As filed with the United States Securities and Exchange Commission on
January 20, 2000
Registration No. ___-_____
_____________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
Form S-8
__________
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
1999 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) 723-1600
(telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be to be price offering registration
registered registered per share price fee
_____________________________________________________________________________
Class A Common Stock, 31,500 shares $85.125 (1)$2,681,437.50(1)
$707.90(1)
par value $0.01
per share
_____________________________________________________________________________
</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
January 12,2000.
<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, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999;
(e) The Company's Current Reports on Form 8-K filed January 5,
1999, May 25, 1999, July 2, 1999, October 7, 1999, December 1,
1999 and December 20, 1999; and
(f) 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, 1997 and 1998, and for each of the three years in the period ended
December 31, 1998, included in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998, 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.
<PAGE>
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 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. 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 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
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 Statement No. 33-91276)
4.4 Summary of the Company's 1999 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 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.
<PAGE>
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
January 20, 2000.
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, January 20, 2000
____________________ President and
Charles W. Ergen Chief Executive Officer
(Principal Executive
Officer)
/s/ Steven B. Schaver Chief Financial Officer January 20, 2000
_____________________ and Chief Operating Officer
Steven B. Schaver (Principal Financial Officer)
/s/ David K. Moskowitz Senior Vice President, January 20, 2000
______________________ General Counsel, Secretary
David K. Moskowitz and Director
/s/ Robert M. Ringstad Vice President and January 20, 2000
______________________ Controller
Robert M. Ringstad (Principal Accounting Officer)
/s/ James DeFranco Director January 20, 2000
______________________
James DeFranco
* Director January 20, 2000
______________________
O. Nolan Daines
* Director January 20, 2000
______________________
Raymond L. Friedlob
* By: /s/ David K. Moskowitz
______________________
David K. Moskowitz
Attorney-in-Fact
Exhibit No. 4.4
SUMMARY
OF
ECHOSTAR COMMUNICATIONS CORPORATION
1999 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 V, the Board of Directors of the
Corporation shall award ten (10) shares of the Corporation's Class A Common
Stock, $0.01 par value per share to each eligible employee. Eligible
employees include full-time employee of the Corporation or one of its
subsidiaries, with a hire date on or before June 1, 1999, and part-time
employees of the Corporation with a hire date on or before June 1, 1999 who
had worked at least 500 hours prior to June 1, 1999. All eligible employees
must have also been continuously employed with the Corporation or one of its
subsidiaries from June 1, 1999 through December 31, 1999. The award is a
special one-time grant.
Exhibit No. 5.1
ECHOSTAR COMMUNICATIONS CORPORATION
5701 SOUTH SANTA FE DRIVE
LITTLETON, COLORADO 80120
(303) 723-1000
(303) 723-1699 (Fax)
January 20, 2000
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 31,500 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 1999 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:clj
Exhibit No. 23.2
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 March 2, 1999,
included in EchoStar Communications Corporation's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998, and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Denver, Colorado,
January 20, 2000.
Exhibit No.
24
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 31,500
shares of the Corporation's Class A Common Stock, par value of $0.01 per
share, pursuant to the Corporation's 1999 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 Exchange 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/ O. Nolan Daines Director January 19, 2000
_______________________
O. Nolan Daines
/s/ Raymond L. Friedlob Director January 19, 2000
________________________
Raymond L. Friedlob
