SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 13e-4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. )
DISH NETWORK CORPORATION
(Name of Subject Company (Issuer) and Name of Filing Person (Offeror))
Incentive Stock Options to Purchase Class A Common Stock, $0.01 par value
(Title of Class of Securities)
25470M109
(CUSIP Number of Class of Securities)
R. Stanton Dodge
Executive Vice President, General Counsel and Secretary
DISH Network Corporation
9601 S. Meridian Boulevard
Englewood, Colorado 80112
(303) 723-1000
(Name, address and telephone number of person authorized to receive notices and communications on behalf of the filing person)
Copies to:
Scott D. Miller
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
CALCULATION OF FILING FEE
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Transaction Valuation* |
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Amount of Filing Fee* |
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Not applicable |
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Not applicable |
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* |
Pursuant to General Instruction D to Schedule TO, no filing fee is required in connection with this filing as it contains only preliminary communications made before the commencement of a tender offer. |
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o |
Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid: |
N/A |
Filing Party: |
N/A |
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Form or Registration No.: |
N/A |
Date Filed: |
N/A |
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x |
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
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£ |
third-party tender offer subject to Rule 14d-1. |
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x |
issuer tender offer subject to Rule 13e-4. |
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£ |
going-private transaction subject to Rule 13e-3. |
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£ |
amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: o
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
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Rule 14d-1(d) (Cross-Border Third Party Tender Offer) |
Attached as Exhibit 99.1 to this Schedule TO is an e-mail communication sent on December 14, 2012 to eligible participants providing information relating to a planned stock option exchange offer by DISH Network Corporation (“DISH”) as further described in Exhibit 99.1 (the “Exchange Program”).
This e-mail communication does not constitute an offer to holders of DISH’s eligible stock options to exchange those stock options. DISH has the discretion to determine if and when to implement an Exchange Program.
This filing on Schedule TO does not constitute an offer to holders of DISH’s eligible stock options to exchange such stock options. The Exchange Program has not yet commenced. When the Exchange Program is commenced, DISH will file a Tender Offer Statement on Schedule TO with the SEC. Persons who are eligible to participate in the Exchange Program should read the Tender Offer Statement on Schedule TO and other related materials when those materials become available, as those materials will contain important information about the Exchange Program.
DISH stockholders and option holders will be able to obtain the written materials described above and other documents filed by DISH with the SEC free of charge from the SEC’s website at www.sec.gov. In addition, stockholders and option holders may obtain free copies of the documents filed by DISH with the SEC by directing a written request to: DISH Network Corporation, 9601 S. Meridian Boulevard, Englewood, Colorado 80112, Attention: Investor Relations.
EXHIBIT 99.1
Date: December 14, 2012
To: DISH Employees with DISH Stock Options and DISH RSUs
From: Aaron LaPoint, VP Human Resources
Re: Stock Option Exercise Price Adjustment and RSU Payment
On December 2, 2012, the Board of Directors of DISH Network Corporation (“DISH”) declared a non-recurring dividend of $1.00 per share on the outstanding Class A and Class B common stock of DISH, which will be payable in cash on December 28, 2012 to shareholders of record on December 14, 2012.
Adjustment to Options
To appropriately reflect the value of the dividend in the DISH employee stock incentive plans, the DISH Board of Directors and the Compensation Committee of the DISH Board of Directors (which administers the plans) authorized a decrease of up to $1.00 per share in the exercise price of existing unexercised and unexpired DISH stock options; provided, that the exercise price of eligible stock options will not be reduced below $1.00. The exact amount of the adjustment was based on the difference between: (i) the closing price of DISH’s Class A common stock on the trading day immediately before the “ex-dividend date” (December 11, 2012) as reported on the Nasdaq Global Select Market and (ii) the price of the first non-cross block trade on the “ex-dividend date” (December 12, 2012) as reported on the Nasdaq Global Select Market. Consequently, in light of this difference, the adjustment to decrease the exercise price of DISH stock options has been set at $0.77 per share; provided, that the exercise price will not be reduced below $1.00. The adjustment to the exercise price will not affect the vesting or expiration of your stock options.
However, because an adjustment to the exercise price would cause certain of our employee stock options that would otherwise be treated as incentive stock options (“ISOs”) to no longer receive the tax treatment afforded to ISOs for U.S. Federal income tax purposes, we will not make an adjustment for those options without the consent of DISH employees who hold ISOs. The consent will be solicited through a one-time voluntary exchange offer (the “Exchange”). Holders of ISOs will have a specific timeframe to participate in an Exchange — currently expected to begin by year-end (on a date that has not yet been set) and expire twenty business days later. Please note that the exercise price of all existing unexercised and unexpired ISOs will not be adjusted until completion of an Exchange, which will not occur until early 2013.
No such consent is required with respect to eligible non-qualified stock options because an adjustment of the exercise price will not affect how those options are treated for tax purposes. All eligible non-qualified stock options will be automatically adjusted by DISH. Please note, however, that the exercise price of all existing unexercised and unexpired non-qualified stock options will not be adjusted until completion of an Exchange, which will not occur until early 2013.
If you exercise stock options before the completion of the Exchange, you will not benefit from any adjustment to the exercise price of those stock options.
Payment on RSUs
DISH will also make a payment of $0.77 per DISH restricted stock unit (“RSU”) on existing unvested and unexpired DISH RSUs as such RSUs vest in accordance with the terms and conditions of the applicable DISH RSU agreement. The payment for RSUs will be made shortly after such RSUs vest. The payment will not affect the vesting or expiration of DISH RSUs.
Other Stock Holdings
Employees who hold shares of DISH’s common stock on December 14, 2012 will receive the dividend payment on those shares through normal brokerage procedures. Employees who hold shares of DISH’s common stock through
the 401(k) plan as of the record date will receive the dividend payment in their 401(k) account. The payment to the 401(k) account will be invested in accordance with the employee’s current investment elections.
We will communicate additional details via email from time to time to explain the Exchange and the procedures for participating.
Please monitor your email for this upcoming information.
Please email stock.options@dish.com or call 1-855-256-0682 with any questions you may have.
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The Exchange described in this letter has not yet commenced. When the Exchange is commenced, DISH will file a Tender Offer Statement on Schedule TO with the Securities and Exchange Commission, or the SEC. Persons who are eligible to participate in the Exchange should read the Tender Offer Statement on Schedule TO and other related materials when those materials become available, because they will contain important information about the Exchange.
DISH stockholders and stock option holders will be able to obtain the written materials described above and other documents filed by DISH with the SEC free of charge from the SEC’s website at www.sec.gov or by directing a written request to: DISH Network Corporation, 9601 S. Meridian Boulevard, Englewood, Colorado 80112, Attention: Investor Relations.