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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(AMENDMENT NO. 1)
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______________ to ________________.
Commission file number: 0-26176
ECHOSTAR COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 88-0336997
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
5701 S. SANTA FE DRIVE
LITTLETON, COLORADO 80120
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 723-1000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Class A Common
Stock, $0.01 par value Act:
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of February 25, 2002, the aggregate market value of Class A Common
Stock held by non-affiliates* of the Registrant approximated $5.2 billion based
upon the closing price of the Class A Common Stock as reported on the Nasdaq
National Market as of the close of business on that date.
As of February 25, 2002, the Registrant's outstanding Common stock
consisted of 241,282,817 shares of Class A Common Stock and 238,435,208 shares
of Class B Common Stock, each $0.01 par value.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents are incorporated into this Form 10-K by
reference:
Portions of the Registrant's definitive Proxy Statement to be filed in
connection with the Annual Meeting of Shareholders of Registrant to be held May
6, 2002 are incorporated by reference in Part III herein.
* Without acknowledging that any individual director or executive officer of
the Company is an affiliate, the shares over which they have voting
control have been included as owned by affiliates solely for purposes of
this computation.
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EXPLANATORY NOTE
We are filing this Amendment No.1 to our Form 10-K to clearly identify
previously filed exhibits which include redacted material. No new redactions
have been made, and no new exhibits are being filed. We are also refiling
certain of the exhibits to more clearly indicate those portions which have been
redacted. No other changes whatsoever are being made to the 10-K; these are the
only amendments made to the original filing of this report on February 28, 2002
(the "Original Filing").
This report continues to speak as of the date of the Original Filing,
and we have not updated the disclosure in this report to speak as of a later
date. All information contained in this report and the Original Filing is
subject to updating and supplementing as provided in our periodic reports filed
with the Securities and Exchange Commission.
TABLE OF CONTENTS
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K............................... 1
Signatures.............................................................................................. 6
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) (3) Exhibits
3.1(a)+ Amended and Restated Articles of Incorporation of EchoStar.
3.1(b)* Amended and Restated Bylaws of EchoStar (incorporated by
reference to Exhibit 3(ii) to the Current Report on Form 8-K,
dated January 23, 2002, of EchoStar, Commission File No.
0-26176).
3.2(a)* Articles of Incorporation of EchoStar Broadband Corporation
("EBC") (incorporated by reference to Exhibit 3.1(a) to the
Registration Statement on Form S-4 of EBC, Registration No.
333-52756).
3.2(b)* Bylaws of EBC (incorporated by reference to Exhibit 3.1(b) to
the Registration Statement on Form S-4 of EBC, Registration
No. 333-52756).
3.3(a)* Articles of Incorporation of EchoStar DBS Corporation ("DBS
Corp.") (incorporated by reference to Exhibit 3.4(a) to the
Registration Statement on Form S-4 of DBS Corp., Registration
No. 333-31929).
3.3(b)* Bylaws of DBS Corp. (incorporated by reference to Exhibit
3.4(b) to the Registration Statement on Form S-4 of DBS Corp.,
Registration No. 333-31929).
4.1* Warrant Agreement between EchoStar and First Trust, as Warrant
Agent (incorporated by reference to Exhibit 4.2 to the
Registration Statement on Form S-1 of Dish Ltd., Registration
No. 33-76450).
4.2* Security Agreement in favor of First Trust, as trustee under
the Indenture filed as Exhibit 4.1 hereto (incorporated by
reference to Exhibit 4.3 to the Registration Statement on Form
S-1 of Dish Ltd., Registration No. 33-76450).
4.3* Escrow and Disbursement Agreement between Dish Ltd. and First
Trust (incorporated by reference to Exhibit 4.4 to the
Registration Statement on Form S-1 of Dish, Registration No.
33-76450).
4.4* Pledge Agreement in favor of First Trust, as trustee under the
Indenture filed as Exhibit 4.1 hereto (incorporated by
reference to Exhibit 4.5 to the Registration Statement on Form
S-1 of Dish Ltd., Registration No. 33-76450).
4.5* Intercreditor Agreement among First Trust, Continental Bank,
N.A. and Martin Marietta Corporation ("Martin Marietta")
(incorporated by reference to Exhibit 4.6 to the Registration
Statement on Form S-1 of Dish, Registration No. 33-76450).
4.6* Registration Rights Agreement by and between EchoStar and
Charles W. Ergen (incorporated by reference to Exhibit 4.8 to
the Registration Statement on Form S-1 of EchoStar,
Registration No. 33-91276).
4.7* Indenture of Trust, relating to DBS Corp.'s 9 1/4% Senior
Notes due 2006 ("Seven Year Notes"), dated as of January 25,
1999, among DBS Corp., the Guarantors (as defined therein) and
U.S. Bank Trust National Association ("U.S. Bank"), as trustee
(incorporated by reference to Exhibit 4.1 to the Registration
Statement on Form S-4 of DBS Corp., Registration No.
333-71345).
4.8* Indenture of Trust, relating to DBS Corp.'s 9 3/8% Senior
Notes due 2009 ("Ten Year Notes"), dated as of January 25,
1999, among DBS Corp., the Guarantors (as defined therein) and
U.S. Bank, as trustee (incorporated by reference to Exhibit
4.3 to the Registration Statement on Form S-4 of DBS Corp.,
Registration No. 333-71345).
1
4.9* Registration Rights Agreement, relating to the Seven Year
Notes, dated as of January 25, 1999, by and among DBS Corp.,
the Guarantors and the Initial Purchasers (as defined therein)
(incorporated by reference to Exhibit 4.5 to the Registration
Statement on Form S-4 of DBS Corp., Registration No.
333-71345).
4.10* Registration Rights Agreement, relating to the Ten Year Notes,
dated as of January 25, 1999, by and among DBS Corp., the
Guarantors and the Initial Purchasers (as defined therein)
(incorporated by reference to Exhibit 4.6 to the Registration
Statement on Form S-4 of DBS Corp., Registration No.
333-71345).
4.11* Indenture relating to 4 7/8% Convertible Subordinated Notes
due 2007, dated as of December 8, 1999, between EchoStar
Communications Corporation and U.S. Bank Trust National
Association, as trustee, (incorporated by reference to Exhibit
4.1 to the Registration Statement on Form S-3 of EchoStar
Communications Corporation, Registration No. 333-31894).
4.12* Registration Rights Agreement, relating to the 4 7/8%
Convertible Subordinated Notes Due 2007, dated as of December
8, 1999, by and among EchoStar Communications Corporation and
the initial purchasers (incorporated by reference to Exhibit
4.2 to the Registration Statement on Form S-3 of EchoStar
Communications Corporation, Registration No. 333-31894).
4.13* Indenture relating to 10 3/8% Senior Notes due 2007, dated as
of September 25, 2000, between EchoStar Broadband Corporation
and U.S. Bank Trust National Association, as trustee
(incorporated by reference to Exhibit 4.1 to the Quarterly
Report on Form 10-Q of EchoStar for the quarter ended
September 30, 2000, Commission File No.0-26176).
4.14* Registration Rights Agreement dated as of September 25, 2000,
by and among EchoStar Broadband Corporation, Donaldson, Lufkin
& Jenrette Securities Corporation, Banc of America Securities
LLC, Credit Suisse First Boston Corporation and ING Barings
LLC (incorporated by reference to Exhibit 4.2 to the Quarterly
Report on Form 10-Q of EchoStar for the quarter ended
September 30, 2000, Commission File No.0-26176).
4.15* Indenture, relating to the 5 3/4% Convertible Subordinated
Notes Due 2008, dated as of May 31, 2001 between EchoStar
Communications Corporation and U.S. Bank Trust National
Association, as Trustee (incorporated by reference to Exhibit
4.1 to the Quarterly Report on Form 10-Q of EchoStar for the
quarter ended June 30, 2001, Commission File No.0-26176).
4.16* Registration Rights Agreement, relating to the 5 3/4%
Convertible Subordinated Notes Due 2008, dated as of May 31,
2001, by and between EchoStar Communications Corporation and
UBS Warburg LLC (incorporated by reference to Exhibit 4.2 to
the Quarterly Report on Form 10-Q of EchoStar for the quarter
ended June 30, 2001, Commission File No.0-26176).
4.17+ Indenture, relating to the 9 1/8% Senior Notes Due 2009, dated
as of December 28, 2001 between EchoStar DBS Corporation and
U.S. Bank Trust National Association, as Trustee.
4.18+ Registration Rights Agreement, relating to the 9 1/8% Senior
Notes Due 2009, dated as of December 28, 2001, by and among
EchoStar DBS Corporation and Deutsche Banc Alex. Brown, Inc.,
Credit Suisse First Boston Corporation, Lehman Brothers Inc.
and UBS Warburg LLC.
4.19+ Certificate of Withdrawal Withdrawing the Series A, Series B
and Series C Preferred Stock Designations of EchoStar.
4.20+ Series D Mandatorily Convertible Participating Preferred Stock
Certificate of Designation of EchoStar.
10.1* Key Employee Bonus Plan, dated as of January 1, 1994
(incorporated by reference to Exhibit 10.7 to the Registration
Statement on Form S-1 of Dish, Registration No. 33-76450).**
2
10.2* Consulting Agreement, dated as of February 17, 1994, between
ESC and Telesat Canada (incorporated by reference to Exhibit
10.8 to the Registration Statement on Form S-1 of Dish,
Registration No. 33-76450).
10.3* Form of Satellite Launch Insurance Declarations (incorporated
by reference to Exhibit 10.10 to the Registration Statement on
Form S-1 of Dish, Registration No. 33-81234).
10.4* Dish 1994 Stock Incentive Plan (incorporated by reference to
Exhibit 10.11 to the Registration Statement on Form S-1 of
Dish, Registration No. 33-76450).**
10.5* Form of Tracking, Telemetry and Control Contract between AT&T
Corp. and ESC (incorporated by reference to Exhibit 10.12 to
the Registration Statement on Form S-1 of Dish, Registration
No. 33-81234).
10.6* Manufacturing Agreement, dated as of March 22, 1995, between
HTS and SCI Technology, Inc. (incorporated by reference to
Exhibit 10.12 to the Registration Statement on Form S-1 of
Dish, Commission File No. 33-81234).
10.7* Statement of Work, dated January 31, 1995 from ESC to DiviCom,
Inc. (incorporated by reference to Exhibit 10.14 to the
Registration Statement on Form S-1 of EchoStar, Registration
No. 33-91276).
10.8* EchoStar 1995 Stock Incentive Plan (incorporated by reference
to Exhibit 10.16 to the Registration Statement on Form S-1 of
EchoStar, Registration No. 33-91276).**
10.9* Satellite Construction Contract, dated as of July 18, 1996,
between EDBS and Lockheed Martin Corporation (incorporated by
reference to Exhibit 10.18 to the Quarterly Report on Form
10-Q of EchoStar for the quarter ended June 30, 1996,
Commission File No. 0-26176).
10.10* Confidential Amendment to Satellite Construction Contract
between DBSC and Martin Marietta, dated as of May 31, 1995
(incorporated by reference to Exhibit 10.14 to the
Registration Statement of Form S-4 of EchoStar, Registration
No. 333-03584).
10.11* Agreement between HTS, ESC and ExpressVu Inc., dated January
8, 1997, as amended (incorporated by reference to Exhibit
10.18 to the Annual Report on Form 10-K of EchoStar for the
year ended December 31, 1996, as amended, Commission File No.
0-26176).
10.12* Amendment No. 9 to Satellite Construction Contract, effective
as of July 18, 1996, between Direct Satellite Broadcasting
Corporation, a Delaware corporation ("DBSC") and Martin
Marrieta Corporation (incorporated by reference to Exhibit
10.1 to the Quarterly Report on Form 10-Q of EchoStar for the
quarterly period ended June 30, 1997, Commission File No.
0-26176).
10.13* Amendment No. 10 to Satellite Construction Contract, effective
as of May 31, 1996, between DBSC and Lockheed Martin
Corporation (incorporated by reference to Exhibit 10.2 to the
Quarterly Report on Form 10-Q of EchoStar for the quarterly
period ended June 30, 1997, Commission File No. 0-26176).
10.14* Purchase Agreement, dated November 30, 1998, by and among
American Sky Broadcasting, LLC ("ASkyB"), The News Corporation
Limited ("News Corporation"), MCI Telecommunications
Corporation and EchoStar (incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K filed by EchoStar on
December 1, 1998, Commission File No. 0-26176).
10.15* Voting Agreement, dated November 30, 1998, among EchoStar,
AskyB, News Corporation and MCI Telecommunications Corporation
(incorporated by reference to Exhibit 10.3 to the Current
Report on Form 8-K of EchoStar, filed as of December 1, 1998,
Commission File No. 0-26176).
3
10.16* Agreement to Form NagraStar LLC, dated as of June 23, 1998, by
and between Kudelski S.A., EchoStar and ESC (incorporated by
reference to Exhibit 10.28 to the Annual Report on Form 10-K
of EchoStar for the year ended December 31, 1998, Commission
File No. 0-26176).
10.17* First Amendment, dated June 23, 1999, to the Purchase
Agreement dated November 30, 1998, by and among American Sky
Broadcasting, LLC, The News Corporation Limited, MCI
Telecommunications Corporation, and EchoStar Communications
Corporation (incorporated by reference to Exhibit 10.3 to the
Current Report on Form 8-K of EchoStar, filed as of July 2,
1999, Commission File No. 0-26176).
10.18* Registration Rights Agreement, dated June 24, 1999, by and
among EchoStar Communications Corporation, MCI
Telecommunications Corporation, American Sky Broadcasting,
LLC, and News America Incorporated (incorporated by reference
to Exhibit 10.4 to the Current Report on Form 8-K of EchoStar,
filed as of July 2, 1999, Commission File No. 0-26176).
10.19* Satellite Construction Contract dated as of January 27, 2000,
between EchoStar Orbital Corporation and Lockheed Martin
Corporation (incorporated by reference to Exhibit 10.1 to the
Quarterly Report on Form 10-Q of EchoStar for the quarter
ended March 31, 2000, Commission File No.0-26176).
10.20* Satellite Construction Contract dated as of February 4, 2000,
between EchoStar Orbital Corporation and Space Systems/Loral
Inc. (incorporated by reference to Exhibit 10.2 to the
Quarterly Report on Form 10-Q of EchoStar for the quarter
ended March 31, 2000, Commission File No.0-26176).
10.21* Satellite Construction Contract dated as of February 22, 2000,
between EchoStar Orbital Corporation and Space Systems/Loral
Inc. (incorporated by reference to Exhibit 10.3 to the
Quarterly Report on Form 10-Q of EchoStar for the quarter
ended March 31, 2000, Commission File No.0-26176).
10.22* Agreement dated as of February 22, 2000, between EchoStar
Orbital Corporation and Loral Skynet, a division of Loral
SpaceCom Corporation (incorporated by reference to Exhibit
10.4 to the Quarterly Report on Form 10-Q of EchoStar for the
quarter ended March 31, 2000, Commission File No.0-26176).
10.23* Contract for Launch Services, dated January 31, 2001, between
Lockheed Martin's International Launch Services and EchoStar
Orbital Corporation (incorporated by reference to Exhibit 10.1
to the Quarterly Report on Form 10-Q of EchoStar for the
quarter ended March 31, 2001, Commission File No.0-26176).
10.24* Modification Nos. 1-7 to the Satellite Contract (EchoStar VII
- 119 degree West Longitude) dated January 27, 2000, between
Lockheed Martin Corporation and EchoStar Orbital Corporation
(incorporated by reference to Exhibit 10.1 to the Quarterly
Report on Form 10-Q of EchoStar for the quarter ended June 30,
2001, Commission File No.0-26176).
10.25* Amended and Restated Contract dated February 1, 2001, between
EchoStar Orbital Corporation and Space Systems/Loral, Inc.,
EchoStar VIII Satellite Program (110 degree West Longitude)
(incorporated by reference to Exhibit 10.2 to the Quarterly
Report on Form 10-Q of EchoStar for the quarter ended June 30,
2001, Commission File No.0-26176).
10.26* Amendment No. 1 to the Contract dated February 22, 2000,
between EchoStar Orbital Corporation and Space Systems/Loral
Inc., EchoStar IX Satellite Program (121 degree West
Longitude) (incorporated by reference to Exhibit 10.3 to the
Quarterly Report on Form 10-Q of EchoStar for the quarter
ended June 30, 2001, Commission File No.0-26176).
10.27* Agreement and Plan of Merger, dated October 28, 2001, by and
between EchoStar and Hughes Electronics Corporation
(incorporated by reference to Exhibit 99.1 to the Current
Report on Form 8-K of EchoStar, filed as of October 31, 2001,
Commission File No. 0-26176).
4
10.28* Implementation Agreement, dated October 28, 2001, by and among
General Motors Corporation, Hughes Electronics Corporation and
EchoStar (incorporated by reference to Exhibit 99.2 to the
Current Report on Form 8-K of EchoStar, filed as of October
31, 2001, Commission File No. 0-26176).
10.29* Stock Purchase Agreement, dated October 28, 2001, among
EchoStar, Hughes Electronics Corporation, Hughes
Communications Galaxy, Inc., Hughes Communications Satellite
Services, Inc. and Hughes Communications Inc. (incorporated by
reference to Exhibit 99.3 to the Current Report on Form 8-K of
EchoStar, filed as of October 31, 2001, Commission File No.
0-26176).
10.30* Separation Agreement, dated October 28, 2001, by and between
General Motors Corporation and Hughes Electronics Corporation
(incorporated by reference to Exhibit 99.4 to the Current
Report on Form 8-K of EchoStar, filed as of October 31, 2001,
Commission File No. 0-26176).
10.31* Investment Agreement, dated December 14, 2001, between
EchoStar and Vivendi Universal, S.A., and exhibits
(incorporated by reference to Exhibit 99.1 to the Current
Report on Form 8-K of EchoStar, filed as of December 20, 2001,
Commission File No. 0-26176).
10.32* Stockholder Voting Agreement, dated December 14, 2001, by and
among Charles W. Ergen, The Samburu Warrior Revocable Trust
and Vivendi Universal, S.A. (incorporated by reference to
Exhibit 99.2 to the Current Report on Form 8-K of EchoStar,
filed as of December 20, 2001, Commission File No. 0-26176).
10.33+ Modification No. 8 to the Satellite Contract (EchoStar VII -
119 degree West Longitude) dated October 12, 2001, between
Lockheed Martin Corporation and EchoStar Orbital Corporation.
10.34+ Modification No. 9 to the Satellite Contract (EchoStar VII -
119 degree West Longitude) dated October 16, 2001, between
Lockheed Martin Corporation and EchoStar Orbital Corporation.
10.35+ Contract amendment No.1 to the EchoStar VIII contract between
EchoStar Orbital Corporation and Space Systems/Loral, Inc.,
dated October 19, 2001. ***
10.36+ Modification No. 10 to the Satellite Contract (EchoStar VII -
119 degree West Longitude) dated December 12, 2001, between
Lockheed Martin Corporation and EchoStar Orbital Corporation.
21+ Subsidiaries of EchoStar Communications Corporation.
23.1+ Consent of Arthur Andersen LLP, Independent Public Accountants
23.2+ Consent of Ernst & Young LLP, Independent Public Accountants
24.1+ Powers of Attorney authorizing signature of Cantey Ergen,
Raymond L. Friedlob, O. Nolan Daines, Peter A. Dea and
Jean-Marie Messier.
----------
* Incorporated by reference.
** Constitutes a management contract or compensatory plan or arrangement.
*** Filed in redacted form since confidential treatment has been requested
pursuant to Rule 24.b-2 for certain portions thereof. A conforming
electronic copy is being filed herewith.
+ Filed herewith.
5
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, EchoStar has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ECHOSTAR COMMUNICATIONS CORPORATION
By: /s/ Michael R. McDonnell
----------------------------------------------------
Michael R. McDonnell
Senior Vice President and Chief Financial Officer
Date: September 20, 2002
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of EchoStar
and in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Charles W. Ergen Chief Executive Officer and Chairman September 20, 2002
--------------------------------- (Principal Executive Officer)
Charles W. Ergen
/s/ Michael R. McDonnell Senior Vice President and Chief Financial Officer September 20, 2002
--------------------------------- (Principal Financial Officer)
Michael R. McDonnell
/s/ James DeFranco Director September 20, 2002
---------------------------------
James DeFranco
/s/ David K. Moskowitz Director September 20, 2002
---------------------------------
David K. Moskowitz
* Director September 20, 2002
---------------------------------
Cantey Ergen
* Director September 20, 2002
---------------------------------
Raymond L. Friedlob
* Director September 20, 2002
---------------------------------
O. Nolan Daines
* Director September 20, 2002
---------------------------------
Peter A. Dea
* Director September 20, 2002
---------------------------------
Jean-Marie Messier
* By: /s/ David K. Moskowitz
-----------------------------------
David K. Moskowitz
Attorney-in-Fact
6
EXHIBIT INDEX*
EXHIBIT
NUMBER DESCRIPTION
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10.35 Contract amendment No.1 to the EchoStar VIII contract between
EchoStar Orbital Corporation and Space Systems/Loral, Inc., dated
October 19, 2001.
* Only exhibits actually filed on this Form 10-K/A are listed. Exhibits
previously filed on the Form 10-K or incorporated by reference are set
forth in the exhibit listing included in Item 14 of this Form 10-K/A.
These exhibits were previously filed with the Commission as an Exhibit
to the Company's report on Form 10-K for the year ended December 31,
2001, filed on February 28, 2002. Pursuant to a confidential treatment
request filed with the Commission, certain portions of these exhibits
were omitted from our prior filing. The current filing reflects
comments of the Commission regarding our confidential treatment
request.
7