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As filed with the United States Securities and
Exchange Commission on September 30, 1997
Registration No. ___-_____
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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.)
90 INVERNESS CIRCLE EAST
ENGLEWOOD, COLORADO 80112
(Address, including zip code, of principal executive offices)
ECHOSTAR COMMUNICATIONS CORPORATION
1997 LAUNCH BONUS PLAN
(Full Title of Plan)
DAVID K. MOSKOWITZ
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ECHOSTAR COMMUNICATIONS CORPORATION
90 INVERNESS CIRCLE EAST
ENGLEWOOD, COLORADO 80112
(Name and address of agent for service)
(303) 799-8222 EXT. 5323
(telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
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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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<S> <C> <C> <C> <C>
Class A Common Stock, 13,250 shares $19.0625(1) $252,578.13(1) $76.54(1)
par value $0.01 per share
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(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 average of the high and low prices of the
Company's Class A Common Stock as reported on the Nasdaq National Market
System on September 30, 1997.
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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 formed in April 1995 (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 Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997;
(c) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996; and
(d) 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 combined and consolidated financial statements dated as of
December 31, 1995 and 1996, and for each of the three years in the period ended
December 31, 1996, included in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, 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.
The Articles of Incorporation of the Company provide for indemnification of
the officers and directors of the Company to the fullest extent permitted by
Section 78.751 of the Nevada General Corporation Law. The Registrant maintains
certain insurance policies for its directors and officers against any loss
arising from any claim asserted against them in such capacities, subject to
certain exclusions.
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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
Registration Statement on Form S-1 of the Company,
Registration No. 33-91276)
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 Summary of the Company's 1997 Launch Bonus Plan
5.1 Opinion of David K. Moskowitz (opinion re: legality)
23.1 Consent of David K. Moskowitz (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included in this Registration Statement
under "Signatures")
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
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<PAGE>
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
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 Englewood, State of Colorado, on September 30, 1997.
ECHOSTAR COMMUNICATIONS CORPORATION
By: /s/ DAVID K. MOSKOWITZ
--------------------------------
David K. Moskowitz
Senior Vice President, General
Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints David K.
Moskowitz the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the United States Securities and Exchange Commission, and hereby
grants to said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully as to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute, may lawfully do or cause to be
done by virtue hereof.
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, and Chief Executive September 30, 1997
- --------------------------- Officer and Director
Charles W. Ergen (Principal Executive Officer)
/s/ STEVEN B. SCHAVER Chief Financial Officer September 30, 1997
- --------------------------- and Chief Operating Officer
Steven B. Schaver (Principal Financial Officer)
/s/ JOHN R. HAGER Treasurer and Controller September 30, 1997
- --------------------------- (Principal Accounting Officer)
John R. Hager
/s/ R. SCOTT ZIMMER Vice Chairman, Vice President September 30, 1997
- --------------------------- and Director
R. Scott Zimmer
/s/ JAMES DEFRANCO Director September 30, 1997
- ---------------------------
James DeFranco
/s/ ALAN M. ANGELICH Director September 30, 1997
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Alan M. Angelich
/s/ RAYMOND L. FRIEDLOB Director September 30, 1997
- ---------------------------
Raymond L. Friedlob
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EXHIBIT 4.4
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SUMMARY
OF
ECHOSTAR COMMUNICATIONS CORPORATION
1997 LAUNCH BONUS PLAN
In recognition of the dedication and hard work of employees of EchoStar
Communications Corporation (the "Corporation") and its subsidiaries in
anticipation of the launch of EchoStar III, the Board of Directors of the
Corporation shall award to each employee who, as of the date EchoStar III is
launched, has been employed continuously by the Corporation or any of its
subsidiaries for the ninety (90) days prior to launch, ten (10) shares of
the Corporation's Class A Common Stock, $0.01 par value per share. The award
is a special one-time grant.
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EXHIBIT 5.1
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[LOGO]
September 30, 1997
EchoStar Communications Corporation
90 Inverness Circle East
Englewood, CO 80112
Re: Registration Statement on Form S-8 (the "Registration Statement")
Gentlemen:
I am Senior Vice President, Corporate Secretary and General Counsel of
EchoStar Communications Corporation, a Nevada corporation formed in April 1995
(the "Company"), and have acted as such in connection with the authorization to
issue up to 13,250 shares of the Company's Class A Common Stock, par value of
$0.01 per share (the "Common Shares"), issued or to be issued under the
Company's 1997 Launch Bonus Plan (the "Plan"). I have reviewed originals, or
copies certified or otherwise identified to my satisfaction as copies of
originals, of the various proceedings taken by the Company to effect such
authorizations, and have examined such other agreements, instruments, documents
and corporate records of the Company as I have deemed necessary or appropriate
as a basis for the opinion hereinafter expressed.
Based upon the foregoing and having regard for such legal considerations as
I deem relevant, I am of the opinion that the Common Shares of the Company
issuable pursuant to the Plan have been duly authorized for issuance and will be
legally issued, fully paid and non-assessable when issued as provided in the
Plan.
I am admitted to practice only in the State of Colorado and do not purport
to be an expert on the laws of any other jurisdiction other than the laws of the
State of Colorado and Federal law.
I consent to the filing of this opinion as an exhibit to the Registration
Statement relating to the Plan.
Very truly yours,
ECHOSTAR COMMUNICATIONS CORPORATION
/s/ DAVID K. MOSKOWITZ
------------------------------------------
David K. Moskowitz
Senior Vice President, Corporate Secretary
and General Counsel
DKM:es
90 Inverness Circle East - P.O. Box 6552 - Englewood, CO 80155
- Tel. (303) 799-8222 - Fax: (303) 799-0354
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EXHIBIT 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
and to all references to our Firm included in or made a part of this
Registration Statement.
ARTHUR ANDERSEN LLP
Denver, Colorado,
September 30, 1997.
