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As filed with the United States Securities and
Exchange Commission on April 28, 1998
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
1998 LAUNCH BONUS 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) 723-1601
(telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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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
<S> <C> <C> <C> <C>
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Class A Common Stock, 16,590 shares $23.6250(1) $391,938.75(1) $115.63(1)
par value $0.01 per share
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</TABLE>
(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 April 28, 1998.
<PAGE>
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 Annual Report on Form 10-K for the fiscal year
ended December 31, 1997; and
(b) 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, 1996 and 1997, and for each of the three years in the period ended December
31, 1997, included in the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997, 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 78.751(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 78.751(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 the
defense or settlement of the action and court approval of the indemnification
is required where the person seeking advance payment of indemnifiable
expenses prior to final disposition of the proceeding in question. Decisions
as to the payment of indemnification are made by a majority of the Board of
Directors at a meeting at which quorum of disinterested director 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.
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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 1998 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
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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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 April 28, 1998.
ECHOSTAR COMMUNICATIONS CORPORATION
By: /s/ DAVID K. MOSKOWITZ
----------------------------------------
David K. Moskowitz
Senior Vice President, General Counsel
and Secretary
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, April 28, 1998
- ------------------------------ President and
Charles W. Ergen Chief Executive Officer
(Principal Executive Officer)
/s/ STEVEN B. SCHAVER Chief Financial Officer and April 28, 1998
- ------------------------------ Chief Operating Officer
Steven B. Schaver (Principal Financial Officer)
/s/ JOHN R. HAGER Treasurer and Controller April 28, 1998
- ------------------------------ (Principal Accounting Officer)
John R. Hager
/s/ DAVID K. MOSKOWITZ Director April 28, 1998
- ------------------------------
David K. Moskowitz
* Director April 28, 1998
- ------------------------------
James DeFranco
* Director April 28, 1998
- ------------------------------
O. Nolan Daines
* Director April 28, 1998
- ------------------------------
Raymond L. Friedlob
* By: /s/ DAVID K. MOSKOWITZ
----------------------
David K. Moskowitz
Attorney-in-Fact
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<PAGE>
EXHIBIT 4.4
<PAGE>
SUMMARY
OF
ECHOSTAR COMMUNICATIONS CORPORATION
1998 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 IV, the Board of Directors of the
Corporation shall award to each employee of the Corporation or one of its
subsidiaries who, as of the date EchoStar IV is launched, has been employed
continuously by the Corporation or one of its subsidiaries for ninety (90) days,
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.
<PAGE>
EXHIBIT 5.1
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ECHOSTAR COMMUNICATIONS CORPORATION
5701 SOUTH SANTA FE DRIVE
LITTLETON, COLORADO 80120
(303) 723-1000
(303) 723-1699 (FAX)
April 28, 1998
EchoStar Communications Corporation
5071 South Santa Fe Drive
Littleton, Colorado 80120
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 16,590 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 1998 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
<PAGE>
EXHIBIT 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 27,
1998, included in the EchoStar Communications Corporation's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997, and to all references
to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Denver, Colorado,
April 28, 1998
<PAGE>
EXHIBIT 24
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David K. Moskowitz as the true and lawful
attorney-in-fact and agent of the undersigned, with full power of substitution
and re-substitution, for and in the name, place and stead of the undersigned, in
any and all capacities, to execute a Registration Statement on Form S-8 with
respect to an issuance by EchoStar Communications Corporation, a Nevada
corporation formed in April 1995 (the "Corporation") of up to 16,590 shares of
the Corporation's Class A Common Stock, par value of $0.01 per share, pursuant
to the Corporation's 1998 Launch Bonus Plan, and any and all amendments
(including without limitation, post-effective amendments) or supplements thereto
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 unto the 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, thereby ratifying and confirming all
that the 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 Power
Attorney has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
--------- ----- ----
/s/ JAMES DEFRANCO Director April 28, 1998
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James DeFranco
/s/ O. NOLAN DAINES Director April 28, 1998
- -------------------------
O. Nolan Daines
/s/ RAYMOND L. FRIEDLOB Director April 28, 1998
- -------------------------
Raymond L. Friedlob
