AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1999
REGISTRATION NO. 333-80745
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ECHOSTAR COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 88-0336997
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
5701 South Santa Fe Drive
Littleton, Colorado 80120
(303) 723-1000
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive office)
------------------------------------------
David K. Moskowitz, Esq.
Senior Vice President, General Counsel and Secretary
EchoStar Communications Corporation
5701 South Santa Fe Drive
Littleton, Colorado 80120
(303) 723-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With copies to:
Ronald A. Fleming, Jr., Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1143
------------------------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
TABLE OF CONTENTS
Where you can find more information....................... 2
EchoStar Communications................................... 3
Risk factors.............................................. 6
Use of proceeds...........................................20
Selling shareholders......................................20
Description of our capital stock..........................21
Plan of distribution......................................25
Legal matters.............................................27
Experts...................................................27
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT.
NO ONE HAS BEEN AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION.
THE SHARES OF COMMON STOCK ARE NOT BEING OFFERED IN ANY JURISDICTION
WHERE THE OFFER IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF SUCH DOCUMENTS.
The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission relating to these
securities is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, JULY 23, 1999
PROSPECTUS
161,358 SHARES
ECHOSTAR COMMUNICATIONS CORPORATION
CLASS A COMMON STOCK
--------------------------------
This prospectus relates to the proposed sale from time to time of up
to 161,358 shares of our common stock by certain selling shareholders. These
selling shareholders acquired their shares when we acquired Media4, Inc. in
February 1999.
The selling shareholders may sell all or any portion of their shares
of common stock in one or more transactions on the Nasdaq National Market or
in private, negotiated transactions. We will not receive any of the proceeds
from the sale of the shares by the selling shareholders. The selling
shareholders will pay all registration and selling expenses, including any
brokerage commissions.
Our common stock is traded on the Nasdaq National Market under the
symbol "DISH." On July 22, 1999 the last reported sale price of our common
stock on the Nasdaq National Market was $72.50 per share.
We may amend or supplement this prospectus from time to time by
filing amendments or supplements as required. You should read this entire
prospectus and any amendments or supplements carefully before you make your
investment decision.
See "Risk factors" on page 6 for certain risks you should consider
before you purchase any shares.
----------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation
to the contrary is a criminal offense.
----------------------
The date of this prospectus is , 1999.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document that we
file at the SEC's public reference rooms in Washington, D.C., New York, New
York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to you free of charge at the SEC's web site at http://www.sec.gov.
Our common stock is traded as "National Market Securities" on the
Nasdaq National Market. Material filed by us can be inspected at the offices
of the National Association of Securities Dealers, Inc., Reports Section,
1735 K Street, N.W., Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus, and information that
we file later with the SEC will automatically update and supersede previously
filed information, including information contained in this document.
We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until this offering has been
completed:
- Our Annual Report on Form 10-K for the year ended December 31,
1998.
- Our Quarterly Report on Form 10-Q for the quarter ended March
31, 1999.
- Our Current Reports on Form 8-K filed January 5, 1999, May 25,
1999 and July 2, 1999.
- The description of our common stock set forth in our
Registration Statement on Form 8-A filed on May 30, 1995.
You may request free copies of these filings by writing or telephoning us at
our principal offices, which are located at the following address:
EchoStar Communications Corporation
5701 South Santa Fe Drive
Littleton, Colorado 80120
Attention: David K. Moskowitz, Esq.
(303) 723-1000
2
ECHOSTAR COMMUNICATIONS
We are a leading provider of direct broadcast satellite, or DBS,
programming services through our DISH Network in the United States, a
significant international supplier of digital satellite receiver systems and
a provider of other satellite services.
THE DISH NETWORK
We started offering subscription television services on the DISH
Network in March 1996. As of March 31, 1999, more than 2.3 million households
subscribed to DISH Network programming services. We presently have four
operational direct broadcast satellites, which is more than any other direct
broadcast satellite operator in the United States. Currently, we have the
ability to provide approximately 200 channels of digital television
programming and CD quality audio programming services to the entire "lower
48" continental United States. We believe that the DISH Network offers
programming packages that have a better "price-to-value" relationship than
packages currently offered by most other subscription television providers,
particularly cable TV operators. As of March 31, 1999, approximately 11
million United States households subscribed to direct broadcast satellite and
other direct-to-home satellite services. However, we believe that there
continues to be significant unsatisfied demand for high quality, reasonably
priced television programming services.
Now that we have successfully closed the recently announced
transaction with The News Corporation Limited, its ASkyB subsidiary and MCI
WorldCom, we expect to be able to offer approximately 500 video and audio
channels to subscribers in the entire "lower 48" continental United States
that may be received with one dish.
ECHOSTAR TECHNOLOGIES CORPORATION
In addition to supplying EchoStar receiver systems for the DISH
Network, our subsidiary EchoStar Technologies Corporation supplies similar
digital satellite receivers to international satellite TV service operators.
Currently, we have two major customers, which are subsidiaries of Telefonica
and Bell Canada, the national telephone companies in Spain and Canada,
respectively. We also offer consulting and integration services to
development stage, international direct-to-home satellite operators. We are
actively soliciting new business for ETC and, although we are optimistic
about future growth opportunities, we cannot provide any assurance in that
regard.
SATELLITE SERVICES
Our Satellite Services business unit primarily leases capacity on
our satellites to customers, including international services that broadcast
foreign language programming to our subscribers and Fortune 1000 companies
that use our business television service to communicate with employees,
customers and suppliers located around the United States. In addition, we are
developing a wide range of Internet and high-speed data services that we
expect to offer to consumers beginning in mid-1999.
BUSINESS STRATEGY
Our primary objective is to continue to expand our DISH Network
subscriber base and to develop as an integrated, full-service satellite
company. To achieve this objective, we seek to:
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- Leverage our significant share of DBS spectrum by offering unique
programming services that will differentiate us from our
competition. These services include satellite-delivered local
signals and other niche and foreign language services;
- Offer marketing promotions that will enhance our position as a
leading provider of value-oriented programming services and
receiver systems;
- Continue to expand DISH Network distribution channels;
- Develop the ETC and Satellite Services businesses; and
- Emphasize one-stop shopping and superior customer service.
RECENT DEVELOPMENTS
ACQUISITION OF SATELLITE ASSETS
On June 24, 1999, we closed a transaction with MCI, News Corporation
and its ASkyB subsidiary, pursuant to which we acquired or received:
- the rights to 28 frequencies at the 110 degree West
Longitude orbital location from which we could transmit
programming to the entire continental United States;
- two DBS satellites constructed by Space Systems/Loral,
delivered in-orbit, and currently expected to be launched on
Atlas IIAS rockets in September 1999 and the December
1999/January 2000 timeframe;
- a recently-constructed digital broadcast operations center
located in Gilbert, Arizona;
- a worldwide license agreement to manufacture and distribute
set-top boxes internationally using News Data System,
Limited's encryption/decoding technology; and
- a three-year, no fee retransmission consent agreement for DISH
Network to rebroadcast FOX Network owned-and-operated local
station signals to their respective markets.
We will not incur any costs associated with the construction, launch
or insurance (including launch insurance and one year of in-orbit insurance)
of the two DBS satellites. We also agreed that MCI will have the
non-exclusive right to bundle DISH Network service with MCI's telephony
service offerings on mutually agreeable terms. In addition, we agreed to
carry the FOX News Channel on the DISH Network. We received standard program
launch support payments in exchange for carrying the programming. Throughout
this document, we refer to the above transaction as the "110 acquisition."
If we combine the capacity of the two newly acquired satellites with
our four current satellites, we expect that DISH Network will have the
capacity to provide more than 500 channels of programming, Internet and
high-speed data services and high definition television nationwide to a
subscriber's single 18-inch satellite dish. We also believe that this
transaction positions us to offer a one-dish solution for satellite-delivered
local programming to major markets across the country. Since we plan to use
many of those channels for local programming, no particular consumer could
subscribe to all 500 channels, but all of those channels would be capable of
being received from a single dish. We also expect to be able to begin small
dish service to Alaska, Hawaii, Puerto Rico and the United States territories
in the Caribbean. However, we expect to expend over $100 million, and perhaps
more than $125 million, during 1999 and 2000 in one-time expenses associated
with repositioning subscriber satellite dishes to the new orbital location.
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Delays or failures of launches preceding the launch of the two
satellites obtained in the 110 acquisition could delay these launch dates.
Additionally, anomalies experienced by other similar satellites may delay the
launch of the two satellites obtained in the 110 acquisition until the cause
is discovered and the anomalies are corrected.
STOCK SPLIT
On July 19, 1999, we effected a 2-for-1 split of our common stock
for our stockholders of record at the close of business on July 1, 1999. See
"Description of our capital stock - General."
5
RISK FACTORS
You should carefully consider all of the information contained in
this prospectus before deciding whether to invest in our common stock and, in
particular, the following factors:
WE HAVE SUBSTANTIAL INDEBTEDNESS AND WE ARE DEPENDENT ON OUR SUBSIDIARIES'
EARNINGS TO MAKE PAYMENTS ON OUR INDEBTEDNESS
We have substantial debt service requirements which make us
vulnerable to changes in general economic conditions. The indentures
governing our subsidiaries' debt restrict their ability to incur additional
debt. Thus it is, and will continue to be, difficult for our subsidiaries to
obtain additional debt if required or desired in order to implement our
business strategy. Since we conduct substantially all of our operations
through our subsidiaries, our ability to service our debt obligations is
dependent upon the earnings of our subsidiaries and the payment of funds by
our subsidiaries to us in the form of loans, dividends or other payments.
Some of our subsidiaries may become parties to other agreements that severely
restrict their ability to obtain additional debt financing for working
capital, capital expenditures and general corporate purposes. As of March 31,
1999, we had outstanding long-term debt (including both the current and
long-term portion) of approximately $2.04 billion. Our ability to meet our
payment obligations will depend on the success of our business strategy,
which is subject to uncertainties and contingencies beyond our control.
RESTRICTIVE COVENANTS UNDER OUR INDEBTEDNESS MAY LIMIT OUR ABILITY TO OPERATE
OUR BUSINESS
The indentures relating to our long-term indebtedness contain
restrictive covenants that may inhibit our ability to manage our business,
engage in certain transactions that we believe to be beneficial to holders of
common stock and to react to changing market conditions. These restrictions,
among other things, limit the ability of our subsidiaries to:
- incur additional indebtedness;
- issue preferred stock;
- sell assets;
- create, incur or assume liens;
- create dividend and other payment restrictions with respect to
our subsidiaries;
- merge, consolidate or sell assets;
- enter into transactions with affiliates; and
- pay dividends.
WE EXPECT OPERATING LOSSES THROUGH AT LEAST 2000 AND WE CANNOT BE CERTAIN
THAT WE WILL ACHIEVE OR SUSTAIN OPERATING PROFITABILITY OR POSITIVE CASH FLOW
FROM OPERATING ACTIVITIES
Our financial performance will affect the market value of our common
stock. Due to the substantial expenditures necessary to complete
construction, launch and deployment of our direct broadcast satellite system
and introduction of our DISH Network service to consumers, we have sustained
significant losses in recent periods. If we do not have sufficient income or
another source of cash, it could
6
eventually affect our ability to service our debt and pay our other
obligations. Our operating losses were $109 million, $224 million and $131
million for the years ended December 31, 1996, 1997 and 1998, respectively,
and $22 million and $57 million for the three months ended March 31, 1998 and
1999, respectively. We had net losses of $102 million, $323 million, $294
million, $57 million and $333 million during those same periods. Improvements
in our results of operations depend largely upon our ability to increase our
customer base while maintaining our price structure, effectively managing our
costs and controlling subscriber turnover, which is the rate at which
subscribers terminate service. We can give no assurance that we will be
effective with regard to these matters. In addition, we incur significant
acquisition costs to obtain DISH Network subscribers. The high cost of
obtaining new subscribers magnifies the negative effects of subscriber
turnover. See "--Increased subscriber turnover could affect our financial
performance." We anticipate that we will continue to experience operating
losses through at least 2000. There can be no assurance that such operating
losses will not continue beyond 2000.
WE MAY NEED ADDITIONAL CAPITAL, WHICH MAY NOT BE AVAILABLE, IN ORDER TO
CONTINUE GROWING AND INCREASE EARNINGS
Our ability to increase earnings, and the market value and liquidity
of our common stock, will partly depend on our ability to continue growing
our business, which may require additional capital that we cannot be certain
will be available to us. We may require additional funds to acquire DISH
Network subscribers. In addition, we have conditional licenses or
applications pending with the FCC for a two satellite Ku-band system, a two
satellite Ka-band system, a two satellite extended Ku-band system and a six
satellite low earth orbit satellite system. We will need to raise additional
funds for the foregoing purposes. Further, a number of factors, some of which
are beyond our control or ability to predict, could require us to raise
additional capital. These factors include higher than expected subscriber
acquisition costs, a defect in or the loss of any satellite or an increase in
the cost of acquiring subscribers due to additional competition, among other
things. We cannot assure you that we will be able to raise additional capital
at the time necessary or on satisfactory terms. The inability to raise
sufficient capital would have a material adverse effect on our business.
WE FACE INTENSE COMPETITION FROM DIRECT BROADCAST SATELLITE AND OTHER
SATELLITE SYSTEM OPERATORS, WHICH COULD AFFECT OUR ABILITY TO GROW AND
INCREASE EARNINGS
Our ability to increase earnings will partly depend on our ability
to compete in the subscription television industry, which is highly
competitive. We compete with companies offering video, audio, data,
programming and entertainment services, including cable operators and other
satellite operators. Many of these competitors have substantially greater
financial, marketing and other resources than we have.
One competitor, DIRECTV, Inc., has launched three direct broadcast
satellites and has 27 frequencies at the 101 degree orbital location that are
capable of full coverage of the "lower 48" continental United States. DIRECTV
and USSB, which operates five more frequencies on one of DIRECTV's
satellites, currently offer more than 200 channels of combined video and
audio programming. DIRECTV and USSB are in an advantageous position with
regard to market entry, programming such as DIRECTV's exclusive sports
programming and, possibly, volume discounts for programming offers. In
December 1998, DIRECTV's parent executed a definitive merger agreement
whereby it agreed to acquire the business and assets of USSB in a transaction
completed on May 20, 1999. In addition to the 5 USSB frequencies at the 101
degree orbital location, this combination gives DIRECTV access to three
additional frequencies controlled by USSB at the 110 degree orbital location,
which is also a very favorable position for coverage of the United States.
We also face competition from PrimeStar, Inc., which currently
leases a medium power satellite at the 85 degree orbital location and as of
March 31, 1999, had approximately 2.3 million subscribers.
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PrimeStar recently received FCC authorization to acquire control over TCI
Satellite Entertainment, Inc., a company that has an authorization for 11
direct broadcast satellite frequencies at the 119 degree orbital location and
has launched a satellite to that location. In January 1999, DIRECTV's parent
announced an agreement whereby it would acquire both PrimeStar's existing
medium power business and its rights to acquire TCI's direct broadcast
satellite assets. The FCC recently approved DIRECTV's acquisition of
PrimeStar's subscribers and related businesses, including TCI's assets
relating to the 119 degree orbital location. In addition, two other satellite
companies in the U.S., including a subsidiary of Loral Space and
Communications Limited, have conditional permits for a comparatively small
number of direct broadcast satellite assignments that can be used to provide
service to portions of the United States.
The FCC has proposed to allocate additional expansion spectrum for
direct broadcast satellite services, which could create significant
additional competition in the market for subscription television services.
WE COMPETE WITH CABLE TELEVISION AND OTHER LAND-BASED SYSTEMS, WHICH COULD
AFFECT OUR ABILITY TO GROW AND INCREASE EARNINGS
We encounter substantial competition in the subscription television
market from cable television and other land-based systems. Cable television
operators have a large, established customer base, and many cable operators
have significant investments in, and access to, programming. Cable television
service is currently available to more than 90% of the approximately 98
million U.S. television households, and approximately 67% of total U.S.
households currently subscribe to cable. Cable television operators currently
have an advantage relative to us by providing local programming as well as by
providing service to multiple television sets within the same household.
Cable operators may also obtain a competitive advantage through bundling
their analog video service with expanded digital video services delivered
terrestrially or via satellite, efficient 2-way high speed data transmission,
and telephone service on upgraded cable systems. For example, some cable
companies now offer high speed Internet access over their upgraded fiber
optic systems, and AT&T recently announced that it would provide telephone
service over Time Warner's cable system. As a result of these and other
factors, there can be no assurance that we will be able to continue to expand
our subscriber base or compete effectively against cable television operators.
When fully deployed, new technologies could have a material adverse
effect on the demand for our direct broadcast satellite services. For
example, new and advanced local multi-point distribution services are still
in the development stage. In addition, entities such as regional telephone
companies ,which are likely to have greater resources than we have, are
implementing and supporting digital video compression over existing telephone
lines and digital "wireless cable." Moreover, mergers, joint ventures, and
alliances among franchise, wireless or private cable television operators,
regional Bell operating companies and others may result in providers capable
of offering bundled cable television and telecommunications services in
competition with us. For instance, AT&T has acquired cable operator TCI and
has entered into a definitive agreement to acquire MediaOne. There can be no
assurance that we will be able to compete successfully with existing
competitors or new entrants in the market for subscription television
services.
CABLE COMPETITORS MAY BLOCK OUR ACCESS TO POPULAR PROGRAMMING
We cannot be certain whether or not cable or other TV service
providers would seek to acquire sports franchises and exclusively distribute
the corresponding programming, which could possibly limit our access to
popular sports programming. For example, on May 19, 1998, we filed a
complaint against Comcast, a major cable provider, seeking access to the
sports programming controlled by Comcast in the Philadelphia area. On January
22, 1999, the FCC denied this complaint, partly on the basis that Comcast's
8
programming is delivered terrestrially and therefore is not subject to
program access prohibitions. We cannot be certain whether or not other TV
service providers who control production or distribution of their own
programming would switch to terrestrial transmission of their programming and
seek to rely on the FCC's denial of our complaint against Comcast in order to
deny us access to their programming.
WE DEPEND ON OTHERS TO PRODUCE PROGRAMMING
We depend on third parties to provide us with programming services.
Our programming agreements have remaining terms ranging from one to ten years
and contain various renewal and cancellation provisions. We may not be able
to renew these agreements on favorable terms or at all, or these agreements
may be cancelled prior to expiration of their original term. If we are unable
to renew any such agreements or the other parties cancel the agreements, we
cannot assure you that we would be able to obtain substitute programming, or
that such substitute programming would be comparable in quality or cost to
our existing programming. In particular, the cost of sports programming has
been rising rapidly. Our competitors currently offer much of the same
programming that we do. Our ability to compete successfully will depend on
our ability to continue to obtain desirable programming and attractively
offer it to our customers at competitive prices.
WE DEPEND ON THE CABLE ACT FOR ACCESS TO OTHERS' PROGRAMMING
Any change in the Cable Act and the FCC's rules that permits the
cable industry or programmers to discriminate against competing businesses,
such as ours, in the sale of programming could adversely affect our ability
to acquire programming at all or to acquire programming on a cost-effective
basis. Pursuant to the Cable Television Consumer Protection and Competition
Act of 1992 and the FCC's rules, cable-affiliated programmers generally must
offer programming they have developed to all multi-channel video programming
distributors on equal terms and conditions. The Cable Act and the FCC's rules
also prohibit some types of exclusive programming contracts. We purchase a
substantial percentage of our programming from cable-affiliated programmers.
Some of these restrictions on cable-affiliated programmers will expire in
2002 unless the FCC extends the rules. In addition, the need to obtain
certain retransmission consents and copyright licenses may limit our strategy
to provide local programming in multiple markets.
IMPEDIMENTS TO RETRANSMISSION OF LOCAL BROADCAST SIGNALS; OUR LOCAL
PROGRAMMING STRATEGY FACES UNCERTAINTY
Although we believe that the Satellite Home Viewer Act allows us to
retransmit the programs of a local network station to its local market via
satellite, several other parties oppose that view. We also believe that the
compulsory copyright license under the Satellite Home Viewer Act and the
retransmission consent rules of the Communications Act may not be sufficient
to permit us to implement our strategy to retransmit such programming in the
most efficient and comprehensive manner and that new legislation may be
necessary for that purpose. We offer programming telecast by local affiliates
of national television networks to several major population centers within
the continental United States. In order to retransmit network station
programming, satellite TV companies usually must have a copyright license and
also obtain the retransmission consent of the network station. Although we
have entered into a retransmission consent agreement covering FOX Network
owned and operated stations in connection with the agreement with News
Corporation and MCI, we cannot be certain whether we will obtain
retransmission consents if they are required from any local affiliate. Our
inability to retransmit local programming could have an adverse effect on our
strategy to compete with cable companies, which provide local programming.
9
TV NETWORKS OPPOSE OUR STRATEGY OF DELIVERING DISTANT NETWORK SIGNALS
There are currently a number of lawsuits regarding the efforts of
satellite TV service providers, including us, to retransmit the signals of
network programming.
The national networks and local affiliate stations recently
challenged, based upon copyright infringement, PrimeTime 24's methods of
selling network programming to consumers. Historically, we obtained distant
broadcast network signals for distribution to our customers through PrimeTime
24, Joint Venture. The United States District Court for the Southern District
of Florida entered a nationwide permanent injunction preventing PrimeTime 24
from selling its programming to consumers unless the programming was sold in
accordance with certain stipulations in the injunction. The injunction covers
"distributors" as well. The plaintiffs in the Florida litigation informed us
that they considered us a "distributor" for purposes of that injunction. A
federal district court in North Carolina has also issued an injunction
against PrimeTime 24 prohibiting certain distant signal retransmissions in
the Raleigh area and the decision in that case could be used as legal
precedent against us. In response to the recent legal activity, we have
implemented Satellite Home Viewer Act compliance procedures which materially
restrict the market for the sale of network channels by us.
On October 19, 1998, we filed a declaratory judgment action in the
United States District Court for the District of Colorado against the four
major networks. We have asked the court to enter a judgment declaring that
our method of providing distant network programming does not violate the
Satellite Home Viewer Act and hence does not infringe the networks'
copyrights. On November 5, 1998, the four major broadcast networks and their
affiliate groups filed a complaint against us in federal court in Miami
alleging, among other things, copyright infringement. The plaintiffs in that
action have also requested the issuance of a preliminary injunction against
us. The court combined the case that we filed with the case in Miami and
transferred it to the Miami court.
On February 24, 1999, CBS, NBC, Fox and ABC filed a "Motion for
Temporary Restraining Order, Preliminary Injunction and Contempt Finding"
against DIRECTV, Inc. in Miami relating to the delivery of distant network
channels to DIRECTV customers by satellite. Under the terms of a settlement
between DIRECTV and the networks, some DIRECTV customers would lose access to
their satellite-provided network channels by June 30, 1999, while other
DIRECTV customers will be disconnected by December 31, 1999. Subsequently,
PrimeTime 24 and substantially all providers of satellite-delivered network
programming other than us agreed to this cut-off schedule.
The networks are currently pursuing a motion for preliminary
injunction in the Miami court, asking that court to enjoin us from providing
network programming except under very limited circumstances. In general, the
networks want us to turn off programming to our customers on the same
schedule as DIRECTV has agreed to. A decision adverse to us in this case
could cause significant material restrictions on the sale of distant ABC,
NBC, CBS and Fox channels by us. Among other things, we could be required to
terminate delivery of network signals to a material portion of our subscriber
base. While the networks have not sought monetary damages, they have sought
to recover attorney fees if they prevail.
OUR BUSINESS RELIES ON THE INTELLECTUAL PROPERTY OF OTHERS AND WE MAY
INADVERTENTLY INFRINGE THEIR PATENTS AND PROPRIETARY RIGHTS
Many of our competitors have and may obtain patents that cover or
affect products or services directly or indirectly related to those that we
offer. If our competitors hold such rights, they can either prevent us from
using that product or service, or they can force us to license from them the
right to use the product or service, thereby increasing our costs in a way
that may affect our net income. We cannot
10
assure you that we are aware of all patents that our products may potentially
infringe. In addition, patent applications in the United States are
confidential until the Patent and Trademark Office issues a patent and,
accordingly, we cannot evaluate the extent to which our products may infringe
claims contained in pending patent applications. In general, if a court
determines that one or more of our products infringes on patents held by
others, we would be required to cease developing or marketing those products,
to obtain licenses to develop and market those products from the holders of
the patents or to redesign those products in such a way as to avoid
infringing the patent claims. We cannot estimate the extent to which we may
be required in the future to obtain licenses with respect to patents held by
others and the availability and cost of any such licenses. Various parties
have contacted us, claiming patent and other intellectual property rights
with respect to components within our direct broadcast satellite system. We
cannot be certain that we would be able to obtain such licenses on
commercially reasonable terms or, if we were unable to obtain such licenses,
that we would be able to redesign our products to avoid infringement.
SATELLITE PROGRAMMING SIGNALS HAVE BEEN PIRATED, WHICH COULD CAUSE US TO LOSE
SUBSCRIBERS AND REVENUE
The delivery of subscription programming requires the use of
encryption technology. The news media has widely reported signal theft or
"piracy" of C-band services, cable television and European direct broadcast
satellite services. We recently received reports of a compromise in our
encryption system. We can take a number of different corrective measures to
limit the amount of damage that we would incur by a breach of our conditional
access system including, as a last resort, complete replacement of the access
control system. If we do not promptly correct a compromise in our encryption
technology, it would adversely affect our revenue and our ability to contract
for video and audio services provided by programmers. Published reports
indicate that a compromise of the DIRECTV and USSB encryption systems has
occurred. A Canadian court has ruled that pirating of DIRECTV programming is
not illegal in Canada. This ruling may encourage the attempted piracy of our
programming in Canada, resulting in lost revenue for us and increased piracy
of DIRECTV programming. Piracy of DIRECTV programming could result in
increased sales of DIRECTV receivers at the expense of loss of potential DISH
Network subscribers.
WE USE ONLY ONE DIGITAL BROADCAST CENTER
We will continue to rely upon a single digital broadcast center
located in Cheyenne, Wyoming for key operations for programming signals, such
as reception, encryption and compression. If a natural or other disaster
damaged the digital broadcast center, we cannot assure you that we would be
able to continue to provide programming services to our customers.
OUR SATELLITES ARE SUBJECT TO RISKS DURING THE PLANNED LAUNCHES AND AFTER
LAUNCH
Satellite launches are subject to significant risks, including
launch failure, which may result in incorrect orbital placement or improper
commercial operation. Approximately 15% of all commercial geostationary
satellite launches have resulted in a total or constructive total loss. The
failure rate varies by launch vehicle and satellite manufacturer. The loss,
damage or destruction of any of our satellites as a result of electrostatic
storm or collision with space debris would have a material adverse effect on
our business. See "--Insurance coverage of our satellites is limited."
OUR SATELLITES HAVE MINIMUM DESIGN LIVES OF 12 YEARS, BUT COULD FAIL BEFORE
THEN
Our ability to earn revenue wholly depends on the usefulness of our
satellites. Each of our satellites has a limited useful life. A number of
factors affect the useful lives of the satellites, including
11
the quality of their construction, the durability of their component parts,
the longevity of their station-keeping on orbit and the efficiency of the
launch vehicle used. The minimum design life of each of EchoStar I, EchoStar
II, EchoStar III and EchoStar IV is 12 years. We can provide no assurance,
however, as to the useful lives of the satellites. Our operating results
would be adversely affected if the useful life of any of these satellites
were significantly shorter than 12 years. The satellite construction
contracts for our satellites contain no warranties in the event of a failure
of EchoStar I, EchoStar II, EchoStar III or EchoStar IV following launch.
Additionally, moving any of these satellites, either temporarily or
permanently, to another orbital location, could decrease the orbital life of
the satellite by up to six months per movement.
In the event of a failure or loss of any of EchoStar I, EchoStar II
or EchoStar III, we may relocate EchoStar IV and use the satellite as a
replacement for the failed or lost satellite. Such a relocation would require
prior FCC approval and, among other things, a showing to the FCC that
EchoStar IV would not cause additional interference compared to EchoStar I,
EchoStar II or EchoStar III. If we choose to use EchoStar IV in this manner,
there can be no assurance that such use would not adversely affect our
ability to meet the operation deadlines associated with our permits. Failure
to meet such deadlines could result in the loss of such permits and would
have an adverse effect on our operations.
COMPLEX TECHNOLOGY USED IN OUR BUSINESS COULD FAIL OR BECOME OBSOLETE
New applications and adaptations of existing and new technology,
including compression, conditional access, on screen guides and other
matters, and significant software development, are integral to our direct
broadcast satellite system and may, at times, not function as we expect.
Technology in the satellite television industry is in a rapid and continuing
state of change as new technologies develop. We cannot assure you that we and
our suppliers will be able to keep pace with technological developments. In
addition, delays in the delivery of components or other unforeseen problems
in our direct broadcast satellite system may occur that could adversely
affect performance or operation of our direct broadcast satellite system and
could have an adverse effect on our business. Further, in the event that a
competitive satellite receiver technology becomes commonly accepted as the
standard for satellite receivers in the United States, we would be at a
significant technological disadvantage.
INSURANCE COVERAGE OF OUR SATELLITES IS LIMITED
We renewed in-orbit insurance for EchoStar I, EchoStar II and
EchoStar III through July 2000. The insurance policy with respect to
in-orbit operation contains standard commercial satellite insurance
provisions, including a material change in underwriting information clause
requiring us to notify our insurers of any material change in the written
underwriting information provided to the insurers or any change in any
material fact or circumstance concerning our satellite insured under the
policy. That notification permits insurers to renegotiate the terms and
conditions if the result is a material change in risk of loss or insurable
interest. A change in the health status of an insured satellite or any loss
occurring after risk has attached does not entitle the insurers to
renegotiate the policy terms. Currently, our satellite insurance contains
customary exclusions and does not apply to loss or damage caused by acts of
war or civil insurrection, anti-satellite devices, nuclear radiation or
radioactive contamination or certain willful or intentional acts designed to
cause loss or failure of a satellite. There may be circumstances in which
insurance will not fully reimburse us for any loss. For example, as a result
of losing 6 transponders on EchoStar III, our new insurance policy for
EchoStar III contains a deductible of 3 or 6 transponders, depending on the
power mode that we operate in. As a result of this deductible, we are
currently insured for approximately 81% of our total transponders on EchoStar
III.
In addition, the EchoStar IV launch insurance policy provides for
insurance of $219.3 million covering the period from launch of the satellite
on May 8, 1998 through May 8, 1999. Due to the anomalies experienced by
EchoStar IV and the pending claim for a total constructive loss, we did not
obtain in-orbit insurance on EchoStar IV. Consequently, in the event we are
unable to resolve our pending insurance claim to our satisfaction, EchoStar
IV will not be insured if further losses occur in the future. In addition,
insurance will not reimburse us for business interruption, loss of business,
profit opportunity and similar losses that might arise from delay in the
launch of any EchoStar satellite.
12
WE MAY BE UNABLE TO SETTLE OUTSTANDING CLAIMS WITH INSURERS
EchoStar IV is currently able to use a maximum of only 18
transponders as a result of a problem with its solar power panels. The number
of available transponders will decrease over time. EchoStar IV has also
experienced transponder problems comparable to those that occurred to
EchoStar III which have resulted in the failure of 3 transponders and the
loss of use of a total of 6 transponders. Based on existing data, we expect
that approximately 16 transponders will probably be available over the entire
expected life of the satellite, absent significant additional transponder
problems or other failures. In September 1998, we filed a $219.3 million
insurance claim for a constructive total loss under the launch insurance
policy related to EchoStar IV. However, if we receive $219.3 million, for a
constructive total loss on the satellite, the insurers would obtain the sole
right to the benefits of salvage from EchoStar IV under the terms of the
launch insurance policy. Although we believe we have suffered a total loss of
EchoStar IV in accordance with that definition in the launch insurance
policy, we presently intend to negotiate a settlement with the insurers that
will compensate us for the reduced satellite transmission capacity and allow
us to retain title to the asset. We cannot assure you that we will receive
the amount claimed or, if we receive the full amount of the claim, that we
will retain title to Echostar IV with its reduced capacity.
During May 1999, EchoStar IV experienced anomalies affecting its
transponders, heating systems and fuel system. In July 1999, prior to
arriving at the 110DEG. WL orbital location, EchoStar IV experienced
additional fuel system anomalies. While the recent anomalies have not caused
material reductions in functionality to date, it is not yet possible to
conclude whether these anomalies will result in further reductions of
satellite functionality or useful life in the future. While there can be no
assurance, we do not currently expect a material adverse impact on short or
medium term satellite operations. We have not completed our assessment of the
additional impairment, if any, to EchoStar IV, but we currently continue to
believe that insurance proceeds will be sufficient to offset all write-downs
of satellite assets that might ultimately be necessary because of lost
functionality caused by anomalies and consequences of which we are aware.
However, we can provide no assurance as to the ultimate amount that may be
received from the insurance claim, or that coverage will be available. We
will continue to evaluate the performance of EchoStar IV and may modify our
loss assessment as new events or circumstances develop.
As a result of the recent anomalies experienced by EchoStar IV, we
have instructed our broker to notify our insurance carriers of additional
occurrences under the terms of the EchoStar IV launch insurance policy. The
EchoStar IV launch insurance policy provides for insurance of $219.3 million
covering the period from launch of the satellite on May 8, 1998 through May
8, 1999. Due to the anomalies that EchoStar IV experienced and the pending
claim for a total constructive loss, we did not obtain in-orbit insurance on
EchoStar IV. Consequently, in the event we are unable to resolve our pending
insurance claim to our satisfaction, EchoStar IV will not be insured if
further losses occur in the future.
WE DEPEND PRIMARILY ON A SINGLE RECEIVER MANUFACTURER
SCI Technology, Inc., a high-volume contract electronics
manufacturer, is currently the primary manufacturer of EchoStar receiver
systems. VTech recently began manufacturing some EchoStar receiver systems
for us. JVC manufactures other consumer electronics products incorporating
our receiver
13
systems. If SCI is unable for any reason to produce receivers in a quantity
sufficient to meet our requirements, it would impair our ability to add
additional DISH Network subscribers and grow our Technology business unit.
Likewise, it would adversely affect our results of operations.
WE HAVE FEWER DISTRIBUTION CHANNELS THAN OUR LARGEST DIRECT BROADCAST
SATELLITE COMPETITOR
We do not currently have manufacturing agreements or arrangements
with consumer products manufacturers other than JVC and Philips, and as of
yet, only JVC is manufacturing consumer electronics equipment incorporating
our receivers. As a result, our receivers, and consequently our programming
services, are less well known to consumers than those of our largest direct
satellite broadcast competitor. Due in part to the lack of product
recognition, approximately 18,000 retail outlets carry our receiver systems
for sale compared to approximately 30,000 retail outlets for our largest
direct satellite broadcast competitor.
INCREASED SUBSCRIBER TURNOVER COULD AFFECT OUR FINANCIAL PERFORMANCE
From January 1, 1997, our monthly subscriber turnover, which
represents the number of subscriber disconnects during the period divided by
the weighted-average number of subscribers during the period, has averaged
less than 1.25%. If subscriber turnover increases, it would adversely affect
our financial condition and results of operations because we subsidize the
cost of EchoStar receiver systems.
WE MAY BE UNABLE TO MANAGE RAPIDLY EXPANDING OPERATIONS
If we are unable to manage our growth effectively, it could
materially adversely affect our business and results of operations. To manage
our growth effectively, we must continue to develop our internal and external
sales force, installation capability, customer service operations and
information systems, and maintain our relationships with third party vendors.
We will also need to continue to expand, train and manage our employee base,
and our management personnel must assume even greater levels of
responsibility.
WE MAY BE VULNERABLE TO RISKS ASSOCIATED WITH ACQUISITIONS
Acquisitions, including the transaction with News Corporation and
MCI, involve numerous risks, including, among other things, difficulties and
expenses that we incur in connection with the acquisition and the subsequent
assimilation of the operations of the acquired company, adverse consequences
of conforming the acquired company's accounting policies to ours, the
difficulty in operating acquired businesses, the diversion of management's
attention from other business concerns and the potential loss of key
employees of acquired companies. There can be no assurance that we can
successfully integrate any acquisition, including the transaction with News
Corporation and MCI, into our on-going operations or that we can achieve
estimated cost savings. We have made a number of acquisitions and will
continue to review future acquisition opportunities. We can provide no
assurance that acquisition candidates will continue to be available on terms
and conditions acceptable to us. In addition, if the operations of an
acquired business do not meet expectations, we may need to restructure the
acquired business or write-off the value of some or all of the assets of the
acquired business.
WE RELY ON KEY PERSONNEL
We believe that our future success will depend to a significant
extent upon the performance of Charles W. Ergen, Chairman, Chief Executive
Officer and President. The loss of Mr. Ergen could have an adverse effect on
our business. We do not maintain "key man" insurance. Although all of our
executives, other than executive officers, have executed agreements limiting
their ability to work for or
14
consult with competitors if they leave us, we do not have any employment
agreements with any of our executive officers.
YOUR SHARES WILL HAVE LIMITED VOTING RIGHTS
Our equity securities consist of common stock and preferred stock.
Our common stock has been divided into three classes with different voting
rights. Holders of class A common stock, which is the class offered by this
prospectus, and holders of class C common stock are entitled to one vote per
share on all matters submitted to a vote of stockholders and holders of class
B common stock are entitled to ten votes per share. Holders of series C
preferred stock have no voting rights except as provided by law or unless
dividends are in arrears. No class C common stock or other series of
preferred stock is currently outstanding. However, on a "change in control"
of EchoStar, any holder of class C common stock would be entitled to ten
votes per share. Holders of common stock generally vote together as single
class on matters submitted to stockholders. Although the class A common stock
represents approximately 48% of our total equity, it represents only 8% of
our total voting power. Holders of common stock purchased in this offering
will therefore not be able to meaningfully participate in our affairs absent
a restructuring of our capital stock or the conversion of the outstanding
class B common stock into class A common stock.
WE ARE CONTROLLED BY ONE PRINCIPAL STOCKHOLDER
Charles W. Ergen, our Chairman, Chief Executive Officer and
President, currently beneficially owns approximately 52% of our total equity
securities, assuming exercise of employee stock options, and he currently
possesses approximately 91% of the total voting power. Thus, Mr. Ergen has
the ability to elect a majority of our directors and to control all other
matters requiring the approval of our stockholders. In addition, pursuant to
a voting agreement among Mr. Ergen, News Corporation and MCI, News
Corporation and MCI have agreed to vote their shares after consummation of
their transaction with us in accordance with the recommendation of our Board
of Directors for five years. For Mr. Ergen's total voting power to be reduced
to below 51%, his percentage ownership of the equity securities of EchoStar
would have to be reduced to below 10%.
THE REGULATORY REGIME WE OPERATE UNDER COULD CHANGE ADVERSELY
The FCC imposes different rules for "subscription" and "broadcast"
services. We believe that, because we offer a subscription programming
service, we are not subject to many of the regulatory obligations imposed
upon broadcast licensees. However, we cannot be certain whether the FCC will
find in the future that we should comply with regulatory obligations as a
broadcast licensee with respect to our current and future operations, and
certain parties have requested that we be treated as a broadcaster. If the
FCC determined that we are a broadcast licensee, the FCC may require us to
comply with all regulatory obligations imposed upon broadcast licensees,
which are generally subject to more burdensome regulation than subscription
service providers like us.
Direct broadcast satellite operators like us currently are not
subject to the "must carry" requirements of the Cable Act that require cable
operators to carry all the local broadcast stations in the areas they serve,
not just the four major networks. The cable industry and the broadcasters
have argued that direct broadcast satellite operators should be subject to
these requirements, and the broadcasters also have argued that satellite
companies should not be allowed to distribute local network signals unless
they become subject to such requirements. Congress is considering legislation
that imposes such requirements on satellite companies. If Congress passes
such legislation, or if the FCC imposes "must carry" rules on direct
broadcast satellite operations, these obligations
15
may adversely affect our plans to provide local programming, and such must
carry requirements could displace possibly more attractive programming.
Additionally, the FCC recently imposed public interest requirements on direct
broadcast satellite licensees, such as us, to set aside four percent of
channel capacity exclusively for noncommercial programming at below-cost
rates. This could also displace programming for which we could earn
commercial rates and cause us to have less net income.
The FCC has commenced a rulemaking which seeks to streamline and
revise its rules governing direct broadcast satellite operators. This
rulemaking concerns many new possible direct broadcast satellite rules. There
can be no assurance about the content and effect of any new direct broadcast
satellite rules passed by the FCC.
FOREIGN OWNERSHIP RESTRICTIONS COULD AFFECT OUR BUSINESS PLAN
The Communications Act, and the FCC's implementing regulations,
provide that, when subsidiaries of a holding company hold certain types of
FCC licenses, foreign nationals or their representatives may not own or vote
more than 25% of the total equity of the holding company, considered on a
fully-diluted basis, except upon an FCC public interest determination.
Although the FCC's International Bureau has ruled that these limitations do
not apply to providers of subscription direct broadcast satellite service
like us, the ruling is under challenge and the question remains open.
Furthermore, the limitations will apply to our licenses for fixed satellite
service if we hold ourselves out as a common carrier or if the FCC decides to
treat us as such a carrier. The FCC has noted that we have proposed to
operate one of our authorized fixed satellite service systems on a common
carrier as well as a non-common carrier basis. We have recently informed the
FCC that we have no common carrier plans with respect to that system.
We believe that our foreign ownership prior to the recently
consummated transaction with News Corporation and MCI was under 5%. That
transaction has resulted in the issuance to an Australian corporation, News
Corporation, of 11.7% of our total outstanding stock having 2.1% of our total
voting power. This transaction has thus increased the possibility that
foreign ownership of our stock may exceed the foreign ownership limitations
if they apply. In connection with the MCI authorization that we received in
connection with that transaction, the FCC has decided to waive any foreign
ownership limitations to the extent applicable. Nevertheless, we cannot
foreclose the possibility that, in light of any subsequent FCC decisions or
policy changes, we may in the future need a separate FCC determination that
foreign ownership in excess of any applicable limits is consistent with the
public interest in order to avoid a violation of the Communications Act or
the FCC's rules.
OUR BUSINESS DEPENDS SUBSTANTIALLY ON FCC LICENSES THAT CAN EXPIRE OR BE
REVOKED OR MODIFIED
We have licenses to operate EchoStar I and EchoStar II at the 119
degree orbital location, which both expire in 2006, and a license to operate
EchoStar III at the 61.5 degree orbital location, which expires in 2008.
Also, we have filed with the FCC an application for a license to operate
EchoStar IV as well as a request for a waiver of the requirement of serving
Alaska and Hawaii from the 148 degree orbital location. The state of Hawaii
has requested the FCC to impose several conditions on these requested
authorizations, and we have opposed many of these conditions. We cannot be
sure whether the FCC will grant these requests or whether it will impose
onerous conditions. Until recently, we operated EchoStar IV at the 148 degree
orbital location under a special temporary authorization. Our authorization
at the 148 degree orbital location requires us to utilize all of our
FCC-allocated frequencies at that location by December 20, 2002, or risk
losing those frequencies that we are not using. Third parties have opposed,
and we expect them to continue to oppose, some of our pending and future
requests to the FCC for extensions, waivers and approvals.
We recently received another special temporary authorization from
the FCC to temporarily move the EchoStar IV satellite to the 110DEG. WL
orbital location and operate it pending the launch and successful in-orbit
testing of the first satellite we have acquired in the transaction with MCI
and News Corporation. This authorization is for a limited time and is subject
to several other conditions.
The telemetry, tracking and control operations of EchoStar I are in
an area of the spectrum called the "C-band." Although the FCC granted us
conditional authority to use these frequencies for telemetry, tracking and
control, in January 1996 a foreign government raised an objection to EchoStar
I's use of these frequencies. We cannot be certain whether that objection
will subsequently require us to relinquish
16
the use of such C-band frequencies for telemetry, tracking and control
purposes. Further, EchoStar II's telemetry, tracking and control operations
are in the "extended" C-band. Our authorization to use these frequencies
expired on January 1, 1999. Although we have timely applied for extension of
that authorization to November 2006, we cannot be sure that the FCC will
grant our request. If we lose the ability to use these frequencies for
controlling either satellite, we would lose the satellite. Recently, the FCC
released a notice of proposed rulemaking that may inhibit future satellite
operations in the "extended" C-band frequencies. The FCC also is no longer
accepting earth station applications in that band. These recent developments
might have negative implications for us.
All of our authorizations for satellite systems that are not yet
operational, including the license that we received from MCI, are subject to
construction and progress obligations, milestones, reporting and other
requirements. The FCC has indicated that it may revoke, terminate, condition
or decline to extend or renew such authorizations if we fail to comply with
applicable Communications Act requirements. If we fail to file adequate
reports or to demonstrate progress in the construction of our satellite
systems, the FCC has stated that it may cancel our authorizations for those
systems. We have not filed, or timely filed, all required reports or other
filings, and some of our construction permits have expired, in connection
with our authorized systems with the FCC. We cannot be certain whether or not
the FCC would cancel our authorizations.
WE MAY BE IN DEFAULT ON CERTAIN OBLIGATIONS
We used satellite vendor financing in connection with the purchase
of each of our current satellites. Under the terms of that financing, we
deferred paying a portion of the purchase price for the satellites until
after the satellites were in orbit. As of March 31, 1999, we had $15.3
million in principal amount outstanding of these deferred payments relating
to EchoStar I, $16.1 million relating to EchoStar II, $10.9 million relating
to EchoStar III and $13.0 million relating to EchoStar IV. One of our
wholly-owned subsidiaries, and its subsidiaries, provided security for the
outstanding deferred payments relating to EchoStar I and EchoStar II with
substantially all of their assets, subject to certain restrictions, and
EchoStar DBS Corporation, another of our wholly-owned subsidiaries,
guaranteed those amounts. The consummation of the recent offering by EchoStar
DBS Corporation of $2 billion of senior notes and the exchange notes for
those senior notes, and our recent reorganization, might result in breaches
of certain covenants in favor of the holders of these outstanding deferred
payments, in particular the holders of outstanding deferred payments relating
to EchoStar I and EchoStar II. We believe that, if there is a breach of such
covenants, we may be liable to the holders of such outstanding deferred
payments for damages, if any, arising out of such breach, including possibly
the obligation to repay such outstanding deferred payments prior to their
scheduled maturity together with the economic equivalent of interest through
the scheduled maturity date.
WE MAY BECOME LIABLE IN A PENDING FEE DISPUTE
In connection with the News Corporation litigation that arose in
1997, we have a contingent fee arrangement with our attorneys, which provides
for the attorneys to be paid a percentage of any net recovery obtained in our
dispute with News Corporation. The attorneys have asserted that they may be
entitled to receive payments in excess of $80 million to $100 million under
this fee arrangement in connection with the settlement of the dispute with
News Corporation. We intend to vigorously contest the attorneys'
interpretation of the fee arrangement, which we believe significantly
overstates the magnitude of our liability.
If we are unable to resolve this fee dispute under the fee
arrangement, the fee dispute would be resolved through arbitration. It is too
early to determine the outcome of negotiations or arbitration regarding this
fee dispute.
17
FAILURE OF YEAR 2000 COMPLIANCE INITIATIVES COULD ADVERSELY AFFECT US
The Year 2000 issue exists because many computer systems and
applications currently use two-digit date fields to designate a year. Thus,
as the century date approaches, date sensitive systems may recognize the year
2000 as 1900 or not at all. The inability to recognize or properly treat the
year 2000 may cause computer systems to process critical financial and
operational information incorrectly. If our Year 2000 remediation plan is not
successful or is not completed in a timely manner, the Year 2000 issue could
significantly disrupt our ability to transact business with our customers and
suppliers, and could have a material impact on our operations. Even if our
Year 2000 remediation plan is successful or we complete it on time, there can
be no assurance that other companies will timely convert their systems with
which our systems interact, or that any such failure to convert by another
company would not have an adverse effect on our business or operations. We
cannot estimate the potential adverse impact that may result from
non-compliance with the year 2000 issue by the software and equipment vendors
and others with whom we conduct business.
WE DO NOT EXPECT TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE
We have never declared or paid any cash dividends on any class of
our common stock and we do not expect to declare dividends on our common
stock in the foreseeable future. Payment of any future dividends will depend
upon our earnings and capital requirements, restrictions in our debt
facilities and other factors our Board of Directors considers appropriate. We
currently intend to retain our earnings, if any, to support future growth and
expansion.
FUTURE SALES OF OUR COMMON STOCK MAY DEPRESS OUR STOCK PRICE
Sales of a substantial number of shares of common stock in the
public market following this offering could cause the market price of our
common stock to decline. In this regard, when the 110 acquisition was
consummated on June 24, 1999, we issued approximately 8.6 million class A
shares to MCI WorldCom and News Corporation. MCI WorldCom and News
Corporation may cause us to register these shares for resale under the
Securities Act of 1933.
OUR STOCK PRICE MAY BE VOLATILE
The price at which our common stock trades may be volatile and may
fluctuate substantially due to competition and changes in the subscription
television industry, regulatory changes, launch and satellite failures,
operating results below expectations and other factors. In addition, price
and volume fluctuations in the stock market may affect market prices for our
common stock for reasons unrelated to our operating performance.
ACTUAL RESULTS OF OUR OPERATIONS MAY DIFFER FROM THOSE APPEARING IN FORWARD
LOOKING STATEMENTS
All statements contained in this prospectus, as well as statements
made in press releases and oral statements that may be made by us or by
officers, directors or employees acting on our behalf, that are not
statements of historical fact constitute "forward-looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements involve known and unknown risks, uncertainties and
other factors that could cause our actual results to be materially different
from historical results or from any future results expressed or implied by
the forward-looking statements. Among the factors that could cause our actual
results to differ materially are a total or partial loss of a satellite due
to operational failures, space debris or otherwise. Our business could also
be adversely affected by a decrease in sales of digital equipment and related
services to international direct-to-home or DTH service
18
providers, a decrease in DISH Network subscriber growth, an increase in
subscriber turnover, an increase in subscriber acquisition costs or an
unexpected product shortage. Our strategy of providing local channels to
customers could be adversely affected by impediments to the retransmission of
local or distant broadcast network signals, which could result from pending
litigation or legislation, or lower than expected demand for our delivery of
local broadcast network signals. In general our entire business could be
adversely affected by an unexpected business interruption due to the failure
of third-parties to remediate Year 2000 issues or our inability to retain
necessary authorizations from the FCC. Our subscriber base and our planned
growth in numbers of subscribers would be adversely affected by an increase
in competition from cable, direct broadcast satellite, other satellite system
operators and other providers of subscription television services or the
introduction of new technologies and competitors into the subscription
television business. We could face a newly adverse competitive environment
from a merger of existing DBS competitors or a change in the regulations
governing the subscription television service industry. The outcome of any
litigation in which we may be involved could adversely affect our income or
even our ability to offer some types of popular programming or services. Also
our business can be adversely affected by general business and economic
conditions and other risk factors described from time to time in reports
filed with the SEC by us or our subsidiaries.
In addition to statements that explicitly describe such risks and
uncertainties, you are urged to consider statements that include the terms
"believes," "belief," "expects," "plans," "anticipates," "intends" or the
like to be uncertain and forward-looking. You should read all cautionary
statements made in this prospectus as being applicable to all forward-looking
statements wherever they appear. In this connection, you should consider the
risks described in this prospectus.
19
USE OF PROCEEDS
All of the common stock covered by this prospectus is being sold by
the selling shareholders. We will not receive any of the proceeds from those
sales.
SELLING SHAREHOLDERS
The selling shareholders are former shareholders of Media4, Inc., a
supplier of broadband satellite networking equipment for personal computers.
We issued all of the shares offered by the selling shareholders in connection
with our acquisition of Media4, Inc. on February 1, 1999. Under the terms of
the acquisition, we agreed to register the common stock received by the
selling shareholders and to keep the related registration statement effective
for at least 120 consecutive days. Except for SSE Telecom, none of the
selling shareholders has had a material relationship with us during the past
three years. From March 1995 through September 1998, Charles W. Ergen, our
Chairman, President and Chief Executive Officer served on the board of
directors of SSE Telecom. In 1994, we purchased $8.75 million of SSE
Telecom's 6.5% subordinated convertible debentures. In December 1994,
DirectSat Corporation, a subsidiary of SSE Telecom, was merged with one of
our wholly-owned subsidiaries. In the merger SSE Telecom acquired 800,780
shares of our class A common stock. During 1996 and 1997, SSE Telecom
repurchased $6.1 million of the outstanding convertible debentures and paid
all outstanding accrued interest. During 1998, SSE Telecom repurchased from
us the balance of the convertible debentures.
The table below shows certain information about the shares covered
by this prospectus and other shares of common stock beneficially owned by the
selling shareholders on the date of this prospectus. Our registration of
these shares does not necessarily mean that any selling shareholder will sell
all or any of its shares of common stock. This table assumes that all shares
covered by this prospectus will be sold by the selling shareholders and that
no additional shares of common stock are bought or sold by any selling
shareholder.
Number of Shares Number of Shares to Percentage of Shares
Number of Shares Offered by this be Held After to be Held After
Selling Shareholder Beneficially Owned Prospectus (1) Offering Offering
------------------- ------------------ -------------- -------- --------
SSE Telecom, Inc. 75,536 75,536 0 *
Alcatel C.I.T. S.A. 46,838 46,838 0 *
Intel Corporation 19,492 19,492 0 *
Allen & Company 19,492 19,492 0 *
Incorporated
- --------
* Less than one percent
(1) This prospectus also will cover any additional shares of common stock that
become issuable as a result of a stock split, stock dividend or similar
transaction that results in an increase in the number of our outstanding
shares of common stock, including the 2-for-1 stock split that we have
announced for stockholders of record on July 1, 1999.
20
DESCRIPTION OF OUR CAPITAL STOCK
GENERAL
Our authorized capital stock currently consists of:
- 800,000,000 shares of common stock, of which 400,000,000 shares
are designated class A common stock, 200,000,000 shares are
designated class B common stock and 200,000,000 shares are
designated class C common stock; and
- 20,000,000 shares of preferred stock, including 2,300,000 shares
of series C cumulative convertible preferred stock.
As of July 22, 1999, 51,599,878 shares of class A common stock were
issued and outstanding and held of record by 2,158 stockholders, 59,608,802
shares of class B common stock were issued and outstanding and held of record
by Charles W. Ergen, our Chairman, Chief Executive Officer and President, and
no shares of class C common stock were issued and outstanding. As of July 22,
1999, 1,666,452 shares of series C preferred stock were issued and
outstanding. All outstanding shares of the class A common stock and class B
common stock are fully paid and nonassessable. A summary of the powers,
preferences and rights of the shares of each class of common stock and each
series of preferred stock is set forth below.
The transfer agent for our capital stock, including the class A
common stock, is American Securities Transfer & Trust, Inc.
On July 19, 1999, we effected a 2-for-1 split of our common stock
for our stockholders of record at the close of business on July 1, 1999. The
stock split increased the number of shares of Class A common stock
outstanding from approximately 16.0 million shares to approximately 32.0
million shares and Class B common stock outstanding from approximately 29.8
million shares to approximately 59.6 million shares.
CLASS A COMMON STOCK
Each holder of class A common stock is entitled to one vote for each
share owned of record on all matters submitted to a vote of stockholders.
Except as otherwise required by law, the class A common stock votes together
with the class B common stock and the class C common stock on all matters
submitted to a vote of stockholders. Subject to the preferential rights of
any outstanding series of preferred stock and to any restrictions on the
payment of dividends imposed under the terms of our indebtedness, the holders
of class A common stock are entitled to such dividends as may be declared
from time to time by our Board of Directors from legally available funds and,
together with the holders of the class B common stock, are entitled, after
payment of all prior claims, to receive pro rata all of our assets upon a
liquidation. Holders of class A common stock have no redemption, conversion
or preemptive rights.
CLASS B COMMON STOCK
Each holder of class B common stock is entitled to ten votes for
each share of class B common stock on all matters submitted to a vote of
stockholders. Except as otherwise required by law, the class B
21
common stock votes together with the class A common stock and the class C
common stock on all matters submitted to a vote of the stockholders. Each
share of class B common stock is convertible, at the option of the holder,
into one share of class A common stock. The conversion ratio is subject to
adjustment from time to time upon the occurrence of certain events,
including: (i) dividends or distributions on class A common stock payable in
class A common stock or certain other capital stock; (ii) subdivisions,
combinations or certain reclassifications of class A common stock; and (iii)
issuances of rights, warrants or options to purchase class A common stock at
a price per share less than the fair market value of the class A common
stock. Each share of class B common stock is entitled to receive dividends
and distributions upon liquidation on a basis equivalent to that of the class
A common stock.
CLASS C COMMON STOCK
Each holder of class C common stock is entitled to one vote for each
share of class C common stock on all matters submitted to a vote of
stockholders. Except as otherwise required by law, the class C common stock
votes together with class A common stock and the class B common stock on all
matters submitted to a vote of stockholders. Each share of class C common
stock is convertible into class A common stock on the same terms as the class
B common stock. Each share of class C common stock is entitled to receive
dividends and distributions upon liquidation on a basis equivalent to that of
the class A common stock. Upon a change of control of our company, each
holder of outstanding shares of class C common stock is entitled to cast ten
votes for each share of class C common stock held by such holder. We do not
currently intend to issue any shares of class C common stock. Under current
National Association of Securities Dealers rules, we are not able to issue
class C common stock so long as the class A common stock is quoted on the
Nasdaq National Market.
PREFERRED STOCK
Our Board of Directors is authorized to divide the preferred stock
into series and, with respect to each series, to determine the preferences
and rights and the qualifications, limitations or restrictions of the series,
including the dividend rights, conversion rights, voting rights, redemption
rights and terms, liquidation preferences, sinking fund provisions, the
number of shares constituting the series and the designation of such series.
Our Board of Directors may, without stockholder approval, issue additional
preferred stock of existing or new series with voting and other rights that
could adversely affect the voting power of the holders of common stock and
could have certain anti-takeover effects.
SERIES C PREFERRED STOCK
Holders of the series C preferred stock are entitled to a quarterly
cash payment of $0.844 per share through November 1, 1999, which is funded
from a deposit account created when the series C preferred stock was issued.
Dividends will begin to accrue on the series C preferred stock after November
1, 1999. By such time, any amounts remaining in the deposit account or which
have previously been deferred will be paid to the holders of the series C
preferred stock or will be used to purchase shares of class A common stock
from us for transfers to holders of series C preferred stock. The shares
would effectively be purchased at a 5% discount to the market price.
Dividends on the series C preferred stock accrue from November 2,
1999, and holders of the series C preferred stock will be entitled to receive
cumulative dividends at an annual rate of 6 3/4% of the liquidation
preference, payable quarterly in arrears, commencing February 1, 2000.
Dividends may, at our option, be paid in cash or by delivery of shares of
class A common stock. The series C preferred stock is redeemable at any time
on or after November 1, 2000, in whole or in part, at our option, in cash or
by delivery of class A common stock at specified redemption premiums.
22
Upon any change of control, if the market value of our class A
common stock is less than the conversion price, holders of series C preferred
stock would have a one time option to convert all of their outstanding shares
into shares of class A common stock at an adjusted conversion price equal to
the greater of the market value as of the change of control date and 66.67%
of the market value as of the date of the initial offering of the series C
preferred. In lieu of issuing the shares of class A common stock issuable
upon conversion in the event of a change of control, we may, at our option,
make a cash payment equal to the market value of such class A common stock
otherwise issuable.
The series C preferred stock is convertible at any time, unless
previously redeemed, at the option of the holder thereof, into such number of
whole shares of class A common stock as is equal to the liquidation
preference divided by a conversion price of $12 3/16, subject to
adjustment under certain circumstances.
The series C preferred stock ranks senior to the class A common
stock and senior or pari passu with other existing and future offerings of
preferred stock in right of payment. Holders of the series C preferred stock
have no voting rights with respect to general corporate matters except as
provided by law or upon certain dividend arrearages. The affirmative vote or
consent of holders of at least 66 2/3% of the outstanding series C preferred
stock is required for the issuance of any class or series of our stock (or
security convertible into our stock) ranking senior to or pari passu with the
series C preferred stock as to dividends or liquidation rights (other than
additional shares of series B preferred stock or certain pari passu
securities with an aggregate liquidation preference not to exceed $100
million) and for amendments to our Articles of Incorporation that would
affect adversely the rights of holders of the series C preferred stock.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
Our Articles of Incorporation provide that our directors are not
personally liable to us or our stockholders for monetary damages for any
breach of fiduciary duty as a director, except in certain cases where
liability is mandated by Nevada corporate law. The provision has no effect on
any non-monetary remedies that may be available to us or our stockholders and
does not relieve us or our directors from complying with federal or state
securities laws. Our Articles of Incorporation and By-Laws provide for
indemnification, to the fullest extent permitted by Nevada corporate law, of
any person who is or was involved in any manner in any investigation, claim
or other proceeding by reason of the fact that such person is or was a
director or officer of our company, or is or was serving at our request as a
director or officer of another corporation, against all expenses and
liabilities actually and reasonably incurred by such person in connection
with the investigation, claim or other proceeding. However, no
indemnification shall be made for any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct in
the performance of such person's duty to us.
NEVADA LAW AND LIMITATIONS ON CHANGES IN CONTROL
The Nevada Revised Statutes prevent an "interested stockholder"
which is defined generally as a person owning 10% or more of a corporation's
outstanding voting stock, from engaging in a "combination" with a
publicly-held Nevada corporation for three years following the date such
person became an interested stockholder unless, before such person became an
interested stockholder, the board of directors of the corporation approved
the transaction in which the interested stockholder became an interested
stockholder or approves the combination.
The provisions authorizing our Board of Directors to issue preferred
stock without stockholder approval and the provisions of the Nevada Revised
Statutes relating to combinations with interested stockholders could have the
effect of delaying, deferring or preventing a change in our control
23
or the removal of our existing management. Each of the indentures relating to
the senior notes of Echostar DBS Corporation (one of our wholly-owned
subsidiaries) also contain provisions with respect to a change of control.
The series C preferred stock certificate of designation also contains certain
change of control provisions.
Charles W. Ergen, our Chairman, President and Chief Executive
Officer, owns 59,608,802 shares of class B common stock, which constitute all
of the outstanding class B shares. These shares are transferable to other
persons, subject to securities laws limitations. If Mr. Ergen transferred a
substantial portion of his shares of class B common stock, a change in
control of EchoStar would result and Mr. Ergen would receive any premium paid
for control of our company. In addition, any such change in control would
result in an obligation on the part of EchoStar DBS Corporation, our
wholly-owned subsidiary, to offer to purchase at a premium all of its
outstanding senior notes.
24
PLAN OF DISTRIBUTION
We are registering the common stock covered by this prospectus for
the selling shareholders. These shares may be sold or distributed from time
to time by the selling shareholders, by their donees or transferees or by
their other successors in interest. We have agreed to keep the registration
statement (of which this prospectus is a part) effective for at least 120
consecutive days. The selling shareholders have agreed to discontinue sales
of common stock under this prospectus following such 120 day period unless we
provide them with notice of our intention to continue the effectiveness of
the registration. The selling shareholders will pay the fees and expenses of
registering the common stock, including the reasonable fees and disbursements
of persons retained by us, as well as any commissions or transfer taxes
relating to the sale of the common stock. We have agreed to indemnify the
selling shareholders against certain liabilities relating to resale of the
common stock under the Securities Act of 1933.
The selling shareholders may sell these shares at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices, which may be changed. The
selling shareholders reserve the right to accept or reject, in whole or in
part, any proposed purchase of these shares, whether the purchase is to be
made directly or through agents.
The selling shareholders may offer these shares at various times in
one or more of the following transactions:
- in ordinary brokers' transactions and transactions in which the
broker solicits purchasers;
- in transactions involving cross or block trades or otherwise on
the Nasdaq National Market;
- in transactions in which brokers, dealers or underwriters purchase
the shares as principal and resell the shares for their own
accounts pursuant to this prospectus;
- in transactions "at the market" to or through market makers of
EchoStar common stock or into an existing market for the common
stock;
- in other ways not involving market makers or established trading
markets, including direct sales of the shares to purchasers or
sales of the shares effected through agents;
- through transactions in options, swaps or other derivatives which
may or may not be listed on an exchange;
- in privately negotiated transactions;
- in transactions to cover short sales; and
- in a combination of any of the foregoing transactions.
The selling shareholders also may sell these shares in accordance
with Rule 144 under the Securities Act.
From time to time, the selling shareholders may pledge or grant a
security interest in some or all of these shares. If the selling shareholders
default in performance of the obligations secured by these shares, the
pledgees or secured parties may offer and sell the shares from time to time
by this prospectus. The selling shareholders also may transfer and donate
these shares in other circumstances. The number of shares beneficially owned
by a selling shareholder will decrease as and when the selling shareholder
transfers or donates these shares or defaults in performing obligations
secured by these shares. The plan of distribution for shares offered and sold
under this prospectus will otherwise remain unchanged, except that the
transferees, donees, pledgees, other secured parties or other successors in
interest will be selling shareholders for purposes of this prospectus.
25
The selling shareholders may sell short their common stock. The
selling shareholders may deliver this prospectus in connection with such
short sales and use the shares offered by this prospectus to cover such short
sales.
The selling shareholders may enter into hedging transactions with
broker-dealers. The broker-dealers may engage in short sales of EchoStar
common stock in the course of hedging the positions they assume with the
selling shareholders, including positions assumed in connection with
distributions of these shares by such broker-dealers. The selling
shareholders also may enter into options or other transactions with
broker-dealers that involve the delivery of these shares to the
broker-dealers, who may then resell or otherwise transfer such shares. In
addition, the selling shareholders may loan or pledge these shares to a
broker-dealer, which may sell the loaned shares or, upon a default by the
selling shareholder of the secured obligation, may sell or otherwise transfer
the pledged shares.
The selling shareholders may use brokers, dealers, underwriters or
agents to sell these shares. The persons acting as agents may receive
compensation in the form of commissions, discounts or concessions. This
compensation may be paid by the selling shareholders or the purchasers of the
shares for whom such persons may act as agent, or to whom they may sell as
principal, or both. The compensation as to a particular person may be less
than or in excess of customary commissions. The selling shareholders and any
agents or broker-dealers that participate with the selling shareholders in
the offer and sale of these shares may be deemed to be "underwriters" within
the meaning of the Securities Act. Any commissions they receive and any
profit they realize on the resale of these shares by them may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933.
We have advised the selling shareholders that during such time as
they may be engaged in a distribution of these shares, they are required to
comply with Regulation M under the Securities Exchange Act of 1934. With
certain exceptions, Regulation M prohibits the selling shareholders, any
affiliated purchasers and other persons who participate in such a
distribution from bidding for or purchasing, or attempting to induce any
person to bid for or purchase, any security which is the subject of the
distribution until the entire distribution is complete.
It is possible that a significant number of these shares could be
sold at the same time. Such sales, or the perception that such sales could
occur, may adversely affect prevailing market prices for the EchoStar common
stock.
26
LEGAL MATTERS
Winthrop, Stimson, Putnam & Roberts, New York, New York will pass on
the validity of the common stock offered by this prospectus. Winthrop,
Stimson, Putnam & Roberts will rely on an opinion of Hale, Lane, Peek,
Dennison, Howard and Anderson, Reno, Nevada, as to matters of Nevada law.
EXPERTS
The financial statements included in our 1998 Annual Report on Form
10-K have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report on such financial statements. We
have incorporated these financial statements by reference in this prospectus
and in the related registration statement in reliance upon the authority of
such firm as experts in giving such reports.
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
any underwriting discounts and commissions, payable in connection with the
sale of common stock being registered. All amounts are estimates except the
SEC registration fee. All of the costs and expenses will be borne by the
selling shareholders on a pro rata basis, based on the number of shares
originally requested to be included in this registration statement.
SEC registration fee .................................. $ 2,998
Legal fees and expenses................................ 27,500
Accounting fees and expenses........................... 7,500
Printing fees.......................................... 845
Transfer agent fees.................................... 100
Miscellaneous.......................................... 558
-------
Total $39,500
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Chapter 78.7502(1) of the Nevada Revised Statutes 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 he is or was a director, officer, employee or agent
of EchoStar, or is or was 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 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 EchoStar 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 indemnification has been found liable to
EchoStar. In addition, Chapter 78.751(2) allows EchoStar to 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 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 EchoStar for acts by such officers and directors are contained
in Article IX of the Amended and Restated Articles of Incorporation of
EchoStar and Article IX of EchoStar's Bylaws. 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 EchoStar's Board of
Directors, or a written opinion of outside legal counsel, or EchoStar's
stockholders: (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 he is or was a director,
officer, employee, fiduciary or agent of EchoStar, or is or was serving at
the request of EchoStar as director, officer, employee, fiduciary or
II-1
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
EchoStar, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his 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 he 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 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 EchoStar, except that no indemnification shall be
made in respect of 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 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 16. EXHIBITS
5.1 Opinion of Hale, Lane, Peek, Dennison, Howard and Anderson*
5.2 Opinion of Winthrop, Stimson, Putnam & Roberts*
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hale, Lane, Peek, Dennison, Howard and Anderson (included
in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4 of this registration
statement)*
- ----
* Previously filed
ITEM 17. UNDERTAKINGS
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:
(i) To include any prospectus required by section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
II-2
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
1933 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 that time shall be deemed to be the initial
bona fide offering thereof.
(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.
(4) For purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities Act of 1933 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 Act and will be governed by the
final adjudication of such issue.
II-3
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-3 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
July 23, 1999.
ECHOSTAR COMMUNICATIONS CORPORATION
By: *
------------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on July 23, 1999 by the following
persons in the capacities indicated:
Signature Title
- --------- -----
* Chief Executive Officer, President and Director
- ------------------------------- (Principal Executive Officer)
Charles W. Ergen
* Chief Financial Officer
- ------------------------------- (Principal Financial Officer)
Steven B. Schaver
* Director
- -------------------------------
James DeFranco
/s/ DAVID K. MOSKOWITZ Director
- -------------------------------
David K. Moskowitz
* Director
- -------------------------------
Raymond L. Friedlob
* Director
- -------------------------------
O. Nolan Daines
*By /s/ David K. Moskowitz
----------------------------
David K. Moskowitz
Attorney-in-Fact
II-4
INDEX TO EXHIBITS
Number Title
- ------ -----
5.1 Opinion of Hale, Lane, Peek, Dennison, Howard and Anderson*
5.2 Opinion of Winthrop, Stimson, Putnam & Roberts*
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hale, Lane, Peek, Dennison, Howard and Anderson
(included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-4 of this registration
statement)*
- ------------
* Previously filed
II-5
EXHIBIT 23.1
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 part of this
Registration Statement.
ARTHUR ANDERSEN LLP
Denver, Colorado
July 22, 1999
