ergen13d_a.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D/A
Under
the Securities Exchange Act of 1934
(Amendment
No. 3)*
EchoStar
Corporation
(Name of
Issuer)
CLASS A
COMMON STOCK, $0.001 PAR VALUE PER SHARE
(Title
of Class of Securities)
278768
106
(CUSIP
Number)
R.
Stanton Dodge
Executive
Vice President, General Counsel and Secretary
EchoStar
Corporation
100
Inverness Terrace E.
Englewood,
Colorado 80112
(303)
706-4000
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
November
30, 2009
(Date
of Event Which Requires Filing of this Statement)
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. o
Note: Schedules filed in paper
format shall include a signed original and five copies of the schedule,
including all exhibits. See §240.13d-7 for other parties to whom copies are to
be sent.
* The remainder of this cover
page shall be filled out for a reporting person’s initial filing on this form
with respect to the subject class of securities, and for any subsequent
amendment containing information which would alter disclosures provided in a
prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
Persons
who respond to the collection of information contained in this form are not
required to respond unless the form displays a currently valid OMB control
number.
CUSIP No.
278768 106
|
1.
|
NAME
OF REPORTING PERSON
|
Charles
W. Ergen
2. CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
3. SEC
Use Only
OO
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5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR
2(e) ¨
|
|
6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
|
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Number
Of Shares Beneficially Owned By Each Reporting Person
With
|
7. SOLE
VOTING POWER
31,509,695 VOTING
SHARES (1)
296,000 SIXTY
DAY SHARES (2)
|
|
8. SHARED
VOTING POWER
248
OTHER SHARES (3)
|
|
9. SOLE
DISPOSITIVE POWER
31,509,695 VOTING
SHARES (1)
296,000
SIXTY DAY SHARES (2)
|
|
10. SHARED
DISPOSITIVE POWER
248
OTHER SHARES (3)
|
|
11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY THE REPORTING
PERSON
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31,805,943
|
12.
|
CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* ¨
|
|
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW
(11)
|
|
14.
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TYPE
OF REPORTING PERSON
|
(1)
“Voting Shares” include all shares of Class A Common Stock (“Class A Common
Stock”) and Class B Common Stock (“Class B Common Stock”) of EchoStar
Corporation (“EchoStar”) of which Mr. Ergen is the sole beneficial owner. The
shares of Class B Common Stock are convertible into shares of Class A Common
Stock on a one-for-one basis at any time. The Voting Shares represent: (i)
89,730 shares of Class A Common Stock owned beneficially directly by Mr. Ergen;
(ii) 3,705 shares of Class A Common Stock owned beneficially indirectly by
Mr. Ergen in EchoStar’s 401(k) Employee Savings Plan; (iii) 5,435 shares of
Class A Common Stock owned beneficially by Mr. Ergen as custodian for his minor
children; and (iv) 31,410,825 shares of Class B Common Stock owned
beneficially directly by Mr. Ergen.
(2) “Sixty
Day Shares” are shares of Class A Common Stock deemed to be owned beneficially
under Rule 13d- 3(d)(1) because Mr. Ergen has the right to acquire beneficial
ownership of such shares within 60 days of the date hereof. Upon acquisition by
Mr. Ergen, these shares will become Voting Shares.
(3)
“Other Shares” represent (i) 47 shares of Class A Common Stock owned
beneficially by Mr. Ergen’s spouse, Cantey Ergen; and (ii) 201 shares of Class A
Common Stock owned beneficially indirectly by Mrs. Ergen in EchoStar’s 401(k)
Employee Savings Plan.
(4) Based
on 37,110,221 shares of Class A Common Stock outstanding on November 30, 2009
and assuming conversion of the shares of Class B Common Stock held by the
Reporting Person into Class A Common Stock. Because such Class B Common Stock is
convertible on a one-for-one basis into Class A Common Stock, assuming
conversion of all shares of outstanding Class B Common Stock into Class A Common
Stock, the percentage of the Class A Common Stock that the Reporting Person may
be deemed to own beneficially would be approximately 37.4%. Because each share
of Class B Common Stock is entitled to 10 votes per share, the Reporting Person
owns beneficially equity securities of the Company representing approximately
61.2% of the voting power of the Company (assuming no conversion of the Class B
Common Stock).
ITEM
4. Purpose
of Transaction
Item 4 is
hereby amended and supplemented as follows:
Mr. Ergen
gifted 15,000,000 shares of Class B Common Stock to the Ergen Two-Year 2009 SATS
GRAT (the “2009 GRAT”) on November 30, 2009. Mr. Ergen established
the 2009 GRAT for estate planning purposes. Under the trust agreement
establishing the 2009 GRAT, Mr. William Gouger will serve as trustee of the 2009
GRAT and will hold sole voting and investment power over the 15,000,000 shares
of Class B Common Stock held by the 2009 GRAT, except as set forth in Item 6
below. Mr. Ergen receives an annuity amount from the 2009 GRAT under
the trust agreement governing the 2009 GRAT. Members of Mr. Ergen’s
family are the beneficiaries of the 2009 GRAT. The 2009 GRAT will
expire two years from the date of transfer of the shares of Class B Common Stock
to the 2009 GRAT.
ITEM
5. Interest in Securities of
the Issuer.
Item 5
is hereby amended and restated as follows:
(a) and
(b). Mr. Ergen beneficially owns securities convertible into or
exercisable for, 31,805,943 shares of Class A Common Stock representing 46.2% of
the class after giving effect to conversion and exercise of all derivative
securities held by Mr. Ergen. Such shares include: (i) 89,730 shares of
Class A Common Stock; (ii) 3,705 shares of Class A Common Stock held in the
Company’s 401(k) Employee Savings Plan (the “401(k) Plan”); (iii) the right to
acquire 296,000 shares of Class A Common Stock within 60 days upon the exercise
of employee stock options; (iv) 47 shares of Class A Common Stock held by Mr.
Ergen’s spouse, Cantey Ergen; (v) 201 shares of Class A Common Stock held in the
401(k) Plan by Mrs. Ergen; (vi) 5,435 shares of Class A Common Stock held as
custodian for Mr. Ergen’s children; and (vii) 31,410,825 shares of Class A
Common Stock issuable upon conversion of Mr. Ergen’s shares of Class B Common
Stock. Mr. Ergen has sole voting power with respect to 31,509,695 shares and
holds sole dispositive power with respect to 31,509,695 shares. Mr. Ergen’s
beneficial ownership of shares of Class A Common Stock excludes: (A)
427,184 shares of Class A Common Stock issuable upon conversion of shares
of Class B Common Stock currently held by GRAT #3; and (B) 849,030 shares of
Class A Common Stock issuable upon conversion of shares of Class B Common Stock
held by certain trusts established by Mr. Ergen for the benefit of his
family.
(c)
Except as set forth herein, Mr. Ergen does not have beneficial ownership of, and
has not engaged in any transaction during the past 60 days in, any shares of
Class A Common Stock.
(d) Not
applicable.
(e) Not
applicable.
ITEM
6. Contracts,
Arrangements, Understandings or Relationships With Respect to Securities of the
Issuer.
Item 6 is
amended and restated as follows:
The trust
agreement for the 2009 GRAT contains an irrevocable provision that provides that
the trustee will not dispose of any shares of EchoStar held by the 2009
GRAT unless a Change of Control Event occurs. If a Change of
Control Event occurs, the trustee of the 2009 GRAT will have sole
discretion with respect to the disposition of any shares of EchoStar held by the
2009 GRAT.
A “Change
of Control Event” will occur if (i) as the result of a transaction or a series
of transactions any person other than Charles W. Ergen (or a Related Party)
individually owns more than fifty percent (50%) of the total Equity Interests of
either (A) EchoStar or (B) the surviving entity in any such transaction(s) or a
controlling affiliate of such surviving entity in such transaction(s); and (ii)
a majority of the members of the Board of Directors of EchoStar are no longer
Continuing Directors; and (iii) as the result of a transaction or a series of
transactions any person other than Charles W. Ergen (or a Related Party)
individually owns more than fifty percent (50%) of the total voting power of
either (A) EchoStar or (B) the surviving entity in any such transaction(s) or a
controlling affiliate of such surviving entity in such transaction(s);
and (iv) Charles W. Ergen sells Equity Interests of EchoStar such that he
owns beneficially less than 50% of the total Equity Interests that he owned
beneficially immediately following the grant of shares to the 2009
GRAT.
For
purposes of the definition of “Change of Control Event”:
“Continuing
Director” means, as of any date of determination, any member of the Board of
Directors of EchoStar who: (a) was a member of such Board of Directors on
November 30, 2009; or (b) was nominated for election or elected to such Board of
Directors either (x) with the affirmative vote of a majority of the Continuing
Directors who were members of such Board of Directors at the time of such
nomination or election or (y) by Charles W. Ergen and his Related
Parties.
“Equity
Interest” means any capital stock of EchoStar and all warrants, options or
other rights to acquire capital stock of EchoStar (but excluding any debt
security that is convertible into, or exchangeable for, capital stock of
EchoStar).
“Related
Party” means, (a) Charles W. Ergen’s spouse and each of his immediate family
members; (b) each trust, corporation, partnership or other entity of
which Charles W. Ergen beneficially holds an eighty percent (80%) or
more controlling interest or that was created for estate planning purposes
including without limitation the grantor retained annuity trusts dated November
9, 2005, September 5, 2008 and November 30, 2009; and (c) the personal
representatives, administrators, executor, guardians, or any person(s) or
entit(ies) to which Charles W. Ergen’s shares of EchoStar are transferred as a
result of a transfer by will or the applicable laws of descent and
distribution.
SIGNATURE
After
reasonable inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and
correct.
CHARLES
W. ERGEN
Dated:
December 2,
2009 /s/
Charles W. Ergen
Charles W. Ergen
Attention: Intentional
misstatements or omissions of fact
constitutes
Federal criminal violations (See 18 U.S.C. 1001)