As filed with the Securities and Exchange Commission on September 29, 1999
Registration No. 333-______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
-------------------------------------------------------
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
ECHELON INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
450 CARILLON PARKWAY, SUITE 200
ST. PETERSBURG, FLORIDA 33716
FLORIDA (727) 803-8200 59-2554218
- ------------------------------- --------------------------------------- -------------------
(State or other jurisdiction of (Address of principal executive offices) (I.R.S. Employer
incorporation or organization Identification No.)
</TABLE>
ECHELON INTERNATIONAL CORPORATION
1999 NON-EMPLOYEE DIRECTORS' STOCK PLAN
(Full Title of Plan)
---------------------
DARRYL A. LECLAIR
PRESIDENT
ECHELON INTERNATIONAL CORPORATION
450 CARILLON PARKWAY, SUITE 200
ST. PETERSBURG, FLORIDA 33716
(727) 803-8200
(Name, address and telephone number,
including area code, of agent for service)
---------------------
Copies to:
WILLIAM F. WYNNE, JR., ESQ.
WHITE & CASE LLP
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
COMMON STOCK, $.01 PAR VALUE...... 75,000 SHARES $24.41 $1,830,750 $508.95
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), based upon the average of the high and
low prices of the Common Stock as reported on the New York Stock Exchange
on September 27, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following information heretofore filed by Echelon
International Corporation (the "Registrant") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), is incorporated herein by reference: (a) the
Registrant's Annual Report on Form 10-K for the year ended December 31, 1998,
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, (c) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, (d) the Registrant's Current Reports on Form 8-K filed on
January 28, 1999, May 21, 1999 and July 1, 1999 and (e) the description of the
Registrant's capital stock contained on Exhibit 2.1 to the Registrant's
Registration Statement on Form 10, as amended, (Reg. No. 001-12211). All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents. Any
statement contained herein or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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 Registrant has authority under Section 607.0850 of the
Florida Business Corporation Act, as amended (the "FBCA"), to indemnify its
directors and officers to the extent provided in such statute. In general,
Florida law permits a Florida corporation to indemnify its directors, officers,
employees and agents, and persons serving at the corporation's request in such
capacities for another enterprise against liabilities arising from conduct that
such persons reasonably believed to be in, or not opposed to, the best interests
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe their conduct was unlawful.
The provisions of the FBCA that authorize indemnification do
not eliminate the duty of care of a director and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of nonmonetary relief will
remain available under Florida law. In addition, each director will continue to
be subject to liability for (a) violations of the criminal law, unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful, (b) deriving an improper
personal benefit from a transaction, (c) voting for or assenting to an unlawful
distribution and (d) willful misconduct or a conscious disregard for the best
interests of the Registrant in a proceeding by or in the right of the Registrant
to procure a judgment in its favor or in a proceeding by or in the right of a
shareholder. The statute does not affect a director's responsibilities under any
other law, such as the federal securities laws or state or federal environmental
laws.
The Registrant's By-laws provide that the Registrant 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 Registrant 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.
II-1
<PAGE>
The indemnification rights conferred by the By-laws and
indemnification agreements are not exclusive of any other right, under the FBCA
or otherwise, to which a person seeking indemnification may otherwise be
entitled. The Registrant also provides 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
Registrant or its stockholders for monetary damages for breach of fiduciary duty
to the Registrant, except to the extent such exemption or limitation is not
permitted under the FBCA as the same exists or may hereafter be amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------- ------------------------
4.1 Amended and Restated Articles of Incorporation of the
Registrant and amendments thereto (incorporated herein by
reference to Exhibit 4.1 to the Registration Statement on Form
S-8 (Reg. No. 333-18171) filed by the Registrant on December
18, 1996).
4.2 Amended and Restated By-Laws of the Registrant (incorporated
herein by reference to Exhibit 4.2 to the Registration
Statement on Form S-8 (Reg. No. 333-18171) filed by the
Registrant on December 18, 1996).
4.3 Specimen Common Share certificate (incorporated herein by
reference to Exhibit 4.1 to the Registration Statement on Form
10, as amended, (Reg. 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
Registration Statement on Form S-8 (Reg. No. 333-18171) filed
by the Registrant on December 18, 1996).
4.5 Right Certificate (incorporated herein by reference to Exhibit
B to the Rights Agreement filed as Exhibit 4.4 to the
Registration Statement on Form S-8 (Reg. No. 333-18171) filed
by the Registrant on December 18, 1996).
5 Opinion of White & Case LLP, counsel to the Registrant, dated
September 28, 1999, with respect to the legality of the Common
Stock being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of White & Case LLP (included in Exhibit 5 of this
Registration Statement).
24 Power of Attorney of certain officers and directors (included
on pages II-4 through II-5 of this Registration Statement).
ITEM 9. 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;
(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
II-2
<PAGE>
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 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 (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 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose 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.
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 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 15(d) of the Exchange
Act) 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.
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 Act 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
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 this 28th
day of September, 1999.
ECHELON INTERNATIONAL CORPORATION
By: /s/ DARRYL A. LECLAIR
-------------------------
Name: Darryl A. LeClair
Title: President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Darryl A. LeClair and Susan G.
Johnson, and each of them severally, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities indicated as of September 28, 1999:
/s/ DARRYL A. LECLAIR President, Chief Executive
- --------------------- Officer and Chairman of the
Darryl A. LeClair Board
/s/ LARRY J. NEWSOME Senior Vice President and
- -------------------- Chief Financial Officer
Larry J. Newsome
/s/ JAMES R. HOBBS, JR. Vice President and
- ---------------------- Controller
James R. Hobbs, Jr.
/s/ JONATHAN BLUM Director
- -----------------
Jonathan Blum
/s/ W. MICHAEL DORAMUS Director
- ----------------------
W. Michael Doramus
/s/ L. RAYMOND EASTIN Director
- ---------------------
L. Raymond Eastin
II-4
<PAGE>
/s/ THOMAS W. MAHR Director
- ------------------
Thomas W. Mahr
/s/ STEPHEN R. BLANK Director
- --------------------
Stephen R. Blank
/s/ JOSEPH H. RICHARDSON Director
- ------------------------
Joseph H. Richardson
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------- ------------------------
4.1 Amended and Restated Articles of Incorporation of the
Registrant and amendments thereto (incorporated herein by
reference to Exhibit 4.1 to the Registration Statement on
Form S-8 (Reg. No. 333-18171) filed by the Registrant on
December 18, 1996).
4.2 Amended and Restated By-Laws of the Registrant (incorporated
herein by reference to Exhibit 4.2 to the Registration
Statement on Form S-8 (Reg. No. 333-18171) filed by the
Registrant on December 18, 1996).
4.3 Specimen Common Share certificate (incorporated herein by
reference to Exhibit 4.1 to the Registration Statement on
Form 10, as amended, (Reg. 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
Registration Statement on Form S-8 (Reg. No. 333-18171) filed
by the Registrant on December 18, 1996).
4.5 Right Certificate (incorporated herein by reference to Exhibit
B to the Rights Agreement filed as Exhibit 4.4 to the
Registration Statement on Form S-8 (Reg. No. 333-18171) filed
by the Registrant on December 18, 1996).
5 Opinion of White & Case LLP, counsel to the Registrant,
dated September 28, 1999, with respect to the legality of
the Common Stock being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of White & Case LLP (included in Exhibit 5 of this
Registration Statement).
24 Power of Attorney of certain officers and directors
(included on pages II-4 through II-5 of this Registration
Statement).
EXHIBIT 5
[WHITE & CASE]
[LOGO OMITTED]
September 28, 1999
Echelon International Corporation
450 Carillon Parkway, Suite 200
St. Petersburg, Florida 33716
Re: Echelon International Corporation 1999 Non-Employee Directors' Stock
Plan
- -----------------------------------------------------------------------------
Dear Sirs:
We are familiar with the proceedings taken and proposed to be taken by
Echelon International Corporation, a Florida corporation (the "COMPANY"), in
connection with the registration pursuant to the Registration Statement on Form
S-8 (the "REGISTRATION STATEMENT") filed by the Company with the Securities and
Exchange Commission (the "COMMISSION") under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), of 75,000 shares of its common stock, $0.01 par
value (the "COMMON STOCK"), issuable pursuant to the Echelon International
Corporation 1999 Non-Employee Directors' Stock Plan (the "PLAN").
We have examined such documents, certificates, records, authorizations and
proceedings and have made such investigations as we have deemed necessary or
appropriate in order to give the opinion expressed herein.
Based on the foregoing, it is our opinion that (i) the issuance of the
75,000 shares of Common Stock referred to above has been duly authorized by the
Company and (ii) the shares of Common Stock, when issued for consideration in
excess of the par value of such Common Stock, and, in the case of shares to be
issued upon exercise of stock options granted under the Plan, the option price
thereof has been paid as described in the Plan, will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement. In giving this consent, we do not
hereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act and the rules and regulations of
the Commission thereunder.
Very truly yours,
White & Case LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors of
Echelon International Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Echelon International Corporation of our report dated February 22, 1999,
relating to the consolidated balance sheets of Echelon International Corporation
and subsidiaries as of December 31, 1998, and 1997, and the related consolidated
statements of operations, comprehensive income, cash flows and stockholders'
equity for each of the years in the three year period ended December 31, 1998,
which report appears in the December 31, 1998, annual report on Form 10-K of
Echelon International Corporation.
St. Petersburg, Florida
September 28, 1999
