the DISH Network Special Committee
Pursuant to an engagement letter, the DISH Network Special Committee retained J.P. Morgan as its financial advisor in connection with the proposed Merger.
At the meeting of the DISH Network Special Committee and the DISH Network Board on October 2, 2023, J.P. Morgan rendered its oral opinion to the DISH Network Special Committee and the DISH Network Board, respectively, that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Exchange Ratio in the Merger was fair, from a financial point of view, to the holders of DISH Network Class A Common Stock (other than the Ergen DISH Stockholders). J.P. Morgan has confirmed its October 2, 2023 oral opinion by delivering its written opinion to the DISH Network Special Committee and the DISH Network Board, dated October 2, 2023, that, as of such date, the Exchange Ratio in the Merger was fair, from a financial point of view, to the holders of DISH Network Class A Common Stock (other than the Ergen DISH Stockholders).
The full text of the written opinion of J.P. Morgan, dated October 2, 2023, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex C to this prospectus and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this prospectus is qualified in its entirety by reference to the full text of such opinion. DISH Network stockholders are urged to read the opinion in its entirety. J.P. Morgan’s written opinion was addressed to the DISH Network Special Committee and the DISH Network Board in connection with and for the purposes of its evaluation of the Merger, was directed only to the Exchange Ratio in the Merger and did not address any other aspect of the Merger. J.P. Morgan expressed no opinion as to the fairness of any consideration to be paid in connection with the Merger to the holders of the DISH Convertible Notes or the DISH Warrants (each as defined in the Merger Agreement) or of any other class of securities, creditors or other constituencies of DISH Network or as to the underlying decision by DISH Network to engage in the Merger. J.P. Morgan was not authorized to and did not solicit any expressions of interest from any other parties with respect to the sale of all or any part of DISH Network or any alternative transaction. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. The opinion does not constitute a recommendation to any stockholder of DISH Network as to how such stockholder should vote with respect to the Merger or any other matter.
In arriving at its opinion, J.P. Morgan, among other things:

reviewed the Merger Agreement;

reviewed certain publicly available business and financial information concerning DISH Network and EchoStar and the industries in which they operate;

compared the financial and operating performance of DISH Network and EchoStar with publicly available information concerning certain other companies J.P. Morgan deemed relevant and reviewed the current and historical market prices of the DISH Network Class A Common Stock and EchoStar Class A Common Stock and certain publicly traded securities of such other companies;

reviewed certain internal financial analyses and forecasts prepared by the managements of DISH Network and EchoStar relating to their respective businesses, as well as the estimated amount and timing of cost savings and related expenses and synergies expected to result from the Merger (the “Synergies”); and

performed such other financial studies and analyses and considered such other information as J.P. Morgan deemed appropriate for the purposes of its opinion.
 
60

 
In addition, J.P. Morgan held discussions with certain members of the management of DISH Network and EchoStar with respect to certain aspects of the Merger, and the past and current business operations of DISH Network and EchoStar, the financial condition and future prospects and operations of DISH Network and EchoStar, the effects of the Merger on the financial condition and future prospects of DISH Network and EchoStar, and certain other matters J.P. Morgan believed necessary or appropriate to its inquiry.
In giving its opinion, J.P. Morgan relied upon and assumed the accuracy and completeness of all information that was publicly available or was furnished to or discussed with J.P. Morgan by DISH Network and EchoStar or otherwise reviewed by or for J.P. Morgan. J.P. Morgan did not independently verify any such information or its accuracy or completeness and, pursuant to J.P. Morgan’s engagement letter with DISH Network, J.P. Morgan did not assume any obligation to undertake any such independent verification. J.P. Morgan did not conduct and was not provided with any valuation or appraisal of any assets or liabilities, nor did J.P. Morgan evaluate the solvency of DISH Network, Merger Sub or EchoStar under any state or federal laws relating to bankruptcy, insolvency or similar matters. In relying on financial analyses and forecasts provided to J.P. Morgan or derived therefrom, including the Synergies, J.P. Morgan assumed that they were reasonably prepared based on assumptions reflecting the best currently available estimates and judgments by management as to the expected future results of operations and financial condition of DISH Network and EchoStar to which such analyses or forecasts relate. J.P. Morgan expressed no view as to such analyses or forecasts (including the Synergies) or the assumptions on which they were based. J.P. Morgan also assumed that the Merger and the other transactions contemplated by the Merger Agreement will qualify as a tax-free reorganization for United States federal income tax purposes, and will be consummated as described in the Merger Agreement. J.P. Morgan also assumed that the representations and warranties made by DISH Network, Merger Sub and EchoStar in the Merger Agreement and the related agreements were and will be true and correct in all respects material to its analysis. J.P. Morgan is not a legal, regulatory or tax expert and relied on the assessments made by advisors to DISH Network and the DISH Network Special Committee with respect to such issues. J.P. Morgan further assumed that all material governmental, regulatory or other consents and approvals necessary for the consummation of the Merger will be obtained without any adverse effect on DISH Network or EchoStar or on the contemplated benefits of the Merger.
The projections with respect to DISH Network and EchoStar furnished to J.P. Morgan were prepared by DISH Network management and EchoStar management, respectively, as discussed more fully under the section entitled “Certain Unaudited Prospective Financial Information,” which in each case were discussed with, and approved for J.P. Morgan’s use in connection with its financial analyses by, the DISH Network Special Committee and DISH Network management. DISH Network and EchoStar do not publicly disclose internal management projections of the type provided to J.P. Morgan in connection with J.P. Morgan’s analysis of the Merger, and such projections were not prepared with a view toward public disclosure. These projections were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of DISH Network management and EchoStar management, including, without limitation, factors related to general economic and competitive conditions and prevailing interest rates. Accordingly, actual results could vary significantly from those set forth in such projections. For more information regarding the use of projections and other forward-looking statements, please refer to the section entitled “Certain Unaudited Prospective Financial Information.
J.P. Morgan’s opinion was necessarily based on economic, market and other conditions as in effect on, and the information made available to J.P. Morgan as of, the date of such opinion. J.P. Morgan’s opinion noted that subsequent developments may affect J.P. Morgan’s opinion and that J.P. Morgan does not have any obligation to update, revise, or reaffirm such opinion. J.P. Morgan’s opinion is limited to the fairness, from a financial point of view, to the holders of DISH Network Class A Common Stock (other than the Ergen DISH Stockholders) of the Exchange Ratio in the Merger, and J.P. Morgan has expressed no opinion as to the fairness of any consideration to be paid in connection with the Merger to the holders of the DISH Convertible Notes or the DISH Warrants (each as defined in the Merger Agreement) or of any other class of securities, creditors or other constituencies of DISH Network or as to the underlying decision by DISH Network to engage in the Merger. J.P. Morgan also expressed no opinion as to the Support Agreement or any voting, governance or other rights of the Ergen DISH Stockholders or the Ergen EchoStar Stockholders, whether pursuant thereto, pursuant to the other documentation entered into in connection with the Merger, or otherwise (and did not take any such rights into account in its analysis). Furthermore, J.P. Morgan
 
61

 
expressed no opinion with respect to the amount or nature of any compensation to any officers, directors, or employees of any party to the Merger, or any class of such persons relative to the Exchange Ratio applicable to the holders of the DISH Network Class A Common Stock (other than the Ergen DISH Stockholders) in the Merger or with respect to the fairness of any such compensation. J.P. Morgan expressed no opinion as to the price at which DISH Network Class A Common Stock, EchoStar Class A Common Stock or any other class of securities of DISH Network or EchoStar will trade at any future time.
The terms of the Merger Agreement, including the Exchange Ratio, were determined through arm’s length negotiations between the DISH Network Special Committee and the EchoStar Special Committee, and the decision to enter into the Merger Agreement was solely that of the DISH Network Special Committee and the DISH Network Board. J.P. Morgan’s opinion and financial analyses were only one of the many factors considered by the DISH Network Special Committee and the DISH Network Board in their evaluation of the Merger and should not be understood as determinative of the views of the DISH Network Special Committee, the DISH Network Board or management of DISH Network with respect to the Merger or the Exchange Ratio.
In accordance with customary investment banking practice, J.P. Morgan employed generally accepted valuation methodology in rendering its opinion to the DISH Network Special Committee and the DISH Network Board on October 2, 2023 and in the financial analyses presented to the DISH Network Special Committee and DISH Network Board on such date in connection with the rendering of such opinion. The following is a summary of the material financial analyses utilized by J.P. Morgan in connection with rendering its opinion to the DISH Network Special Committee and the DISH Network Board and does not purport to be a complete description of the analyses or data presented by J.P. Morgan. Some of the summaries of the financial analyses include information presented in tabular format. The tables are not intended to stand alone, and in order to more fully understand the financial analyses used by J.P. Morgan, the tables must be read together with the full text of each summary. Considering the data set forth below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of J.P. Morgan’s analyses.
EchoStar Analysis
Public Trading Multiples
For each of the following analyses, using publicly available information, J.P. Morgan compared selected financial data of EchoStar with similar data for certain publicly traded companies engaged in businesses which J.P. Morgan judged to be sufficiently analogous to the business of EchoStar. These companies were selected, among other reasons, because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analyses, were, in J.P. Morgan’s judgment, considered sufficiently similar to that of EchoStar based on business sector participation, financial metrics, form of operations, and stage of commercialization, including the following selected companies:

ViaSat, Inc.

Eutelsat Communications SA

SES SA

Telesat Corporation

Al Yah Satellite Communications Company PJSC (YahSat)
None of the selected companies reviewed is identical to EchoStar and certain of these companies may have characteristics that are materially different from those of EchoStar. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the companies differently than would affect EchoStar. In all instances, multiples were based on closing stock prices on September 29, 2023.
With respect to the selected companies, the information J.P. Morgan presented included the multiple of firm value (calculated as equity value plus or minus, as applicable, net debt or net cash, non-controlling interests, unconsolidated investments, pension obligations, lease liabilities and NPV of C-band proceeds and
 
62

 
reimbursement receivables) to estimates of calendar year 2023 adjusted EBITDA (calculated after taking into account stock-based compensation expense) for the applicable company, which we refer to as Adj. FV / 23E EBITDA in this section entitled “Opinion of J.P. Morgan Securities LLC, Financial Advisor to the DISH Network Special Committee.” Financial data for the selected companies was based on the selected companies’ filings with the SEC, publicly available equity research analysts’ consensus estimates for calendar year 2023 and FactSet Research Systems. Results of this analysis were presented as indicated in the following table:
Company
2023 Adj.
FV/EBITDA
EchoStar Corp (street – unaffected)(1)
1.8x
ViaSat, Inc.
6.3x
Eutelsat Communications SA/OneWeb Holdings Ltd (pro forma)(2)(3)
7.6x
SES SA (adjusted)(3)
4.6x
Eutelsat Communications SA (unaffected)(3)(4)
5.1x
Telesat Corporation (adjusted)(3)(5)
4.1x
Al Yah Satellite Communications Company PJSC (YahSat)
6.5x
Mean 5.7x
Median 5.7x
(1)
As of 07/05/2023 unaffected date
(2)
Includes impact of OneWeb combination announced on 07/25/2022
(3)
FV excludes post-tax C-band proceeds and reimbursement receivables
(4)
Unaffected as of 07/22/2022, the last full trading day prior to media speculation regarding a potential Eutelsat combination with OneWeb
(5)
Removes from FV the estimated investment to date in the Lightspeed LEO program
Based on the above analysis and on other factors J.P. Morgan considered appropriate, J.P. Morgan then derived an Adj. FV/ 23E EBITDA reference range for EchoStar of 4.50x to 6.50x. J.P. Morgan then applied that range to EchoStar’s 2023 EBITDA (calculated after taking into account stock-based compensation expense) as provided in the EchoStar projections used by J.P. Morgan described in the section entitled “The Merger — Certain Unaudited Prospective Financial Information — EchoStar Unaudited Prospective Financial Information” beginning on page 87, adjusted for the net debt, non-controlling interests and investments in affiliates balances as of June 30, 2023, the estimated net present value of EchoStar’s tax attributes, as well as the estimated value of EchoStar’s S-Band assets, using a midpoint value of the range determined on the basis of due diligence discussions with management of EchoStar and management of DISH Network regarding the estimated value of the assets in the event of a third-party sale, as well as publicly available equity research analyst estimates, at the direction of the DISH Network Special Committee, and derived implied equity value per share price ranges for EchoStar Class A Common Stock. The analysis indicated a range of implied equity values per share for EchoStar Class A Common Stock of $39.07 to $54.49, as compared to the closing price per share of EchoStar Class A Common Stock as of September 29, 2023 of $16.75 and to the closing price per share of EchoStar Class A Common Stock as of July 5, 2023, the last full trading day prior to media speculation regarding a potential transaction with DISH Network, of $17.07.
Discounted Cash Flow Analysis.
J.P. Morgan conducted discounted cash flow analyses for the purpose of determining the implied fully diluted equity value per share of EchoStar Class A Common Stock. A discounted cash flow analysis is a method of evaluating an asset using estimates of the future unlevered free cash flows generated by the asset and taking into consideration the time value of money with respect to those cash flows by calculating their “present value.” For the purposes of J.P. Morgan’s analysis, “unlevered free cash flows” were calculated by taking earnings before interest and taxes, subtracting cash taxes, adding back depreciation and
 
63

 
amortization, subtracting capital expenditures and adjusting for changes in working capital. For purposes of the J.P. Morgan opinion, “present value” refers to the current value of one or more future unlevered free cash flows from the asset, which is referred to as that asset’s cash flows, and is obtained by discounting those cash flows back to the present using a discount rate that takes into account certain macroeconomic assumptions and estimates of risk, the opportunity cost of capital, capitalized returns and other appropriate factors. For purposes of J.P. Morgan’s opinion, “terminal value” refers to the capitalized value of all cash flows from an asset for periods beyond the final projection period.
J.P. Morgan calculated the unlevered free cash flows for EchoStar for calendar years 2023 through 2027, as reflected in the EchoStar projections. J.P. Morgan also calculated a range of terminal values for EchoStar at the end of this period by applying a terminal growth rate estimated by management of DISH Network ranging from 0.00% to 1.00% for EchoStar during the terminal period of the projections. The unlevered free cash flows and the ranges of terminal values were discounted to present values as of June 30, 2023 using a range of discount rates from 8.50% to 9.50% for EchoStar. The discount rates for EchoStar were chosen by J.P. Morgan based upon an analysis of the weighted average cost of capital of EchoStar. The present value of the unlevered free cash flows and the range of terminal values for EchoStar were then adjusted for net debt, non-controlling interests and investments in affiliates, the estimated net present value of EchoStar’s tax attributes, as well as the estimated value of EchoStar’s S-Band assets, using a midpoint value of the range determined on the basis of due diligence discussions with management of EchoStar and management of DISH Network regarding the estimated value of the assets in the event of a third-party sale, as well as publicly available equity research analyst estimates, at the direction of the DISH Network Special Committee, to indicate the ranges of implied equity values per share set forth in the table below.
J.P. Morgan also calculated the unlevered free cash flows related to the different components of Synergies summarized below, taking into account the costs to achieve such Synergies, for calendar years 2023 through 2027 (other than where described below) based on the DISH Network and EchoStar projections. J.P. Morgan also calculated a range of terminal values for such Synergies at the end of this period by applying a terminal growth rate as outlined below. The unlevered free cash flows and the range of terminal values for the Synergies were discounted to present values as of June 30, 2023 using a range of discount rates as outlined below:

Operating Expenses Synergies:   J.P. Morgan applied a terminal growth rate ranging from (0.50)% to 0.50%. The unlevered free cash flows and the range of terminal values were discounted to present values using a range of discount rates from 11.00% to 12.00%, equal to the weighted average of the DISH Network Pay-TV business segment discount rate and the EchoStar discount rate.

Revenue Synergies:   J.P. Morgan applied a terminal growth rate ranging from (0.50)% to 0.50%. The unlevered free cash flows and the range of terminal values were discounted to present values using a range of discount rates from 15.00% to 16.00%, equal to the weighted average of the DISH Network weighted average discount rate and the EchoStar discount rate.

Tax Synergies:   J.P. Morgan calculated the difference between (1) the net present value of the tax savings resulting from the combined DISH Network and EchoStar tax attributes as estimated by management of DISH Network for the calendar years 2023 through 2037, and (2) the net present value of the sum of the tax savings resulting from (a) the DISH Network tax attributes on a standalone basis as estimated by management of DISH Network for the calendar years 2023 through 2037, and (b) the EchoStar tax attributes on a standalone basis, as estimated by management of EchoStar for the calendar years 2023 through 2025, and approved by management of DISH Network for use in J.P. Morgan’s analysis. The tax savings resulting from the DISH Network standalone tax attributes were discounted to present values using a range of discount rates from 15.75% to 16.75%, equal to the weighted average of the Pay-TV business segment and Retail Wireless and 5G Network business unit discount rates. The tax savings resulting from the EchoStar standalone tax attributes were discounted to present values using a range of discount rates from 8.50% to 9.50%. The tax savings resulting from the combined DISH Network and EchoStar tax attributes were discounted to present values using a range of discount rates from 15.00% to 16.00%, equal to the weighted average of the DISH Network weighted average discount rate and the EchoStar discount rate.

Cost of Capital Synergies:   J.P. Morgan estimated the potential impact of the combination on the respective discount rates of DISH Network and EchoStar based on an analysis of certain financial
 
64

 
metrics for each company on a standalone basis compared to the corresponding financial metrics estimated for the combined business. J.P. Morgan calculated the cost of capital synergies as the difference between (1) the sum of (a) the DISH Network discounted cash flow analysis using a range of discount rates from 11.50% to 12.50% for the Pay-TV business segment, and from 18.50% to 20.50% for both the Retail Wireless and 5G Network business units, and (b) the EchoStar discounted cash flow analysis using a range of discount rates from 8.50% to 9.50%, and (2) the sum of (a) the DISH Network discounted cash flow analysis using a range of discount rates from 9.75% to 10.75% for the Pay-TV business segment beginning January 1, 2025, and from 16.75% to 18.75% for both the Retail Wireless and 5G Network business units beginning January 1, 2025, and (b) the EchoStar discounted cash flow analysis using a range of discount rates from 11.75% to 12.75% until December 31, 2024, and from 10.00% to 11.00% beginning January 1, 2025.
The table below shows the ranges of implied equity values per share for EchoStar Class A Common Stock, with and without such Synergies, calculated based on the fully diluted number of shares outstanding using the treasury stock method, and after accounting for net debt, non-controlling interests and investments in affiliates, each as provided by management of EchoStar and approved to use for purposes of J.P. Morgan’s analysis by management of DISH Network.
Implied Equity Value per Share
EchoStar
Standalone
$37.34 to $46.34
Standalone plus operating expense, revenue and tax synergies
$47.01 to $57.27
Standalone plus operating expense, revenue, tax synergies and 50% of cost of capital synergies
$77.22 to $107.96
Standalone plus operating expense, revenue, tax synergies and 100% of cost of capital synergies
$107.42 to $158.64
The range of implied equity values per share for EchoStar Class A Common Stock was compared to the closing price per share of EchoStar Class A Common Stock as of September 29, 2023 of $16.75 and to the closing price per share of EchoStar Class A Common Stock as of July 5, 2023, the last full trading day prior to media speculation regarding a potential transaction, of $17.07.
DISH Network Analysis
DISH Network Sum of the Parts Trading Multiples Analyses
J.P. Morgan performed a sum of the parts trading multiples comparable analysis for DISH Network. That is, J.P. Morgan separately derived an implied firm value range for DISH Network’s Pay-TV business segment, its Retail Wireless business unit and its 5G Network business unit, and calculated a range of implied firm values for DISH Network as a sum of such ranges and subsequently derived a range of implied equity values for DISH Network. For each of DISH Network’s Pay-TV business segment, Retail Wireless business unit and 5G Network business unit, using publicly available information, J.P. Morgan compared selected financial data of each such business with similar data for certain publicly traded companies engaged in businesses which J.P. Morgan judged to be sufficiently analogous to the applicable business. The companies selected by J.P. Morgan to be used for reference for DISH Network’s Pay-TV business were as follows (which are referred to in this prospectus as the “Pay-TV Companies”):
Pay-TV Companies:

SES SA

Cyfrowy Polsat SA

Digi Communications N.V.

Sun TV Network Ltd

Astro Malaysia Holdings Bhd
 
65

 
The companies selected by J.P. Morgan to be used for reference for DISH Network’s Retail Wireless and 5G Network business units were as follows (which are referred to in this prospectus as the “Wireless Companies”):
Wireless Companies:

Verizon Communications Inc.

AT&T, Inc.

T-Mobile US, Inc.

United States Cellular Corporation
For each of the following analyses performed by J.P. Morgan, estimated financial data for the selected companies were based on the selected companies’ filings with the SEC and information J.P. Morgan obtained from FactSet Research Systems and selected equity research reports. The multiples and ratios for each of the selected companies were based on the most recent publicly available information. The Pay-TV Companies were selected, among other reasons, because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analyses, were, in J.P. Morgan’s judgment, considered sufficiently similar to as DISH Network’s Pay-TV business, based on business sector participation, financial metrics, form of operations, and stage of commercialization. The Wireless Companies were selected, among other reasons, because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analyses, were, in J.P. Morgan’s judgment, considered sufficiently similar to DISH Network’s Retail Wireless and 5G Network businesses, based on business sector participation, financial metrics and form of operations. None of the selected companies reviewed is identical to DISH Network or the applicable business and certain of these companies may have characteristics that are materially different from those of DISH Network or such applicable business. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies and businesses involved and other factors that could affect the companies differently than would affect DISH Network or its businesses. Multiples were based on closing stock prices on September 29, 2023 in all instances other than for United States Cellular Corporation, which multiple was based on the closing stock price as of the August 3, 2023 unaffected date.
With respect to the selected companies, the information J.P. Morgan presented included the multiple of firm value (calculated as equity value plus, or minus, as applicable, net debt, net cash, unconsolidated investments and/or non-controlling interests) to estimates of calendar year 2023 adjusted EBITDA (calculated after taking into account stock-based compensation expense) for the applicable company, which we refer to as Adj. FV/ 23E EBITDA in this section entitled “Opinion of J.P. Morgan Securities LLC, Financial Advisor to the DISH Network Special Committee.
Results of the analysis for the Pay-TV Companies were presented as indicated in the following table:
Trading Multiples — Pay-TV Companies
Adj. Firm Value
to EBITDA Ratio
2023 Estimated
SES SA (Adjusted)(1)
4.6x
Cyfrowy Polsat SA
5.3x
Digi Communications N.V.
4.1x
Sun TV Network Ltd
7.8x
Astro Malaysia Holdings Bhd
4.6x
Mean 5.3x
Median 4.6x
(1)
FV excludes post-tax C-band proceeds and reimbursement receivables
 
66

 
Results of the analysis for the Wireless Companies were presented as indicated in the following table:
Trading Multiples — Wireless Companies
Adj. Firm Value
to EBITDA Ratio
2023 Estimated
Verizon Communications Inc
6.2x
AT&T, Inc.
5.9x
T-Mobile US Inc(1)
8.5x
United States Cellular Corporation (unaffected)(2)(3)
5.5x
Mean 6.5x
Median 6.1x
(1)
EBITDA reflects Adjusted EBITDA, less device lease revenues (Core Adjusted EBITDA)
(2)
Unaffected as of 08/03/2023, the last full trading day prior to Telephone and Data Systems, Inc. and United States Cellular Corporation announcing a process to explore a range of strategic alternatives for United States Cellular Corporation
(3)
Uses adjusted OIBDA to exclude income from unconsolidated entities
Based on these analyses and on other factors J.P. Morgan considered appropriate, J.P. Morgan then derived a reference range of 4.00x – 5.25x for Adj. FV/ 23E EBITDA for DISH Network’s Pay-TV business segment, 5.50x – 7.00x Adj. FV/ 31E EBITDA for DISH Network’s Retail Wireless business unit and 6.00x – 8.50x for Adj. FV/ 27E EBITDA for DISH Network’s 5G Network business unit, respectively. The resulting values for DISH Network’s Retail Wireless business unit and DISH Network’s 5G Network business unit were discounted back to present value at the midpoint of their respective weighted average costs of capital from the period to which the reference range was applied.
After applying these ranges as described above to the OIBDA for the applicable DISH Network business as provided in the DISH Network projections used by J.P. Morgan described in the section entitled “The Merger — Certain Unaudited Prospective Financial Information — DISH Network Unaudited Prospective Financial Information” beginning on page 86, adjusted for the net debt, non-controlling interests and investments in affiliates balances as of June 30, 2023 and the estimated net present value of DISH Network’s tax attributes, the analysis indicated a range of implied equity values per share for DISH Network Class A Common Stock of $2.64 to $15.25, as compared to the closing price per share of DISH Network Class A Common Stock as of September 29, 2023 of $5.86 and to the closing price per share of DISH Network Class A Common Stock as of July 5, 2023, the last full trading day prior to media speculation regarding a potential transaction, of $6.76.
Sum-of-the-Parts Discounted Cash Flow Analysis.
Given the nature of the businesses in which DISH Network participates, J.P. Morgan analyzed DISH Network as the sum of its Pay-TV business segment, its Retail Wireless business unit and its 5G Network business unit, or as the “sum-of-the-parts,” and performed a discounted cash flow analysis on each of such constituent businesses. J.P. Morgan performed separate sum-of-the-parts discounted cash flow analyses on each such business to estimate the present value of the total unlevered free cash flows that DISH Network was projected to generate on a standalone basis for fiscal years 2023 through 2028 for the Pay-TV business segment, and for fiscal years 2023 through 2033 for the Retail Wireless and 5G Network business units (excluding the expected synergies and other pro forma adjustments) based on the DISH Network management projections. For the purposes of J.P. Morgan’s analysis, “unlevered free cash flows” were calculated by taking earnings before interest and taxes, subtracting cash taxes, adding back depreciation and amortization, subtracting capital expenditures and adjusting for changes in working capital. The free cash flows and range of terminal values were discounted to present values as of June 30, 2023 using a range of discount rates which were chosen by J.P. Morgan based upon analysis of the weighted average cost of capital applicable to comparable companies and businesses. The sum-of-the-parts discounted cash flow analyses do not
 
67

 
imply the value at which the individual DISH Network businesses could be sold. The present value of the unlevered free cash flows and the range of terminal values for DISH Network businesses, including corporate expenses, were summed and then adjusted for net debt, non-controlling interests and investments in affiliates, as well as the estimated net present value of DISH Network’s tax attributes.
For the DISH Network valuation analysis, J.P. Morgan performed discounted cash flow analyses on the following businesses with the assumptions and considerations noted below:

For DISH Network’s Pay-TV business segment, J.P. Morgan calculated a range of terminal values at the end of the projection period by applying a terminal growth rate estimated by management of DISH Network to the segment’s projected 2028 cash flows, which were adjusted to capture run-rate unlevered free cash flows. The terminal growth rate range used was (3.00%) to (2.00%). The unlevered free cash flows and ranges of terminal values of the Pay-TV business were then discounted to present value using a discount rate range of 11.5% to 12.5%.

For DISH Network’s Retail Wireless business unit, J.P. Morgan calculated a range of terminal values at the end of the projection period by applying a terminal growth rate estimated by management of DISH Network to the unit’s projected 2033 cash flows, which were adjusted to capture run-rate unlevered free cash flows. The terminal growth rate range used was 6.00% to 8.00%. The unlevered free cash flows and ranges of terminal values of the Retail Wireless business were then discounted to present value using a discount rate range of 18.5% to 20.5%.

For DISH Network’s 5G Network business unit, J.P. Morgan calculated a range of terminal values at the end of the projection period by applying a terminal growth rate estimated by management of DISH Network to the unit’s projected 2033 cash flows, which were adjusted to capture run-rate unlevered free cash flows. The terminal growth rate range used was 6.75% to 8.25%. The unlevered free cash flows and ranges of terminal values of the 5G Network business were then discounted to present value using a discount rate range of 18.5% to 20.5%.
The DISH Network sum-of-the-parts discounted cash flow analysis indicated a range of implied equity values per share for DISH Network Class A Common Stock of $15.32 to $30.89, as compared to the closing price per share of DISH Network Class A Common Stock as of September 29, 2023 of $5.86 and to the closing price per share of DISH Network Class A Common Stock as of July 5, 2023, the last full trading day prior to media speculation regarding a potential transaction, of $6.76.
Relative Value Analysis
Based upon (i) the implied equity values per share of DISH Network Class A Common Stock and EchoStar Class A Common Stock calculated in the public trading multiples analysis described above, and (ii) the implied equity values per share of DISH Network Class A Common Stock and EchoStar Class A Common Stock calculated in the discounted cash flow analysis described above, J.P. Morgan calculated an implied range of exchange ratios. For each comparison, J.P. Morgan compared the highest equity value for DISH Network to the lowest equity value for EchoStar to derive the highest implied exchange ratio for holders of DISH Network Class A Common Stock implied by each set of reference ranges. J.P. Morgan also compared the lowest equity value for DISH Network to the highest equity value for EchoStar to derive the lowest implied exchange ratio for holders of DISH Network Class A Common Stock implied by each set of reference ranges. The implied ranges of exchange ratios resulting from this analysis were:
Implied Exchange Ratio
Low
High
Public Trading Multiples Analysis
0.048386x 0.390221x
Discounted Cash Flow Analysis
Standalone (sum of parts) before synergies
0.330704x 0.827346x
Standalone plus operating expense, revenue and tax synergies
0.267584x 0.657142x
Standalone plus operating expense, revenue, tax synergies and 50% of cost of capital synergies
0.141954x 0.400018x
Standalone plus operating expense, revenue, tax synergies and 100% of cost of capital synergies
0.096601x 0.287573x
 
68

 
The resulting implied ranges of exchange ratios were then compared to the Exchange Ratio of 0.350877x in the Merger.
Illustrative Value Creation Analysis
Intrinsic Value.   J.P. Morgan conducted an illustrative value creation analysis that compared the implied equity value per share of DISH Network Class A Common Stock derived from a discounted cash flow valuation on a standalone basis to the pro forma combined company implied equity value per share. J.P. Morgan determined the pro forma combined company implied equity value per share including expected operational synergies by calculating: (1) the sum of (a) the implied equity value of DISH Network using the midpoint value determined in J.P. Morgan’s discounted cash flow analysis described above, (b) the implied equity value of EchoStar using the midpoint value determined in J.P. Morgan’s discounted cash flow analysis described above, plus the estimated value of EchoStar’s S-Band assets, using a midpoint value of the range determined on the basis of due diligence discussions with management of EchoStar and management of DISH Network regarding the estimated value of the assets in the event of a third-party sale, as well as publicly available equity research analyst estimates, at the direction of the DISH Network Special Committee, (c) the estimated present value of the Operating Expenses, Revenue, and Tax Synergies estimated by management of DISH Network, discounted to present value using the respective discount rates and terminal growth rates described above, and (d) the estimated present value of the Cost-of-Capital synergies as described above, excluding any transaction expenses, divided by (2) the pro forma diluted number of shares outstanding as provided by management of DISH Network, based upon the Exchange Ratio of 0.350877x provided for in the Merger. The analysis indicated, on an illustrative basis, that the Merger created incremental implied value for the holders of DISH Network Class A Common Stock.
Miscellaneous
The foregoing summary of certain material financial analyses does not purport to be a complete description of the analyses or data presented by J.P. Morgan. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. J.P. Morgan believes that the foregoing summary and its analyses must be considered as a whole and that selecting portions of the foregoing summary and these analyses, without considering all of its analyses as a whole, could create an incomplete view of the processes underlying the analyses and its opinion. As a result, the ranges of valuations resulting from any particular analysis or combination of analyses described above were merely utilized to create points of reference for analytical purposes and should not be taken to be the view of J.P. Morgan with respect to the actual value of DISH Network or EchoStar. The order of analyses described does not represent the relative importance or weight given to those analyses by J.P. Morgan. In arriving at its opinion, J.P. Morgan did not attribute any particular weight to any analyses or factors considered by it and did not form an opinion as to whether any individual analysis or factor (positive or negative), considered in isolation, supported or failed to support its opinion. Rather, J.P. Morgan considered the totality of the factors and analyses performed in determining its opinion.
Analyses based upon forecasts of future results are inherently uncertain, as they are subject to numerous factors or events beyond the control of the parties and their advisors. Accordingly, forecasts and analyses used or made by J.P. Morgan are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by those analyses. Moreover, J.P. Morgan’s analyses are not and do not purport to be appraisals or otherwise reflective of the prices at which businesses actually could be acquired or sold. None of the selected companies reviewed as described in the above summary is identical to DISH Network or EchoStar. However, the companies selected were chosen because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analysis, may be considered similar to those of DISH Network and EchoStar. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the companies compared to DISH Network and EchoStar.
As a part of its investment banking business, J.P. Morgan and its affiliates are continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements, and valuations for corporate and other purposes. J.P. Morgan was selected to
 
69

 
advise the DISH Network Special Committee with respect to the Merger on the basis of, among other things, such experience and its qualifications and reputation in connection with such matters and its familiarity with DISH Network, EchoStar and the industries in which they operate.
DISH Network has agreed to pay J.P. Morgan a total transaction fee of $5.0 million, $2.0 million of which became payable to J.P. Morgan in connection with delivery by J.P. Morgan of its opinion to the DISH Network Special Committee and the DISH Network Board on August 7, 2023, and the remainder of which becomes payable upon the completion of the Merger. In addition, DISH Network may, in its sole discretion, based on its assessment of J.P. Morgan’s performance of its services, pay J.P. Morgan an additional fee of up to $5.0 million upon the completion of the Merger. In addition, DISH Network has agreed to reimburse J.P. Morgan for its expenses incurred in connection with its services, including the fees and disbursements of counsel, and will indemnify J.P. Morgan against certain liabilities arising out of J.P. Morgan’s engagement. During the two (2) years preceding the date of J.P. Morgan’s opinion, J.P. Morgan and its affiliates have had commercial or investment banking relationships with DISH Network for which J.P. Morgan and such affiliates have received customary compensation. Such services during such period have included acting as joint lead bookrunner on a DISH Network subsidiary’s offering of debt securities in November 2021 and as joint lead bookrunner on DISH Network’s offering of debt securities in November 2022. The compensation paid to J.P. Morgan for these services was approximately $2 million. During the two (2) years preceding the date of J.P. Morgan’s opinion, neither J.P. Morgan nor its affiliates have had any material financial advisory or other material commercial or investment banking relationships with EchoStar nor any of the following Charlie Ergen affiliated entities: Ergen Two-Year December 2020 DISH GRAT, Ergen Two-year March 2021 DISH GRAT, Ergen Two-Year June 2021 DISH GRAT, Ergen Two-Year December 2021 DISH GRAT, Ergen Two-Year May 2022 DISH GRAT, Ergen Two-Year June 2022 DISH GRAT, Ergen Two-Year June 2021 SATS GRAT, Ergen Two-Year March 2022 SATS GRAT, Ergen Two-Year June 2022 SATS GRAT, Ergen Two-Year December 2022 SATS GRAT, Ergen Two-Year December 2022 DISH GRAT, Ergen Two-Year May 2023 DISH GRAT and Telluray Holdings, LLC. In addition, J.P. Morgan and its affiliates hold, on a proprietary basis, less than 1% of the outstanding common stock of each of DISH Network and EchoStar. In the ordinary course of their businesses, J.P. Morgan and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of DISH Network or EchoStar for their own accounts or for the accounts of customers and, accordingly, they may at any time hold long or short positions in such securities or other financial instruments.
EchoStar’s Reasons for the Merger; Recommendation of the EchoStar Special Committee; Approval by the EchoStar Board
On April 3, 2023, at a meeting of the EchoStar Board, the EchoStar Board resolved to form the EchoStar Special Committee, consisting of five independent directors, Mr. R. Stanton Dodge, Ms. Lisa W. Hershman, Messrs. C. Michael Schroeder, Jeffrey R. Tarr and William D. Wade, each of whom were determined by the EchoStar Board to be independent and disinterested under applicable law for purposes of a potential transaction with DISH Network, to, among other things, explore, review, consider and evaluate a potential transaction with DISH Network, including by exploring, reviewing, considering and evaluating any alternative to a potential transaction with DISH Network that the EchoStar Special Committee deems appropriate, and if the EchoStar Special Committee determines that it is advisable to investigate further or pursue the potential transaction with DISH Network, conduct negotiations with respect thereto.
As discussed in more detail in the section entitled “The Merger — Background of the Merger” beginning on page 32, on August 8, 2023, EchoStar and DISH Network entered into the Original Merger Agreement following the approval thereof by the EchoStar Board and the DISH Network Board (acting upon the unanimous recommendation of the EchoStar Special Committee and the DISH Network Special Committee, respectively). Following entry into the Original Merger Agreement, the parties thereto proposed to amend and restate the Original Merger Agreement to provide for a transaction structure whereby EchoStar would become the ultimate parent company following closing of the Merger.
On October 1, 2023, at a meeting of the EchoStar Special Committee, the EchoStar Special Committee unanimously: (a) declared and determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, are fair to and in the best
 
70

 
interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders); (b) recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, and recommending that EchoStar’s stockholders approve the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement; and (c) declared and determined the Support Agreement and the transactions contemplated by the Support Agreement to be advisable and recommended that the EchoStar Board adopt resolutions approving, adopting and declaring advisable the Support Agreement and the transactions contemplated by the Support Agreement.
Subsequently, at a duly convened meeting of the EchoStar Board, the EchoStar Board, acting upon the unanimous recommendation of the EchoStar Special Committee, unanimously: (a) duly and validly authorized the execution, delivery and performance of the Merger Agreement and the consummation of the Merger by EchoStar; (b) declared and determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders); (c) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger and the EchoStar Share Issuance, on the terms and subject to the conditions set forth in the Merger Agreement; (d) directed that the EchoStar Share Issuance be submitted to a vote of EchoStar’s stockholders, (e) recommended the approval of the EchoStar Share Issuance for purposes of the rules and regulations of NASDAQ by the holders of shares of EchoStar Common Stock; and (f) approved, adopted and declared advisable the Support Agreement and the transactions contemplated by the Support Agreement. See the section entitled “The Merger — Background of the Merger” beginning on page 32.
In arriving at its determinations and recommendations, the EchoStar Special Committee reviewed and discussed a significant amount of information and consulted with members of EchoStar management and the EchoStar Special Committee’s independent legal advisors and financial advisors. The following are some of the significant factors that supported the EchoStar Special Committee’s recommendation that the EchoStar Board approve and declare advisable the Merger Agreement (which are presented below in no particular order and which were neither ranked nor weighted in any manner by the EchoStar Special Committee and are not exhaustive):

the EchoStar Special Committee’s knowledge of, and discussions with EchoStar management regarding, EchoStar’s business, operations, financial condition, earnings and prospects;

the EchoStar Special Committee’s knowledge of DISH Network’s business, operations, financial condition, earnings and prospects, taking into account the results of the due diligence review of DISH Network, which included a review of the projected future growth prospects of DISH Network and DISH Network’s ability to continue to finance its ongoing operations;

the fixed Exchange Ratio, which will not be reduced in the event of a change in the trading price of DISH Network Class A Common Stock or EchoStar Class A Common Stock or the performance of each of DISH Network or EchoStar independently and relative to one another during the time from the date of the Merger Agreement until the completion of the Merger;

the fact that, as more fully described in the section entitled “The Merger — Background of the Merger”, EchoStar as the ultimate parent company following the Merger would provide for a more optimal organizational structure, which would enable more efficient capital allocation and allow for greater strategic flexibility to pursue future transactions and facilitate integration thereof, and provide the combined company with greater financial and operational flexibility, including by virtue of the parent holding company being less burdened by material contractual obligations and indebtedness;

the fact that because Mr. Ergen controls both DISH Network and EchoStar the Merger would not involve a change of control under the terms of each company’s significant contracts and obligations;

the initial exchange ratio of 2.8500 under the Original Merger Agreement (the “Initial Exchange Ratio”) represented a 12% premium to the 30-day trading VWAP implied exchange ratio based on the closing prices of EchoStar Class A Common Stock and DISH Network Class A Common Stock on July 5, 2023 (the last full trading day prior to media speculation of a potential transaction
 
71

 
between the two companies) and a 13% premium to the spot implied exchange ratio based on the closing prices of EchoStar Class A Common Stock and DISH Network Class A Common Stock on July 5, 2023, and the Exchange Ratio, by virtue of being the inverse of the Initial Exchange Ratio (rounded to the nearest sixth decimal), would preserve the proportional ownership of existing EchoStar and DISH Network stockholders in the combined company upon the consummation of the Merger;

following the Merger, EchoStar stockholders will continue to have the opportunity to participate in the future growth of the combined company;

the combined company’s ability to potentially realize meaningful cost and capital expenditure synergies, as well as revenue and financial synergies from expanded enterprise opportunities;

the expectation that the Merger will allow EchoStar to potentially monetize its S-Band business through its access to DISH Network’s satellite technology and unencumbered North America spectrum assets;

the opportunities to access DISH Network’s existing customer base;

the oral opinion of Evercore rendered to the EchoStar Special Committee on October 1, 2023, which was subsequently confirmed by delivery of a written opinion dated October 1, 2023, that as of the date of such opinion and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the Exchange Ratio was fair, from a financial point of view, to EchoStar, as more fully described in the section entitled “The Merger — Opinion of Evercore Group L.L.C., Financial Advisor to the EchoStar Special Committee”;

the current and historical market prices of EchoStar Class A Common Stock, including the market performance of EchoStar Class A Common Stock relative to DISH Network Class A Common Stock and general market indices;

the size and scale of the combined company and the expected pro forma effect of the Merger, including the opportunity to invest EchoStar’s existing cash and cash flow into the combined company;

the Exchange Ratio (as the inverse of the Initial Exchange Ratio (rounded to the nearest sixth decimal)) was achieved by the EchoStar Special Committee through extensive, arm’s-length negotiations with the DISH Network Special Committee, as more fully described in the section entitled “The Merger — Background of the Merger”, and the Exchange Ratio would preserve the proportional ownership of existing EchoStar and DISH Network stockholders in the combined company upon the consummation of the Merger;

the EchoStar Special Committee retained independent financial and legal advisors with knowledge and experience with respect to public merger and acquisition transactions, as well as substantial experience advising other companies with respect to similar transactions and, in the of case of Evercore, extensive experience with transactions in the satellite communications industry;

the review by the EchoStar Special Committee, together with the EchoStar Special Committee’s legal and financial advisors, of the structure of the proposed Merger and the financial and other terms of the Merger Agreement, including the representations, warranties and covenants, the conditions to the consummation of the Merger and the termination provisions, as well as the likelihood of consummation of the Merger;

the fact that the Ergen EchoStar Stockholders would be entering into the Support Agreement with both EchoStar and DISH Network, as more fully described below under the section entitled “The Support Agreement”; and

the EchoStar Special Committee’s determination that, after taking into consideration the above and other factors, the prospects of the combined company were more favorable than the standalone prospects for EchoStar.
The EchoStar Special Committee also considered the following specific aspects of the Merger Agreement (which are presented below in no particular order and which were neither ranked nor weighted in any manner by the EchoStar Special Committee and are not exhaustive):
 
72

 

the EchoStar Special Committee’s belief that the terms of the Merger Agreement, including each party’s representations, warranties and covenants and the conditions to the consummation of the Merger, are reasonable;

the fact that EchoStar and DISH Network had committed to provide the written consents of the Ergen DISH Stockholders and the Ergen EchoStar Stockholders, respectively, approving and adopting the Merger Agreement and the transactions contemplated thereby, including the Merger, or approving the EchoStar Share Issuance in the Merger, as applicable, by 11:59 pm on the date that is one day after the date of the Merger Agreement, and that there were no other stockholder actions required on the part of DISH Network stockholders or EchoStar stockholders, respectively, to approve the Merger;

the likelihood of the consummation of the Merger, in light of, among other things, the conditions to the Merger, the absence of a financing condition, the covenants by the parties to use their respective reasonable best efforts to obtain all necessary regulatory approvals and the likelihood of obtaining required regulatory approvals prior to April 2, 2024;

the fact that, following the completion of the Merger, Mr. Hamid Akhavan would serve as President and Chief Executive Officer of the combined company and a member of the EchoStar Board; and

the fact that, following the completion of the Merger, three independent directors of the current EchoStar Board would remain on the board of directors of the combined company.
In the course of its deliberations, the EchoStar Special Committee also considered a variety of risks, uncertainties and other potentially negative factors, including the following (which are presented below in no particular order and which were neither ranked nor weighted in any manner by the EchoStar Special Committee and are not exhaustive):

the risks and costs to EchoStar if the Merger Agreement were entered into but the Merger were not completed, including the diversion of management and employee attention, potential employee attrition, the potential effect on EchoStar’s business and relations with investors, customers and other stakeholders and the potential impact on its stock price, and that, while the Merger is expected to be completed, there is no assurance that all conditions to the parties’ obligations to complete the Merger will be satisfied or waived, and, as a result, it is possible that the Merger might not be completed;

the fact that the Initial Exchange Ratio, upon which the Exchange Ratio was based, represented an approximately 7% discount to the spot implied exchange ratio based on the closing prices of DISH Network Class A Common Stock and EchoStar Class A Common Stock on August 7, 2023, the last trading day prior to announcement of the entry into the Original Merger Agreement;

the fact that the opinion of Evercore as to the fairness of the Exchange Ratio, from a financial point of view, to EchoStar, speaks only as of the date of the fairness opinion and does not take into account events occurring, or information that has become available, after such date, including any changes in the operations and prospects of EchoStar and DISH Network, general market and economic conditions and other factors which may be beyond the control of EchoStar and DISH Network and on which the fairness opinion was based, any of which could be material;

the fact that the consummation of the Merger is not conditioned on the affirmative vote of a majority of the votes cast by the holders of EchoStar Common Stock entitled to vote thereon, excluding the shares of EchoStar Common Stock held by the Ergen EchoStar Stockholders;

the possibility that regulatory agencies may not approve the Merger or may impose terms and conditions on their approvals that adversely affect the business and financial results of the combined company, as more fully described in the section entitled “The Merger — Regulatory Approvals”;

the substantial costs to be incurred in connection with the Merger, including those incurred regardless of whether the Merger is consummated;

the fact that the Merger Agreement contains restrictions on the conduct of EchoStar’s business prior to completion of the Merger as more fully described in the section entitled “The Merger Agreement”, including the requirement that EchoStar conduct its business only in the ordinary course, subject to
 
73

 
specific, pre-disclosed exceptions, which could delay or prevent EchoStar from undertaking business opportunities that may arise pending completion of the Merger and could negatively affect EchoStar’s ability to attract and retain employees, and could negatively affect decisions of EchoStar’s customers and business relationships;

the restrictions imposed by the Merger Agreement on EchoStar’s ability to solicit or consider acquisition proposals from third parties, although EchoStar’s ability to solicit or consider such proposals was already limited by the Ergen EchoStar Stockholders’ ability to use their voting power to prevent the approval of any such proposals;

the possibility that the public announcements concerning the Merger could have an adverse effect on EchoStar, including on its customers and operations and its ability to attract and retain key management and personnel during the pendency of the Merger;

the possibility that the combined company will not realize all of the anticipated strategic and other benefits of the Merger, including as a result of the challenges of combining the businesses, operations and workforces of DISH Network and EchoStar and the risk that the expected performance of the combined company may not be realized;

the risks presented by DISH Network’s outstanding debt and leverage ratios and the challenges that may pose to the operation and financing of the combined company following the closing of the Merger;

the limited voting control that current EchoStar stockholders (other than the Ergen Stockholders) will have in the combined company following the closing of the Merger, although noting that current EchoStar stockholders currently have limited voting control in EchoStar as a result of the voting control of the Ergen EchoStar Stockholders;

the fact that the Ergen EchoStar Stockholders may have interests in the Merger that are different from, or in addition to, those of unaffiliated EchoStar stockholders generally;

the fact that EchoStar’s directors, officers and employees may have interests in the Merger that are different from, or in addition to, those of EchoStar stockholders generally, including certain interests arising from the employment and compensation arrangements of EchoStar’s officers, and the manner in which they would be affected by the Merger as more fully described in the section entitled “Interests of Affiliates in the Merger — Interests of Directors and Executive Officers of EchoStar in the Merger”; and

various other risks described in the section entitled “Risk Factors.”
The EchoStar Special Committee considered all of these factors as a whole in reaching its determination that the Merger Agreement and the transactions contemplated thereby, including the Merger and the EchoStar Share Issuance, are fair to and in the best interests of EchoStar and its stockholders (other than the Ergen EchoStar Stockholders). The foregoing discussion of the information and factors considered by the EchoStar Special Committee is not exhaustive. In view of the wide variety of factors considered by the EchoStar Special Committee in connection with its evaluation of the Merger and the complexity of these matters, the EchoStar Special Committee did not consider it practical to, nor did it attempt to, quantify, rank or otherwise assign relative weights to the specific factors that it considered in reaching its decision. In considering the factors described above and any other factors, the individual members of the EchoStar Special Committee may have viewed factors differently or given different weight or merit to different factors.
The foregoing discussion of the information and factors considered by the EchoStar Special Committee is forward-looking in nature. This information should be read in light of the factors described in the section entitled “Special Note Regarding Forward-Looking Statements” beginning on page 30.
Opinion of Evercore Group L.L.C., Financial Advisor to the EchoStar Special Committee
The EchoStar Special Committee retained Evercore to act as its financial advisor in connection with the EchoStar Special Committee’s evaluation of strategic and financial alternatives, including the Merger. As part of this engagement, the EchoStar Special Committee requested that Evercore evaluate the fairness of the Exchange Ratio pursuant to the Merger Agreement, from a financial point of view, to EchoStar. At a meeting of the EchoStar Special Committee held on October 1, 2023, Evercore rendered to the EchoStar
 
74

 
Special Committee its oral opinion, subsequently confirmed by delivery of a written opinion dated October 1, 2023, that as of the date of such opinion and based upon and subject to the assumptions, limitations, qualifications and conditions described in Evercore’s written opinion, the Exchange Ratio was fair, from a financial point of view, to EchoStar.
The full text of the written opinion of Evercore, dated October 1, 2023, which sets forth, among other things, the procedures followed, assumptions made, matters considered and qualifications and limitations on the scope of review undertaken in rendering its opinion, is attached as Annex D to this prospectus and is incorporated herein by reference in its entirety. You are urged to read Evercore’s opinion carefully and in its entirety. Evercore’s opinion was addressed to, and provided for the information and benefit of, the EchoStar Special Committee (solely in its capacity as such) in connection with its evaluation of the proposed Merger. The opinion does not constitute a recommendation to the EchoStar Special Committee or to any other persons in respect of the Merger, including as to how any holder of shares of EchoStar Common Stock should vote or act in respect of the Merger. Evercore’s opinion does not address the relative merits of the Merger as compared to other business or financial strategies that might be available to EchoStar, nor does it address the underlying business decision of EchoStar to engage in the Merger.
In connection with rendering its opinion, Evercore, among other things:

reviewed certain publicly available business and financial information relating to EchoStar and DISH Network that Evercore deemed to be relevant, including publicly available research analysts’ estimates;

reviewed certain internal projected financial data relating to DISH Network prepared and furnished to Evercore by management of DISH Network (the “DISH Network Management Forecasts”, as defined and summarized in the section entitled “The Merger — Certain Unaudited Prospective Financial Information — DISH Network Unaudited Prospective Financial Information”), such projected financial data relating to DISH Network as adjusted and furnished to Evercore by the management of EchoStar (the “EchoStar Management Adjusted DISH Network Management Forecasts”, as defined and summarized in the section entitled “The Merger — Certain Unaudited Prospective Financial Information — DISH Network Unaudited Prospective Financial Information”) and certain internal projected financial data relating to EchoStar and furnished to Evercore by the management of EchoStar (the “EchoStar Management Forecasts”, as defined and summarized in the section entitled “The Merger — Certain Unaudited Prospective Financial Information — EchoStar Unaudited Prospective Financial Information”, and together with the DISH Network Management Forecasts and the EchoStar Management Adjusted DISH Network Management Forecasts, the “Forecasts”), each as approved for Evercore’s use by the EchoStar Special Committee, including certain estimates prepared by the managements of EchoStar and DISH Network of the synergies expected to result from the Merger (referred to in this section as the “Synergies”), certain estimates prepared by the management of EchoStar (referred to in this section as the “S-Band Estimates”) relating to the development by EchoStar of a global S-Band mobile satellite service network (referred to in this section as the “S-Band Project”), and certain estimates prepared by the managements of EchoStar and DISH Network regarding the amount, timing and use of certain tax attributes of EchoStar and DISH Network, respectively (referred to in this section as the “Tax Attributes”), each as approved for Evercore’s use by the EchoStar Special Committee;

discussed with managements of EchoStar and DISH Network their assessment of the past and current operations of DISH Network, the current financial condition and prospects of DISH Network, and the Forecasts relating to DISH Network, and discussed with management of EchoStar its assessment of the past and current operations of EchoStar, the current financial condition and prospects of EchoStar and the Forecasts;

discussed with management of DISH Network its assessment as to the financing alternatives available to DISH Network (referred to in this section as the “Financing Alternatives”);

reviewed the reported prices and the historical trading activity of the DISH Network Class A Common Stock and the EchoStar Class A Common Stock;

compared the financial performance of DISH Network and EchoStar and their respective stock market trading multiples with those of certain other publicly traded companies that Evercore deemed relevant;
 
75

 

reviewed the financial terms and conditions of an execution version of the Merger Agreement; and

performed such other analyses and examinations and considered such other factors that Evercore deemed appropriate.
For purposes of Evercore’s analysis and opinion, Evercore assumed and relied upon the accuracy and completeness of the financial and other information publicly available, and all of the information supplied or otherwise made available to, discussed with, or reviewed by Evercore, without any independent verification of such information (and did not assume responsibility or liability for any independent verification of such information), and further relied upon the assurances of the managements of EchoStar and DISH Network that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Forecasts, including the Synergies, the S-Band Estimates and the Tax Attributes, and the Financing Alternatives, Evercore assumed with the consent of the EchoStar Special Committee, that they were reasonably prepared on bases reflecting the best currently available estimates and good faith judgments of the managements of EchoStar or DISH Network, as applicable, as to the future financial performance of EchoStar, DISH Network and the other matters covered thereby, as applicable. Evercore relied, at the direction of the EchoStar Special Committee, on the assessments of the managements of EchoStar and DISH Network as to EchoStar’s ability to achieve the Synergies and was advised by EchoStar and DISH Network, and assumed with the consent of the EchoStar Special Committee, that the Synergies would be realized in the amounts and at the times projected. Evercore expressed no view as to the Forecasts, including the Synergies, the S-Band Estimates and the Tax Attributes, and the Financing Alternatives, or the assumptions on which they were based.
For purposes of Evercore’s analysis and opinion, Evercore assumed, in all respects material to its analysis, that the final executed Merger Agreement would not differ from the execution version of the Merger Agreement reviewed by Evercore, that the representations and warranties of each party contained in the Merger Agreement were true and correct, that each party would perform all of the covenants and agreements required to be performed by it under the Merger Agreement and that all conditions to the consummation of the Merger would be satisfied without waiver or modification thereof. Evercore further assumed, in all respects material to its analysis, that all governmental, regulatory or other consents, approvals or releases necessary for the consummation of the Merger would be obtained without any delay, limitation, restriction or condition that would have an adverse effect on EchoStar, DISH Network or the consummation of the Merger or reduce the contemplated benefits to EchoStar of the Merger.
Evercore did not conduct a physical inspection of the properties or facilities of EchoStar or DISH Network and did not make or assume any responsibility for making any independent valuation or appraisal of the assets or liabilities (including any contingent, derivative or other off-balance sheet assets and liabilities) of EchoStar or DISH Network, nor was Evercore furnished with any such valuations or appraisals, other than a prior report of a third party provided to DISH Network with respect to its spectrum licenses, nor did Evercore evaluate the solvency or fair value of EchoStar or DISH Network under any state or federal laws relating to bankruptcy, insolvency or similar matters. Evercore’s opinion was necessarily based upon information made available to Evercore as of the date of its opinion and financial, economic, market and other conditions as they existed and as could be evaluated as of that date. Developments subsequent to Evercore’s opinion could affect its opinion and Evercore did not and does not have any obligation to update, revise or reaffirm its opinion.
Evercore was not asked to pass upon, and expressed no opinion with respect to, any matter other than the fairness to EchoStar, from a financial point of view, of the Exchange Ratio. Evercore did not express any view on, and its opinion did not address, the fairness of the proposed transaction to, or any consideration received in connection therewith by, the holders of any class of securities, creditors or other constituencies of DISH Network, nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of EchoStar or DISH Network, or any class of such persons, whether relative to the Exchange Ratio or otherwise. Evercore was not asked to, nor did it express any view on, and its opinion did not address, any other term or aspect of the Merger Agreement or the Merger, including, without limitation, the structure or form of the Merger, the allocation of the consideration among the various class of shares of DISH Network Common Stock, or any term or aspect of any other agreement or instrument contemplated by the Merger Agreement or entered into or amended in connection with the
 
76

 
Merger Agreement. Evercore’s opinion did not address the relative merits of the Merger as compared to other business or financial strategies that might be available to EchoStar, nor did it address the underlying business decision of EchoStar to engage in the Merger. Evercore did not express any view on, and its opinion did not address, what the value of EchoStar Class A Common Stock actually would be when issued or the prices at which EchoStar Class A Common Stock or DISH Network Class A Common Stock would trade at any time, including following announcement or consummation of the Merger. Evercore’s opinion did not constitute a recommendation to the EchoStar Special Committee or to any other persons in respect of the Merger, including as to how any holder of shares of EchoStar Common Stock should vote or act in respect of the Merger. Evercore did not express any opinion as to the potential effects of volatility in the credit, financial and stock markets on EchoStar, DISH Network or the Merger or as to the impact of the Merger on the solvency or viability of EchoStar or DISH Network or the ability of EchoStar or DISH Network to obtain necessary financing or pay its obligations when they come due. Evercore is not a legal, regulatory, accounting or tax expert and assumed the accuracy and completeness of assessments by EchoStar and its advisors with respect to legal, regulatory, accounting and tax matters.
Set forth below is a summary of the material financial analyses reviewed by Evercore with the EchoStar Special Committee on October 1, 2023 in connection with rendering its opinion. The following summary, however, does not purport to be a complete description of the analyses performed by Evercore. The order of the analyses described and the results of these analyses do not represent relative importance or weight given to these analyses by Evercore. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data that existed on or before September 29, 2023, and is not necessarily indicative of current market conditions.
For purposes of its analyses and reviews, Evercore considered general business, economic, market and financial conditions, industry sector performance, and other matters, as they existed and could be evaluated as of the date of its opinion, many of which are beyond the control of EchoStar and DISH Network. The estimates contained in Evercore’s analyses and reviews, and the ranges of valuations resulting from any particular analysis or review, are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by Evercore’s analyses and reviews. In addition, analyses and reviews relating to the value of companies, businesses or securities do not purport to be appraisals or to reflect the prices at which companies, businesses or securities actually may be sold. Accordingly, the estimates used in, and the results derived from, Evercore’s analyses and reviews are inherently subject to substantial uncertainty.
The following summary of Evercore’s financial analyses includes information presented in tabular format. In order to fully understand the analyses, the tables should be read together with the full text of each summary. The tables are not intended to stand alone and alone do not constitute a complete description of Evercore’s financial analyses. Considering the tables below without considering the full narrative description of Evercore’s financial analyses, including the methodologies and assumptions underlying such analyses, could create a misleading or incomplete view of such analyses.
Summary of Evercore’s Financial Analyses
Selected Public Company Trading Analyses
EchoStar
Evercore reviewed and compared certain financial information of EchoStar to corresponding financial information for the following selected publicly traded companies that Evercore deemed to have certain characteristics that are similar to EchoStar (the “EchoStar selected companies”):

Al Yah Satellite Communications Company PJSC;

Comtech Telecommunications Corp.;

Eutelsat Communications S.A.;

Gilat Satellite Networks Ltd.;

Globalstar, Inc.;
 
77

 

Iridium Communications Inc.;

KVH Industries, Inc.;

SES S.A.;

Telesat Corporation; and

ViaSat, Inc.
For each of the EchoStar selected companies, Evercore calculated enterprise value (defined as equity market capitalization plus total debt, plus preferred equity and minority interests, less unconsolidated assets, cash and cash equivalents) as a multiple of (i) estimated operating income excluding depreciation, amortization and certain non-recurring or non-operational items (“Adjusted EBITDA”) for calendar year 2023, which is referred to in this section as “CY23E Adjusted EBITDA”, and (ii) estimated Adjusted EBITDA for calendar year 2024, which is referred to in this section as “CY24E Adjusted EBITDA”, in each case based on closing share prices as of September 29, 2023. Estimated financial data of the EchoStar selected companies were based on publicly available research analysts’ estimates. The analysis indicated the following:
Methodology
Mean
Median
Enterprise Value / CY23E Adjusted EBITDA
9.4x 6.9x
Enterprise Value / CY24E Adjusted EBITDA
8.9x 6.8x
Based on the multiples it derived for the EchoStar selected companies and based on its professional judgment and experience, Evercore applied enterprise value to Adjusted EBITDA multiple reference ranges of 2.5x to 4.5x to EchoStar’s CY23E Adjusted EBITDA and 2.25x to 4.25x to EchoStar’s CY24E Adjusted EBITDA, based on the EchoStar Management Forecasts, to derive an implied enterprise value reference range for EchoStar. Evercore then subtracted EchoStar’s estimated net debt (inclusive of minority interests and unconsolidated assets) as of June 30, 2023, and divided the results by the number of fully diluted outstanding shares of EchoStar Common Stock as of June 30, 2023, in each case as provided to Evercore by EchoStar management, to calculate a reference range of implied equity values per share of EchoStar Common Stock. This analysis indicated a range of implied equity values per share of EchoStar Common Stock as follows, compared to the closing price of EchoStar Class A Common Stock of $17.07 on July 5, 2023 and $16.75 on September 29, 2023:
Methodology
Implied Equity Values
Per Share
Enterprise Value / 2023E Adjusted EBITDA Multiple
$22.86 – $35.27
Enterprise Value / 2024E Adjusted EBITDA Multiple
$20.15 – $31.69
Although none of the EchoStar selected companies is directly comparable to EchoStar, Evercore selected these companies because they are publicly traded companies in the global satellite communication services and equipment industries that Evercore, in its professional judgment and experience, considered generally relevant to EchoStar for purposes of its financial analyses. In evaluating the EchoStar selected companies, Evercore made judgments and assumptions with regard to general business, economic and market conditions affecting the EchoStar selected companies and other matters, as well as differences in the EchoStar selected companies’ financial, business and operating characteristics in determining the appropriate range of multiples. Accordingly, an evaluation of the results of this analysis is not entirely mathematical. Rather, this analysis involves complex considerations and judgments regarding many factors that could affect the relative values of the EchoStar selected companies and the multiples derived from the EchoStar selected companies. Mathematical analysis, such as determining the mean or median, is not in itself a meaningful method of using the data of the EchoStar selected companies.
DISH Network
Evercore reviewed and compared certain financial information of DISH Network to corresponding financial information for the following selected publicly traded companies that Evercore deemed to have certain characteristics that are similar to DISH Network (the “DISH Network selected companies”):

AT&T Inc.;
 
78

 

Cable One, Inc.;

Charter Communications, Inc.;

Comcast Corporation;

T-Mobile US, Inc.;

United States Cellular Corporation;

Verizon Communications Inc.; and

WideOpen West, Inc.
For each of the DISH Network selected companies, Evercore calculated enterprise value as a multiple of (i) CY23E Adjusted EBITDA and (ii) CY24E Adjusted EBITDA, in each case based on closing share prices as of September 29, 2023 (excluding United States Cellular Corporation, which was based on its closing share price as of August 3, 2023, the last full day of trading prior to its announcement that it will initiate a process to explore strategic alternatives). Estimated financial data of the DISH Network selected companies were based on publicly available research analysts’ estimates. The analysis indicated the following:
Methodology
Mean
Median
Enterprise Value / 2023E Adjusted EBITDA
6.7x 6.5x
Enterprise Value / 2024E Adjusted EBITDA
6.4x 6.4x
Based on the multiples it derived for the DISH Network selected companies and based on its professional judgment and experience, Evercore applied enterprise value to OIBDA multiple reference ranges of 4.0x to 5.0x to DISH Network’s estimated 2023 OIBDA attributed to its Pay-TV business segment, and of 3.5x to 4.5x to DISH Network’s estimated 2024 OIBDA attributed to its Pay-TV business segment, in each case based on the DISH Network Management Forecasts, and in each case Evercore added 50 – 100% of the cost basis of DISH Network’s spectrum holdings to the implied value of DISH Network’s Pay-TV business segment to derive an implied enterprise value reference range for DISH Network. Evercore then subtracted DISH Network’s estimated net debt as of June 30, 2023, and divided the results by the number of fully diluted outstanding shares of DISH Network Common Stock as of June 30, 2023, in each case as provided to Evercore by DISH Network’s management, as approved by the EchoStar Special Committee for use by Evercore, to calculate a reference range of implied equity values per share of DISH Network Common Stock. This analysis indicated a range of implied equity values per share of DISH Network Common Stock as follows, compared to the closing price of DISH Network Class A Common Stock of $6.76 on July 5, 2023 and $5.86 on September 29, 2023:
Methodology
Implied Equity Values
Per Share
Enterprise Value / 2023E Pay-TV OIBDA Multiple
$12.86 – $44.72
Enterprise Value / 2024E Pay-TV OIBDA Multiple
$8.72 – $40.73
Although none of the DISH Network selected companies is directly comparable to DISH Network, Evercore selected these companies because they are publicly traded companies in the wireless and pay-TV industries that Evercore, in its professional judgment and experience, considered generally relevant to DISH Network for purposes of its financial analyses. In evaluating the DISH Network selected companies, Evercore made judgments and assumptions with regard to general business, economic and market conditions affecting the DISH Network selected companies and other matters, as well as differences in the DISH Network selected companies’ financial, business and operating characteristics. Accordingly, an evaluation of the results of this analysis is not entirely mathematical. Rather, this analysis involves complex considerations and judgments regarding many factors that could affect the relative values of the DISH Network selected companies and the multiples derived from the DISH Network selected companies. Mathematical analysis, such as determining the mean or median, is not in itself a meaningful method of using the data of the DISH Network selected companies.
 
79

 
Implied Exchange Ratio
Utilizing the approximate implied per share equity value derived for EchoStar by application of the midpoint of the multiple reference ranges selected for EchoStar as described above, and the approximate implied per share equity value derived for DISH Network by application of the midpoint and low and high ends of the multiple reference ranges selected for DISH Network as described above, Evercore calculated the following implied exchange ratio ranges, compared to the Exchange Ratio of 0.350877x pursuant to the Merger Agreement:
Implied Exchange Ratio
Year
DISH Network Midpoint /
EchoStar Midpoint
DISH Network Low & High /
EchoStar Midpoint
2023
1.003396x 0.441721x – 1.536571x
2024
0.962513x 0.335439x – 1.567248x
Discounted Cash Flow Analyses
EchoStar — Standalone
Evercore performed a discounted cash flow analysis of EchoStar to calculate ranges of implied present values of EchoStar on a standalone basis excluding the S-Band Project, utilizing estimates of the standalone unlevered, after-tax free cash flows, defined as Adjusted EBITDA, less cash taxes, less capital expenditures and less changes in net working capital, that EchoStar was forecasted to generate over the period from July 1, 2023 through December 31, 2027 based on the EchoStar Management Forecasts, excluding cash flows that the S-Band Project was forecasted to generate based on the S-Band Estimates. Evercore calculated a range of terminal values for EchoStar using two methods: (i) a perpetuity growth method — under which Evercore calculated a range of terminal values for EchoStar by applying a range of perpetuity growth rates of 0.0% to 2.0%, which range was selected based on Evercore’s professional judgment and experience, to an estimate of the unlevered, after-tax free cash flows that EchoStar was forecasted to generate in the terminal year based on the EchoStar Management Forecasts and (ii) a terminal multiple method — under which Evercore calculated a range of terminal values for EchoStar by applying a range of enterprise values to Adjusted EBITDA multiples of 3.5x to 4.5x, which range was selected based on Evercore’s professional judgment and experience, to an estimate of EchoStar’s terminal year Adjusted EBITDA based on the EchoStar Management Forecasts. The cash flows and terminal values in each case were then discounted to present value as of June 30, 2023, using discount rates ranging from 8.5% to 9.5%, representing an estimate of EchoStar’s weighted average cost of capital, as estimated by Evercore based on its professional judgment and experience. Based on these ranges of implied enterprise values, EchoStar’s net cash, minority interests and other assets, in each case as of June 30, 2023, the present value of EchoStar’s Tax Attributes and the number of fully diluted outstanding shares of EchoStar Common Stock as of June 30, 2023, in each case as provided by EchoStar’s management, as approved by the EchoStar Special Committee for use by Evercore, this analysis indicated ranges of implied equity values per share of EchoStar Common Stock as follows, compared to the closing price of EchoStar Class A Common Stock of $17.07 on July 5, 2023 and $16.75 on September 29, 2023:
Methodology
Implied Equity Values
Per Share
Perpetuity Growth Rate Method
$34.33 – $43.47
Terminal Multiple Method
$36.07 – $42.40
DISH Network — Standalone
Evercore performed separate discounted cash flow analyses of DISH Network to calculate ranges of implied present values of DISH Network on a standalone basis, utilizing estimates of the standalone unlevered, after-tax free cash flows, defined as OIBDA, less cash taxes, less other expenses, less capital expenditures and less changes in net working capital, that DISH Network was forecasted to generate over the period from July 1, 2023 through December 31, 2033 based on each of (i) the DISH Network Management Forecasts and (ii) the EchoStar Management Adjusted DISH Network Management Forecasts. In each
 
80

 
case, Evercore calculated a range of terminal values for DISH Network using two methods: (a) a perpetuity growth method — under which Evercore calculated a range of terminal values for DISH Network by applying a range of perpetuity growth rates of 3.25% to 4.75%, which range was selected based on Evercore’s professional judgment and experience, to estimates of the unlevered, after-tax free cash flows that DISH Network was forecasted to generate in the terminal year based on each of the DISH Network Management Forecasts and the EchoStar Management Adjusted DISH Network Management Forecasts and (b) a terminal multiple method — under which Evercore calculated a range of terminal values for DISH Network by applying (I) a range of enterprise value to OIBDA multiples of 7.0x to 8.0x, which range was selected based on Evercore’s professional judgment and experience, to an estimate of DISH Network’s terminal year OIBDA attributed to its wireless business segment and (II) a range of enterprise value to OIBDA multiples of 4.0x to 5.0x, which range was selected based on Evercore’s professional judgment and experience, to an estimate of DISH Network’s terminal year OIBDA attributed to its to its Pay-TV business segment, in each case, based on each of the DISH Network Management Forecasts and the EchoStar Management Adjusted DISH Network Management Forecasts. The cash flows and terminal values in each case were then discounted to present value as of June 30, 2023 using discount rates ranging from 14.5% to 18.5%, representing an estimate of DISH Network’s weighted average cost of capital, as estimated by Evercore based on its professional judgment and experience. Based on these ranges of implied enterprise values, DISH Network’s estimated net debt, minority interests and other assets, in each case as of June 30, 2023, the present value of DISH Network’s Tax Attributes and the number of fully diluted outstanding shares of DISH Network Common Stock as of June 30, 2023, in each case as provided by DISH Network’s management, as approved by the EchoStar Special Committee for use by Evercore, these analyses indicated ranges of implied equity values per share of DISH Network Common Stock as follows, compared to the closing price of DISH Network Class A Common Stock of $6.76 on July 5, 2023 and $5.86 on September 29, 2023:
Methodology
Implied Equity Values
Per Share
Perpetuity Growth Rate Method (DISH Network Management Forecasts)
$14.96 – $49.84
Terminal Multiple Method (DISH Network Management Forecasts)
$19.75 – $44.79
Perpetuity Growth Rate Method (EchoStar Management Adjusted DISH Network Management Forecasts)
$8.97 – $41.08
Terminal Multiple Method (EchoStar Management Adjusted DISH Network Management Forecasts)
$13.09 – $36.00
Implied Exchange Ratio
Utilizing the approximate implied per share equity value derived for EchoStar by application of the midpoint of the relevant reference ranges selected for EchoStar as described above, and the approximate implied per share equity value derived for DISH Network by application of the midpoint and the low and
 
81

 
high ends of the relevant reference ranges selected for DISH Network as described above, Evercore calculated the following implied exchange ratio ranges, compared to the Exchange Ratio of 0.350877x pursuant to the Merger Agreement:
Implied Exchange Ratio
Methodology
DISH Network
Midpoint /
EchoStar Midpoint
DISH Network Low &