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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 18, 1996
Registration Statement No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ECHELON INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
FLORIDA 59-2554218
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
ONE PROGRESS PLAZA
SUITE 2400
ST. PETERSBURG, FLORIDA 33701
(813) 824-6767
(Address, including zip code,
of Registrant's principal executive offices)
ECHELON INTERNATIONAL CORPORATION
LONG TERM INCENTIVE PLAN
(Full title of the plan)
DARRYL A. LECLAIR, PRESIDENT
ECHELON INTERNATIONAL CORPORATION
ONE PROGRESS PLAZA, SUITE 2400
ST. PETERSBURG, FLORIDA 33701
(813) 824-6767
(Name, address, including zip code, and telephone number
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered Price Per Share(1) Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock(2) . . . . . 950,000 shs. $13.81 $13,119,500 $3,976
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</TABLE>
(1) Estimated pursuant to Rule 457(c), solely for the purpose of
calculating the registration fee. Based upon the average of the high
and low prices for the common stock reported by the New York Stock
Exchange on December 12, 1996.
(2) Includes rights to purchase units of Series A Junior Participating
Preferred Stock.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by
Echelon International Corporation (the "Company") with the Securities and
Exchange Commission (the "Commission") are incorporated into and made a part of
this Registration Statement:
1. The Company's Registration Statement on Form 10, as amended,
(Registration No. 001-12211).
2. The description of the capital stock of the Company contained on
page 61 of Exhibit 2.1 to the Company's Registration Statement on
Form 10, as amended, (Registration No. 001-12211).
3. All documents filed by the Company with the Commission subsequent
to the date of this Registration Statement under Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, and
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated into and made a part of this Registration Statement
from the date of filing of such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that, in general, a business corporation may indemnify any person who
is or was a party to any proceeding (other than an action by, or in the right
of, the corporation) by reason of the fact that he or she is or was a director
or officer of the corporation, against liability incurred in connection with
such proceeding, including any appeal thereof, provided certain standards are
met, including that such officer or director acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, and provided further that, with respect to any
criminal action or proceeding, the officer or director had no reasonable cause
to believe his or her conduct was unlawful. In the case of proceedings by or
in the right of the corporation, the Florida Act provides that, in general, a
corporation may indemnify any person who was or is a party to any such
proceeding by reason of the fact that he or she is or was a director or officer
of the corporation against expenses and amounts paid in settlement actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof, provided that such person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim as to which such person
is adjudged liable unless a court of competent jurisdiction determines upon
application that such person is
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fairly and reasonably entitled to indemnity. To the extent that any officers or
directors are successful on the merits or otherwise in the defense of
any of the proceedings described above, the Florida Act provides that the
corporation is required to indemnify such officers or directors against expenses
actually and reasonably incurred in connection therewith. However, the Florida
Act further provides that, in general, indemnification or advancement of
expenses shall not be made to or on behalf of any officer or director if a
judgment or other final adjudication establishes that his or her actions, or
omissions to act, were material to the cause of action so adjudicated and
constitute: (i) a violation of the criminal law, unless the director or officer
had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe it was unlawful; (ii) a transaction from which the
director or officer derived an improper personal benefit; (iii) in the case of a
director, a circumstance under which the director has voted for or assented to a
distribution made in violation of the Florida Act or the corporation's articles
of incorporation; or (iv) willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
The Company By-laws provide that the Company shall have the power but
not the obligation to indemnify directors and officers to the fullest extent
permitted by the laws of the State of Florida. The Company has entered into
indemnification agreements with all of its executive officers and directors
and, as permitted by applicable law. These indemnification agreements clarify
and expand the circumstances under which a director or executive officer will
be indemnified.
The indemnification rights conferred by the By-laws and indemnification
agreements are not exclusive of any other right, under the Florida Act or
otherwise, to which a person seeking indemnification may otherwise be entitled.
The Company will also provide liability insurance for the directors and
officers for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers.
The effect of such indemnification arrangements may be to exempt or
limit the liability of such executive officers and directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
Company, except to the extent such exemption or limitation is not permitted
under the Florida Act as the same exists or may hereafter be amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
Exhibit
Number Description
4.1 Amended and Restated Articles of Incorporation of the Company and
amendments thereto (incorporated herein by reference to Exhibit 4.1
to the Company's Registration Statement on Form S-8 for the
Company's Employee Stock Purchase Plan as filed on December 18,
1996)
4.2 Amended and Restated By-Laws of the Company (incorporated herein
by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 for the Company's Employee Stock Purchase
Plan as filed on December 18, 1996)
4.3 Specimen Common Share certificate (incorporated herein by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form 10, as amended, (No. 001-12211))
4.4 Rights Agreement between Echelon International Corporation and The
First National Bank of Boston, as Rights Agent (incorporated
herein by reference to Exhibit 4.4 to the Company's Registration
Statement on Form S-8 for the Company's Employee Stock Purchase
Plan as filed on December 18, 1996)
4.5 Right Certificate (incorporated herein by reference to Exhibit 4.5
to the Company's Registration Statement on Form S-8 for the
Company's Employee Stock Purchase Plan as filed on December 18,
1996)
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis,
Professional Association, as to the legality of the Common Stock
being registered
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis,
Professional Association (contained in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
ITEM 9. UNDERTAKINGS.
(a) 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
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prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(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 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 purposes of determining any liability
under the Securities Act of 1933, 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.
(b) The undersigned registrant hereby undertakes that, 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 (and, where applicable, each
filing of an employee benefit plan'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.
(h) 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 provisions described in
Item 6, 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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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-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of St. Petersburg, State of Florida, on the 18th
day of December, 1996.
ECHELON INTERNATIONAL CORPORATION
By: /S/ Darryl A. LeClair
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Darryl A. LeClair, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Echelon International Corporation, a Florida corporation, for
himself and not for one another, does hereby constitute and appoint Darryl A.
LeClair, W. Michael Doramus and Larry J. Newsome, each of them, a true and
lawful attorney in his name, place and stead, in any and all capacities, to
sign his name to any and all amendments, including post-effective amendments,
to this registration statement, and to cause the same to be filed with the
Securities and Exchange Commission, granting unto said attorneys and each of
them full power and authority to do and perform any act and thing necessary and
proper to be done in the premises, as fully to all intents and purposes as the
undersigned could do if personally present, and each of the undersigned for
himself hereby ratifies and confirms all that said attorneys or any one of them
shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ W. Michael Doramus
______________________________ Chairman of the Board December 18, 1996
W. Michael Doramus and Director
/s/ Darryl A. LeClair
______________________________ President, Chief Executive December 18, 1996
Darryl A. LeClair Officer and Director
(Principal Executive Officer)
/s/ Larry J. Newsome
______________________________ Senior Vice President, Chief December 18, 1996
Larry J. Newsome Financial Officer, Secretary and
Treasurer (Principal Financial
Officer
/s/ James R. Hobbs, Jr. Vice President and December 18, 1996
______________________________ Controller
James R. Hobbs, Jr. (Principal Accounting
Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
______________________________ Director December , 1996
Thomas W. Mahr
/s/ Joseph H. Richardson
______________________________ Director December 18, 1996
Joseph H. Richardson
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
Exhibit Sequential
Number Description Page No.
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<S> <C> <C>
4.1 Amended and Restated Articles of Incorporation of the Company and
amendments thereto (incorporated herein by reference to Exhibit
4.1 to the Company's Registration Statement on Form S-8 for the
Company's Employee Stock Purchase Plan as filed on December 18,
1996)
4.2 Amended and Restated By-Laws of the Company (incorporated herein
by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 for the Company's Employee Stock Purchase
Plan as filed on December 18, 1996)
4.3 Specimen Common Share certificate (incorporated herein by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form 10, as amended, (No. 001-12211))
4.4 Rights Agreement between Echelon International Corporation and
The First National Bank of Boston, as Rights Agent (incorporated
herein by reference to Exhibit 4.4 to the Company's Registration
Statement on Form S-8 for the Company's Employee Stock Purchase
Plan as filed on December 18, 1996)
4.5 Right Certificate (incorporated herein by reference to Exhibit
4.5 to the Company's Registration Statement on Form S-8 for the
Company's Employee Stock Purchase Plan as filed on December 18,
1996)
5 Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill &
Mullis, Professional Association, as to the legality of the
Common Stock being registered
23.1 Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill &
Mullis, Professional Association (contained in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
</TABLE>
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EXHIBIT 5
TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O'NEILL & MULLIS [LETTERHEAD]
December 18, 1996
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Echelon International Corporation
Long Term Incentive Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have represented Echelon International Corporation (the "Company")
in connection with the Company's Registration Statement on Form S-8 (the "S-8
Registration Statement") relating to the offering by the Company (the
"Offering") of 950,000 shares of the Company's Common Stock under the Company's
Long Term Incentive Plan (the "Plan"). This opinion is being provided as Exhibit
5 to the S-8 Registration Statement.
In our capacity as counsel to the Company in connection with the S-8
Registration Statement and the Offering, we have examined and are familiar with:
(1) the Company's Amended and Restated Articles of Incorporation and By-laws,
each as currently in effect, (2) the Plan, (3) the S-8 Registration Statement
and (4) such other corporate records and documents and instruments as in our
opinion are necessary or relevant as the basis for the opinions expressed below.
As to various questions of fact material to our opinion, we have relied
without independent investigation on statements or certificates of officials and
representatives of the Company, the Department of State of the State of Florida
and others. In all such examinations, we have assumed the genuineness of all
signatures on original and certified documents and the conformity to original
and certified documents of all copies submitted to us as conformed, photostatic
or other exact copies.
We express no opinion as to the law of any jurisdiction other than of
the State of Florida and the federal laws of the United States of America.
<PAGE> 2
SECURITIES AND EXCHANGE COMMISSION DECEMBER 18, 1996
PAGE 2
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Based upon and in reliance on the foregoing, we are of the opinion
that:
1. The Company is a validly existing corporation under the laws of the
State of Florida and its status is active.
2. The Plan has been duly and legally authorized by all required
corporate action.
3. When the following events shall have occurred:
a. the S-8 Registration Statement shall have become
effective in accordance with the Securities Act of
1933, as amended;
b. the shares of Common Stock shall have been awarded
and issued and any restrictions or conditions
precedent to the issuance of such shares shall have
been satisfied, as the case may be, as contemplated
in the Plan;
c. the options covering shares of Common Stock shall
have been granted and exercised as contemplated in
the Plan;
d. the consideration specified in the Plan and (i) in
the award agreement for the purchase of Common Stock
or (ii) in the instrument of grant covering options
granted under the Plan, as the case may be, shall
have been received; and
e. the certificates representing such shares of Common
Stock shall have been duly executed, counter-signed
and issued by or on behalf of the Company,
the shares of Common Stock so offered and sold in the Offering will be duly
authorized, validly issued, fully paid and non-assessable shares of the capital
stock of the Company.
This firm hereby consents to the filing of this opinion as an Exhibit
to the S-8 Registration Statement.
Sincerely,
TRENAM, KEMKER, SCHARF, BARKIN,
FRYE, O'NEILL & MULLIS
Professional Association
By:/S/Richard M. Leisner
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Richard M. Leisner
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[KPMG Peat Marwick LLP LETTERHEAD]
P.O. Box 31002
St. Petersburg, FL 33732
INDEPENDENT AUDITORS' CONSENT
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The Board of Directors
Echelon International Corporation:
We consent to the use of our reports included herein by reference.
/s/ KPMG Peat Marwick LLP
December 18, 1996
