As filed with the Securities and Exchange Commission on January 2, 2024.
Registration No. 333-274837
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post Effective Amendment No. 1
On FORM S-8
To FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EchoStar Corporation
(Exact name of registrant as specified in its charter)
| Nevada (State or other jurisdiction of incorporation or organization) |
26-1232727 (I.R.S. Employer Identification Number) |
| 100 Inverness Terrace East Englewood, Colorado (Address of Principal Executive Offices) |
80112 (Zip Code) |
DISH Network Corporation 2019 Stock Incentive Plan
DISH Network Corporation 2009 Stock Incentive Plan
Amended and Restated DISH Network Corporation 2001 Nonemployee Director Stock Option Plan
(Full title of the plan(s))
Dean A. Manson
Chief Legal Officer and Secretary
EchoStar Corporation
100 Inverness Terrace East
Englewood, Colorado 80112
(Name and address of agent for service)
(303) 723-1000
(Telephone number, including area code, of agent for service)
Copies to:
Michelle B. Rutta
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 819-8200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer x | Accelerated filer ¨ | |
| Non-accelerated filer ¨ | Smaller reporting company ¨ | |
| Emerging growth company ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
EXPLANATORY NOTE
EchoStar Corporation, a Nevada corporation (“EchoStar” or the “Registrant”) hereby amends its registration statement on Form S-4 (File No. 333-274837) filed with the Securities and Exchange Commission (the “Commission”) on October 3, 2023, as amended by Amendment No. 1 filed on November 6, 2023 (the “Form S-4”), by filing this Post-Effective Amendment No. 1 on Form S-8 (this “Registration Statement”).
EchoStar filed the Form S-4 in connection with the transactions contemplated by the Amended and Restated Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 2, 2023, by and among DISH Network Corporation, a Nevada corporation (“DISH Network”), EchoStar and EAV Corp., a Nevada corporation and a wholly owned direct subsidiary of EchoStar (“Merger Sub”), pursuant to which, effective on December 31, 2023, Merger Sub merged with and into DISH Network with DISH Network surviving the merger as a wholly owned subsidiary of EchoStar (the “Merger”).
At the effective time of the Merger, each outstanding DISH Option and DISH RSU Award (collectively, the “DISH Awards”) was converted into a corresponding EchoStar award with a right to receive a certain number of shares of EchoStar Class A common stock, par value $0.001 per share (“EchoStar Class A Common Stock”), in accordance with the terms of the Merger Agreement. The DISH Awards were issued under the DISH Network Corporation 2019 Stock Incentive Plan, the DISH Network Corporation 2009 Stock Incentive Plan and the Amended and Restated DISH Network Corporation 2001 Nonemployee Director Stock Option Plan (collectively, the “DISH Plans”). In addition, in connection with the Merger, EchoStar assumed the share reserve under each of the DISH Network Corporation 2019 Stock Incentive Plan and the Amended and Restated DISH Network Corporation 2001 Nonemployee Director Stock Option Plan.
This Registration Statement is being filed for the purpose of amending the Form S-4 with respect to the 10,261,858 shares of EchoStar Class A Common Stock issuable upon the exercise or delivery of the converted DISH Awards originally granted under the DISH Plans pursuant to the Merger Agreement. All such shares were previously registered on the Form S-4 but will be subject to issuance pursuant to this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be sent or given by the Registrant to employees, officers, directors, or others as specified by Rule 428(b)(i) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission, either as part of the Registration Statement or as prospectuses or prospectus supplement pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have heretofore been filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference into this Registration Statement:
| (a) | the Registrant’s Annual Report on Form 10-K for its fiscal year ended December 31, 2022, filed with the Commission on February 23, 2023, including the information specifically incorporated by reference into the Form 10-K from the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on March 14, 2023; |
| (b) | the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023, filed with the Commission on May 9, 2023; |
| (c) | The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2023 filed, with the Commission on August 8, 2023; |
| (d) | the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, filed with the Commission on November 6, 2023; |
| (e) | the Registrant’s Current Reports on Form 8-K filed with the Commission on January 11, 2023, March 23, 2023, April 28 2023, August 8, 2023, October 3, 2023, November 13, 2023, December 12, 2023 and January 2, 2024 (other than portions of those documents deemed to be furnished and not filed); and |
| (f) | the description of EchoStar Class A Common Stock contained in Exhibit 4.25 to the Registrant’s Annual Report on Form 10-K for its fiscal year ending December 31, 2019, filed with the Commission on February 20, 2020. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement on Form S-8 and prior to such time as the Registrant files a post-effective amendment to this Registration Statement on Form S-8, if any, that indicates that all securities offered hereby have been sold, or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Notwithstanding the foregoing, no information is incorporated by reference in this Registration Statement where such information under applicable forms and regulations of the Commission is not deemed to be “filed” under Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, unless the report or filing containing such information indicates that the information therein is to be considered “filed” under the Exchange Act or is to be incorporated by reference in this Registration Statement.
Item 6. Indemnification of Directors and Officers
Chapter 78.7502(1) of the Nevada Revised Statutes (“NRS”) allows EchoStar to indemnify any person made or threatened to be made a party to any action (except an action by or in the right of EchoStar, a “derivative action”), by reason of the fact that they are or were a director, officer, employee or agent of EchoStar, or are or were serving at the request of EchoStar 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 the person in connection with the action, suit or proceeding if they acted in a good faith manner which they reasonably believed to be in or not opposed to the best interests of EchoStar, and, with respect to any criminal proceeding, had no reasonable cause to believe that their conduct was unlawful. Under NRS 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 is seeking advance payment of indemnifiable expenses prior to final disposition of the proceeding in question. Under NRS chapter 78.7502(3), 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 if a majority vote of a quorum consisting of disinterested directors so orders or if such a quorum cannot be obtained, or by the stockholders.
Provisions relating to liability and indemnification of officers and directors of EchoStar for acts by such officers and directors are contained in Article IX of the Articles of Incorporation of EchoStar as amended on January 25, 2008 and May 4, 2016, Exhibits 4.1 through 4.3 hereto, and Article IX of EchoStar’s Bylaws, Exhibits 4.4 and 4.5 hereto, which are incorporated by reference. These provisions state, among other things, that, consistent with and to the extent permitted by the NRS and upon the decision of a disinterested majority of EchoStar’s Board of Directors, or a written opinion of outside legal counsel in case a disinterested majority vote of the Board of Directors is not available (or even if a quorum of disinterested directors is obtainable, if such a quorum so directs), or EchoStar’s stockholders, that the applicable standard of conduct has been satisfied: (1) EchoStar 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 EchoStar) by reason of the fact that they are or were a director, officer, employee, fiduciary or agent of EchoStar, or are or were serving at the request of EchoStar as a director, officer, 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 the person in connection with such action, suit or proceeding, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of EchoStar, and with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful; and (2) EchoStar 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 EchoStar to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, fiduciary or agent of EchoStar, or is or was serving at the request of EchoStar 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 the person in connection with the defense or settlement of such action or suit if they acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of EchoStar 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 their duty to EchoStar 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 8. Exhibits
*Incorporated by reference.
Pursuant to the requirements of the Securities Act, 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 Englewood, Colorado on this 2nd day of January, 2024.
| ECHOSTAR CORPORATION | ||
| By | /s/ Dean A. Manson | |
| Name: | Dean A. Manson | |
| Title: | Chief Legal Officer and Secretary | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dean A. Manson as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for such person and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement and amendments to this Registration Statement (including pre-effective amendments and post-effective amendments, and to file the same with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and 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. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date |
| /s/ Hamid Akhavan | President and Chief Executive Officer and Director (Principal Executive Officer) | January 2, 2024 | ||
| Hamid Akhavan |
| /s/ Paul W. Orban | Executive Vice President and Chief Financial Officer, DISH (Principal Financial Officer and Principal Accounting Officer) | January 2, 2024 | ||
| Paul W. Orban |
| /s/ Charles W. Ergen | Chairman | January 2, 2024 | ||
| Charles W. Ergen |
| /s/ Cantey M. Ergen | Director | January 2, 2024 | ||
| Cantey M. Ergen |
| /s/ Kathleen Q. Abernathy | Director | January 2, 2024 | ||
| Kathleen Q. Abernathy |
| /s/ George R. Brokaw | Director | January 2, 2024 | ||
| George R. Brokaw |
| /s/ Stephen J. Bye | Director | January 2, 2024 | ||
| Stephen J. Bye |
| /s/ James DeFranco | Director | January 2, 2024 | ||
| James DeFranco |
| /s/ R. Stanton Dodge | Director | January 2, 2024 | ||
| R. Stanton Dodge |
| /s/ Lisa W. Hershman | Director | January 2, 2024 | ||
| Lisa W. Hershman |
| /s/ Tom A. Ortolf | Director | January 2, 2024 | ||
| Tom A. Ortolf |
| /s/ William D. Wade | Director | January 2, 2024 | ||
| William D. Wade |
Exhibit 5.1
January 2, 2024
EchoStar Corporation
100 Inverness Terrace East
Englewood, Colorado 80112
(303) 723-1000
Re: Post-effective Amendment on Form S-8 to the Registration Statement on Form S-4
Ladies and Gentlemen:
I am Chief Legal Officer and Secretary of EchoStar Corporation, a Nevada corporation (“EchoStar”). I have acted as counsel in connection with Post-effective Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 ( the “Registration Statement”), which EchoStar has filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the registration (the “Share Registration”) of 10,261,858 shares (the “Shares”) of Class A common stock, par value $0.001 per share, of EchoStar (the “Class A Common Stock”), issuable under the DISH Network Corporation 2019 Stock Incentive Plan (the “2019 Plan”) the DISH Network Corporation 2001 Stock Incentive Plan (the “2001 Plan”) and the Amended and Restated DISH Network Corporation Nonemployee Director Stock Option Plan (the “Nonemployee Director Plan”).
I have reviewed originals, or copies certified or otherwise identified to my satisfaction as copies of originals, of the various proceedings taken by EchoStar to authorize the Share Registration, and I have examined such other agreements, instruments, documents and corporate records of EchoStar as I have deemed necessary or appropriate in order to deliver this opinion.
Upon the basis of such examination, I am of the opinion that, the Shares have been duly authorized, and, when and to the extent issued in accordance with all applicable terms and conditions set forth in the 2019 Plan, the 2001 Plan or the Nonemployee Director Plan, as applicable, including payment in full to EchoStar of all consideration required therefor under the terms of the 2019 Plan, the 2001 Plan or the Nonemployee Director Plan, as applicable, as described in the Registration Statement, the Shares will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Act. This opinion speaks as of its date, and I undertake no obligation to update this opinion.
| Very truly yours, | |
| /s/ Dean A. Manson | |
| Dean A. Manson | |
| Chief Legal Officer and Secretary |
Exhibit 23.1
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KPMG LLP Suite 800 |
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated February 22, 2023, with respect to the consolidated financial statements of EchoStar Corporation, and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Denver, Colorado
December 29, 2023
Exhibit 23.2
|
|
KPMG LLP Suite 800 |
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated February 22, 2023, with respect to the consolidated financial statements of DISH Network Corporation, and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Denver, Colorado
December 29, 2023