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As filed with the United States Securities and
Exchange Commission on August 1, 2001
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ECHOSTAR COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 88-03369997
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5701 SOUTH SANTA FE DRIVE
LITTLETON, COLORADO 80120
(Address, including zip code, of principal executive offices)
ECHOSTAR COMMUNICATIONS CORPORATION
2001 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of Plan)
DAVID K. MOSKOWITZ
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ECHOSTAR COMMUNICATIONS CORPORATION
5701 SOUTH SANTA FE DRIVE
LITTLETON, COLORADO 80120
(Name and address of agent for service)
(303) 723-1600
(telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of to be price offering registration
securities to be registered registered per share price fee
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Class A Common Stock, 250,000 shares $26.43(1) $6,607,500(1) $1,652(1)
par value $0.01 per share
(1) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the
maximum offering price, per share and in aggregate, and the
registration fee were calculated based upon the last sale price of the
Company's Class A Common Stock as reported on the Nasdaq National
Market System on July 26, 2001.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by EchoStar
Communications Corporation, a Nevada Corporation (the "Company"), with the
United States Securities and Exchange Commission ("Commission") pursuant to the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), Commission
file number 0-26176, are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001;
(d) The Company's Current Reports on Form 8-K dated May 22, 2001,
May 24, 2001, June 14, 2001 and July 12, 2001; and
(e) The description of the Class A Common Stock contained in the
Company's Registration Statement on Form 8-A, declared
effective June 20, 1995 by the Commission, pursuant to Section
12 of the Exchange Act.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a Post-
Effective Amendment to this Registration Statement indicating that all
securities offered under the Registration Statement have been sold or
de-registering all securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The Company's consolidated financial statements dated as of December
31, 1999 and 2000, and for each of the three years in the period ended December
31, 2000, included in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000, Commission File No. 0-26176, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm as experts in giving said report.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Chapter 78.7502(1) of the Nevada revised Statutes allows the Company to
indemnify any person made or threatened to be made a party to any action (except
an action by or in the right of the Company, a "derivative action"), by reason
of the fact that he is or was a director, officer, employee or agent of
EchoStar, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, against expenses including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suit or proceeding if
he acted in a good faith manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Under chapter 78.7502(2), a similar standard of care applies to derivative
actions, except that indemnification is limited solely to expenses (including
attorneys' fees) incurred in connection with
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the defense or settlement of the action and court approval of the
indemnification is required where the person is seeking advance payment of
indemnifiable expenses prior to final disposition of the proceeding in question.
Under chapter 78.751, decisions as to the payment of indemnification are made by
a majority of the Board of Directors at a meeting at which a quorum of
disinterested directors is present, or by written opinion of special legal
counsel, or by the stockholders.
Provisions relating to liability and indemnification of officers and
directors of the Company for acts by such officers and directors are contained
in Article IX of the Amended and Restated Articles of Incorporation of the
Company, Exhibit 4.2 hereto, and Article IX of the Company's Bylaws, Exhibit 4.3
hereto, which are incorporated by reference. These provisions state, among other
things, that, consistent with and to the extent allowable under Nevada law, and
upon the decision of a disinterested majority of the Company's Board of
Directors, or a written opinion of outside legal counsel, or the Company's
stockholders: (1) the Company shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (other than an action by or in the
right of the Company) by reason of the fact that he is or was a director,
officer, employee, fiduciary or agent of the Company, or is or was serving at
the request of the Company as a director, employee, fiduciary or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he conducted himself in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful; and (2) the Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Company to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee, fiduciary or agent of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect to any claim, issue
or matter as to which such person shall have adjudged to be liable for
negligence or misconduct in the performance of his duty to the Company unless
and only to the extent that the court in which such action or suit was brought
shall determine upon application that despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
4.1* Specimen Share Certificate (incorporated by
reference to Exhibit 4.9 to the Registration
Statement on Form S-1 of the Company,
Registration No. 33-91276)
4.2* Amended and Restated Articles of
Incorporation of the Company (incorporated
by reference to Exhibit 3.1(a) to the
Quarterly Report on Form 10-Q of the Company
for the quarter ended March 31, 2000,
Commission File No. 0-26176)
4.3* Bylaws of the Company (incorporated by
reference to Exhibit 3.1(b) to the
Registration Statement on Form S-1 of the
Company, Registration No. 33-91276)
4.4** 2001 Nonemployee Director Stock Option Plan
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5.1** Opinion of Nicholas R. Sayeedi
(opinion re: legality)
23.1** Consent of Nicholas R. Sayeedi
(included in Exhibit 5.1)
23.2** Consent of Arthur Andersen LLP
24** Power of Attorney
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* Incorporated by reference.
** Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement to include any material
information with respect to the plan of distribution
not previously disclosed in the Registration
Statement or any material change to such information
in this Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post- effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at the time shall
be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Littleton, State of Colorado, on August 1, 2001.
ECHOSTAR COMMUNICATIONS CORPORATION
By: /S/ MICHAEL R. MCDONNELL
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Michael R. McDonnell
Senior Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ CHARLES W. ERGEN Chairman of the Board, August 1, 2001
------------------------------- and Chief Executive Officer
Charles W. Ergen (Principal Executive Officer)
/s/ MICHAEL R. MCDONNELL Senior Vice President August 1, 2001
------------------------------- Chief Financial Officer
Michael R. McDonnell (Principal Financial Officer)
/s/ DAVID K. MOSKOWITZ Senior Vice President, General August 1, 2001
------------------------------- Counsel, Secretary and Director
David K. Moskowitz
/s/ JAMES DEFRANCO * Director August 1, 2001
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James DeFranco
/s/ O. NOLAN DAINES * Director August 1, 2001
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O. Nolan Daines
/s/ RAYMOND L. FRIEDLOB * Director August 1, 2001
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Raymond L. Friedlob
/s/ CANTEY ERGEN * Director August 1, 2001
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Cantey Ergen
/s/ PETER A. DEA * Director August 1, 2001
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Peter A. Dea
* By: /s/ MICHAEL R. MCDONNELL
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Michael R. McDonnell
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1* Specimen Share Certificate (incorporated by reference to Exhibit
4.9 to the Registration Statement on Form S-1 of the Company,
Registration No. 33-91276)
4.2* Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1(a) to the Quarterly
Report on Form 10-Q of the Company for the quarter ended March
31, 2000, Commission File No. 0-26176)
4.3* Bylaws of the Company (incorporated by reference to Exhibit
3.1(b) to the Registration Statement on Form S-1 of the Company,
Registration No. 33-91276)
4.4** 2001 Nonemployee Director Stock Option Plan
5.1** Opinion of Nicholas R. Sayeedi (opinion re: legality)
23.1** Consent of Nicholas R. Sayeedi (included in Exhibit 5.1)
23.2** Consent of Arthur Andersen LLP
24** Power of Attorney
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* Incorporated by reference.
** Filed herewith.