<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 1998
REGISTRATION NO. 333-55719
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 2
FORM S-1
REGISTRATION STATEMENT
---------------
ECHELON CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
DELAWARE 3670 77-0203595
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
INCORPORATION OR ---------------
ORGANIZATION)
4015 MIRANDA AVENUE
PALO ALTO, CALIFORNIA 94304
(650) 855-7400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
M. KENNETH OSHMAN
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
ECHELON CORPORATION
4015 MIRANDA AVENUE
PALO ALTO, CALIFORNIA 94304
(650) 855-7400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------
COPIES TO:
LARRY W. SONSINI, ESQ. THOMAS A. BEVILACQUA, ESQ.
JOHN V. ROOS, ESQ. CURTIS L. MO, ESQ.
KATHLEEN B. BLOCH, ESQ. PETER S. BUCKLAND, ESQ.
WILSON SONSINI GOODRICH & ROSATI, P.C. BROBECK, PHLEGER & HARRISON LLP
650 PAGE MILL ROAD TWO EMBARCADERO PLACE
PALO ALTO, CA 94304 2200 GENG ROAD
(650) 493-9300 PALO ALTO, CA 94303
(650) 424-0160
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
---------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF MAXIMUM MAXIMUM
SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) PER SECURITY(2) OFFERING PRICE(2) REGISTRATION FEE(3)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value................. 5,750,000 shares $9.00 $51,750,000 $15,266
============================================================================================
</TABLE>
(1) Includes 750,000 shares which the Underwriters have the option to purchase
to cover over-allotments, if any.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457.
(3) Previously paid.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JULY 9, 1998
5,000,000 SHARES
[LOGO OF ECHELON(R)]
COMMON STOCK
All of the shares of Common Stock offered hereby are being sold by Echelon
Corporation ("Echelon" or the "Company"). Prior to this offering, there has
been no public market for the Common Stock of the Company. It is currently
estimated that the initial public offering price will be between $7.00 and
$9.00 per share. See "Underwriting" for a discussion of the factors to be
considered in determining the initial public offering price. The Company's
Common Stock has been approved for quotation on the Nasdaq National Market
under the symbol ELON.
THIS OFFERING INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" COMMENCING
ON PAGE 5 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
================================================================================
Price to Underwriting Proceeds to
Public Discount(1) Company(2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share..................................... $ $ $
- --------------------------------------------------------------------------------
Total(3)...................................... $ $ $
================================================================================
</TABLE>
(1) See "Underwriting" for information concerning indemnification of the
Underwriters and other matters.
(2) Before deducting offering expenses payable by the Company estimated at
$700,000.
(3) The Company has granted to the Underwriters a 30-day option to purchase up
to 750,000 additional shares of Common Stock solely to cover over-
allotments, if any. If the Underwriters exercise this option in full, the
Price to Public will total $ , the Underwriting Discount will total $
and the Proceeds to Company will total $ . See "Underwriting."
The shares of Common Stock are offered by the several Underwriters named
herein, subject to receipt and acceptance by them and subject to their right to
reject any orders in whole or in part. It is expected that delivery of the
certificates representing such shares will be made against payment therefor at
the office of NationsBanc Montgomery Securities LLC, on or about ,
1998.
-----------
NationsBanc Montgomery Securities LLC
BancAmerica Robertson Stephens
Volpe Brown Whelan & Company
, 1998
<PAGE>
[LOGO APPEARS HERE]
CAPTION: A GLOBAL STANDARD FOR CONTROL NETWORKS
[Photographs and brief description depicting industries that use the Company's
products]
[Schematic depicting the transition from closed systems to open, distributed
networks]
CAPTION: Delivering Control to Your Networks
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK
OFFERED HEREBY. SUCH TRANSACTIONS MAY INCLUDE STABILIZING, THE PURCHASE OF
COMMON STOCK TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY
BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
Echelon, LonBuilder, LonMaker, LonMark, LonPoint, LonTalk, LonUsers,
LonWorks, Neuron and NodeBuilder are trademarks, registered trademarks,
service marks or registered service marks of the Company. This Prospectus also
includes product names, trade names and trademarks of other companies.
<PAGE>
HEADLINE:
LONWORKS(C) CONTROL NETWORK SOLUTIONS
OPEN OPPORTUNITIES IN MANY INDUSTRIES
Caption: Echelon offers products and services that provide the infrastructure
and support required to build and implement multi-vendor, distributed control
network solutions for building, industrial, transportation, home, and other
automation markets. The Company's products are based on its LONWORKS
networking technology, an open standard for interoperable networked control.
[GRAPHIC DEPICTING CLOSED CENTRAL ARCHITECTURE]
Caption: Traditional closed, centrally-controlled architecture
[GRAPHIC DEPICTING COMMERCIAL BUILDINGS]
BUILDING AUTOMATION
Companies worldwide are using LONWORKS control networks in most facets of the
building automation industry, including access control, automatic doors,
elevators, energy management, fire/life/safety, HVAC, lighting, metering,
security and window blinds.
[GRAPHIC DEPICTING OPEN CONTROL NETWORK]
Open interoperable, distributed control network
[GRAPHIC DEPICTING RESIDENCES]
HOME AUTOMATION AND UTILITIES
Companies are now selling LONWORKS based products for HVAC, lighting,
security, utility meters and whole house automation.
[GRAPHIC DEPICTING INDUSTRIAL COMPLEXES]
INDUSTRIAL AUTOMATION
LONWORKS control networks are found in semiconductor fabrication plants,
gasoline tank farms, oil pumping stations, textile dyeing machinery, pulp and
paper processing equipment, automated conveyor systems and many other
industrial environments.
[GRAPHIC DEPICTING AIRPLANE, SHIP AND TRAIN]
TRANSPORTATION
LONWORKS control networks are used in important transportation applications,
including railcars, light rail systems, buses, motor coaches, fire trucks,
naval vessels and aircraft.
[SIDEBAR]
Echelon's LONWORKS control network solutions can provide customers with the
following benefits over closed, centrally-controlled systems:
. Installation cost savings - replaces individual hard-wired connections with
shared network resources and eliminates complex control logic software
programming and debugging
. Life-cycle cost savings - allows end-users to select the most cost-effective
products and services for their applications and simplifies adds, moves and
changes
. Improved quality and functionality - enables end-users to create tailored
applications and have complete access to information from devices
. Improved reliability - eliminates single point of failure since all devices
are "self aware" and can take appropriate actions independently
. Increased market demand - enables OEMs and and systems integrators to create
low-cost, customized solutions to satisfy market demands not met by
traditional control systems
[LOGO]
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information, including "Risk Factors" and the Consolidated Financial Statements
and Notes thereto, appearing elsewhere in this Prospectus. This Prospectus
contains certain forward-looking statements that involve risks and
uncertainties, such as statements of the Company's plans, objectives,
expectations and intentions, and actual results may differ materially from
those anticipated in such forward-looking statements. Unless otherwise noted,
all information in this Prospectus assumes (i) the conversion of all
outstanding shares of the Company's Preferred Stock into Common Stock on a one-
for-one basis upon the closing of this offering and (ii) no exercise of the
Underwriters' over-allotment option. As used in this Prospectus, unless the
context otherwise requires, the "Company" and "Echelon" refer to the Company
and its subsidiaries.
THE COMPANY
Echelon develops, markets and supports a family of hardware and software
products and services that enables original equipment manufacturers ("OEMs")
and systems integrators to design and implement open, interoperable,
distributed control networks. A control network enables any group of electrical
devices, called nodes, to be linked together to implement sensing, monitoring,
control and communications capabilities for a variety of applications. Control
networks, an alternative to the traditional approach of centralized control,
offer decreased costs of installation and maintenance and the ability to
implement multi-vendor systems, thereby increasing competition while providing
expanded features, flexibility and functionality. Echelon's control networking
technology allows intelligence and communications capabilities to be embedded
into individual control devices that can be connected together through a
variety of communications media, such as a twisted pair of wires (data cable)
and the existing power lines in a facility. The intelligent, networked control
devices are then able to communicate with each other, peer-to-peer, to perform
the desired control functions. In effect, the network becomes the controller,
eliminating the need for central controllers, significantly reducing wiring
costs and enhancing system functionality and flexibility.
Control systems manage key functions in virtually every type of facility that
affects our daily lives. These functions can be as simple as turning a light on
and off and as complex as operating a chemical production line. Traditionally,
most control systems have incorporated closed, centrally-controlled
architectures, where the intelligence is in the central controller and complex
wiring and customization are required for communication. These traditional
control systems share many of the same drawbacks of centralized computing
architectures that rely upon mainframes and minicomputers to communicate to
"dumb" terminals that lack independent processing capabilities. These
disadvantages, which include high installation and life-cycle costs, limited
functionality and scalability, and a single point of failure, have limited the
market opportunity for control systems because end-users find it costly and
difficult to adapt these systems to their changing needs. To overcome these
limitations, OEMs, systems integrators and end-users are increasingly moving
from closed centrally-controlled systems towards open, distributed control
networks.
The Company offers a comprehensive set of products and services, including
transceivers, control modules, routers, network interfaces, development tools
and software tools and toolkits, that provide the infrastructure and support
required to build and implement multi-vendor, open, interoperable, control
network solutions. The Company's products are based on its LonWorks networking
technology, an open standard for interoperable networked control. The Company's
objective is to establish its LonWorks technology and products as the leading
solution for networked control applications. To achieve this goal, the Company
intends to extend its technological expertise, target industry-leading OEM
customers, develop a systems integrator distribution channel, integrate
LonWorks control networks with enterprise data networks and leverage
international market opportunities.
The Company markets its products and services to OEMs and systems integrators
in the building, industrial, transportation, home and other automation markets.
The Company sells primarily through a direct sales force in North America and
other countries where it has operations, and augments its direct sales efforts
with distributors in Europe, Japan and Asia Pacific. Representative customers
include Bombardier Inc. ("Bombardier"), Edwards High Vacuum International Ltd.
("Edwards"), Fuji Electric Company Limited ("Fuji Electric"), Hitachi Limited
("Hitachi"), Honeywell, Inc. ("Honeywell"), Johnson Controls, Inc. ("Johnson
Controls"), Kawasaki Limited ("Kawasaki"), Landis & Staefa, Staefa Control
System Corporation ("Landis & Staefa") and Raytheon Company ("Raytheon").
The Company was incorporated in California in 1988 and reincorporated in
Delaware in 1989. The Company's principal executive offices are located at 4015
Miranda Avenue, Palo Alto, California 94304, and its telephone number is (650)
855-7400.
3
<PAGE>
THE OFFERING
<TABLE>
<C> <S>
Common Stock offered by the Company.......... 5,000,000 shares
Common Stock to be outstanding after the of-
fering...................................... 32,125,612 shares(1)
Use of proceeds.............................. For general corporate purposes,
including working capital and
capital expenditures. See "Use
of Proceeds."
Nasdaq National Market symbol................ ELON
</TABLE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------------------------- ----------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- ------- -------- ------- ------- -------
CONSOLIDATED STATEMENT OF OPERATIONS DATA: (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Product................ $ 10,104 $ 14,368 $20,183 $ 20,708 $24,665 $ 6,548 $ 7,188
Service................ 1,441 2,364 3,160 3,282 3,637 926 771
-------- -------- ------- -------- ------- ------- -------
Total revenues......... 11,545 16,732 23,343 23,990 28,302 7,474 7,959
Gross profit........... 6,791 8,993 12,768 12,087 14,731 3,908 4,167
Loss from operations... (11,273) (10,250) (9,854) (10,937) (8,522) (1,944) (1,757)
Net loss............... $(11,133) $ (9,483) $(8,713) $(10,716) $(8,214) $(1,907) $(1,737)
Basic net loss per
share(2).............. $ (0.85) $ (0.67) $ (0.56) $ (0.62) $ (0.44) $ (0.10) $ (0.09)
Shares used in comput-
ing basic net loss per
share(2).............. 13,038 14,060 15,695 17,354 18,603 18,511 19,029
Pro forma basic net
loss per share(2)..... $ (0.32) $ (0.08) $ (0.06)
Shares used in comput-
ing pro forma basic
net loss per
share(2).............. 25,756 24,399 26,916
</TABLE>
<TABLE>
<CAPTION>
MARCH 31, 1998
-------------------
AS
ACTUAL ADJUSTED(3)
------- -----------
(UNAUDITED)
<S> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Cash and cash equivalents.................................. $ 5,165 $41,665
Working capital............................................ 7,376 43,876
Total assets............................................... 15,695 52,195
Total stockholders' equity................................. 7,482 43,982
</TABLE>
- --------
(1) Based on shares outstanding as of March 31, 1998. Includes 1,802,438 shares
of Common Stock issued under stock purchase agreements subject to
repurchase by the Company at a weighted average price of $1.26 per share.
Excludes (i) 4,082,695 shares of Common Stock issuable upon exercise of
options outstanding as of March 31, 1998 at a weighted average exercise
price of $1.33 per share, of which options to purchase 3,932,695 shares
(including 3,167,780 shares were subject to repurchase by the Company at a
weighted average exercise price of $1.31 per share) were exercisable, (ii)
3,942,700 shares of Common Stock reserved for future issuance under the
Company's stock option plans and (iii) 430,000 shares of Common Stock
issuable upon exercise of warrants outstanding as of March 31, 1998 at a
weighted average exercise price of $5.49 per share. See "Management--Stock
Option Plans and Warrants," "Description of Capital Stock" and Note 6 of
Notes to Consolidated Financial Statements.
(2) See Note 2 of Notes to Consolidated Financial Statements for an explanation
of the shares used in computing basic net loss per share and pro forma
basic net loss per share.
(3) Adjusted to reflect (i) the conversion of all outstanding shares of
Preferred Stock into Common Stock on a one-for-one basis upon the closing
of this offering and (ii) the sale of the 5,000,000 shares of Common Stock
offered hereby (at an assumed initial public offering price of $8.00 per
share and after deducting the underwriting discount and estimated offering
expenses payable by the Company). See "Capitalization."
4
<PAGE>
RISK FACTORS
This offering involves a high degree of risk. In addition to the other
information set forth in this Prospectus, the following risk factors should be
considered carefully in evaluating the Company and its business before
purchasing any shares of the Company's Common Stock. This Prospectus contains
certain forward-looking statements that involve risks and uncertainties, such
as statements of the Company's plans, objectives, expectations and intentions.
The cautionary statements made in this Prospectus should be read as being
applicable to all related forward-looking statements wherever they appear in
this Prospectus. The Company's actual results could differ materially from
those discussed in this Prospectus. Factors that could cause or contribute to
such differences include those discussed below, as well as those discussed
elsewhere in this Prospectus.
HISTORY OF LOSSES; ACCUMULATED DEFICIT; ANTICIPATED CONTINUING LOSSES;
UNCERTAINTY OF FUTURE OPERATING RESULTS
The Company has incurred net losses each year since its inception, including
losses of $8.7 million, $10.7 million and $8.2 million for the fiscal years
ended December 31, 1995, 1996 and 1997, respectively. At March 31, 1998, the
Company had an accumulated deficit of $86.4 million. The Company has invested
and continues to invest significant financial resources in product
development, marketing and sales, and to the extent such expenditures do not
result in significant increases in revenues, the Company's business, operating
results and financial condition will be materially and adversely affected. Due
to the limited history and undetermined market acceptance of many of the
Company's products and technologies, the rapidly evolving nature of the
Company's business and markets, potential changes in voluntary product
standards that significantly influence many of the markets for the Company's
products, the high level of competition in the industries in which the Company
operates and the other factors described elsewhere in "Risk Factors," there
can be no assurance that the Company's investment in these areas will result
in increases in revenues or that any revenue growth that is achieved can be
sustained. Any revenue growth that the Company has achieved or may achieve may
not be indicative of future operating results. In addition, the Company's
history of losses, together with the factors described under "--Fluctuations
in Operating Results," make future operating results difficult to predict. The
Company and its prospects must be considered in light of the risks, costs and
difficulties frequently encountered by emerging companies. As a result, there
can be no assurance that the Company will be profitable in any future period.
Future operating results will depend on many factors, including the growth of
the markets for the Company's products, the acceptance of the Company's
products, the level of competition, the ability of the Company to develop and
market new products, and general economic conditions. In view of the
uncertainties identified herein, the Company believes that period-to-period
comparisons of financial results are not necessarily meaningful and should not
be relied upon as an indication of future performance. As of December 31,
1997, the Company had net operating loss carryforwards for Federal and state
income tax reporting purposes of approximately $76.0 million and $5.0 million,
respectively, which expire at various dates through 2012. In addition, as of
December 31, 1997, the Company had tax credit carryforwards of approximately
$3.5 million, which expire at various dates through 2012. The Internal Revenue
Code of 1986, as amended, contains provisions that may limit the use in any
future period of net operating loss and credit carryforwards upon the
occurrence of certain events, including a significant change in ownership
interests. The Company had deferred tax assets, including its net operating
loss carryforwards and tax credits, totaling approximately $33.6 million as of
December 31, 1997. A valuation allowance has been recorded for the entire
deferred tax asset as a result of uncertainties regarding the realization of
the asset balance, the history of losses and the variability of operating
results. See "--Fluctuations in Operating Results," "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and Note 7 of
Notes to Consolidated Financial Statements.
FLUCTUATIONS IN OPERATING RESULTS
The Company has experienced, and expects to continue to experience,
significant variability in its quarterly and annual results, as a result of a
number of factors, many of which are outside of the Company's control. The
Company believes that such variability is primarily due to the fluctuations in
the rates at which OEMs purchase
5
<PAGE>
the Company's products and services, the OEMs' own business cycles, the timely
introduction of new products, any downturns in any customer's or potential
customer's business, the Company's ability to anticipate and effectively adapt
to developing markets and rapidly changing or new technologies and
distribution channels, increased competition, market acceptance of the
Company's products, product life cycles, order delays or cancellations,
changes in the mix of products and services sold by the Company, shipment and
payment schedules, changes in pricing policy by the Company or its
competitors, changes in product distribution, product ratings by industry
analysts and endorsement of competing products by industry groups. Declines in
general economic conditions could also precipitate significant reductions in
capital spending, which could, in turn, affect orders for the Company's
products. The Company's expense levels are based, in significant part, on
expectations of future revenues. Consequently, if revenue levels are below
expectations, expense levels could be disproportionately high as a percentage
of total revenues, and operating results would be immediately and adversely
affected. The Company has failed to meet its expectations of future revenues
in the past. As a result of these and other factors, the Company believes that
its revenues and operating results are difficult to predict and are subject to
fluctuations from period to period, and that period-to-period comparisons of
its results of operations are not meaningful and should not be relied upon as
indications of future performance. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
DEPENDENCE ON OEMS AND DISTRIBUTION CHANNELS
To date, substantially all of the Company's sales of its products have been
to OEMs. The rate at which the Company's products are used in control networks
is primarily subject to product and marketing decisions made by OEMs. The
Company believes that since OEMs in certain industries receive a large portion
of their revenues from sales of products and services to their installed base,
such OEMs have tended to moderate the rate at which they incorporate LonWorks
technology into their products. The Company has attempted to motivate OEMs, as
well as systems integrators and owners of control systems, to effect a more
rapid transition to LonWorks technology. Furthermore, OEMs that manufacture
and promote products and technologies that compete or may compete with the
Company may be particularly reluctant to employ the Company's products and
technologies to any significant extent, if at all. There can be no assurance
that the Company will be able to improve the current rate of acceptance or
usage of its products by OEMs and others, or that such usage will not decrease
over time. The failure to increase acceptance or usage of the Company's
products, or any decrease in usage of its products, would have a material
adverse effect on the business, operating results and financial condition of
the Company. See "Business--Competition."
Currently, a significant portion of the Company's revenues are derived from
sales by EBV Elektronik GmbH ("EBV"), the sole independent distributor of the
Company's products to OEMs in Europe since December 1997. EBV accounted for
12.0%, 10.9% and 20.6% of the Company's total revenues in fiscal 1995, 1997
and the three months ended March 31, 1998, respectively. The Company's
agreement with EBV expires in November 1998. In addition, as part of its
distribution strategy, the Company intends to develop distribution
arrangements with systems integrators. In particular, the Company expects that
a significant portion of its future revenues will be derived from sales by
such systems integrators. Any failure by EBV or any other existing or future
distributor to dedicate sufficient resources and efforts to the marketing and
selling of the Company's products, or to generate significant revenues for the
Company, could have a material adverse effect on the Company's business,
operating results and financial condition. Also, the failure of the Company to
develop new distribution channels, to maintain the EBV arrangement or any
other distribution channels, or to renew the EBV arrangement on a timely
basis, would result in reduced or delayed revenues, increased operating
expenses and loss of customer goodwill, any of which could have a material
adverse effect on the business, operating results and financial condition of
the Company. See "Business--Sales and Marketing."
DEPENDENCE ON KEY MANUFACTURERS
The Neuron Chip is an important component used by the Company's customers in
control network nodes. In addition, the Neuron Chip is an important device
used in many of the Company's products. Neuron Chips are manufactured and
distributed by both Motorola, Inc. ("Motorola") and Toshiba Corporation
("Toshiba"). The Company has entered into licensing agreements with each of
Motorola and Toshiba. The agreements, among other things, grant Motorola and
Toshiba the worldwide right to manufacture and distribute Neuron Chips using
6
<PAGE>
technology licensed from the Company and require the Company to provide
support and unspecified updates to the licensed technology over the terms of
the agreements. The Motorola and Toshiba agreements expire in December 1999
and January 2000 respectively, unless renewed. However, both Motorola and
Toshiba have the right to terminate the agreements at any time. While the
Company developed the first version of the Neuron Chip, Motorola and Toshiba
subsequently developed improved, lower-cost versions of the Neuron Chip that
are presently utilized in products developed and sold by the Company and its
customers. The Company currently has no other source of supply for Neuron
Chips and has neither the resources nor the skills to replace either Motorola
or Toshiba as a designer, manufacturer or distributor of Neuron Chips.
Motorola and Toshiba have played, and are expected to continue to play, a key
role in the development and marketing of LonWorks technology. The loss of
either Motorola or Toshiba as a supplier of the Neuron Chip would have a
material adverse effect on the business, operating results and financial
condition of the Company, and in such event there can be no assurance that the
Company would be able to locate an alternate source for the design,
manufacture or distribution of Neuron Chips. See "Business--Products and
Services," "--Strategic Alliances," "--Manufacturing" and "Certain
Transactions."
The Company's future success will also depend, in significant part, on its
ability to successfully manufacture its products cost-effectively and in
sufficient volumes. For certain key products, the Company utilizes outsourced
manufacturers including GET Manufacturing, Inc. ("GET"), Hi-Tech
Manufacturing, Inc. ("Hi-Tech"), muRata Electronics North America, Inc.
("muRata") and Quadrus Manufacturing Division of Bell Microproducts, Inc.
("Quadrus"). These outsourced manufacturers procure material and assemble,
test and inspect the final products to the Company's specifications. Such a
strategy involves certain risks, including the potential absence of adequate
capacity and reduced control over delivery schedules, product availability,
manufacturing yields, quality and costs. In addition, several key components
are currently purchased only from sole or limited sources. Any interruption in
the supply of these products or components, or the inability of the Company to
procure these products or components from alternate sources at acceptable
prices and within a reasonable time, could have a material adverse effect upon
the Company's business, operating results and financial condition. See
"Business--Manufacturing."
COMPETITION
Competition in the Company's markets is intense and involves rapidly
changing technologies, evolving industry standards, frequent new product
introductions and rapid changes in customer requirements. To maintain and
improve its competitive position, the Company must continue to develop and
introduce, on a timely and cost-effective basis, new products, features and
services that keep pace with the evolving needs of its customers. The
principal competitive factors affecting the markets for the Company's control
network products are customer service and support, product reputation,
quality, performance, price and product features such as adaptability,
scalability, ability to integrate with other products, functionality and ease
of use. The Company believes it has in the past generally competed favorably
with offerings of its competitors on the basis of these factors. However,
there can be no assurance that the Company will continue to be able to compete
effectively based on these or any other competitive factors in the future.
In each of its markets, the Company competes with a wide array of
manufacturers, vendors, strategic alliances, systems developers and other
businesses. The Company's competitors include some of the largest companies in
the electronics industry, such as Siemens AG ("Siemens") in the building and
industrial automation industries and Allen-Bradley, a subsidiary of Rockwell
International ("Allen-Bradley"), and Groupe Schneider ("Schneider") in the
industrial automation industry. Many of the Company's competitors, alone or
together with their trade associations and partners, have longer operating
histories, significantly greater financial, technical, marketing, service and
other resources, significantly greater name recognition and broader product
offerings. As a result, such competitors may be able to devote greater
resources to the development, marketing and sale of their products, and may be
able to respond more quickly to changes in customer requirements or product
technology. In addition, those competitors that manufacture and promote
closed, proprietary control systems may enjoy a captive customer base
dependent on such competitors for service, maintenance, upgrades and
enhancements. Accordingly, there can be no assurance that the Company will be
able to compete successfully with existing or new competitors, or that
competition will not have a material adverse effect on the business, operating
results or financial condition of the Company.
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Many of the Company's current and prospective competitors are dedicated to
promoting closed or proprietary systems, technologies, software and network
protocols or product standards that differ from, or are incompatible with,
those of the Company. In some cases, companies have established associations
or cooperative relationships to enhance the competitiveness and popularity of
their products, or to promote such different or incompatible technologies,
protocols and standards. For example, in the building automation market, the
Company faces widespread reluctance by vendors of traditional closed or
proprietary control systems (who enjoy a captive market for servicing and
replacing equipment) to utilize the Company's interoperable technologies, as
well as strong competition by large trade associations that promote
alternative technologies and standards in their native countries, such as the
BatiBus Club International in France and the European Installation Bus
Association in Germany (each of which has over 100 members and licensees).
Other examples include the CEBus Industry Council, which is the proponent of
an alternative protocol to the Company's LonTalk protocol for use in the home
automation industry, and a group comprised of Asea Brown Boveri, ADtranz AB,
Siemens, GEC Alstrom and other manufacturers that support an alternative rail
transportation protocol to the Company's LonTalk protocol. There can be no
assurance that the Company's technologies, protocols or standards will be
successful in any of its markets, or that the Company will be able to compete
with new or enhanced products or standards introduced by existing or future
competitors. Any increase in competition or failure by the Company to
effectively compete with new or enhanced products or standards could result in
fewer customer orders, price reductions, reduced order size, reduced operating
margins and loss of market share, any of which could have a material adverse
effect on the business, operating results or financial condition of the
Company. See "Business--Competition."
LonWorks technology is open, meaning that many of the Company's key
technology patents are broadly licensed without royalties or license fees. As
a result, the Company's customers are capable of developing products that
compete with some of the Company's products. Because some of the Company's
customers are OEMs that develop and market their own control systems, these
customers in particular could develop competing products based on the
Company's open technology. This could decrease the market for the Company's
products, increase competition, and have a material adverse effect on the
Company's business, operating results and financial condition. See "Business--
Products and Services."
DEPENDENCE ON KEY PERSONNEL
The Company's performance is substantially dependent on the performance of
its executive officers and key employees. The loss of the services of any of
the Company's executive officers or key employees could have a material
adverse effect on the business, operating results and financial condition of
the Company. The Company is particularly dependent upon its Chief Executive
Officer, as well as its technical personnel, due to the specialized technical
nature of the Company's business. The Company's future success will depend on
its ability to attract, integrate, motivate and retain qualified technical,
sales, operations and managerial personnel. There is intense competition for
qualified personnel in the areas of the Company's activities, and there can be
no assurance that the Company will be able to continue to attract and retain
qualified executive officers and key personnel necessary for the development
and success of its business. Currently, only Frederik Bruggink, the Company's
Vice President, Europe, Middle East and Africa, is bound by an employment
agreement. If the Company is unable to hire personnel on a timely basis in the
future, the Company's business, operating results and financial condition will
be materially and adversely affected. In addition, the departure or
replacement of key personnel could be disruptive, lead to additional
departures and therefore have a material adverse effect on the Company's
business, operating results and financial condition. The Company maintains and
is the beneficiary of life insurance policies in the amount of $2.5 million
covering each of M. Kenneth Oshman, its Chief Executive Officer, Beatrice
Yormark, its Vice President of Sales and Marketing, and Oliver R. Stanfield,
its Chief Financial Officer. There can be no assurance that such proceeds
would be sufficient to compensate the Company in the event of the death of Mr.
Oshman, Ms. Yormark or Mr. Stanfield. See "Management."
NEW PRODUCTS AND RAPID TECHNOLOGICAL CHANGE
Customer requirements for control network products can change as a result of
innovations or changes within the building, industrial, transportation, home
and other industries. For example, the adoption of new or different
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standards within industry segments may give rise to new customer requirements,
which may or may not be compatible with the Company's current or future
product offerings. The Company's future success depends in large part on its
ability to continue to enhance existing products, lower product cost and
develop new products that maintain technological competitiveness. There can be
no assurance that the Company will be successful in modifying its products and
services to address these requirements and standards. For example, certain of
the Company's competitors may develop competing technologies based on Internet
protocols that may have advantages over the Company's products in remote
connection. If the Company is unable, for technological or other reasons, to
develop new products or enhancements of existing products in a timely manner
to respond to changing market conditions, competitive factors and customer
requirements, the Company's business, operating results and financial
condition would be materially adversely affected. See "Business--Competition."
From time to time, the introduction of new products by the Company has been
delayed beyond the Company's projected shipping date for such products. In
each instance, such delays have resulted in increased costs and delayed
revenues. Because future revenues are dependent on the timely introduction of
new product offerings, any such future delays could have a material adverse
effect on the Company's business, operating results and financial condition.
MARKET ACCEPTANCE OF INTEROPERABILITY
The future operating success of the Company will depend, in significant
part, on the successful development of interoperable products by the Company
and OEMs, and the acceptance of interoperable products by systems integrators
and end-users. When products or subsystems from multiple vendors can be
integrated into a control system without the need to develop custom hardware
or software, they are "interoperable." The Company has expended considerable
resources to develop, market and sell interoperable products, and has made
such products a cornerstone of its sales and marketing strategy. The Company
has widely promoted interoperable products as offering benefits such as lower
life-cycle costs and improved flexibility to owners and users of control
networks. However, there can be no assurance that OEMs who manufacture and
market closed systems will accept, promote or employ interoperable products,
since doing so may expose such OEMs' businesses to increased competition. In
addition, there can be no assurance that OEMs will, in fact, successfully
develop interoperable products, or that OEMs' interoperable products will be
accepted by their customers. The failure of OEMs to develop interoperable
products, or the failure of interoperable products to achieve market
acceptance, would have a material adverse effect on the business, operating
results and financial condition of the Company. See "--Competition" and
"Business--Industry Background."
INTERNATIONAL OPERATIONS; CURRENCY FLUCTUATIONS
The Company's sales and marketing operations are located in 10 countries.
Revenues from international sales, which include both export sales and sales
by international subsidiaries, accounted for approximately 52.0%, 53.6%, 57.5%
and 57.0% of the Company's total revenues during 1995, 1996, 1997 and the
three months ended March 31, 1998, respectively. The Company's operations and
the market price of its products may be directly affected by economic and
political conditions in the countries where the Company does business. In
addition, there can be no assurance that the Company will be able to maintain
or increase the international demand for its products. Additional risks
inherent in the Company's international business activities generally include
currency fluctuations, unexpected changes in regulatory requirements, tariffs
and other trade barriers, costs of localizing products for foreign countries,
lack of acceptance of non-local products in foreign countries, longer accounts
receivable payment cycles, difficulties in managing international operations,
potentially adverse tax consequences, including restrictions on repatriation
of earnings, and the burdens of complying with a wide variety of foreign laws.
Differing vacation and holiday patterns in other countries, particularly in
Europe, may also affect the amount of business transacted by the Company in
other countries in any given quarter, the timing of the Company's revenues and
its ability to forecast its projected operating results for such quarter. In
1997, approximately 10.7% of the Company's revenues were conducted in
currencies other than the U.S. dollar, principally the Japanese Yen.
Fluctuations in the value of currencies in which the Company conducts its
business
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relative to the U.S. dollar could cause currency translation adjustments. The
Company has recently experienced and in the future may experience an increase
in currency translation adjustments relative to currencies of Asia Pacific
countries, as well as order delays, cancellations and pricing pressure in
those countries as a result of general economic conditions in that region. The
forthcoming introduction of the "Euro" as the standard currency in
participating European countries may also impact the ability of the Company to
denominate sales transactions in U.S. dollars. To the extent that fewer of the
Company's sales in Europe are denominated in U.S. dollars, the Company may
experience an increase in currency translation adjustments, particularly as a
result of general economic conditions in Europe as a whole. The Company does
not currently engage in currency hedging transactions or otherwise cover its
foreign currency exposure. There can be no assurance that such factors will
not have a material adverse effect on international revenues and,
consequently, the Company's business, operating results and financial
condition. See "Business--Sales and Marketing."
LENGTHY SALES CYCLE
The sales cycle between initial customer contact and execution of a contract
or license agreement with a customer can vary widely. OEMs typically conduct
extensive and lengthy product evaluations before making initial purchases of
the Company's products. Subsequent purchases of the Company's products may be
delayed by prolonged product development and introduction periods for OEMs.
Attendant delays in the Company's sales cycle can result from, among other
things, changes in customers' budgets or in the priority assigned to control
network development and to educating customers as to the potential
applications of and cost savings associated with the Company's products. The
Company generally has little or no control over these factors, which may cause
a potential customer to favor a competitor's products, or to delay or forgo
purchases altogether. As a result of the foregoing, the Company's ability to
forecast the timing and amount of specific sales is limited, and the delay or
failure to complete transactions could have a material adverse effect on the
Company's business, operating results and financial condition and cause the
Company's operating results to vary significantly from period to period.
LIMITED PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
The Company's success depends significantly upon its intellectual property
rights. The Company relies on a combination of patent, copyright, trademark
and trade secret laws, non-disclosure agreements and other contractual
provisions to establish, maintain and protect its intellectual property
rights, all of which afford only limited protection. The Company has 65 issued
U.S. patents, 21 pending U.S. patent applications, and various foreign
counterparts. There can be no assurance that patents will issue from these
pending applications or from any future applications or that, if issued, any
claims allowed will be sufficiently broad to protect the Company's technology.
Failure of any patents to protect the Company's technology, may make it easier
for the Company's competitors to offer equivalent or superior technology. The
Company has registered or applied for registration for certain trademarks, and
will continue to evaluate the registration of additional trademarks as
appropriate. Any failure by the Company to properly register or maintain its
trademarks or to otherwise take all necessary steps to protect its trademarks
may diminish the value associated with the Company's trademarks. In addition,
any failure by the Company to take all necessary steps to protect its trade
secrets or other intellectual property rights may have a material adverse
effect on the Company's ability to compete in its markets. Despite the
Company's efforts to protect its proprietary rights, unauthorized parties may
attempt to copy aspects of the Company's products or services or to obtain and
use information that the Company regards as proprietary. There can be no
assurance that any patents, trademarks, copyrights or intellectual property
rights that have been or may be issued or granted will not be challenged,
invalidated or circumvented, or that any rights granted thereunder would
provide protection for the Company's proprietary rights. In addition, there
can be no assurance that the Company has taken or will take all necessary
steps to protect its intellectual property rights. Third parties may also
independently develop similar technology without breach of the Company's trade
secrets or other proprietary rights. The Company has licensed in the past and
may license in the future its key technologies to third parties. In addition,
the laws of some foreign countries, including several in which the Company
operates or sells its products, do not protect proprietary rights to as great
an extent as do the laws of the United States. Certain of the Company's
products are licensed under shrink wrap license agreements that are not signed
by licensees and therefore may not be binding under the laws of certain
jurisdictions.
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From time to time, litigation may be necessary to defend and enforce the
Company's proprietary rights. Such litigation could result in substantial
costs and diversion of management resources and could have a material adverse
effect on the Company's business, operating results and financial condition,
regardless of the final outcome. Despite the Company's efforts to safeguard
and maintain its proprietary rights both in the United States and abroad,
there can be no assurance that the Company will be successful in doing so or
that the steps taken by the Company in this regard will be adequate to deter
infringement, misuse, misappropriation or independent third-party development
of the Company's technology or intellectual property rights or to prevent an
unauthorized third party from copying or otherwise obtaining and using the
Company's products or technology. Any of such events could have a material
adverse effect on the Company's business, operating results and financial
condition. See "Business--Proprietary Rights."
RISKS OF PRODUCT DEFECTS OR MISUSE
Products developed, licensed and sold by the Company may contain errors or
failures or may be improperly installed or implemented. There can be no
assurance that errors or failures will not be found in the Company's products
or that, if discovered, the Company will be able to successfully correct such
errors or failures in a timely manner or at all. In addition, there can be no
assurance that the Company's products will be properly installed or
implemented by third parties. The occurrence of errors or failures in the
Company's products and applications, or improper installation or
implementation of the Company's products, could result in loss of or delay in
market acceptance, increased service and warranty costs or payment of
compensatory or other damages. In addition, such errors or failures may result
in delays of revenue recognition by the Company and diversion of the Company's
engineering resources to correct such defects. The Company maintains errors
and omissions insurance to cover liability associated with its operations but
there can be no assurance that any such insurance will be available or will be
sufficient in amount to cover any particular claim. Although the Company's
agreements with its customers typically contain provisions intended to limit
the Company's exposure to potential claims as well as any liabilities arising
from such claims, and may in very limited instances require that the Company
be named as an additional insured under the insurance policies carried by some
of its customers, such contracts and insurance may not effectively protect the
Company against the liabilities and expenses associated with product errors or
failures. Accordingly, errors or failures in the Company's products or
applications or improper installation or implementation of the Company's
products by third parties could have a material adverse effect on the
Company's business, operating results and financial condition. In addition,
because of the low cost and interoperable nature of the Company's products,
LonWorks technology could be used in a manner for which it was not intended,
which could lead to loss of goodwill or material financial losses for the
Company, or otherwise have a material adverse effect on the Company's
business, operating results and financial condition.
REGULATORY ACTIONS
Many of the Company's products and the industries in which they are used are
subject to U.S. and foreign regulation. Government regulatory action could
greatly reduce the market for the Company's products. For example, the power
line medium (the communications medium used by some of the Company's products)
is subject to special regulations in North America, Europe and Japan. These
regulations limit the ability of companies in general to use power lines as a
communication medium. In addition, some of the Company's competitors have
attempted to use regulatory actions to reduce the market opportunity for the
Company's products or to increase the market opportunity for the competitors'
products. For example, the Consumer Electronics Manufacturers Association
("CEMA"), a trade association that developed the CEBus protocol, an
alternative to the Company's LonTalk protocol for use in home automation
applications, has proposed that the Federal Communications Commission ("FCC")
adopt a standard for television-cable compatibility that encompasses CEBus.
CEMA has also proposed the use of such standard with respect to an FCC
rulemaking relating to the commercial availability of navigation devices, such
as set-top boxes. The Company has resisted these efforts and will continue to
oppose competitors' efforts to use regulation to impede competition in the
markets for the Company's products. There can be no assurance that existing or
future regulations or regulatory actions would not adversely affect the market
for the Company's products or require significant expenditures of management,
technical or financial resources, any of which could have a material adverse
effect on the Company's business, operating results and a financial condition.
See "Business--Government Regulation."
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VOLUNTARY STANDARDS
Standards bodies, which are formal and informal associations that attempt to
set voluntary, non-governmental product standards, are influential in many of
the Company's target markets. Some of the Company's competitors have attempted
to use voluntary standards to reduce the market opportunity for the Company's
products, or to increase the market opportunity for the competitors' products,
by lobbying for the adoption of voluntary standards that would exclude or
limit the use of the Company's products. The Company participates in many
voluntary standards processes both to avoid adoption of exclusionary standards
and to promote voluntary standards for the Company's products. However, the
Company does not have the resources to participate in all voluntary standards
processes that may affect its markets. The adoption of voluntary standards
that are incompatible with the Company's products or technology could have a
material adverse effect on the Company's business, operating results and
financial condition. See "Business--Competition."
YEAR 2000 COMPLIANCE
Computer programs that are written using two digits rather than four to
define the applicable year, may have date-sensitive software and, for
instance, may recognize a date using 00 as the year 1900 rather than the year
2000 ("Date Code Dependency"). This could result in a system failure or
miscalculations causing disruptions of operations, including, among other
things, a temporary inability to process transactions, send invoices, or
engage in normal business activities. The Company's enterprise resource
planning ("ERP") system does have Date Code Dependencies. The Company is in
the process of replacing its current ERP system, and believes that this
replacement will be completed by June 1999, before any Date Code Dependencies
within the Company's current ERP system have a material adverse impact upon
the Company's operations. The Company has not yet estimated the cost of such
replacement. The Company is currently evaluating the dependency of its
products on date codes and intends to announce a program for addressing the
impact of the year 2000 on any such products in the near future. Failure of
the Company's ERP system or its products to operate properly with regard to
the Year 2000 and thereafter could require the Company to incur unanticipated
expenses to remedy any problems, which could have a material adverse effect on
the Company's business, operating results and financial condition. Date Code
Dependency issues may also arise with respect to any modifications made to the
Company's products by a party other than the Company or from the combination
or use of the Company's products with any other software programs or hardware
devices not provided by the Company, and therefore may result in unforeseen
Year 2000 compliance problems for some of the Company's customers, which could
result in reduced customer orders or liability to the Company, and which could
have a material adverse effect on the Company's business, operating results
and financial condition. The Company faces risks to the extent that suppliers
of products, services and systems purchased by the Company have business
systems or products that have a Date Code Dependency. In the event any such
third parties cannot provide the Company with products, services or systems
that meet year 2000 requirements in a timely manner, the Company's business
operating results and financial condition could be materially adversely
affected. In addition, some of the Company's customers or vendors could
experience Date Code Dependency problems that could result in disruptions of
their internal operations, could delay their purchases of the Company's
products, and, in turn, could result in a material adverse effect on the
Company's business, operating results and financial condition.
CONTROL BY EXISTING STOCKHOLDERS
Immediately after the closing of this offering, the directors and executive
officers of the Company, together with certain entities affiliated with them,
assuming no exercise of outstanding stock options, will beneficially own 46.9%
of the Company's outstanding Common Stock and Motorola, a principal
stockholder of the Company, will own 12.2% of the Company's outstanding Common
Stock. Further, pursuant to the terms of the stock purchase agreement under
which Motorola initially acquired its shares, Motorola and two other
stockholders which together own approximately 6.1% of the Company's
outstanding Common Stock have agreed to vote (i) all of their shares in favor
of the slate of director nominees recommended by the Board of Directors, and
(ii) a number of shares equal to at least that percentage of shares voted by
all other stockholders for or against any given matter, as recommended by the
Board of Directors, (except certain matters relating to certain changes
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to the Company's charter, liquidations, a sale of the Company or a merger of
the Company into another entity), as recommended by a majority of the Board of
Directors. As a result, these stockholders would be able to control
substantially all matters requiring approval by the stockholders of their
Company, including the election of all directors and approval of significant
corporate transactions. See "Management--Executive Officers and Directors,"
"Certain Transactions" and "Principal Stockholders."
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, based on the outstanding shares of Common
Stock at March 31, 1998, the Company will have outstanding 32,125,612 shares
of Common Stock outstanding (32,875,612 if the Underwriters' over-allotment
option is exercised in full). On the date of this Prospectus, in addition to
the 5,000,000 shares offered hereby, 483,674 shares of Common Stock held by
current stockholders will be immediately eligible for sale in the public
market without restriction. The Company, its officers, directors and certain
security holders of the Company have agreed not to offer, sell, contract to
sell, grant any option or other right for the sale of, or otherwise dispose of
any shares of Common Stock or any securities, indebtedness or other rights
exercisable for or convertible or exchangeable into Common Stock owned or
acquired in the future in any manner prior to the expiration of 180 days after
the date of this Prospectus without the prior written consent of NationsBanc
Montgomery Securities LLC on behalf of the Underwriters. Subject to volume
limitations on sales by affiliates pursuant to Rule 144 under the Securities
Act of 1933, as amended (the "Securities Act"), and taking into account the
effect of lock-up provisions applicable to the officers, directors and certain
stockholders of the Company, 26,641,938 additional shares of Common Stock will
be eligible for sale beginning 180 days after the date of this Prospectus.
This includes 247,375 shares held by existing stockholders pursuant to an
effective Regulation A offering statement covering the Company's 1997 Stock
Plan. No prediction can be made of the effect, if any, that sales of shares
under Rule 144 or the availability of shares for sale will have on the market
price of the Common Stock prevailing from time to time after this offering.
The Company is unable to estimate the number of shares that may be sold in the
public market under Rule 144, because such amount will depend on the trading
volume in, and market price for, the Common Stock and other factors.
Nevertheless, sales of substantial amounts of shares in the public market, or
the perception that such sales could occur, could adversely affect the market
price of the Common Stock. Following this offering, the Company intends to
file a registration statement under the Securities Act to register
approximately 8,025,395 shares (including 4,082,695 shares subject to
outstanding options at March 31, 1998) reserved for issuance under the
Company's stock plans. Shares of Common Stock issued under the Company's stock
plans after the effective date of such registration will be freely tradeable
in the public market, subject to the 180 day lock-up referred to above and
subject in the case of sales by affiliates to the volume limitation, manner of
sale, notice and public information requirements of Rule 144. In addition,
after the consummation of this offering, the holders of approximately
18,665,548 shares of Common Stock are entitled to certain rights with respect
to the registration of such shares under the Securities Act. Such registration
rights terminate for each holder when all of such holder's shares may be sold
within a given three month period under Rule 144 or other applicable
exemption; other than 10,927,498 shares held by affiliates of the Company who
will be subject to the volume limitations of Rule 144 following this offering,
all of such shares will be eligible for sale 180 days following this offering.
See "Description of Capital Stock--Registration Rights," "Shares Eligible for
Future Sale" and "Underwriting."
ANTI-TAKEOVER PROVISIONS
Immediately after the closing of this offering, the Board of Directors will
have the authority to issue up to 5,000,000 shares of Preferred Stock and to
determine the price, rights, preferences, privileges and restrictions,
including voting rights, of those shares without any further vote or action by
the stockholders. The rights of the holders of Common Stock will be subject
to, and may be adversely affected by, the rights of holders of any Preferred
Stock that may be issued in the future. The issuance of Preferred Stock may
delay, defer or prevent a change in control of the Company as the terms of the
Preferred Stock that might be issued could potentially prohibit the Company's
consummation of any merger, reorganization, sale of substantially all of its
assets, liquidation or other extraordinary corporate transaction without the
approval of the holders of the outstanding shares of the Preferred Stock.
Additionally, the issuance of Preferred Stock could have a dilutive effect on
shareholders of the Company. The Company has no present plans to issue shares
of Preferred Stock. In addition,
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Section 203 of the Delaware General Corporation Law, to which the Company is
subject, restricts certain business combinations with any "interested
stockholder" as defined by such statute. The statute may delay, defer or
prevent a change in control of the Company. In addition, certain provisions of
the Company's Amended and Restated Certificate of Incorporation may have the
effect of delaying or preventing a change of control of the Company, which
could adversely affect the market price of the Company's Common Stock. These
provisions provide, among other things, that the Board of Directors is divided
into three classes with staggered three-year terms, that stockholders may not
take action by written consent, that the ability of stockholders to call
special meetings of stockholders and to raise matters at meetings of
stockholders is restricted and that certain amendments of the Company's
Amended and Restated Certificate of Incorporation, and certain amendments by
the stockholders of the Company's Bylaws, require the approval of holders of
at least 66 2/3% of the voting power of all outstanding shares. In addition,
the Company is subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, which will prohibit the Company from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved
in a prescribed manner. The application of Section 203 also could have the
effect of delaying or preventing a change of control of the Company. See
"Description of Capital Stock--Preferred Stock" and "--Delaware Law and
Certain Charter and Bylaw Provisions" and "Description of Capital Stock."
NO PRIOR PUBLIC MARKET; POSSIBLE VOLATILITY OF STOCK PRICE
Prior to this offering, there has been no public market for the Company's
Common Stock, and there can be no assurance that an active public market for
the Common Stock will develop or be sustained after this offering. The initial
public offering price will be determined by negotiation between the Company
and the Underwriters based on several factors, and may bear no relationship to
the price at which the Common Stock will trade upon completion of this
offering. See "Underwriting" for a discussion of the factors to be considered
in determining the initial public offering price. The market price of the
Company's Common Stock is likely to be highly volatile and could be subject to
wide fluctuations in response to quarterly variations in operating results,
announcements of technological innovations or new products by the Company or
its competitors, changes in financial estimates by securities analysts, or
other events or factors. In addition, there has been significant volatility in
the market price of securities of technology companies (especially those in
new or emerging industries, such as the Company), which volatility is often
unrelated to the operating performance of particular companies. In the future,
the Company's operating results could fall below analysts' expectations, which
would adversely affect the market price of the Company's Common Stock. In the
past, following a period of volatility in the market price of a company's
securities, securities class action lawsuits have often been instituted
against companies. If brought against the Company, regardless of outcome, the
costs and diversion of management resources of defending such litigation could
have a material adverse effect on its business, operating results and
financial condition.
IMMEDIATE AND SUBSTANTIAL DILUTION
The initial public offering price will be substantially higher than the book
value per share of the currently outstanding Common Stock. Investors
purchasing shares in this offering will therefore suffer immediate and
substantial dilution of $6.63 per share in the pro forma net tangible book
value of their Common Stock from the assumed initial public offering price of
$8.00 per share. In addition, the exercise of any of the currently outstanding
warrants or stock options would likely result in a dilution of the value of
the Common Stock. Moreover, the Company may at any time in the future sell
additional securities and/or rights to purchase such securities, grant
additional warrants, stock options or other forms of equity-based incentive
compensation to the Company's management and/or employees to attract and
retain such personnel or in connection with the obtaining of financing, such
as debt or leasing arrangements accompanied by warrants to purchase equity
securities of the Company. Any of these actions would have a dilutive effect
upon the holders of the Common Stock. See "Dilution."
14
<PAGE>
BROAD MANAGEMENT DISCRETION AS TO USE OF PROCEEDS
The net proceeds to be received by the Company in connection with this
offering will be used for working capital and general corporate purposes.
Accordingly, management will have broad discretion with respect to the
expenditure of such proceeds. Purchasers of shares of Common Stock offered
hereby will be entrusting their funds to the Company's management, upon whose
judgment they must depend, with limited information concerning the specific
working capital requirements and general corporate purposes to which the funds
will ultimately be applied. See "Use of Proceeds."
ABSENCE OF DIVIDENDS
The Company has not paid cash dividends and does not anticipate paying cash
dividends on the Common Stock in the foreseeable future. The Company intends
to retain future earnings, if any, for use in its business. In addition, the
Company's revolving line of credit agreement prohibits the payment of
dividends other than stock dividends. See "Dividend Policy."
15
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 5,000,000 shares of
Common Stock being offered hereby, based on an assumed initial public offering
price of $8.00 per share and after deducting the underwriting discount and
estimated offering expenses payable by the Company, are estimated to be
approximately $36.5 million (approximately $42.1 million if the Underwriters'
over-allotment option is exercised in full).
The principal purposes of this offering are to increase the Company's equity
capital, to create a public market for the Company's Common Stock, to
facilitate future access by the Company to public equity markets and to
provide increased visibility of the Company in a marketplace where many
competitors are publicly-held companies. The Company currently has no specific
plans for the net proceeds of this offering, but the Company expects to use
such proceeds for general corporate purposes, including working capital and
capital expenditures. The Company may also use a portion of such proceeds for
possible acquisitions of businesses, products and technologies that are
complementary to those of the Company. The Company has not identified any
specific businesses, products or technologies that it may acquire and does not
have any current agreements or negotiations with respect to any such
transactions. Pending use of the net proceeds of this offering for the above
purposes, the Company intends to invest such funds in short-term, interest-
bearing, investment-grade securities. See "Risk Factors--Broad Management
Discretion as to Use of Proceeds."
DIVIDEND POLICY
The Company has not paid any dividends on its capital stock and does not
expect to pay any dividends in the foreseeable future. The Company currently
intends to retain future earnings, if any, to finance the growth and
development of its business and therefore does not anticipate paying any cash
dividends in the foreseeable future. The payment of cash dividends in the
future will be at the discretion of the Board of Directors and subject to
certain limitations under the Delaware General Corporation Law, and will
depend on such factors as the Company's earnings levels, capital requirements,
financial condition and other factors deemed relevant by the Board of
Directors. In addition, the Company's revolving line of credit agreement
prohibits the payment of dividends other than stock dividends. There can be no
assurance that the Company will pay any dividends in the future. See "Risk
Factors--Absence of Dividends."
16
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company as of March
31, 1998 (i) on an actual basis and (ii) as adjusted to reflect the receipt by
the Company of the net proceeds from the sale and issuance of 5,000,000 shares
of Common Stock by the Company at an assumed initial public offering price of
$8.00 per share after deducting the underwriting discount and estimated
offering expenses payable by the Company and the automatic conversion of all
outstanding shares of Preferred Stock into Common Stock upon the closing of
this offering. See "Certain Transactions" and "Description of Capital Stock."
This information should be read in conjunction with the Company's Financial
Statements and the Notes thereto included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
MARCH 31, 1998
---------------------
ACTUAL AS ADJUSTED
-------- -----------
(IN THOUSANDS)
<S> <C> <C>
Stockholders' equity(1):
Preferred Stock, $.01 par value, 11,000,000 shares
authorized, 7,887,381 shares issued and outstanding,
actual; 5,000,000 shares authorized, no shares issued
or outstanding, as adjusted........................... $ 79 $ --
Common Stock, $.01 par value, 50,000,000 shares
authorized, 19,238,231 shares issued and outstanding,
actual; 100,000,000 shares authorized,
32,125,612 shares issued and outstanding, as
adjusted.............................................. 192 321
Additional paid-in capital............................. 94,530 130,980
Deferred compensation.................................. (519) (519)
Cumulative translation adjustment...................... (415) (415)
Accumulated deficit.................................... (86,385) (86,385)
-------- --------
Total stockholders' equity........................... $ 7,482 $ 43,982
======== ========
</TABLE>
- --------
(1) Includes 1,802,438 shares of Common Stock issued under stock purchase
agreements subject to repurchase by the Company at a weighted average
price of $1.26 per share. Excludes (i) 4,082,695 shares of Common Stock
issuable upon exercise of options outstanding as of March 31, 1998 at a
weighted average exercise price of $1.33 per share, of which options to
purchase 3,932,695 shares (including 3,167,780 shares subject to
repurchase by the Company at a weighted average exercise price of $1.31
per share) were exercisable, (ii) 3,942,700 shares of Common Stock
reserved for future issuance under the Company's stock option plans and
(iii) 430,000 shares of Common Stock issuable upon exercise of warrants
outstanding as of March 31, 1998 at a weighted average exercise price of
$5.49 per share. See "Management--Stock Option Plans and Warrants,"
"Description of Capital Stock" and Note 6 of Notes to Consolidated
Financial Statements.
17
<PAGE>
DILUTION
The pro forma net tangible book value of the Company as of March 31, 1998
assuming the conversion of all outstanding shares of Preferred Stock into
Common Stock on a one-for-one basis upon the closing of this offering, was
approximately $7.5 million, or $0.28 per share of Common Stock. Net tangible
book value per share is determined by dividing the net tangible book value of
the Company (total tangible assets less total liabilities) by the number of
shares of Common Stock deemed outstanding at that date. After giving effect to
the sale by the Company of the 5,000,000 shares of Common Stock offered hereby
at an assumed initial public offering price of $8.00 per share and after
deducting the underwriting discount and estimated offering expenses payable by
the Company, the Company's pro forma net tangible book value at March 31, 1998
would have been $44.0 million, or $1.37 per share. This represents an
immediate increase in net tangible book value to existing shareholders of
$1.09 per share and an immediate dilution of $6.63 per share to new investors
purchasing shares at the initial public offering price. The following table
illustrates the per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.................... $8.00
Pro forma net tangible book value per share as of March 31,
1998............................................................ $0.28
Increase per share attributable to new investors................. 1.09
-----
Pro forma net tangible book value per share after this offering.... 1.37
-----
Dilution per share to new investors................................ $6.63
=====
</TABLE>
The following table sets forth on a pro forma basis as of March 31, 1998 the
number of shares of Common Stock purchased from the Company, the total
consideration paid, and the average price per share paid by existing
shareholders and by the new investors at an assumed initial public offering
price of $8.00 per share (before deducting the underwriting discount and
estimated offering expenses payable by the Company).
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
------------------ -------------------- PRICE PER
NUMBER PERCENT AMOUNT PERCENT SHARE
---------- ------- ------------ ------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders......... 27,125,612 84.4% $ 94,406,000 70.2% $3.48
New investors................. 5,000,000 15.6 40,000,000 29.8 8.00
---------- ----- ------------ -----
Total....................... 32,125,612 100.0% $134,406,000 100.0%
========== ===== ============ =====
</TABLE>
- --------
The foregoing tables assume no exercise of the Underwriters' over-allotment
option and no exercise of stock options or warrants outstanding at March 31,
1998. As of March 31, 1998, there were options outstanding to purchase a total
of 4,082,695 shares of Common Stock at a weighted average exercise price of
$1.33 per share, of which options to purchase 3,932,695 shares (including
3,167,780 shares subject to repurchase by the Company at a weighted average
exercise price of $1.31 per share) were exercisable and 3,942,700 shares were
reserved for future issuance under the Company's stock option plans. In
addition, as of March 31, 1998, there were warrants outstanding to purchase
430,000 shares of Common Stock at a weighted average exercise price of $5.49
per share and 1,802,438 shares of Common Stock issued under stock purchase
agreements which were subject to repurchase by the Company at a weighted
average price of $1.26 per share. To the extent that the over-allotment option
or any of these options or warrants are exercised, there will be further
dilution to new investors. See "Capitalization," "Management--Stock Option
Plans and Warrants," "Description of Capital Stock" and Note 6 of Notes to
Consolidated Financial Statements.
18
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data should be read in
conjunction with the Company's Consolidated Financial Statements and Notes
thereto and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" included elsewhere herein. The consolidated statement
of operations data for the years ended December 31, 1995, 1996 and 1997, and
the consolidated balance sheet data at December 31, 1996 and 1997 are derived
from, and are qualified by reference to, the Consolidated Financial Statements
audited by Arthur Andersen LLP, independent public accountants, included
elsewhere in this Prospectus. The consolidated statement of operations data
for the years ended December 31, 1993 and 1994 and the consolidated balance
sheet data at December 31, 1993, 1994 and 1995 are derived from the Company's
consolidated financial statements audited by Arthur Andersen LLP that do not
appear herein. The consolidated statement of operations data for the three
months ended March 31, 1997 and 1998 and the consolidated balance sheet data
at March 31, 1998 are derived from the unaudited consolidated financial
statements appearing elsewhere herein and which, in the opinion of management,
include all adjustments, consisting only of normal recurring adjustments,
necessary for a fair statement of the results of the unaudited interim
periods. The financial results for the three months ended March 31, 1998 are
not necessarily indicative of the results to be expected for any other interim
period or the fiscal year. The historical results are not necessarily
indicative of the results of operations to be expected in the future.
<TABLE>
<CAPTION>
THREE MONTHS
YEAR ENDED DECEMBER 31, ENDED MARCH 31,
------------------------------------------------ ----------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- -------- -------- -------- ------- -------
CONSOLIDATED STATEMENT OF
OPERATIONS DATA: (IN THOUSANDS, EXCEPT PER SHARE DATA) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Product................ $ 10,104 $ 14,368 $ 20,183 $ 20,708 $ 24,665 $ 6,548 $ 7,188
Service................ 1,441 2,364 3,160 3,282 3,637 926 771
-------- -------- -------- -------- -------- ------- -------
Total revenues......... 11,545 16,732 23,343 23,990 28,302 7,474 7,959
Cost of revenues:
Cost of product........ 3,764 6,733 9,434 10,761 11,761 3,111 3,249
Cost of service........ 990 1,006 1,141 1,142 1,810 455 543
-------- -------- -------- -------- -------- ------- -------
Total cost of reve-
nues.................. 4,754 7,739 10,575 11,903 13,571 3,566 3,792
-------- -------- -------- -------- -------- ------- -------
Gross profit........... 6,791 8,993 12,768 12,087 14,731 3,908 4,167
-------- -------- -------- -------- -------- ------- -------
Operating expenses:
Product development.... 6,861 6,658 7,355 7,526 7,121 1,740 1,958
Sales and marketing.... 8,628 9,317 10,881 11,577 12,128 3,014 3,031
General and administra-
tive.................. 2,575 3,268 4,386 3,921 4,004 1,098 935
-------- -------- -------- -------- -------- ------- -------
Total operating ex-
penses................ 18,064 19.243 22,622 23,024 23,253 5,852 5,924
-------- -------- -------- -------- -------- ------- -------
Loss from operations... (11,273) (10,250) (9,854) (10,937) (8,522) (1,944) (1,757)
Other income (expense):
Interest income, net... 180 809 1,109 536 429 71 67
Other income (expense),
net................... 9 44 175 (163) 68 21 8
-------- -------- -------- -------- -------- ------- -------
Total other income (ex-
pense)................ 189 853 1,284 373 497 92 75
-------- -------- -------- -------- -------- ------- -------
Loss before provision
for income taxes...... (11,084) (9,397) (8,570) (10,564) (8,025) (1,852) (1,682)
Provision for income
taxes.................. 49 86 143 152 189 55 55
-------- -------- -------- -------- -------- ------- -------
Net loss............... $(11,133) $ (9,483) $ (8,713) $(10,716) $ (8,214) $(1,907) $(1,737)
======== ======== ======== ======== ======== ======= =======
Basic net loss per
share(1).............. $ (0.85) $ (0.67) $ (0.56) $ (0.62) $ (0.44) $ (0.10) $ (0.09)
======== ======== ======== ======== ======== ======= =======
Shares used in comput-
ing basic net loss per
share(1).............. 13,038 14,060 15,695 17,354 18,603 18,511 19,029
======== ======== ======== ======== ======== ======= =======
Pro forma basic net
loss per share(1)..... $ (0.32) $ (0.08) $ (0.06)
======== ======= =======
Shares used in comput-
ing pro forma basic
net loss per
share(1).. 25,756 24,399 26,916
======== ======= =======
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------- MARCH 31,
1993 1994 1995 1996 1997 1998
------ ------- ------- ------- ------- -----------
CONSOLIDATED BALANCE SHEET
DATA: (IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Cash, cash equivalents and
short-term investments.... $4,443 $24,210 $16,044 $ 8,051 $ 7,853 $ 5,165
Working capital............ 4,164 25,120 17,653 7,905 8,883 7,376
Total assets............... 9,913 31,124 24,547 15,855 16,816 15,695
Total stockholders' equi-
ty........................ 1,529 22,799 15,978 7,138 8,800 7,482
</TABLE>
- --------
(1) See Note 2 of Notes to Consolidated Financial Statements for an
explanation of shares used in computing basic net loss per share and pro
forma basic net loss per share.
19
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition and results of
operations of the Company should be read in conjunction with the Consolidated
Financial Statements and related Notes thereto included elsewhere in this
Prospectus. This Prospectus contains forward-looking statements that involve
risks and uncertainties. The Company's actual results may differ significantly
from the results discussed in the forward-looking statements. Factors that may
cause such a difference include, but are not limited to, those discussed in
"Risk Factors."
OVERVIEW
The Company was founded and began operations in February 1988. The Company
develops, markets and supports a family of hardware and software products and
services that enables OEMs and systems integrators to design and implement
open, interoperable, distributed control networks. The Company offers its
products and services to OEMs and systems integrators in the building,
industrial, transportation, home and other automation markets. The Company
provides a variety of technical training related to its products and
underlying technology as well as customer support to its customers on a per
incident or annual contract basis.
After incorporation, the Company initially focused on research that led to
the development of LonWorks technology. The Company's first product, the
LonBuilder Developer's Kit, was shipped in April 1991. In November 1991, the
first LonUsers International Conference was held, and in December 1991,
shipments of the Neuron Chip, which incorporates the Company's LonTalk
protocol, began. In January 1992, the Company introduced LonManager API for
DOS, which was its first software development product, and in February 1992,
the Company shipped the first of its control and connectivity products. In May
1994, the LonMark Interoperability Association was founded. In January 1998,
the Company signed its first Network Integrator Program participant.
The Company markets its products and services in North America, Europe,
Japan and selected Asia-Pacific countries through a direct sales organization
augmented with the use of third-party distributors. International sales, which
include both export sales and sales by the Company's international
subsidiaries, accounted for 57.0% and 54.7% of total revenues for the three
months ended March 31, 1998 and 1997, respectively, and 57.5%, 53.6% and 52.0%
for fiscal 1997, 1996 and 1995, respectively. The Company believes that
revenues from Asian operations may grow more slowly than for other
international markets in part due to the current economic crisis in Asia.
Revenues from Asian operations for the year-to-date are generally consistent
with the Company's lowered expectations but are not expected to have a
significant impact on the Company's liquidity or results of operations. In
1997, 10.7% of the Company's revenues were denominated in currencies other
than the U.S. dollar, principally the Japanese Yen. However, this percentage
may increase over time as the Company responds to market requirements to sell
its products and services in local currencies, such as the forthcoming Euro.
As a result, the Company's operations and the market price of its products may
be directly affected by economic and political conditions in the countries
where the Company does business. Additional risks inherent in the Company's
international business activities include currency fluctuations, unexpected
changes in regulatory requirements, tariffs and other trade barriers. The
Company expects that international sales will continue to constitute a
significant portion of total revenues. See "Risk Factors--International
Operations; Currency Fluctuations."
The Company derives its revenues primarily from the sale and licensing of
its products and, to a lesser extent, from fees associated with training and
technical support offered to its customers. Product revenues consist of
revenues from sales of transceivers, control modules, routers, network
interface devices and development tools and from licenses for network services
software products. Revenues from software licensing arrangements have not been
significant to date. Service revenues consist of product support (including
software post-contract support services) and training. The Company recognizes
revenue from product sales at the time of shipment to the customer. Estimated
reserves for warranty costs as well as for sales returns and allowances
related to anticipated return of products sold to distributors with limited
rights of return, which have not been material to the Company's financial
results, are recorded at the time of sale. Revenue from software sales is
recognized upon
20
<PAGE>
shipment of the software if there are no significant post-delivery obligations
and if collection is probable, The Company generally has not had any
significant post-delivery obligations associated with the sale of its
products. Service revenues are generally recognized as the services are
performed. See Note 2 of Notes to Consolidated Financial Statements.
In connection with the issuance of stock options to employees during the
three months ended March 31, 1998, the Company has recorded deferred
compensation in the aggregate amount of approximately $530,000, representing
the difference between the deemed fair value of the Company's Common Stock and
the exercise price of the stock options at the date of grant. The Company is
amortizing the deferred compensation expense over the shorter of the period in
which the employee, director or consultant provides services or the applicable
vesting period, which is typically 48 months. For the three-month period ended
March 31, 1998, amortization expense was approximately $11,000. Deferred
compensation is decreased in the period of forfeiture arising from the early
termination of an option holder's services. No compensation expense related to
any other periods presented has been recorded.
The Company has experienced operating losses in each of its last five fiscal
years. During this period, the Company has made significant investments in
product development to implement open control networks. Such development
projects included development of transceivers, control modules, routers,
network interface devices, network management software and the LonPoint
System. Furthermore, because the Company's strategy is significantly dependent
upon achieving broad adoption of its LonWorks technology across many
industries worldwide, the Company has incurred significant selling and
marketing expense promoting its products. Additionally, the Company believes
that it has priced its products at competitive levels to ensure broad adoption
of LonWorks technology. The Company continues to invest significantly in
product development, marketing and sales, and to the extent such expenditures
do not result in significant increases in revenues the Company's business,
operating results and financial condition will be materially and adversely
affected. See "Risk Factors--History of Losses; Accumulated Deficit;
Anticipated Continuing Losses; Uncertainty of Future Operating Results."
The Company has experienced, and expects to continue to experience,
significant variability in its quarterly and annual results due to a number of
factors, many of which are outside of the Company's control. The Company
believes that one of the factors in such variability is the fluctuation in the
rates at which OEMs purchase the Company's products and services, which is
impacted by OEMs' own business cycles. See "Risk Factors--Fluctuations in
Operating Results." Another factor in such variability is the timely
introduction of new products. From time to time, the introduction of new
products by the Company has been delayed beyond the Company's projected
shipping date. In each instance, such delays have resulted in increased costs
and delayed revenues. Because future revenues are dependent on the timely
introduction of new product offerings, any such future delays could have a
material adverse effect on the Company's business, operating results and
financial condition. See "Risk Factors--New Products and Rapid Technological
Change." The Company's expense levels are based, in significant part, on
expectations of future revenues. Consequently, if revenue levels are below
expectations, expense levels could be disproportionately high as a percentage
of total revenues, and operating results would be immediately and adversely
affected. The Company has failed to meet its expectations of future revenues
in the past. See "Risk Factors--Fluctuations in Operating Results." In
addition, the growth of the Company's revenues has been adversely affected by
declines in sales of existing products over time. For example, the LonBuilder
Developer's Workbench represented approximately 18% of the Company's revenues
during 1995 but has not represented a significant percentage of total revenues
since that time.
At March 31, 1998, the Company had an accumulated deficit of $86.4 million.
As of December 31, 1997, the Company had net operating loss carryforwards for
Federal and state income tax reporting purposes of approximately $76.0 million
and $5.0 million, respectively, which expire at various dates through 2012. In
addition, as of December 31, 1997, the Company had tax credit carryforwards of
approximately $3.5 million, which expire at various dates through 2012. The
Internal Revenue Code of 1986, as amended, contains provisions that may limit
the net operating loss and credit carryforwards available for use in any given
period upon the occurrence of certain events, including a significant change
in ownership interests. The Company had deferred
21
<PAGE>
tax assets, including its net operating loss carryforwards and tax credits,
totaling approximately $33.6 million as of December 31, 1997. A valuation
allowance has been recorded for the entire deferred tax asset as a result of
uncertainties regarding the realization of the asset balance due to the history
of losses and the variability of operating results. See "Risk Factors--History
of Losses; Accumulated Deficit; Anticipated Continuing Losses; Uncertainty of
Future Operating Results" and Note 7 of Notes to Consolidated Financial
Statements.
RECENT RESULTS OF OPERATIONS
The Company's second quarter ended on June 30, 1998. Total revenues for the
quarter were $8.5 million, net loss was ($1.2 million), basic net loss per
share was ($0.06) (based on weighted average shares outstanding of 19,381,151)
and pro forma basic net loss per share was ($0.04) (based on weighted average
shares outstanding of 27,268,532).
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, the percentage of
total revenues represented by each item in the Company's Consolidated Statement
of Operations:
<TABLE>
<CAPTION>
YEAR ENDED THREE MONTHS
DECEMBER 31, ENDED MARCH 31,
--------------------- ------------------
1995 1996 1997 1997 1998
----- ----- ----- -------- -------
Revenues: (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Product......................... 86.5% 86.3% 87.1% 87.6% 90.3%
Service......................... 13.5 13.7 12.9 12.4 9.7
----- ----- ----- -------- -------
Total revenues................. 100.0 100.0 100.0 100.0 100.0
Cost of revenues:
Cost of product................. 40.4 44.8 41.6 41.6 40.8
Cost of service................. 4.9 4.8 6.4 6.1 6.8
----- ----- ----- -------- -------
Total cost of revenues......... 45.3 49.6 48.0 47.7 47.6
----- ----- ----- -------- -------
Gross profit................... 54.7 50.4 52.0 52.3 52.4
----- ----- ----- -------- -------
Operating expenses:
Product development............. 31.5 31.4 25.1 23.3 24.6
Sales and marketing............. 46.6 48.3 42.9 40.3 38.1
General and administrative...... 18.8 16.3 14.1 14.7 11.7
----- ----- ----- -------- -------
Total operating expenses....... 96.9 96.0 82.1 78.3 74.4
----- ----- ----- -------- -------
Loss from operations........... (42.2) (45.6) (30.1) ( 26.0) (22.0)
----- ----- ----- -------- -------
Other income (expense):
Interest income, net............ 4.8 2.2 1.5 0.9 0.8
Other income (expense), net..... 0.7 (0.6) 0.2 0.3 0.1
----- ----- ----- -------- -------
Total other income (expense)... 5.5 1.6 1.7 1.2 0.9
----- ----- ----- -------- -------
Loss before provision for in-
come taxes.................... (36.7) (44.0) (28.4) (24.8) (21.1)
Provision for income taxes........ 0.6 0.7 0.6 0.7 0.7
----- ----- ----- -------- -------
Net loss........................ (37.3)% (44.7)% (29.0)% (25.5)% (21.8)%
===== ===== ===== ======== =======
</TABLE>
THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
Revenues
Total revenues for the three months ended March 31, 1998 increased to $8.0
million from $7.5 million in the same period of 1997, an increase of 6.5%. For
the three months ended March 31, 1998, one customer, EBV,
22
<PAGE>
the sole distributor of the Company's products in Europe since December 1997,
accounted for 20.6% of total revenues. For the three months ended March 31,
1997, no customer accounted for greater than 10% of total revenues.
Product. Product revenues for the three months ended March 31, 1998
increased to $7.2 million from $6.5 million in the same period of 1997, an
increase of 9.8%. For the three months ended March 31, 1998, product revenues
as a percentage of total revenues increased to 90.3% from 87.6% in the same
period of 1997. This increase was primarily due to the market's growing
acceptance of the Company's products and underlying technology, especially its
control and connectivity products, and an expansion of the Company's product
offerings.
Service. Service revenues for the three months ended March 31, 1998
decreased to $771,000 from $926,000 in the same period of 1997, a decrease of
16.7%. For the three months ended March 31, 1998, service revenues as a
percentage of total revenues decreased to 9.7% from 12.4% in the same period
of 1997. This decrease was due primarily to the timing and the number of
technical training courses offered by the Company.
Cost of Revenues
Cost of product. Cost of product revenues consist of costs associated with
the purchase of components and subassemblies, as well as allocated labor,
overhead and manufacturing variances associated with the packaging,
preparation and shipment of products. Cost of product revenues for the three
months ended March 31, 1998 increased to $3.2 million from $3.1 million in the
same period of 1997, an increase of 4.4%, representing product gross margins
of 54.8% and 52.5%, respectively. The increase in product gross margins was
primarily due to a change in product mix as a result of the expansion of new
product offerings as well as, to a lesser extent, a general increase in
volumes of products shipped by the Company.
Cost of service. Cost of service revenues consist of employee-related costs
as well as direct costs incurred in providing training and customer support
services. Cost of service revenues for the three months ended March 31, 1998
increased to $543,000 from $455,000 in the same period of 1997, an increase of
19.3%, representing service gross margins of 29.6% and 50.9%, respectively.
The decrease in service gross margins was due primarily to the decline in
service revenues.
Operating Expenses
Product development. Product development expenses consist primarily of
payroll and related expenses, expensed material and facility costs associated
with the development of new technologies and products. Product development
expenses for the three months ended March 31, 1998 increased to $2.0 million
from $1.7 million in the same period of 1997, representing 24.6% and 23.3%,
respectively, of total revenues. The dollar amount and percentage increases
were primarily the result of increased salaries and other costs related to the
hiring of additional engineering personnel to support the development of new
and existing products.
Sales and marketing. Sales and marketing expenses consist primarily of
payroll and related expenses including commissions to sales personnel, travel
and entertainment, advertising and product promotion and facilities costs
associated with the Company's sales and support offices. Sales and marketing
expenses for the three months ended March 31, 1998 remained flat at $3.0
million from the same period of 1997, representing 38.1% and 40.3%,
respectively, of total revenues. The decrease in sales and marketing expense
as a percentage of total revenues was due primarily to the larger revenue base
in 1998.
General and administrative. General and administrative expenses consist
primarily of payroll and related expenses for executive, accounting and
administrative personnel, insurance, professional fees and other general
corporate expenses. General and administrative expenses for the three months
ended March 31, 1998 decreased to $935,000 from $1.1 million in the same
period in 1997, representing 11.7% and 14.7%, respectively, of total revenues.
The dollar amount and percentage decreases were attributable to a decrease in
administrative personnel and outside services.
23
<PAGE>
Interest income, net. Interest income, net reflects interest earned by the
Company on its cash and short-term investment balances. Interest income, net
for the three months ended March 31, 1998 decreased to $67,000 from $71,000 in
the same period of 1997.
Other income (expense), net. Other income (expense), net consists primarily
of purchase discounts and foreign transaction gains and losses. Other income
(expense), net for the three months ended March 31, 1998 decreased to $8,000
from $21,000 in the same period of 1997.
Provision for income taxes. Income taxes consist of income taxes related to
certain of the Company's foreign subsidiaries. Income taxes were $55,000 for
each of the three months ended March 31, 1998 and 1997.
FISCAL YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
Revenues
Total revenues for fiscal 1997, 1996 and 1995 were $28.3 million, $24.0
million and $23.3 million, respectively, representing increases of 18.0% and
2.8%, respectively. EBV accounted for 10.9% and 12.0% of total revenues in
fiscal 1997 and 1995, respectively. In 1996, no single customer accounted for
10% or more of total revenues.
Product. Product revenues for fiscal 1997, 1996 and 1995 were $24.7 million,
$20.7 million and $20.2 million, respectively, representing increases of 19.1%
and 2.6%, respectively. Product revenues as a percentage of total revenues
were 87.1%, 86.3% and 86.5%, for fiscal 1997, 1996 and 1995, respectively. The
increase in 1997 as compared to 1996 was due to the market's growing
acceptance of the Company's products and underlying technology and an
expansion of the Company's product offerings. For both dollar amounts and as a
percentage of total revenues, product revenues were relatively flat between
1996 and 1995 due to the fact that increases in sales of control and
connectivity products were partially offset by decreases in sales of
development tools.
Service. Service revenues for fiscal 1997, 1996 and 1995 were $3.6 million,
$3.3 million and $3.2 million, respectively, representing increases of 10.8%
and 3.9% respectively. Service revenues as a percentage of total revenues were
12.9%, 13.7% and 13.5% for fiscal 1997, 1996 and 1995, respectively. The
increase in 1997 service revenues as compared to 1996 reflects increased
customer support revenues as a result of the increased installed base of the
Company's products.
Cost of Revenues
Cost of product. Cost of product revenues for fiscal 1997, 1996 and 1995
were $11.8 million, $10.8 million and $9.4 million, respectively, representing
product gross margins of 52.3%, 48.0% and 53.3%, respectively. The increases
in dollar amounts were due primarily to the additional product costs
associated with increased volumes. The increase in product gross margin in
1997 as compared to 1996 was due primarily to decreased operations spending as
a percentage of revenue and lower manufacturing variances. The decrease in
product gross margin in 1996 as compared to 1995 was due to flat revenue
growth and increased cost of products related primarily to a change in product
mix towards lower margin volume products.
Cost of service. Cost of service revenues for fiscal 1997, 1996 and 1995
were $1.8 million, $1.1 million and $1.1 million, respectively, representing
service gross margins of 50.2%, 65.2% and 63.9%, respectively. The increase in
dollar amount in fiscal 1997 as compared to 1996 was primarily the result of
an increase in the number of customer support and training personnel. The
decrease in service gross margin in 1997 as compared to 1996 was due primarily
to higher cost of service growth compared to service revenue growth. The
increase in service gross margin in 1996 as compared to 1995 was due to
slightly higher revenue growth in 1996 as the spending levels over the same
period remained unchanged.
24
<PAGE>
Operating Expenses
Product development. Product development expenses for fiscal 1997, 1996 and
1995 were $7.1 million, $7.5 million and $7.4 million, respectively,
representing 25.1%, 31.4% and 31.5% of total revenues, respectively. The
decrease in product development expenses in 1997 as compared to 1996 was due
primarily to the transition of Company personnel from product development to
the direct support of the Company's existing customers. The increase in
product development expenses in 1996 as compared to 1995 was due primarily to
investments made by the Company in technology development.
Sales and marketing. Sales and marketing expenses for fiscal 1997, 1996 and
1995 were $12.1 million, $11.6 million and $10.9 million, respectively,
representing 42.9%, 48.3% and 46.6% of total revenues, respectively. The
dollar amount increases, in each succeeding year, were primarily due to
personnel related expenses. The Company's expenses in international sales
offices in 1997 were lower than 1996 primarily due to an overall strengthening
of the U.S. dollar against most of the functional currencies used in the
international sales office operations. The increase in percentage of total
revenues in 1996 as compared to 1995 reflected an increase in fixed selling
expenses to support anticipated revenue growth in 1996.
General and administrative. General and administrative expenses for fiscal
1997, 1996 and 1995 were $4.0 million, $3.9 million and $4.4 million,
respectively, representing 14.1%, 16.3% and 18.8% of total revenues,
respectively. The decrease in percentage of total revenues in 1997 compared to
1996 was due to relatively similar spending levels spread over a larger
revenue base. The decreases in dollar amounts and percentage of total revenues
in 1996 compared to 1995 were due primarily to reduced spending related to
regulatory measures associated with an FCC rulemaking related to cable
compatibility. See "Risk Factors--Regulatory Actions."
Interest Income, net. Interest income, net for fiscal 1997, 1996 and 1995
was $429,000, $536,000 and $1.1 million, respectively, representing 1.5%, 2.2%
and 4.8% of total revenues, respectively. The decreases in interest income
were due to lower cash and short-term investment balances.
Other income (expense), net. Other income (expense), net for fiscal 1997,
1996 and 1995 was $68,000, ($163,000) and $175,000, respectively. The amount
in other income (expense), net in 1997 was primarily due to income from
purchase discounts taken in 1997. The amount in other income (expense), net in
1996 as compared to 1995 was due primarily to foreign transaction losses
incurred in 1996 and foreign transaction gains incurred in 1995 both primarily
related to the fluctuations of the U.S. dollar against the Japanese Yen.
Provision for income taxes. Income taxes for 1997, 1996 and 1995, which
consists of income taxes related to certain of the Company's foreign
subsidiaries, were $189,000, $152,000 and $143,000, respectively.
25
<PAGE>
QUARTERLY RESULTS OF OPERATIONS
The following table sets forth certain consolidated statement of operations
data for each of the five quarters in the period ended March 31, 1998, as well
as the percentage of total revenues for the periods indicated. This
information has been derived from the Company's unaudited consolidated
financial statements. The unaudited consolidated financial statements have
been prepared on the same basis as the audited consolidated financial
statements contained herein and include all adjustments, consisting only of
normal recurring adjustments, which the Company considers necessary for a fair
presentation of this information when read in conjunction with the Company's
Consolidated Financial Statements and Notes thereto appearing elsewhere in
this Prospectus. The results of operations for any quarter and any quarter-to-
quarter trends are not necessarily indicative of the results to be expected
for any future period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-----------------------------------------------
MARCH JUNE SEPT. DEC. MARCH
1997 1997 1997 1997 1998
------- ------- ------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Revenues:
Product.................. $ 6,548 $ 5,944 $ 5,487 $ 6,686 $ 7,188
Service.................. 926 1,036 862 813 771
------- ------- ------- ------- -------
Total revenues........... 7,474 6,980 6,349 7,499 7,959
Cost of revenues:
Cost of product.......... 3,111 2,840 2,724 3,086 3,249
Cost of service.......... 455 445 408 502 543
------- ------- ------- ------- -------
Total cost of revenues... 3,566 3,285 3,132 3,588 3,792
------- ------- ------- ------- -------
Gross profit............. 3,908 3,695 3,217 3,911 4,167
------- ------- ------- ------- -------
Operating expenses:
Product development...... 1,740 1,724 1,751 1,906 1,958
Sales and marketing...... 3,014 3,140 2,890 3,084 3,031
General and administra-
tive.................... 1,098 981 983 942 935
------- ------- ------- ------- -------
Total operating ex-
penses.................. 5,852 5,845 5,624 5,932 5,924
------- ------- ------- ------- -------
Loss from operations..... (1,944) (2,150) (2,407) (2,021) (1,757)
------- ------- ------- ------- -------
Other income (expense):
Interest income, net...... 71 109 143 106 67
Other income (expense),
net...................... 21 13 18 16 8
------- ------- ------- ------- -------
Total other income (ex-
pense).................. 92 122 161 122 75
------- ------- ------- ------- -------
Loss before provision for
income taxes............ (1,852) (2,028) (2,246) (1,899) (1,682)
Provision for income tax-
es....................... 55 35 34 65 55
------- ------- ------- ------- -------
Net loss................. $(1,907) $(2,063) $(2,280) $(1,964) $(1,737)
======= ======= ======= ======= =======
AS A PERCENTAGE OF TOTAL
REVENUES:
Revenues:
Product.................. 87.6% 85.2% 86.4% 89.2% 90.3%
Service.................. 12.4 14.8 13.6 10.8 9.7
------- ------- ------- ------- -------
Total revenues........... 100.0 100.0 100.0 100.0 100.0
Cost of revenues:
Cost of product.......... 41.6 40.7 42.9 41.1 40.8
Cost of service 6.1 6.4 6.4 6.7 6.8
------- ------- ------- ------- -------
Total cost of revenues... 47.7 47.1 49.3 47.8 47.6
------- ------- ------- ------- -------
Gross profit............. 52.3 52.9 50.7 52.2 52.4
------- ------- ------- ------- -------
Operating expenses:
Product development...... 23.3 24.7 27.6 25.5 24.6
Sales and marketing...... 40.3 45.0 45.6 41.1 38.1
General and administra-
tive.................... 14.7 14.0 15.4 12.6 11.7
------- ------- ------- ------- -------
Total operating ex-
penses.................. 78.3 83.7 88.6 79.2 74.4
------- ------- ------- ------- -------
Loss from operations..... (26.0) (30.8) (37.9) (27.0) (22.0)
------- ------- ------- ------- -------
Other income (expense):
Interest income, net..... 0.9 1.6 2.3 1.4 0.8
Other income (expense),
net..................... 0.3 0.1 0.2 0.3 0.1
------- ------- ------- ------- -------
Total other income (ex-
pense).................. 1.2 1.7 2.5 1.7 0.9
------- ------- ------- ------- -------
Loss before provision for
income taxes............ (24.8) (29.1) (35.4) (25.3) (21.1)
Provision for income tax-
es....................... 0.7 0.5 0.5 0.9 0.7
------- ------- ------- ------- -------
Net loss................. (25.5)% (29.6)% (35.9)% (26.2)% (21.8)%
======= ======= ======= ======= =======
</TABLE>
26
<PAGE>
The Company's revenues, expenses and results of operations have been subject
to quarterly fluctuations due to a variety of factors. These factors make the
estimation and forecast of revenues difficult on a quarterly basis. The
Company plans to continue to increase its product development and sales and
marketing expenses on a quarterly basis in an effort to increase its market
share. These increases will be based in significant part on expectations of
future revenues. As a result of these and other factors, the Company believes
that its revenues and operating results are difficult to predict and are
subject to fluctuations from period to period, and that period-to-period
comparisons of its results of operations are not meaningful and should not be
relied upon as indications of future performance. See "Risk Factors--
Fluctuations in Operating Results."
LIQUIDITY AND CAPITAL RESOURCES
Since its inception, the Company has financed its operations and met its
capital expenditure requirements primarily from the private sale of Preferred
Stock and Common Stock. From inception through March 31, 1998, the Company had
raised $94.4 million from the sale of Preferred Stock and Common Stock.
Net cash used in operating activities was $2.9 million for the three months
ended March 31, 1998 and 1997. For fiscal 1997, 1996 and 1995, net cash used
in operating activities was $9.5 million, $9.0 million and $9.2 million,
respectively. Net cash used in operations is attributable primarily to the
losses from operations in each of the periods.
Net cash used in investing activities was $3.6 million in fiscal 1997 and
$70,000 for the three months ended March 31, 1997. The net cash used in
investing activities reflected the shortfall of cash proceeds from the
maturities of short-term investments offset by the purchases of short-term
investments and capital expenditures. Net cash provided by investing
activities was $2.8 million for the three months ended March 31, 1998, and
$11.2 million and $6.5 million in fiscal 1996 and 1995, respectively. The net
cash provided by investing activities reflected the excess of cash proceeds
from the maturities of short-term investments offset by the purchases of
short-term investments and capital expenditures.
Net cash provided by financing activities was $472,000 and $16,000 for the
three months ended March 31, 1998 and 1997, respectively, and was $10.2
million, $1.9 million and $2.0 million in fiscal 1997, 1996 and 1995,
respectively. Net cash provided by financing activities consisted primarily of
proceeds from private sales of Preferred Stock and Common Stock and the
exercise of employee stock options.
At March 31, 1998, the Company's principal sources of liquidity included
cash and cash equivalents of $5.2 million. In May 1998, the Company entered
into a revolving line of credit agreement with a bank, whereby the Company may
borrow up to 85% of eligible accounts receivable, not to exceed $5.0 million.
If the credit agreement had been in effect as of April 30, 1998, the amount
available to be borrowed thereunder would have been $2.6 million. Advances
under the credit agreement bear interest at the bank's reference rate or, at
the option of the Company, at a fixed rate of interest equal to the London
interbank offered rate plus 150 basis points. As of May 31, 1998, there was
approximately $65,000 outstanding under this line of credit in the form of a
letter of credit. The credit agreement, which expires in May 1999, contains
certain negative covenants restricting the Company's ability to pay dividends
or enter into certain financial transactions. The credit agreement also
contains a minimum tangible net worth requirement, determined on a quarterly
basis.
The Company believes that the proceeds from this offering, together with its
existing sources of liquidity, will satisfy the Company's projected working
capital and other cash requirements for at least the next 24 months. However,
there can be no assurance that the Company will not require additional
financing within this period or that any such financing will be available to
the Company in the amounts or at the times required by the Company, or on
acceptable terms, if at all. The failure of the Company to obtain additional
financing could have a material adverse effect on the Company's business,
operating results and financial condition.
27
<PAGE>
NEW PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income," which establishes standards for reporting
and presentation of comprehensive income. SFAS No. 130, which was adopted by
the Company in the first quarter of 1998, requires companies to report a new
measurement of income. "Comprehensive Income (loss)" is required to include
foreign currency translation gains and losses and other unrealized gains and
losses that have historically been excluded from net income and reflected
instead in equity. The following table reconciles comprehensive net loss under
the provisions of SFAS No. 130 for the years ended December 31, 1995, 1996 and
1997 and for the three months ended March 31, 1997 and 1998 (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
-------------------------- ----------------
1995 1996 1997 1997 1998
------- -------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Net loss..................... $(8,713) $(10,716) $(8,214) $(1,907) $(1,737)
Foreign currency translation
adjustments................. (62) (35) (320) (201) (64)
------- -------- ------- ------- -------
Comprehensive net loss....... $(8,775) $(10,751) $(8,534) $(2,108) $(1,801)
======= ======== ======= ======= =======
</TABLE>
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information," which
establishes standards for disclosure of segment information and which will be
adopted by the Company in the fourth quarter of 1998. The Company anticipates
that SFAS No. 131 will not have a material impact on its financial statements.
In December 1997, the American Institute of Certified Public Accountants
("AICPA") issued Statement of Position ("SOP") 97-2 which superseded SOP 91-1,
"Software Revenue Recognition." SOP 97-2 is effective for transactions entered
into in the Company's fiscal year beginning January 1, 1998. Management has
assessed this new statement and its adoption in the first quarter of fiscal
1998 did not have a material effect on the Company's financial statements or
on the timing of the Company's revenue recognition, or cause changes to its
revenue recognition policies.
In April 1998, the AICPA issued SOP 98-5 "Reporting the Costs of Start-up
Activities." SOP 98-5 is effective for the Company's fiscal year beginning
January 1, 1999. SOP 98-5 provides guidance on the financial reporting of
start-up costs and organization costs and requires such costs to be expensed
as incurred. Management believes the adoption of SOP 98-5 will not have a
material effect on the Company's financial statements.
28
<PAGE>
BUSINESS
OVERVIEW
Echelon develops, markets and supports a family of hardware and software
products and services that enables OEMs and systems integrators to design and
implement open, interoperable, distributed control networks. A control network
enables any group of electrical devices, called nodes, to be linked together
to implement sensing, monitoring, control and communications capabilities for
a variety of applications. Control networks, an alternative to the traditional
approach of centralized control, offer decreased costs of installation and
maintenance and the ability to implement multi-vendor systems, thereby
increasing competition while providing expanded features, flexibility and
functionality. Echelon's control networking technology allows intelligence and
communications capabilities to be embedded into individual control devices
that can be connected together through a variety of communications media, such
as a twisted pair of wires (data cable) and the existing power lines in a
facility. The intelligent, networked control devices are then able to
communicate with each other, peer-to-peer, to perform the desired control
functions. In effect, the network becomes the controller, eliminating the need
for central controllers, significantly reducing wiring costs and enhancing
system functionality and flexibility.
The Company markets its products and services to OEMs and systems
integrators in the building, industrial, transportation, home and other
automation markets. The Company sells primarily through a direct sales force
in North America and other countries where it has operations, and augments its
direct sales efforts with distributors in Europe, Japan and Asia Pacific.
Representative customers include Bombardier, Edwards, Fuji Electric, Hitachi,
Honeywell, Johnson Controls, Kawasaki, Landis & Staefa and Raytheon.
INDUSTRY BACKGROUND
Control systems manage key functions in virtually every type of facility
that affects our daily lives, such as buildings, factories, transportation
systems and homes. These functions can be as simple as turning a light on and
off and as complex as operating a chemical production line. For example, a
common application of a control system is to enable a thermostat to
communicate with other equipment in a building to automatically adjust
temperature and airflow. In addition to interconnecting and monitoring
heating, ventilation and air conditioning ("HVAC"), control systems are used
within buildings to manage such functions as elevators, lighting, security and
access control. In industrial facilities, these systems are used to automate
semiconductor manufacturing equipment, oil pumping stations, textile dyeing
machinery and hundreds of other applications. In transportation systems,
control systems are used to regulate such features as propulsion, braking and
heating systems.
Control systems consist of an array of hardware devices and software used to
collect data from the physical world and convert that data to electrical
signals. These signals, in turn, provide information that can be used to
effect responses based upon pre-programmed rules and logic. Traditionally,
most control systems have incorporated closed, centrally-controlled
architectures. These systems share many of the same drawbacks of centralized
computing architectures that rely upon mainframes and minicomputers to
communicate to "dumb" terminals that lack independent processing capabilities.
Products for control systems are typically designed and manufactured by OEMs
that focus on one or more vertical markets, such as HVAC systems for
buildings, or braking control systems for trains. Control systems are
typically installed and maintained by specialty contractors, or "systems
integrators," and in some instances by the in-house installation and
maintenance divisions of OEMs. Closed, centralized control systems have a
number of inherent disadvantages for OEMs, systems integrators and end-users.
OEMs, as the designers of control systems and, in some instances, developers
of their own protocols, incur significant development and ongoing support
expense to implement and maintain their closed infrastructures. In addition,
supporting such a closed infrastructure takes valuable resources away from
developing competitive applications and limits the OEM's ability to leverage
the product development efforts of third party companies who use open
platforms. Finally, centralized systems also risk complete shutdown if the
central controller fails.
29
<PAGE>
For systems integrators, the installation of closed, centralized control
systems is typically characterized by the time-consuming and costly physical
task of installing large amounts of wire and conduit to connect each component
to one or more central controllers. Once the physical infrastructure is
installed, specially-trained and highly-skilled personnel must program,
install and "debug" detailed control logic software into the controllers in
order to manage the disparate components. To the extent that a facility
incorporates control systems from more than one OEM, systems integrators also
spend considerable time connecting systems that were not designed to
interoperate, such as HVAC and fire/life/safety systems. This complex process
also makes modifications to the system expensive and time consuming. Because
of the excessive costs of installing and modifying closed, centrally-
controlled systems, end-users, who ultimately must pay for these products and
services, often cannot acquire new applications at an affordable cost. The
Company believes that these factors have reduced the market opportunity for
both OEMs and systems integrators to sell new products, functions and
applications to end-users.
OEMs, systems integrators and end-users are increasingly seeking to overcome
the limitations of closed, centralized systems. As with the computer
industry's move away from centralized computing architectures, the Company
believes that across a broad range of control applications, the control
industry is moving away from custom, wiring-intensive and closed
interconnection schemes among various system components, towards open,
interoperable, distributed architectures in which the control intelligence
resides among the sensors and actuators in an intelligent network, rather than
in central controllers.
THE ECHELON SOLUTION
Echelon develops, markets and supports a family of hardware and software
products and services that enables OEMs and systems integrators to design and
implement open, interoperable, distributed control networks. Echelon's
networking technology allows intelligence and communications capabilities to
be embedded into individual control devices that can be connected together
through a variety of communications media such as a twisted pair of wires
(data cable) and the existing power lines in a facility. The intelligent,
networked control devices are then able to communicate with each other, peer-
to-peer, to perform the desired control functions. For example, a temperature
sensor might detect a change in temperature and send a message over the
network that is received and acted upon by other devices that have been
configured to accept the message. In effect, the network becomes the
controller, eliminating the need for central controllers, significantly
reducing wiring costs and enhancing system functionality and flexibility.
The Company offers a comprehensive set of products and services that
provides the infrastructure and support required to build and implement open,
multi-vendor, interoperable, control network solutions for building,
industrial, transportation, home and other automation markets. The Company's
products are based on its LonWorks networking technology, an open standard for
interoperable networked control. In a LonWorks control network, intelligent
control devices, called nodes, communicate using the Company's LonTalk
protocol. Each node in the network contains embedded intelligence that
implements the protocol and performs local sense and control functions. At the
core of this embedded intelligence is the Neuron Chip, an integrated circuit
that was initially designed by Echelon and is currently manufactured and sold
by Motorola and Toshiba. In addition, the Company offers transceivers that
couple the Neuron Chip to the communications medium; control modules that can
significantly reduce OEM development cost; intelligent LonWorks routers that
allow users to build large systems containing different networking media;
network interfaces that connect computers to the network; development tools
that allow OEMs to design LonWorks technology into their products; and
software tools and toolkits that allow users to install, monitor, maintain and
control their systems.
30
<PAGE>
The diagrams below compare a control application implemented in a closed,
centralized control system architecture with the same application implemented
using Echelon's LonWorks distributed control network solution.
[GRAPHIC DEPICTING CLOSED CENTRAL ARCHITECTURE]
TRADITIONAL CLOSED, CENTRALLY-CONTROLLED SYSTEM ARCHITECTURE
[GRAPHIC DEPICTING OPEN CONTROL NETWORK]
ECHELON'S OPEN, DISTRIBUTED CONTROL NETWORK ARCHITECTURE
The Company believes that its family of products and services provides the
following benefits to its customers:
. Installation Cost Savings. LonWorks based open control networks are less
expensive to install than closed, centrally-controlled systems. By
replacing individual hard-wired connections with shared network channels,
wiring and conduit material and labor costs can be substantially reduced.
By eliminating the need to program and debug complex control logic
software, systems can be designed and commissioned more quickly by
personnel with less specialized training. In addition, LonWorks based
networks do not require expensive, performance-limiting gateways (which are
used to enable communication between disparate systems) to connect control
systems from multiple vendors.
. Life-Cycle Cost Savings. LonWorks networks can eliminate many of the
sources of high life-cycle costs found in traditional control systems. By
providing an open, interoperable platform, LonWorks networks allow end-
users to select the most cost-effective products and services for their
applications from a broad range of OEMs. In addition, the inherent
flexibility of the LonWorks network architecture permits modifications to
the control system, including adding new products, features and functions,
to be made at significantly lower cost. LonWorks technology also enables
devices to be logically "rewired" across the network without the need to
run new physical wire or to replace or reprogram devices.
. Improved Quality and Functionality. With LonWorks networks, end-users may
customize their control networks to their specific needs by incorporating
products and applications from an array of applications providers. In open
LonWorks networks, any piece of information from any device can easily be
shared with any other device in the same control system, in a different
control system, or in a computer system, without the need for custom
programming or additional hardware. For example, a measurement system can
analyze information from a manufacturing system and send back improvements
within seconds
31
<PAGE>
if the two systems communicate directly, rather than through a process where
information is gathered and communicated manually over days or even weeks.
. Improved Reliability. In a fully-distributed LonWorks control network, there
is no single point of failure. Typically, the failure of a device on the
network only affects a small subset of devices with which it interacts.
Unlike devices in a centrally-controlled system, devices in a LonWorks
network are "self-aware" and can take appropriate actions, such as returning
to default set-points, to adapt to the error condition. In addition, by
utilizing its built-in processing power, each device can keep track of its
own status and can report problems before they occur.
. Increased Market Demand. The Company believes that by eliminating high-cost
centralized controllers and fostering interoperability between devices,
LonWorks technology enables both OEMs and systems integrators to create low-
cost, customized solutions to satisfy market demands that have not been met
by traditional control systems.
STRATEGY
Echelon's objective is to be the leading supplier of products and services
used in the growing market for open, interoperable control networks. Key
elements of the Company's strategy to accomplish this objective include:
. Extend Technological Leadership. Echelon's LonWorks networking technology is
the foundation for a low-cost, flexible, interoperable and reliable platform
for implementing networked control applications. The Company intends to
leverage its position as the developer of the LonWorks platform, along with
its expertise in networking software, distributed control systems and
digital and analog circuit design, to deliver a full range of highly-
functional and cost-effective products and systems that meet its customers'
needs.
. Target Industry-Leading OEM Customers. The Company seeks to develop broad
industry support for its LonWorks platform. To help accomplish this
objective, the Company works closely with industry-leading OEMs, such as
Bombardier, Edwards and Honeywell, in the product design process and invests
in programs that enable these customers to develop, market and support their
products. The Company believes that close collaborative relationships with
OEM customers will continue to accelerate the transition of its targeted
industries toward open, multi-vendor architectures for control networks.
. Develop Systems Integrator Distribution Channel. The Company believes that
end-users increasingly prefer multi-vendor control networks in order to
decrease life-cycle costs and improve the functionality of their control
systems. In order to capitalize on this opportunity, the Company complements
its OEM distribution channel by aggressively targeting independent systems
integrators as an additional channel to install, configure and maintain
highly-functional control networks for end-users. To more effectively meet
the needs of systems integrators, the Company recently released its LonPoint
System, which provides the infrastructure needed to implement open,
interoperable, distributed control networks. The Company intends to continue
promoting the benefits of the LonWorks technology and products to systems
integrators and end-users as a means to create stronger demand for its
control network solutions.
. Increase Penetration of Existing Vertical Markets. While the Company's
control network products are applicable across a broad range of industries,
the Company intends to continue to focus its marketing efforts on those
vertical markets in which it has established a large customer base, namely
the building, industrial, transportation and home automation industries. The
Company works closely with OEMs and systems integrators in these vertical
markets to identify market needs, and targets its product development
efforts to meet those needs. For instance, in 1997, the Company began
shipping its network operating system, LonWorks Network Services, in
response to the needs of OEMs for a multi-user platform to install,
maintain, monitor and interface with control networks. In addition, the
Company established the LonMark Interoperability Association in May 1994 to
facilitate the development and implementation of interoperable LonWorks
based control systems within various industries. Several industry leaders in
the Company's targeted markets have announced and currently promote products
that conform to these standards.
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. Integrate LonWorks Control Networks with Enterprise Data Networks. The
Company believes that the seamless integration between LonWorks control
networks and enterprise data networks is important to enable end-users to
remotely monitor and manage their control networks, as well as to collect
and analyze data generated by their control networks. To meet this market
demand, the Company is developing systems and technology that combine
standard data networking and communications protocols with the Company's
products and technology. In support of this effort, the Company recently
entered into a strategic agreement with Toshiba and a non-binding
memorandum of understanding with Cisco to develop products that integrate
LonWorks control networks with enterprise data networks.
. Leverage International Market Opportunities. With sales and marketing
operations in 10 countries and 57.5% of the Company's total revenues in
1997 attributable to international sales, the Company has established a
significant international presence. The Company plans to continue to devote
significant resources to international sales, marketing and product
development efforts to capitalize on markets for control networks outside
of the United States. For example, the Company's most popular power line
transceiver was designed to meet the requirements imposed by regulators in
both North America and Europe, enabling OEMs to leverage their product
development programs across these markets.
MARKETS, APPLICATIONS AND CUSTOMERS
The Company markets its products and services primarily in North America,
Europe, Japan and selected Asia Pacific countries. The Company's target
markets include:
Building Automation. Companies worldwide are using LonWorks control networks
in most facets of the building automation industry, including access control,
automatic doors, elevators, energy management, fire/life/safety, HVAC,
lighting, metering, security and window blinds. The Company believes that
LonWorks networks are widely accepted because they lower installed system
cost, reduce ongoing life-cycle costs and increase functionality. For example,
a major automation project is currently being completed for British Airways'
new combined business center, BA Waterside, near Heathrow Airport. The project
uses LonWorks control networks throughout the six building campus to connect
the building management, lighting and access control systems together in a
unified system. Key customers in the building automation market include
Honeywell, Johnson Controls, Landis & Staefa, Philips Lighting B.V., Schindler
Elevator Corp. and Siebe.
Industrial Automation. LonWorks control networks are found in semiconductor
fabrication plants, gas compressor stations, gasoline tank farms, oil pumping
stations, water pumping stations, textile dyeing machinery, pulp and paper
processing equipment, automated conveyor systems and many other industrial
environments. In such industrial installations, LonWorks networks can replace
complex wiring harnesses, reduce installation costs, eliminate expensive
programmable logic controllers and distribute control among sensors, actuators
and other devices, thereby reducing system costs, improving control and
eliminating the problem of a single point of failure, among other things. For
example, Edwards, a leading supplier of vacuum pumping systems to the
semiconductor industry, is using LonWorks control networks within each pumping
station to replace complex wiring used to connect various motors, sensors,
actuators and displays. The same control network is extended to connect up to
400 pumping stations together in a semiconductor fabrication plant to form a
complete pumping system. Echelon's key customers in the industrial automation
market include Brooks Instrument, Edwards, Fuji Electric, Hitachi, Lam
Research Corporation and Marley Pump.
Transportation. Echelon's technology is used in important transportation
applications, including railcars, light rail, buses, motor coaches, fire
trucks, naval vessels and aircraft. LonWorks networks can be used in these
transportation systems to improve efficiency, reduce maintenance costs and
increase safety and comfort. LonWorks technology has been specified as the
standard for electro-pneumatic braking for freight transportation trains by
the American Association of Railroads, and as one of the standards by the New
York City Transit Authority for the replacement of its subway cars. Key OEMs
in the transportation market include Bombardier, Cummins Engine, Kawasaki and
Raytheon.
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Home Automation and Other. While the home automation market is still in its
infancy, numerous companies are now selling LonWorks based products for HVAC,
lighting, security, utility meters and whole house automation. A number of
utility companies located throughout the world, including CSW Communications
(the holding company for Central and Southwest Utilities), Detroit Edison and
Enron Energy Services in the United States, and Sydkraft and Scottish Hydro
Electric in Europe, currently are pursuing residential projects involving
LonWorks networks. Other industries in which LonWorks control networks have
been utilized or are being developed for use include telecommunications
(including alarm systems for switching equipment), agriculture (including
feeding and watering systems) and medical instrumentation (including the use
of CAT scans to create holographic images).
PRODUCTS AND SERVICES
The Company offers a comprehensive set of over 80 products and services
marketed under the LonWorks brand name that provide the infrastructure and
support required to implement and deploy open, interoperable, control network
solutions. All of the Company's products either incorporate or operate with
the Neuron Chip and the LonTalk protocol. While the Company recommends broad
use of various of its products with other Echelon products, there is no
inherent requirement for a customer to do so, given the Company's open
networking technology. For instance, a customer's product could incorporate a
transceiver purchased from the Company but could be installed with software
that did not incorporate the Company's network operating system.
LonWorks Control and Connectivity Products. This suite of hardware products,
some with embedded firmware, serves as the physical interface between the
control software resident on the managed devices and the cabling and wiring
infrastructure. These products include a variety of transceivers, control
modules, routers and network interface devices. Standard, off-the-shelf
LonWorks transceivers and control modules simplify the development of LonWorks
nodes, provide the foundation for interoperability and reduce the development
cost and time for an OEM's product development. LonWorks routers provide
transparent support for multiple media, which makes it possible to signal
between different types of media, such as twisted pair, power line, radio
frequency, optical fiber and infrared. Routers can also be used to control
network traffic and partition sections of the network from traffic in another
area, increasing the total throughput and speed of the network. Network
interfaces can be used to connect computers to a LonWorks network. The
Company's FTT-10 transceiver product, one of the LonWorks Control and
Connectivity products, and the FTT-10A successor product, which permits
communication over a twisted pair of wires, together have generated
approximately 19% and 21% of the Company's revenues during the year ended
December 31, 1997 and the three month period ended March 31, 1998,
respectively. The FTT-10 was released in May 1994 and the FTT-10A was released
in May 1997.
LonWorks Network Services ("LNS"). Echelon's network operating system, LNS,
serves as the platform for installing, maintaining, monitoring and interfacing
with control networks. The LNS family of products adds the power of client-
server architecture and component-based software design into control systems
and allows tools from multiple vendors to work together. The Company's most
recent release of LNS is version 1.5, which was first shipped in December
1997.
The LonMaker for Windows tool, built on the LNS network operating system and
the Visio technical drawing package, gives users a familiar, CAD-like
environment in which to design their network's control system. The graphical
nature of the LonMaker tool provides an intuitive interface for designing,
installing and maintaining multi-vendor, open, interoperable LonWorks control
networks. LNS also allows multiple users, each running their own copy of
LonMaker for Windows or other LNS-based tools, to utilize the system in
parallel, thereby streamlining the design and commissioning process, and
facilitating future adds, moves and changes. LonMaker for Windows, released in
version 1.0, was first shipped in June 1998.
LonPoint System Products. In the second quarter of 1998, the Company began
shipment of the LonPoint System, which provides the infrastructure to
implement open, interoperable, distributed control networks. In contrast to
traditional closed, centrally-controlled systems, the LonPoint System offers a
flat network architecture
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<PAGE>
in which every device performs control processing. Distributing the processing
throughout the network lowers installation and overall life-cycle costs,
increases reliability by eliminating central points of failure, and provides
the flexibility to adapt the system to a wide variety of applications.
The LonPoint System includes a family of hardware and software products.
Hardware products include interface modules (which convert a variety of legacy
digital and analog sensors and actuators into intelligent and interoperable
network devices), routers (which provide transparent connectivity and
intelligent message passing between various combinations of standard LonWorks
media), and scheduler modules (which provide system timekeeping and state
coordination). The LonPoint System is installed using the LonMaker for Windows
tool and includes LNS software plug-ins that provide end-users with a
customized configuration view of each LonPoint module, thereby reducing the
time and training required to configure LonPoint interface modules.
Development Tools. Echelon provides development tools that are used by an
OEM to design LonWorks technology into the OEM's products. The LonBuilder
Developer's Workbench integrates a complete set of tools for developing
LonWorks based control networks. These tools include an environment for
developing and debugging applications at multiple nodes, a network manager to
install and configure these nodes, and a protocol analyzer to examine network
traffic to ensure adequate capacity and to debug errors. The LonBuilder
Developer's Workbench represented approximately 18% of the Company's revenues
during 1995. The Company's most recent release of this product is version
3.01, which was first shipped in July 1996.
The NodeBuilder development tool is designed to make it easy for OEMs to
develop and test individual LonWorks nodes. It uses a familiar Windows based
development environment with easy-to-use on-line help. The NodeBuilder tool
can complement the development capabilities of the LonBuilder Developer's
Workbench, since the NodeBuilder tool can be used to develop individual nodes
that are then integrated and tested as a system using the LonBuilder tool. The
Company's most recent release of the NodeBuilder development tool is version
1.5, which was first shipped in August 1996.
Training and Support. The Company conducts a variety of technical training
courses covering its LonWorks network technology and products. These courses
are designed to provide hands-on, in-depth and practical experience that can
be used immediately by OEMs and systems integrators of LonWorks systems. The
Company also offers technical support to its customers on a per incident and
annual contract basis. These support services are intended to ensure proper
use of the Company's products and to shorten development time for the
customer's products that use Echelon's technology through timely resolution of
the customer's technical problems. As of May 31, 1998, the Company had 14
employees in the United States, Japan and the United Kingdom engaged in
training and support.
SALES AND MARKETING
The Company markets and sells its products and services to OEMs and
increasingly to systems integrators to promote the widespread use of its
LonWorks technology. In addition, the Company believes that awareness of the
benefits of LonWorks networks among end-users will increase demand "pull" for
the Company's products. In North America, the Company sells its products
through a direct sales organization. Outside the United States, direct sales,
applications engineering and customer support are conducted through the
Company's operations in China, France, Germany, Hong Kong, Italy, Japan, the
Netherlands, South Korea and the United Kingdom. Each of these offices is
staffed primarily with local employees. The Company supplements its worldwide
sales personnel with application engineers and technical and industry experts
working in the Company's headquarters. The Company also leverages its selling
efforts through the use of an in-house telephone sales staff. Internationally,
the Company augments its direct sales with the use of distributors. These
distributors tend to specialize in certain geographical markets. The Company
sells its products in Europe principally through EBV, its sole independent
European distributor, and through its direct sales force. The Company relies
solely on distributors in certain countries in the Asia Pacific region,
including Australia and Taiwan, and in Latin America, through its distributor
in Argentina. See "Risk Factors--Dependence on OEMs and Distribution
Channels."
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The Company has recently implemented an authorized network integrator
program to increase the distribution of its products through systems
integrators worldwide. These systems integrators design, install and service
control systems using the Company's LonPoint System with legacy devices and
other manufacturers' products that meet the certification guidelines of the
LonMark Interoperability Association, thereby reducing dependence on single-
vendor products, eliminating the risks of centralized, closed controllers and
supporting less complex, peer-to-peer system architectures. The Company
provides these systems integrators with access to the training, tools and
products required to cost-effectively install, commission and maintain open,
multi-vendor distributed control systems based on LonWorks control networks.
The Company's marketing efforts are augmented by the LonMark
Interoperability Association and the LonUsers International group. The LonMark
Interoperability Association was formed by Echelon in May 1994 and has over
200 members. This Association defines the technical standards for
interoperability for LonWorks technology and promotes the use of open control
networks based on the LonMark standard. The purpose of LonUsers International,
established by Echelon in 1991, is to provide a forum in which parties can
share recent information concerning LonWorks technology and applications,
build alliances and support the LonWorks standard for control networking. In
1997, LonUsers International meetings in North America, Europe and Asia drew
nearly 4,000 participants.
STRATEGIC ALLIANCES
Neuron Chips, which are important components in control network nodes, are
manufactured and sold by both Motorola and Toshiba. The Company has entered
into licensing agreements with each of Motorola and Toshiba. Among other
things, the agreements grant Motorola and Toshiba the worldwide right to
manufacture and distribute Neuron Chips using technology licensed from the
Company and require the Company to provide support and unspecified updates to
the licensed technology over the terms of the agreements. The Motorola and
Toshiba agreements expire in December 1999 and January 2000 respectively,
unless renewed. However, both Motorola and Toshiba have the right to terminate
the agreements at any time. While the Company developed the first version of
the Neuron Chip, Motorola and Toshiba subsequently developed improved, lower-
cost versions of the Neuron Chip that are presently utilized in products
developed and sold by the Company and its customers. The Company currently has
no other source of supply for Neuron Chips and has neither the resources nor
the skills to replace either Motorola or Toshiba as a designer, manufacturer
or distributor of Neuron Chips. Motorola and Toshiba have played, and are
expected to continue to play, a key role in the development and marketing of
LonWorks technology. The loss of either Motorola or Toshiba as a supplier of
the Neuron Chip would have a material adverse effect on the business,
operating results and financial condition of the Company, and in such event
there can be no assurance that the Company would be able to locate an
alternate source for the design, manufacture or distribution of Neuron Chips.
See "Risk Factors--Dependence on Key Manufacturers" and "Certain
Transactions."
The Company has an agreement with Toshiba and a non-binding memorandum of
understanding with Cisco to develop products that integrate LonWorks control
networks into enterprise data networks. Echelon's joint development agreement
with Toshiba is intended to enable products and technologies to be developed
using the Java programming language to program LonWorks control devices. The
Company expects that its relationship with Cisco will result in jointly-
developed products that simplify enterprise-wide integration of LonWorks
control and Internet protocol data networks.
PRODUCT DEVELOPMENT
The Company's future success depends in large part on its ability to enhance
existing products, lower product cost and develop new products that maintain
technological competitiveness. The Company has made and intends to continue to
make substantial investments in product development. The Company recently has
made significant engineering investments in bringing its LNS network operating
system and LonPoint System products to market. Extensive product development
input is obtained from customers and by monitoring end-user needs and changes
in the marketplace. See "Risk Factors--New Products and Rapid Technological
Change."
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The Company's total expenses for product development for the three months
ended March 31, 1998 and for fiscal 1997 and 1996 were $2.0 million, $7.1
million and $7.5 million, respectively. The Company anticipates that it will
continue to commit substantial resources to product development in the future
and that product development expenses may increase in the future. To date, the
Company's development efforts have not resulted in any capitalized software
development costs. As of May 31, 1998, the Company's product development
organization consisted of 44 personnel.
COMPETITION
Competition in the Company's markets is intense and involves rapidly
changing technologies, evolving industry standards, frequent new product
introductions and rapid changes in customer requirements. To maintain and
improve its competitive position, the Company must continue to develop and
introduce, on a timely and cost-effective basis, new products, features and
services that keep pace with the evolving needs of its customers. The
principal competitive factors affecting the markets for the Company's control
network products are customer service and support, product reputation,
quality, performance and price, and product features such as adaptability,
scalability, ability to integrate with other products, functionality and ease
of use. The Company believes it has in the past generally competed favorably
with offerings of its competitors on the basis of these factors. However,
there can be no assurance that the Company will continue to be able to compete
effectively based on these or any other competitive factors in the future.
In each of its markets, the Company competes with a wide array of
manufacturers, vendors, strategic alliances, systems developers and other
businesses. The Company's competitors include some of the largest companies in
the electronics industry, such as Siemens in the building and industrial
automation industries and Allen-Bradley and Schneider in the industrial
automation industry. Many of the Company's competitors, alone or together with
their trade associations and partners, have longer operating histories,
significantly greater financial, technical, marketing, service and other
resources, significantly greater name recognition and broader product
offerings. As a result, such competitors may be able to devote greater
resources to the development, marketing and sale of their products, and may be
able to respond more quickly to changes in customer requirements or product
technology. In addition, those competitors that manufacture and promote
closed, centralized proprietary systems may enjoy a captive customer base
dependent on such competitors for service, maintenance, upgrades and
enhancements. Accordingly, there can be no assurance that the Company will be
able to compete successfully with existing or new competitors, or that
competition will not have a material adverse effect on the business, operating
results or financial condition of the Company.
Many of the Company's current and prospective competitors are dedicated to
promoting closed or proprietary systems, technologies, software and network
protocols or product standards that differ from, or are incompatible with,
those of the Company. In some cases, companies have established associations
or cooperative relationships to enhance the competitiveness and popularity of
their products, or to promote such different or incompatible technologies,
protocols and standards. For example, in the building automation market, the
Company faces widespread reluctance by vendors of traditional closed or
proprietary control systems (who enjoy a captive market for servicing and
replacing equipment) to utilize the Company's interoperable technologies, as
well as strong competition by large trade associations that promote
alternative technologies and standards in their native countries, such as the
BatiBus Club International in France and the European Installation Bus
Association in Germany (each of which has over 100 members and licensees).
Other examples include the CEBus Industry Council, which is the proponent of
an alternative protocol to the Company's LonTalk protocol for use in the home
automation industry, and a group comprised of Asea Brown Boveri, ADtranz AB,
Siemens, GEC Alstrom and other manufacturers that support an alternative rail
transportation protocol to LonWorks networks. The Company works with
standards-setting organizations to establish open markets for LonWorks
products in the Company's targeted markets. There can be no assurance that the
Company's technologies, protocols or standards will be successful in any of
its markets, or that the Company will be able to compete with new or enhanced
products or standards introduced by existing or future competitors. Any
increase in competition or failure by the Company to effectively compete with
new or enhanced products or standards could result in fewer customer
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<PAGE>
orders, price reductions, reduced order size, reduced operating margins and
loss of market share, any of which could have a material adverse effect on the
business, operating results or financial condition of the Company. See "Risk
Factors--Competition."
LonWorks technology is open, meaning that many of the Company's key
technology patents are broadly licensed without royalties or license fees. As
a result, the Company's customers are capable of developing products that
compete with some of the Company's products. Because some of the Company's
customers are OEMs that develop and market their own control systems, these
customers in particular could develop competing products based on the
Company's open technology. This could decrease the market for the Company's
products, increase competition, and have a material adverse effect on the
Company's business, operating results and financial condition. See "Business--
Products and Services."
MANUFACTURING
The Company's manufacturing strategy is to outsource production to third
parties where it is more cost- effective and to limit its internal
manufacturing to such tasks as quality inspection, system integration, testing
and order fulfillment. Echelon maintains manufacturing agreements with
Motorola and Toshiba related to the Neuron Chip, an important component in
many of the Company's products. Additionally, for certain key products, the
Company utilizes outsourced manufacturers including GET, Hi-Tech, muRata and
Quadrus. These outsourced manufacturers procure material and assemble, test
and inspect the final products to the Company's specifications.
The Company's future success will depend, in significant part, on its
ability to successfully manufacture its products cost-effectively and in
sufficient volumes. To date, the Company has not experienced any significant
delays or material unanticipated costs resulting from the use of third party
manufacturing; however, such a strategy involves certain risks, including the
potential absence of adequate capacity and reduced control over delivery
schedules, manufacturing yields, quality and costs. The loss of either
Motorola or Toshiba as a supplier of the Neuron Chip would have a material
adverse effect on the business, operating results and financial condition of
the Company, and in such event there can be no assurance that the Company
would be able to locate an alternate source for the design, manufacture or
distribution of Neuron Chips. Further, several key components are currently
purchased only from sole or limited sources. Any interruption in the supply of
these components, or the inability of the Company to procure these components
from alternate sources at acceptable prices and within a reasonable time,
could have a material adverse effect upon the Company's business, operating
results and financial condition. See "Risk Factors--Dependence on Key
Manufacturers."
GOVERNMENT REGULATION
Many of the Company's products and the industries in which they are used are
subject to U.S. and foreign regulation. Government regulatory action could
greatly reduce the market for the Company's products. For example, the power
line medium (the communications medium used by some of the Company's products)
is subject to special regulations in North America, Europe and Japan. These
regulations limit the ability of companies in general to use power lines as a
communication medium. In addition, some of the Company's competitors have
attempted to use regulatory actions to reduce the market opportunity for the
Company's products or to increase the market opportunity for the competitors'
products. For example, CEMA, a trade association that developed the CEBus
protocol for use in home automation applications, has proposed that the FCC
adopt a standard for television-cable compatibility that encompasses CEBus.
CEMA has also proposed the use of such standard with respect to an FCC rule
making relating to the commercial availability of navigation devices, such as
set-top boxes. The Company has resisted these efforts and will continue to
oppose competitors' efforts to use regulation to impede competition in the
markets for the Company's products. There can be no assurance that existing or
future regulations or regulatory actions would not adversely affect the market
for the Company's products or require significant expenditures of management
or financial resources, any of which could have a material adverse effect on
the Company's business, operating results and a financial condition. See "Risk
Factors--Regulatory Actions."
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PROPRIETARY RIGHTS
The Company is the owner of numerous patents, trademarks and logos. As of
May 31, 1998, the Company had received 65 United States patents, and has 21
patent applications pending. Some of these patents have also been granted in
selected foreign countries. Many of the specific patents that are fundamental
to LonWorks technology have been licensed to the Company's customers with no
license fee or royalties. The principal value of the remaining patents relates
to the Company's specific implementation of its products. See "Risk Factors--
Competition" and "--Limited Protection of Intellectual Property Rights."
The Company holds several registered trademarks in the United States,
including Echelon, LonBuilder, LonMark, LonTalk, LonUsers, LonWorks, Neuron
and NodeBuilder. The Company has also registered some of its trademarks and
logos in foreign countries.
EMPLOYEES
As of May 31, 1998, the Company had 154 employees worldwide, of which 44
were in product development, 23 were in operations, 51 were in sales and
marketing, 14 were in customer support and training and 22 were in general and
administrative. Approximately 115 employees are located at the Company's
headquarters in Palo Alto, California. The Company has employees in 10
countries worldwide, with the largest concentrations outside the United States
in Japan, the Netherlands and the United Kingdom. None of the Company's
employees is represented by a labor union. The Company has not experienced any
work stoppages and considers its relations with its employees to be good.
FACILITIES
The Company leases approximately 55,000 square feet of office, manufacturing
and distribution facilities in Palo Alto, California under two leases that
expire on June 30, 2000. The Company has an option to extend the lease of a
portion of the facilities for a five year period. The aggregate rental expense
under these leases will be approximately $1.4 million during 1998. The Company
also leases office space for its employees in China, France, Germany, Hong
Kong, Italy, Japan, the Netherlands and the United Kingdom. The aggregate
rental expense for such office space will be approximately $348,000 during
1998. The Company believes that additional office space will be available as
required on acceptable terms.
LEGAL PROCEEDINGS
There are no material legal proceedings to which the Company is a party or
to which any of its properties are subject, nor are there any material legal
proceedings known to the Company to be contemplated by any governmental
authority against the Company or any of its properties.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<C> <C> <S>
M. Kenneth Oshman........... 58 Chairman of the Board, President & Chief
Executive Officer, Director
Gibson Anderson............. 56 Vice President, Human Resources
Frederik Bruggink........... 43 Vice President, Europe, Middle East and
Africa
Lawrence Y.H. Chan.......... 47 Vice President, Asia Pacific and Japan
Robert A. Dolin............. 43 Vice President and Chief Technology Officer
James M. Kasson............. 55 Vice President, Chief Information Officer
Kenneth E. Lavezzo.......... 56 Vice President of Operations
Peter A. Mehring............ 36 Vice President, Engineering
Oliver R. Stanfield......... 49 Vice President, Finance & Chief Financial
Officer
Edwin R. Sterbenc........... 53 Vice President, Americas
Beatrice Yormark............ 53 Vice President of Marketing and Sales
Armas Clifford Markkula,
Jr.(1)..................... 56 Vice Chairman of the Board, Director
Bertrand F. Cambou.......... 42 Director
Robert R. Maxfield(2)....... 56 Director
Richard M. Moley(2)......... 59 Director
Arthur Rock(1).............. 71 Director
Larry W. Sonsini............ 57 Director
</TABLE>
- --------
(1) Member of the Audit Committee.
(2) Member of the Compensation Committee.
The Board of Directors is divided into three classes, designated as Class A,
Class B and Class C. The term of the Class A directors expires at the
Company's annual meeting of stockholders in 1999 and each third annual meeting
thereafter. M. Kenneth Oshman and Larry W. Sonsini have been designated as
Class A directors. The term of the Class B directors expires at the Company's
annual meeting of stockholders in 2000 and each third annual meeting
thereafter. Bertrand Cambou, Clifford Markkula, Jr. and Robert R. Maxfield
have been designated as Class B directors. The term of the Class C directors
expires at the Company's annual meeting of stockholders in 2001 and each third
annual meeting thereafter. Richard M. Moley and Arthur Rock have been
designated as Class C directors. Officers are appointed by the Board of
Directors and serve at the discretion of the Board. There are no family
relationships among the officers and directors of the Company.
M. Kenneth Oshman has been President and Chief Executive Officer of the
Company since December 1988. Mr. Oshman, with three associates, founded ROLM
Corporation ("ROLM"), a telecommunications equipment company, in 1969. He was
Chief Executive Officer, President, and a director at ROLM from its founding
until its merger with IBM in 1984. Following the merger, he became a Vice
President of IBM and a member of the Corporate Management Board. He remained
in that position until he left IBM in 1986. Prior to founding ROLM, Mr. Oshman
was a member of the technical staff at Sylvania Electric Products from 1963 to
1969. In addition to his responsibilities at Echelon, Mr. Oshman serves as a
director of Sun Microsystems, Knight-Ridder, Inc. and CMC Industries, Inc. Mr.
Oshman earned B.A. and B.S.E.E. degrees from Rice University and M.S. and
Ph.D. degrees in Electrical Engineering at Stanford University.
Gibson Anderson has been Vice President, Human Resources of the Company
since February 1997 and was the Director of Human Resources of the Company
from 1990 to 1997. Mr. Anderson was employed by ROLM from 1971 to 1986, where
he held positions in engineering, marketing, manufacturing and human
resources. Before joining ROLM, he spent three years at Hewlett-Packard
developing data acquisition systems and three years at IBM performing analog
and digital circuit design and research in computerized speech recognition.
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Mr. Anderson holds B.A. and B.S.E.E. degrees from Rice University and a M.S.
degree in Electrical Engineering from Stanford University.
Frederik Bruggink has been Vice President, Europe, Middle East and Africa,
since April 1996. Mr. Bruggink joined the Company from Banyan Systems, where
he was Vice President, Europe. From 1985 to 1993, Mr. Bruggink held several
positions at Stratus Computer, including General Manager positions for
Holland, Benelux, and Northern Europe. His last position at Stratus was Vice
President, Northern Europe (including Germany). Prior to joining Stratus, he
held sales positions at Burroughs Computers. Mr. Bruggink attended the
University of Leiden.
Lawrence Y.H. Chan joined the Company in April 1997 as Vice President of
Asia Pacific and Japan and is based in Hong Kong. Prior to joining the
Company, Mr. Chan was Vice President of Asia Pacific and Japan for Banyan
Systems. Prior to that, he held management positions at Stratus Computer, both
in the U.S. and Hong Kong. Prior to joining Stratus, he held positions with
ComputerVision, Oriental Data Systems, Ltd., Hong Kong Terminals, John Swire
and Sons, Ltd., Kowloon Container Terminals Ltd. and NCR Hong Kong Ltd. Mr.
Chan received a General Certificate of Education from the University of
London, a degree in Electrical Engineering from Hong Kong Technical College
and a degree in Computer Programming from Hong Kong University.
Robert A. Dolin has been Vice President and Chief Technology Officer of the
Company since May 1995. From 1989 until 1995, Mr. Dolin was the Director of
Systems Engineering of the Company. Before joining the Company, Mr. Dolin was
Manager of Architecture at ROLM where he worked for 12 years. He has a B.S.
degree in Electrical Engineering and Computer Science from the University of
California at Berkeley.
James M. Kasson has been Vice President, Chief Information Officer of the
Company since November 1997. He served as Vice President of Engineering of the
Company from May 1995 to November 1997. From 1988 until May 1995, he was an
IBM Fellow, first as Director of IBM's Advanced Telecommunications Research
Laboratory and later at the Almaden Research Center in San Jose where he
worked in research on a wide variety of electronic imaging systems. Mr. Kasson
joined ROLM in 1973, which was purchased by IBM in 1984. Mr. Kasson received a
B.S. degree in Electrical Engineering from Stanford University and an M.S.
degree in Electrical Engineering from the University of Illinois.
Kenneth E. Lavezzo has been Vice President of Operations of the Company
since September 1990 and has been employed by the Company since 1989. Mr.
Lavezzo joined the Company from ROLM, where he was the Director responsible
for Phonemail and Voice Applications. He also served as General Manager of the
Phones Division. Mr. Lavezzo joined ROLM in 1973 and held a variety of other
positions ranging from product design and program management to production and
manufacturing management. Prior to joining ROLM, he spent seven years at
Hewlett-Packard as a member of the technical staff developing medical products
and high-speed data acquisition products. Mr. Lavezzo received a B.S. degree
in Electrical Engineering from the University of California at Berkeley.
Peter A. Mehring has been Vice President, Engineering of the Company since
March 1998. From January 1996 to March 1998, Mr. Mehring held a variety of
positions at Umax Computer Corporation ("Umax") where he was a Founder,
General Manager, and Vice President of research and development. From March
1995 to December 1995, Mr. Mehring held engineering management positions at
Radius, Inc., Power Computing Corporation, Sun Microsystems, Inc., and Wang
Laboratories, Inc. Mr. Mehring received a B.S. degree in Electrical
Engineering from Tufts University, Massachusetts.
Oliver R. Stanfield has been Vice President of Finance & Chief Financial
Officer of the Company since March 1989. Mr. Stanfield joined the Company from
ROLM, where he served in several positions since 1980, including Director of
Pricing; Vice President, Plans and Controls; Vice President, Business
Planning; Vice President, Financial Planning and Analysis; Treasurer; and
Controller, Mil Spec Division. Prior to joining ROLM, Mr. Stanfield worked for
ITEL Corporation, Computer Automation and Rockwell International.
Mr. Stanfield began his business career with Ford Motor Company in 1969 in
various accounting positions while completing a B.S. in Business
Administration and an M.B.A. degree from the University of Southern
California.
41
<PAGE>
Edwin R. Sterbenc joined the Company in April 1997 as Vice President,
Americas. Prior to joining the Company, Mr. Sterbenc was with Tandem
Computers, Inc. from 1987 to 1997. At Tandem, he held positions in sales,
international sales and marketing. Prior to joining Tandem Computers, Inc.,
Mr. Sterbenc was Vice President of Sales at Syntelligence. He was a Sales
Manager for Cullinet Software from 1984 to 1986, and held positions in sales,
marketing and sales management at IBM from 1973 to 1984. Mr. Sterbenc worked
at Inland Steel prior to joining IBM. Mr. Sterbenc holds a B.S. degree in
Industrial Management and an A.A.S. degree in Computer Science from Purdue
University.
Beatrice Yormark has been Vice President of Marketing and Sales of the
Company since January 1990. Ms. Yormark joined the Company from Connect, Inc.,
an on-line information services company, where she was the company's Chief
Operating Officer. Before joining Connect, Ms. Yormark held a variety of
positions, including Executive Director of Systems Engineering for Telaction
Corporation, Director in the role of Partner at Coopers & Lybrand, Vice
President of Sales at INTERACTIVE Systems Corporation, and various staff
positions at the Rand Corporation. Ms. Yormark received a B.S. degree in
Mathematics from City College of New York and an M.S. degree in Computer
Science from Purdue University.
Armas Clifford Markkula, Jr. is the founder of the Company and has served as
a director since 1988. He has been Vice Chairman of the Company's Board since
1989. Mr. Markkula was Chairman of the Board of Directors of Apple Computer,
Inc. from October 1993 to February 1996 and was a director from 1977 to 1997.
A founder of Apple, he held a variety of positions there, including
President/Chief Executive Officer and Vice President of Marketing. Prior to
founding Apple, Mr. Markkula was with Intel Corporation as Marketing Manager,
Fairchild Camera and Instrument Corporation as Marketing Manager in the
Semiconductor Division, and Hughes Aircraft as a member of the technical staff
in the company's research and development laboratory. Mr. Markkula received
B.S. and M.S. degrees in Electrical Engineering from the University of
Southern California.
Bertrand F. Cambou has been a director of the Company since 1998. He has
been Senior Vice President and General Manager of the Networking and Computing
System Group of Motorola since 1997. Between 1984 and 1997 he held various
management positions within Motorola in Operations and Research and
Development. From 1980 to 1984, he participated in the founding of Matra
Harris Semiconductor. Dr. Cambou received a B.S. degree in Electrical
Engineering from Supelec University, France, a Masters degree in Physics from
Toulouse University and a Doctorate degree in Electronics from Paris
University.
Robert R. Maxfield has been a director of the Company since 1989. He was a
co-founder of ROLM in 1969, and served as Executive Vice President and a
director until ROLM's merger with IBM in 1984. Following the merger, he
continued to serve as Vice President of ROLM until 1988. Since 1988, he has
been a consulting professor in the Electrical Engineering and Engineering-
Economic Systems Departments at Stanford University, and was a venture partner
with Kleiner, Perkins, Caufield & Byers from 1989 to 1992. He serves as a
director of Cedro Group Inc. Dr. Maxfield received B.A. and B.S.E.E. degrees
from Rice University, and M.S. and Ph.D. degrees in Electrical Engineering
from Stanford University.
Richard M. Moley has been a director of the Company since February 1997. Mr.
Moley was Senior Vice President, Wide Area Business Unit, of Cisco Systems,
Inc. from July 1996 to July 1997. He served as President and Chief Executive
Officer of StrataCom, Inc. from June 1986 to July 1996, when StrataCom was
acquired by Cisco. Mr. Moley serves on the Board of Directors of Linear
Technology, Inc. and Cidco, Inc. Mr. Moley received a B.S. degree in
Electrical Engineering from Manchester University, an M.S. degree in
Electrical Engineering from Stanford University and an M.B.A. from the
University of Santa Clara.
Arthur Rock has been a director of the Company since December 1988. Mr. Rock
has been Principal of Arthur Rock & Co., a venture capital firm, since 1969.
He has been a director of Intel since its founding in 1968, and is presently
Chairman of the Executive Committee and Lead Director of the Board of
Directors of Intel. He is also a director of Argonaut Group, Inc. and AirTouch
Communications, Inc., and a trustee of California Institute of Technology. Mr.
Rock received a B.S. degree in Political Science and Finance from Syracuse
University and an M.B.A. from Harvard University.
42
<PAGE>
Larry W. Sonsini has been a director of the Company since August 1993. Mr.
Sonsini serves as Chairman of the Executive Committee of the law firm of
Wilson Sonsini Goodrich & Rosati, where he has practiced since 1966. Mr.
Sonsini serves as a director of Novell, Inc., Lattice Semiconductor
Corporation and PIXAR Inc. Mr. Sonsini received an A.B. degree in Political
Science and Economics and an L.L.B. degree from the University of California
at Berkeley.
BOARD COMMITTEES
The Board of Directors of the Company has an Audit Committee and a
Compensation Committee. The Audit Committee, which is comprised of Messrs.
Markkula and Rock, approves the Company's independent auditors, reviews the
results and scope of annual audits and other accounting related services and
evaluates the Company's internal control functions. The Compensation
Committee, comprised of Messrs. Maxfield and Moley, reviews and makes
recommendations to the Board of Directors regarding the compensation policy
for executive officers, directors and consultants of the Company. The
Compensation Committee also administers the Company's stock plans. The Audit
and Compensation Committees were established in May 1996.
DIRECTOR COMPENSATION
The Company does not pay any compensation to directors for serving in that
capacity. Non-employee directors are automatically eligible to participate in
the 1998 Director Option Plan. See "Management--Stock Option Plans and
Warrants."
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
The Company's Certificate of Incorporation limits the liability of directors
to the maximum extent permitted by Delaware law. Delaware law provides that
directors of a company will not be personally liable for monetary damages for
breach of their fiduciary duties as directors, except for liability (i) for
any breach of their duty of loyalty to the company or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the Delaware General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit.
The Company's Bylaws provide that the Company shall indemnify its officers
and directors and may indemnify its employees and other agents to the fullest
extent permitted by law. The Company believes that indemnification under its
Bylaws covers at least negligence and gross negligence on the part of
indemnified parties. The Company's Bylaws also permit it to secure insurance
on behalf of any officer, director, employee or other agent for any liability
arising out of his or her actions in such capacity, regardless of whether the
Bylaws would permit indemnification.
The Company has entered into agreements to indemnify its directors and
officers, in addition to the indemnification provided for in the Company's
Bylaws. These agreements, among other things, indemnify the Company's
directors and officers for certain expenses (including attorneys' fees),
judgments, fines and settlement amounts incurred by any such person in any
action or proceeding, including any action by or in the right of the Company,
arising out of such person's services as a director or officer of the Company,
any subsidiary of the Company or any other company or enterprise to which the
person provides services at the request of the Company. The Company believes
that these provisions and agreements are necessary to attract and retain
qualified persons as directors and officers.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company, where indemnification
will be required or permitted. The Company is not aware of any threatened
litigation or proceeding which may result in a claim for such indemnification.
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<PAGE>
EXECUTIVE COMPENSATION
The following table sets forth certain summary information regarding
compensation earned in the fiscal year ended December 31, 1997 by the
Company's Chief Executive Officer and each of the Company's four other most
highly paid executive officers (collectively, the "Named Executive Officers").
<TABLE>
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION COMPENSATION
---------------------------- -------------
SECURITIES
NAME AND PRINCIPAL OTHER ANNUAL UNDERLYING ALL OTHER
POSITION SALARY BONUS COMPENSATION OPTIONS(#)(1) COMPENSATION(2)
- ------------------ -------- ------ ------------ ------------- ---------------
<S> <C> <C> <C> <C> <C>
M. Kenneth Oshman
Chairman of the Board,
President and CEO...... $270,000 $ -- $ -- -- $1,636
Oliver R. Stanfield
Vice President of Fi-
nance and CFO.......... 260,000 -- -- 150,000 1,438
Beatrice Yormark
Vice President of Mar-
keting and Sales....... 260,000 -- -- 150,000 1,584
James M. Kasson
Vice President, Chief
Information Officer.... 230,000 -- -- 100,000 1,122
Kenneth E. Lavezzo
Vice President of Oper-
ations................. 220,000 -- -- 75,000 998
</TABLE>
- --------
(1) The options were granted under the Company's 1997 Stock Plan. See "--Stock
Option Plans and Warrants" for a description of the 1997 Stock Plan.
(2) Consists of premiums paid by the Company for life insurance coverage.
OPTION GRANTS DURING THE FISCAL YEAR ENDED DECEMBER 31, 1997
The following table sets forth certain information regarding the stock
options granted during the fiscal year ended December 31, 1997 to each of the
Named Executive Officers. No stock appreciation rights were granted to those
individuals during the fiscal year ended December 31, 1997.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS(1)
-----------------------------------------------
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF
NUMBER OF STOCK PRICE
SECURITIES % OF TOTAL APPRECIATION FOR
UNDERLYING OPTIONS EXERCISE OPTION TERM (4)
OPTIONS GRANTED TO PRICE EXPIRATION --------------------
NAMED EXECUTIVE OFFICER GRANTED EMPLOYEES(2) PER SHARE(3) DATE 5% 10%
- ----------------------- ---------- ------------ ------------ ---------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
M. Kenneth Oshman....... -- -- -- -- -- --
Oliver R. Stanfield..... 150,000 6.9% $1.40 6/10/02 $58,019 $128,207
Beatrice Yormark........ 150,000 6.9 1.40 6/10/02 58,019 128,207
James M. Kasson......... 100,000 4.6 1.40 6/10/02 38,679 85,471
Kenneth E. Lavezzo...... 75,000 3.4 1.40 6/10/02 29,010 64,104
</TABLE>
- --------
(1) All options granted during the fiscal year were granted under the 1997
Stock Plan. Each option is immediately exercisable and vests according to
a vesting schedule, subject to the employee's continued employment with
the Company. See "--Stock Option Plans and Warrants."
(2) Based on a total of 2,185,700 options granted to all employees during the
fiscal year ended December 31, 1997.
(3) The exercise price per share of options granted represented the fair
market value as determined by the Board of Directors on June 10, 1997, the
date the options were granted.
44
<PAGE>
(4) Potential gains are net of the exercise price but before taxes associated
with the exercise. The 5% and 10% assumed annual rates of compounded stock
appreciation based upon the deemed fair market value as mandated by the
rules of the Securities and Exchange Commission and do not represent the
Company's estimate or projection of the future common stock price. Actual
gains, if any, on stock option exercises are dependent on the future
financial performance of the Company, overall market conditions and the
option holders' continued employment through the vesting period. This
table does not take into account any appreciation in the deemed fair
market value of the Common Stock from the date of grant to the date of
this Prospectus, other than the columns reflecting assumed rates of
appreciation of 5% and 10%.
AGGREGATE OPTION EXERCISES IN 1997 AND 1997 FISCAL YEAR-END OPTION VALUES
There were no option exercises by the Named Executive Officers in the fiscal
year ended December 31, 1997. The following table sets forth for each Named
Executive Officer the number of shares covered by exercisable stock options as
of December 31, 1997. Also reported are values for "in-the-money" options that
represent the positive spread between the respective exercise prices of
outstanding options and the fair market value of the Company's Common Stock as
of December 31, 1997, as determined by the Board of Directors of the Company.
No stock appreciation rights to those individuals were outstanding during the
fiscal year ended December 31, 1997.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT FISCAL YEAR- IN-THE-MONEY OPTIONS AT
END FISCAL YEAR-END(1)(2)
------------------------- -------------------------
EXERCISABLE UNEXERCISABLE
NAME EXERCISABLE UNEXERCISABLE ($) ($)
- ---- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
M. Kenneth Oshman........... -- -- $ -- $ --
Oliver R. Stanfield......... 300,000(3) -- -- --
Beatrice Yormark............ 300,000(3) -- -- --
James M. Kasson............. 175,000(4) -- -- --
Kenneth E. Lavezzo.......... 75,000(5) -- -- --
</TABLE>
- --------
(1) Options granted under the 1988 Stock Option Plan and 1997 Stock Plan may
be exercised immediately upon grant and prior to full vesting, subject to
the optionee's entering into a restricted stock purchase agreement with
the Company with respect to any unvested shares.
(2) Calculated by determining the difference between fair market value of the
securities underlying the option at December 31, 1997 ($1.40 per share, as
determined by the Board of Directors) and the exercise price ($1.40 per
share) of the options.
(3) Includes 37,500 vested shares and 262,500 unvested shares as of December
31, 1997.
(4) Includes 18,750 vested shares and 156,250 unvested shares as of December
31, 1997.
(5) Includes no vested shares and 75,000 unvested shares as of December 31,
1997.
STOCK OPTION PLANS AND WARRANTS
1988 Stock Option Plan. A total of 8,900,000 shares of Common Stock were
reserved for issuance under the Company's 1988 Stock Option Plan (the "1988
Plan"), the reservation of which shares was approved by the Company's
stockholders. The 1988 Plan was terminated as to new option grants, effective
as of April 23, 1997. Outstanding options granted and unvested stock issued
under the 1988 Plan remain subject to the terms and conditions of the
agreements evidencing those grants or issuances. The Board currently
administers the 1988 Plan with respect to the outstanding options and stock
issuances and has full authority to interpret and construe the provisions of
those options and issuances. As of March 31, 1998, 4,996,813 shares of Common
Stock had been issued upon the exercise of stock options granted under the
1988 Plan, 2,072,770 shares were outstanding (the "Outstanding 1988 Plan
Options"), no shares had been issued upon the exercise of stock purchase
rights, and as a result of the termination of the 1988 Plan, all shares that
had been available for future grant were returned to the status of authorized
and unissued shares. Of the Outstanding 1988 Plan Options, the per share
45
<PAGE>
exercise prices range from $0.15 to $1.40 and the expiration dates range from
May 19, 1998 to November 12, 2001.
The 1988 Plan provides that options and stock purchase rights may be granted
to employees (including officers and employee directors) and consultants
(including non-employee directors) of the Company and its majority-owned
subsidiaries. Options intended to qualify as incentive stock options ("ISOs")
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended, may only be granted to employees, while options not intended to
qualify as ISOs, also known as nonstatutory stock options ("NSOs"), may be
granted to both employees and consultants.
The exercise price of any ISOs granted under the 1988 Plan were at least
equal to the fair market value of the shares of Common Stock on the date of
grant; provided, however, that the exercise price of ISOs granted to an
employee holding stock representing more than 10% of the voting power of the
Company (a "10% Stockholder") had to be 110% of the fair market value of the
shares of Common Stock on the date of grant. The exercise price of NSOs and
stock purchase rights granted under the 1988 Plan had to be at least equal to
85% of the fair market value of the shares of Common Stock on the date of
grant; provided, however, that the exercise price of NSOs to a 10% Stockholder
had to be 110% of the fair market value of the shares of Common Stock on the
date of grant. The Board has the authority to reprice options outstanding
under the 1988 Plan at a lower exercise price than the original exercise price
in the event the fair market value of the Common Stock declines after the date
the option was granted. The maximum term of each option must not exceed 10
years; however, the term of an ISO granted to a 10% Stockholder must not
exceed five years. Options granted under the 1988 Plan generally have a term
of five years.
Options granted under the 1988 Plan are subject to vesting, which generally
occurs at the rate of one-fourth of the shares each year following the date of
hire or grant. Generally, shares which have not yet vested may be exercised
pursuant to a restricted stock purchase agreement subject to a repurchase
option in favor of the Company which lapses at the same rate as the vesting
schedule set forth in the option agreement. In the event of termination of an
optionee's employment or consulting relationship, ISOs may be exercised, to
the extent vested, within 30 days following such termination, and any
outstanding NSOs may be exercised, to the extent vested, during such period of
time, as determined by the Board not to exceed six months following
termination; provided, however, that in the event of termination due to
disability or death, both ISOs and NSOs may be exercised, to the extent
vested, within 12 months following termination due to disability or death.
Options granted under the 1988 Plan may not be transferred other than by will
or by the laws of descent or distribution. In the event of the dissolution or
liquidation of the Company, unexercised options shall terminate immediately
prior to the consummation of such proposed action. In the event of a merger of
the Company with or into another corporation, the 1988 Plan provides that each
outstanding option shall be assumed or an equivalent option shall be
substituted by the successor corporation; provided, however, that if such
successor corporation refuses to assume or substitute the then outstanding
options, (i) any options granted prior to October 19, 1993 shall become fully
exercisable, and (ii) any options granted on or after October 19, 1993 will
terminate as of the closing of the merger.
1997 Stock Plan. The Company's 1997 Stock Plan, as amended and restated (the
"1997 Plan"), provides for the granting to employees of incentive stock
options within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and for the granting to employees and
consultants of nonstatutory stock options and stock purchase rights ("SPRs").
The 1997 Plan was approved by the Board of Directors in February 1997 and by
the stockholders in April 1997. Unless terminated sooner, the 1997 Plan will
terminate automatically in 2007. A total of 6,200,000 shares of Common Stock
are currently reserved for issuance pursuant to the 1997 Plan, plus annual
increases on the first day of the Company's fiscal year (beginning in 1999)
not to exceed the lesser of (i) 5,000,000 shares or (ii) 5% of the outstanding
shares on such date. As of March 31, 1998, 247,375 shares of Common Stock had
been issued upon the exercise of stock options granted under the 1997 Plan,
and 2,009,925 options were outstanding.
The 1997 Plan may be administered by the Board of Directors or a committee
of the Board (as applicable, the "Administrator"), which committee shall, in
the case of options intended to qualify as "performance-based
46
<PAGE>
compensation" within the meaning of Section 162(m) of the Code, consist of two
or more "outside directors" within the meaning of Section 162(m) of the Code.
The Administrator has the power to determine the terms of the options or SPRs
granted, including the exercise price, the number of shares subject to each
option or SPR, the exercisability thereof, and the form of consideration
payable upon such exercise. In addition, the Administrator has the discretion
to reprice outstanding options or to cancel and regrant options with the
exercise price lower than the original exercise price. The Administrator has
the authority to amend, suspend or terminate the 1997 Plan, provided that no
such action may affect any share of Common Stock previously issued and sold or
any option previously granted under the 1997 Plan.
Options and SPRs granted under the 1997 Plan are not generally transferable
by the optionee, and each option and SPR is exercisable during the lifetime of
the optionee only by such optionee. Options granted under the 1997 Plan must
generally be exercised within three months of the end of optionee's status as
an employee or consultant of the Company, or within 12 months after such
optionee's termination by death or disability, but in no event later than the
expiration of the option's term. In the case of SPRs, unless the Administrator
determines otherwise, the Restricted Stock Purchase Agreement shall grant the
Company a repurchase option exercisable upon the voluntary or involuntary
termination of the purchaser's employment with the Company for any reason
(including death or disability). The purchase price for shares repurchased
pursuant to the Restricted Stock Purchase Agreement shall be the original
price paid by the purchaser and may be paid by cancellation of any
indebtedness of the purchaser to the Company. The repurchase option shall
lapse at a rate determined by the Administrator. The exercise price of all
incentive stock options granted under the 1997 Plan must be at least equal to
the fair market value of the Common Stock on the date of grant. The exercise
price of nonstatutory stock options and SPRs granted under the 1997 Plan is
determined by the Administrator, but will also be at least equal to 100% of
the fair market value per share of Common Stock on the grant or issue date,
except that up to 10% of the aggregate number of shares reserved for issuance
under the 1997 Plan (including shares that have been issued or are issuable in
connection with options exercised or granted under the 1997 Plan) may have
exercise prices that are from 0% to 100% of the fair market value of the
Common Stock on the date of grant. With respect to any participant who owns
stock possessing more than 10% of the voting power of all classes of the
Company's outstanding capital stock, the exercise price of any incentive stock
option granted must equal at least 110% of the fair market value on the grant
date and the term of such incentive stock option must not exceed five years.
The term of all other options granted under the 1997 Plan may not exceed 10
years.
The 1997 Plan provides that in the event of a merger of the Company with or
into another corporation, a sale of substantially all of the Company's assets
or a like transaction involving the Company, each option or right shall be
assumed or an equivalent option or right substituted by the successor
corporation. If the outstanding options or rights are not assumed or
substituted as described in the preceding sentence, the Administrator shall
provide for the Optionee to have the right to exercise the option or SPR as to
all of the optioned stock, including shares as to which it would not otherwise
be exercisable for a period of 15 days from the date of such notice, and the
option or SPR will terminate upon the expiration of such period. In the event
of involuntary termination of employment (or termination of status as a
director of a successor corporation) within 12 months following a change of
control merger pursuant to which options and SPRs are assumed or substituted
by a successor corporation, the optionee shall have the right to exercise the
option or SPR as to all of the optioned stock, including shares as to which it
would not otherwise be exercisable.
1998 Director Option Plan. Non-employee directors are entitled to
participate in the 1998 Director Option Plan (the "Director Plan"). The
Director Plan was adopted by the Board of Directors in May 1998, and is
subject to stockholder approval, but it will in no event become effective
until the date of this offering. The Director Plan has a term of 10 years,
unless terminated sooner by the Board. A total of 300,000 shares of Common
Stock have been reserved for issuance under the Director Plan. The share
reserve under the Director Plan will increase each year on the first day of
the Company's fiscal year, beginning in 1999, by an amount equal to 100,000
shares or a lesser amount determined by the Board.
The Director Plan provides for the automatic grant of an option to purchase
25,000 shares of Common Stock (the "First Option") to each non-employee
director who first becomes a non-employee director after May 29,
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<PAGE>
1998, whether by appointment by the Board or election by the stockholders,
provided such non-employee director has not previously been in the employ of
the Company. Each non-employee director shall also automatically be granted an
option to purchase 10,000 shares (a "Subsequent Option") on both the effective
date of this offering and on the date of the Company's Annual Stockholder
Meeting provided that he or she is re-elected to the Board or otherwise
remains on the Board, if on such date he or she shall have served on the Board
for at least the preceding six months. Each First Option and each Subsequent
Option shall have a term of five years and the shares subject to the option
will become exercisable in four equal annual installments subject to the
optionee's completion of each year of Board service over the four year period
measured from the grant date. The exercise price of any option granted under
the Director Plan will be equal to the fair market value per share of Common
Stock on the grant date. The fair market value per share will be equal to the
closing sales price per share of Common Stock on the Nasdaq National Market on
the last market trading day prior to the grant date. However, for automatic
options granted on the effective date of this offering, the fair market value
will be equal to the initial price per share offered to the public in this
offering. On the effective date of this offering options to purchase an
aggregate of 60,000 shares will be granted under the Director Plan.
Options granted under the Director Plan must be exercised within three
months of the end of the optionee's tenure as a director of the Company, or
within 12 months after such director's termination by death or disability, but
in no event later than the expiration of the option's five year term. Options
outstanding at the end of an optionee's tenure as a director may only be
exercised to the extent exercisable at the time of such cessation of service
as a director. However, if the optionee has served as a director for at least
five years at the time of such cessation of service as a director, then the
option will accelerate and become immediately exercisable for all of the
option shares at the time subject to the option as fully-vested shares and
will remain exercisable for those shares until the end of the five year term.
No option granted under the Director Plan is transferable by the optionee
other than by will or the laws of descent and distribution, and each option is
exercisable, during the lifetime of the optionee, only by such optionee. In
the event of a merger of the Company or the sale of substantially all of the
assets of the Company, each outstanding option will become fully-vested and
exercisable for all of the option shares, unless such outstanding options are
assumed or substituted by the successor corporation. In the event outstanding
options are either assumed or substituted by the successor corporation, each
outstanding option will continue to become exercisable in accordance with its
original exercise schedule. If an outstanding option is assumed or substituted
and the optionee's status as a director or as a director of the successor
corporation terminates other than upon a voluntary resignation by the
optionee, then the option will become immediately exercisable for all of the
option shares at the time of such termination as fully-vested shares.
Warrants. Warrants to purchase an aggregate of 30,000 shares of Common Stock
at a per share exercise price of $12.00 are outstanding and unexercised (the
"Common Stock Warrants"). The Common Stock Warrants are exercisable at any
time until their expiration on the earlier of February 2, 1999 or the
consummation of a merger of the Company with another entity or the sale of
substantially all of the Company's assets, whereby the holders of the
Company's voting securities prior to such transaction do not hold more than
50% of the voting securities of the surviving entity following such
transaction (a "Change in Control").
In addition, warrants to purchase an aggregate of 400,000 shares of Series E
Preferred Stock (or Common Stock, if all Series E Preferred Stock has then
been converted into Common Stock) at a per share exercise price of $5.00 are
outstanding and unexercised (the "Series E Warrants"; and together with the
Common Stock Warrants, the "Warrants"). The Series E Warrants are exercisable
at any time until their expiration on the earlier of May 15, 2002 or a Change
in Control. Each Warrant contains a cashless conversion right that allows the
holder to receive a number of shares of the Company's Common Stock or Series E
Preferred Stock, as applicable, equal to the quotient obtained by dividing (x)
the value of the Warrant on the date of exercise, which value is determined by
subtracting (a) the aggregate exercise price of the Warrant from (b) the
aggregate fair market value of the Warrant shares on the date of exercise, by
(y) the fair market value of one share of the Company's Common Stock or Series
E Preferred Stock, as applicable, on the date of exercise, as determined by
the Company's Board of Directors. The issuance of the Warrants did not require
stockholder approval. Upon the closing of this offering, the Series E
Preferred Stock will be converted into Common Stock and the Series E Warrants
will be exercisable for Common Stock.
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<PAGE>
CERTAIN TRANSACTIONS
In June and July 1995, the Company sold shares of Common Stock to the
following officers of the Company at a per share purchase price of $1.10, the
then fair market value of the Company's Common Stock as determined by the
Company's Board of Directors: James M. Kasson--150,000 shares; Kenneth E.
Lavezzo--75,000 shares; M. Kenneth Oshman--250,000 shares, Oliver R.
Stanfield--175,000 shares; Beatrice Yormark--200,000 shares. These shares are
subject to a repurchase option by the Company, which repurchase option lapses
at the rate of one-fourth of the shares on May 23, 1996 and each one year
anniversary thereafter, subject to the continued employment with the Company
of each such officer.
In December 1995, the Company sold 100,000 shares of Common Stock to James
M. Kasson at a per share purchase price of $1.29, the then fair market value
of the Company's Common Stock as determined by the Company's Board of
Directors. These shares are subject to a repurchase option by the Company,
which repurchase option lapses at the rate of one-fourth of the shares on
November 17, 1996 and each one year anniversary thereafter, subject to Mr.
Kasson's continued employment with the Company.
In November 1996, the Company sold 1,000,000 shares of Common Stock to M.
Kenneth Oshman at a per share purchase price of $1.40, the then fair market
value of the Company's Common Stock as determined by the Company's Board of
Directors. These shares are subject to a repurchase option by the Company,
which repurchase option lapses at the rate of one-fourth of the shares on
September 17, 1997 and each one year anniversary thereafter, subject to Mr.
Oshman's continued employment with the Company.
In May 1997, the Company sold an aggregate of 2,000,000 shares of Series E
Preferred Stock, at a per share purchase price of $5.00, and issued warrants
to purchase an aggregate of 400,000 shares of Series E Preferred Stock at a
per share exercise price of $5.00 each in a private placement financing with
existing stockholders of the Company, including (i) an aggregate of 1,022,428
shares purchased by M. Kenneth Oshman and Barbara S. Oshman, Trustees of the
Oshman Trust dated July 10, 1979 (the "Oshman Trust"), and O-S Ventures, of
which Dr. Oshman is general partner ("O-S Ventures"), and a warrant to
purchase 249,713 shares issued to the Oshman Trust, (ii) an aggregate of
186,011 shares purchased by Armas Clifford Markkula, Jr. and Linda Kathryn
Markkula, Trustees of the Restated Arlin Trust Dated December 12, 1990 (the
"Arlin Trust"), and Markkula Family Limited Partnership (the "Markkula
Partnership"), and a warrant to purchase 40,183 shares issued to the Arlin
Trust, (iii) 121,029 shares purchased by Arthur Rock and a warrant to purchase
29,187 shares issued to Mr. Rock, (iv) 66,230 shares purchased by a trust for
the benefit of Robert R. Maxfield (the "Maxfield Trust") and a warrant to
purchase 15,736 shares issued to the Maxfield Trust, and (v) 37,803 shares
purchased by Richard M. Moley and a warrant to purchase 10,000 shares issued
to Mr. Moley.
In March 1998, Peter Mehring was granted an option to purchase 200,000
shares of Common Stock pursuant to the Company's 1997 Stock Plan at a per
share exercise price of $2.00. The option vests at the rate of one-fourth of
the shares on March 9, 1999 and each one-year anniversary thereafter, subject
to Mr. Mehring's continued employment with the Company. Mr. Mehring's stock
option agreement provides that at any time in 1998, following the date of
grant of the option, Mr. Mehring may exercise the option for 50,000 shares
which vest on March 9, 1999; at any time in 1999 Mr. Mehring may exercise the
option for 50,000 shares which vest on March 9, 2000; at any time in 2000 Mr.
Mehring may exercise the option for 50,000 shares which vest on March 9, 2001;
and at any time in 2001 Mr. Mehring may exercise the option for 50,000 shares
which vest on March 9, 2002. In April 1998, Mr. Mehring exercised 50,000
unvested option shares and executed a promissory note in the principal amount
of $100,000 payable to the Company. The note is a full recourse note and is
secured by the shares, bears interest at the annual rate of 5.7% and is due in
April 2003.
The Company has entered into licensing agreements with Motorola, which is a
principal stockholder of the Company and Motorola has had a representative on
the Company's Board of Directors from time to time since 1991. Pursuant to
this agreement, Motorola has the right to manufacture and distribute Neuron
Chips using technology licensed from the Company and the Company is required
to provide support and unspecified updates to the licensed technology. The
Motorola agreement expires in December 1999 unless renewed. However,
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Motorola has the right to terminate the agreement at any time. Further,
pursuant to the terms of the stock purchase agreement under which Motorola
initially acquired its shares, Motorola has agreed to vote (i) all of its
shares in favor of the slate of director nominees recommended by the Board of
Directors, and (ii) a number of shares equal to at least that percentage of
shares voted by all other stockholders for or against any given matter, as
recommended by the Board of Directors (except certain matters relating to
certain changes to the Company's charter, liquidations, a sale of the Company
or a merger of the Company into another entity), as recommended by a majority
of the Board of Directors. See "Risk Factors--Dependence on Key Manufacturers"
and "-- Control by Existing Stockholders" and "Business--Strategic
Alliances."
From time to time beginning April 1998, Dr. Oshman uses private air travel
services for business trips for himself and for any employees accompanying
him. These private air travel services are provided by certain entities
controlled by Dr. Oshman or Mr. Markkula. The net cash outlay to the Company
with respect to such private air travel services is no greater than comparable
first class commercial air travel services. Such net outlays to date have not
been material.
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<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth the beneficial ownership of the Company's
Common Stock as of June 30, 1998, by all persons known to the Company to be
the beneficial owners of more than 5% of the Company's Common Stock, by each
director, by each of the Named Executive Officers, and by all directors and
executive officers as a group. Except as otherwise indicated in the footnotes
to the table, the persons and entities named in the table have sole voting and
investment power with respect to all shares beneficially owned, subject to
community property laws, where applicable.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES
BENEFICIALLY OWNED(1)
------------------------
NUMBER OF SHARES BEFORE AFTER
NAME OF BENEFICIAL OWNER BENEFICIALLY OWNED(1) OFFERING OFFERING
- ------------------------ --------------------- ---------- ----------
<S> <C> <C> <C>
M. Kenneth Oshman(2)........ 5,180,413 18.7% 15.8%
Echelon Corporation
4015 Miranda Avenue
Palo Alto, CA 94304
Motorola, Inc.
Bertrand F. Cambou(3)....... 3,912,381 14.3 12.1
1303 East Algonquin Road
Schaumburg, IL 60196
Armas Clifford Markkula, 1,577,038 5.8 4.9
Jr.(4).....................
c/o ACM Investments
P.O. Box 620170
Woodside, CA 94062
Beatrice Yormark(5)......... 1,018,000 3.7 3.1
Oliver R. Stanfield(6)...... 975,000 3.5 3.0
Arthur Rock(7).............. 717,716 2.6 2.2
Kenneth E. Lavezzo(8)....... 500,000 1.8 1.4
Robert R. Maxfield(9)....... 436,966 1.6 1.4
James M. Kasson(10)......... 437,500 1.6 1.3
Richard M. Moley(11)........ 85,303 * *
Larry W. Sonsini(12)........ 82,500 * *
All Officers and Directors
as a Group (17 persons)
(13)....................... 16,440,317 55.3% 47.3%
</TABLE>
- --------
* Represents less than 1% of the Company's Common Stock outstanding as of
June 30, 1998.
(1) The number of shares outstanding and percent of ownership is based on:
(i) 27,358,206 shares of Common Stock outstanding as of June 30, 1998;
and (ii) 32,358,206 shares of Common Stock outstanding upon the closing
of this offering. Unless otherwise indicted below, the persons and
entities named in the table have sole voting and sole investment power
with respect to all shares of Common Stock beneficially owned, subject to
community property laws where applicable. The shares of Common Stock
issuable pursuant to options and warrants that are currently exercisable
or exercisable within 60 days of June 30, 1998 are deemed to be
outstanding and to be beneficially owned by the person holding such
options for the purpose of computing the percentage ownership of such
person, but are not deemed to be outstanding and to be beneficially owned
for the purpose of computing the percentage ownership of any other
person.
(2) Includes 4,395,700 shares of Common Stock held by M. Kenneth Oshman and
Barbara S. Oshman, Trustees of the Oshman Trust dated July 10, 1979, and
435,000 shares held by O-S Ventures, of which Mr. Oshman is general
partner, and excludes an aggregate of 36,000 shares held by trusts, not
for the benefit of Mr. Oshman, of which Mr. Oshman serves as trustee.
Includes a warrant to purchase 249,713 shares of Common Stock exercisable
within 60 days of June 30, 1998. Includes an option to purchase 100,000
shares of Common Stock exercisable within 60 days of June 30, 1998, none
of which are vested at June 30, 1998. The Company has the right, but not
the obligation, to repurchase 812,500 shares owned by Mr. Oshman if he
should discontinue his employment with the Company. This repurchase right
expires on various future dates through September 17, 2000.
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<PAGE>
(3) All 3,912,381 shares are held by Motorola, Inc. Dr. Cambou, a director of
the Company, is Senior Vice President and General Manager of the
Networking and Computing Group of Motorola, Inc. and may be deemed to be
a beneficial owner of shares held by such corporation. Dr. Cambou
disclaims beneficial ownership of such shares.
(4) Includes 1,379,927 shares of Common Stock held by Armas Clifford
Markkula, Jr. and Linda Kathryn Markkula, Trustees of the Restated Arlin
Trust Dated December 12, 1990, and 151,928 shares held by Markkula Family
Limited Partnership (the "Markkula Partnership"). Mr. and Mrs. Markkula
disclaim beneficial ownership of all but 27,500 of the shares held by the
Markkula Partnership. Includes a warrant to purchase 40,183 shares of
Common Stock exercisable within 60 days of June 30, 1998. The Company has
the right, but not the obligation, to repurchase 7,500 shares owned by
Mr. Markkula if he should cease to serve on the Company's Board of
Directors. This repurchase right expires on various future dates through
April 23, 2002.
(5) Includes 668,000 shares held by Justin C. Walker and Beatrice Yormark,
Trustees of the Walker-Yormark Family Trust Dated October 2, 1992 (the
"Walker-Yormark Trust"). Includes options to purchase 350,000 shares of
Common Stock exercisable within 60 days of June 30, 1998, of which
112,500 shares are vested at June 30, 1998. The Company has the right,
but not the obligation, to repurchase 50,000 shares owned by the Walker-
Yormark Trust if Ms. Yormark should discontinue her employment with the
Company. This repurchase right expires on various future dates through
May 23, 1999.
(6) Includes an aggregate of 170,600 shares held in individual retirement
accounts for the benefit of Mr. Stanfield and his wife. Includes options
to purchase 350,000 shares of Common Stock exercisable within 60 days of
June 30, 1998, of which 112,500 shares are vested at June 30, 1998. The
Company has the right, but not the obligation, to repurchase 43,750
shares owned by Mr. Stanfield if he should discontinue his employment
with the Company. This repurchase right expires on various future dates
through May 23, 1999.
(7) Includes 20,000 shares held by a trust for the benefit of Mr. Rock's
wife, of which Mr. Rock serves as trustee, and as to which Mr. Rock
disclaims beneficial ownership. Includes 2,000 shares held by a trust,
not for the benefit of Mr. Rock, of which Mr. Rock has sole voting and
dispositive power, and as to which Mr. Rock disclaims beneficial
ownership. Includes a warrant to purchase 29,187 shares of Common Stock
exercisable within 60 days of June 30, 1998. The Company has the right,
but not the obligation, to repurchase 7,500 shares owned by Mr. Rock if
he should cease to serve on the Company's Board of Directors. This
repurchase right expires on various future dates through April 23, 2002.
(8) Includes options to purchase 43,750 shares of Common Stock exercisable
within 60 days of June 30, 1998, none of which shares are vested at June
30, 1998. The Company has the right, but not the obligation, to
repurchase 93,750 shares owned by Mr. Lavezzo if he should discontinue
his employment with the Company. This repurchase right expires on various
future dates through June 10, 2001.
(9) Includes a warrant to purchase 15,736 shares of Common Stock exercisable
within 60 days of June 30, 1998. The Company has the right, but not the
obligation, to repurchase 7,500 shares owned by Mr. Maxfield if he should
cease to serve on the Company's Board of Directors. This repurchase right
expires on various future dates through April 23, 2002.
(10) Includes options to purchase 187,500 shares of Common Stock exercisable
within 60 days of March 31, 1998, of which 62,500 shares are vested at
June 30, 1998. The Company has the right, but not the obligation, to
repurchase 87,500 shares owned by Mr. Kasson if he should discontinue his
employment with the Company. This repurchase right expires on various
future dates through November 17, 1999.
(11) Includes a warrant to purchase 10,000 shares of Common Stock exercisable
within 60 days of June 30, 1998. Includes an option to purchase 25,000
shares of Common Stock exercisable within 60 days of June 30, 1998, 6,250
of which shares are vested at June 30, 1998.
(12) Includes 60,000 shares held by investment accounts of Wilson Sonsini
Goodrich & Rosati, Professional Corporation ("WSGR"). Mr. Sonsini is
Chairman of the Executive Committee of WSGR and disclaims beneficial
ownership of such shares except as to those shares in which he has a
pecuniary interest. Includes options to purchase 20,000 shares of Common
Stock exercisable within 60 days of June 30, 1998, of which 12,500 shares
are vested at June 30, 1998.
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<PAGE>
(13) Includes warrants to purchase an aggregate of 344,819 shares of Common
Stock exercisable within 60 days of June 30, 1998. Includes options to
purchase an aggregate of 2,046,250 shares of Common Stock exercisable
within 60 days of June 30, 1998, of which 588,750 shares are vested at
June 30, 1998. The Company has the right, but not the obligation, to
repurchase an aggregate of 1,270,000 shares owned by the Company's
officers and directors if such officers and directors should discontinue
their employment with the Company or cease to serve on the Company's Board
of Directors. This repurchase right expires on various future dates
through April 23, 2002.
53
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Upon the closing of this Offering, the authorized capital stock of the
Company will consist of 100,000,000 shares of Common Stock and 5,000,000
shares of Preferred Stock. The following summary of certain provisions of the
Common Stock and Preferred Stock does not purport to be complete and is
subject to, and qualified in its entirety by, the provisions of the Company's
Amended and Restated Certificate of Incorporation which is included as an
exhibit to the Registration Statement of which this Prospectus is a part and
by the provisions of applicable law.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders. Subject to the
preferences that may be applicable to any outstanding Preferred Stock, the
holders of Common Stock are entitled to receive ratably the dividends, if any,
that may be declared from time to time by the Board of Directors out of funds
legally available for such dividends. The Company has never declared a
dividend and does not anticipate doing so in the foreseeable future. In the
event of a liquidation, dissolution or winding up of the Company, subject to
the prior rights of any outstanding shares of Preferred Stock, the holders of
Common Stock are entitled to share ratably in any remaining assets after
payment of liabilities. The Common Stock has no preemptive rights or
redemption or sinking fund provisions applicable to shares of Common Stock.
All of the outstanding shares of Common Stock are fully paid and
nonassessable.
PREFERRED STOCK
Pursuant to the Company's Amended and Restated Certificate of Incorporation
effective after conversion of previously outstanding shares of Preferred Stock
into an aggregate of 7,887,381 shares of Common Stock, which conversion will
be effected simultaneously with the consummation of this offering, the Board
of Directors has the authority, without further action by the stockholders, to
issue up to 5,000,000 shares of Preferred Stock in one or more series and to
fix the designations, powers, preferences, privileges, and relative
participating, optional or special rights and the qualifications, limitations
or restrictions thereof, including dividend rights, conversion rights, voting
rights, terms of redemption and liquidation preferences, any or all of which
may be greater than the rights of the Common Stock. The Board of Directors,
without stockholder approval, can issue Preferred Stock with voting,
conversion or other rights that could adversely affect the voting power and
other rights of the holders of Common Stock. Preferred Stock could thus be
issued quickly with terms calculated to delay or prevent a change in control
of the Company or make removal of management more difficult. Additionally, the
issuance of Preferred Stock may have the effect of decreasing the market price
of the Common Stock, and may adversely affect the voting and other rights of
the holders of Common Stock. At present, there are no shares of Preferred
Stock outstanding and the Company has no plans to issue any of the Preferred
Stock. See "Risk Factors--Anti-Takeover Provisions."
COMMON STOCK WARRANTS
As of the date of this Prospectus, the Company has warrants outstanding
exercisable to purchase an aggregate of 430,000 shares of Common Stock.
In February 1994, the Company issued warrants to purchase an aggregate of
30,000 shares of Common Stock at a per share exercise price of $12.00. These
warrants are exercisable at any time until their expiration on the earlier of
February 2, 1999 or the consummation of a merger of the Company with another
entity or the sale of substantially all of the Company's assets, whereby the
holders of the Company's voting securities prior to such transaction do not
hold more than 50% of the voting securities of the surviving entity following
such transaction (a "Change in Control").
In addition, in May 1997, the Company issued warrants to purchase an
aggregate of 400,000 shares of Common Stock at a per share exercise price of
$5.00. These warrants are exercisable at any time until their expiration on
the earlier of May 15, 2002 or a Change in Control. Each warrant contains a
cashless conversion right that allows the holder to receive a number of shares
of the Company's Common Stock equal to the quotient
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<PAGE>
obtained by dividing (x) the value of the warrant on the date of exercise,
which value is determined by subtracting (a) the aggregate exercise price of
the warrant from (b) the aggregate fair market value of the warrant shares on
the date of exercise, by (y) the fair market value of one share of the
Company's Common Stock.
Registration Rights. After this offering, the holders of approximately
18,665,548 shares of Common Stock will be entitled to certain rights with
respect to the registration of such shares under the Securities Act (the
"Registrable Securities"). Under the terms of the Company's Amended and
Restated Modification Agreement (the "Modification Agreement"), subject to
certain conditions, if the Company proposes to register any of its securities
under the Securities Act, either for its own account or for the account of
other security holders, other than in connection with a registration relating
to shares of capital stock of the Company under employee benefit plans (such
as shares of Common Stock issuable upon exercise of Options granted under the
1997 Plan), the Company is required to include the Registrable Securities in
such registration. In addition, beginning one year after the date of this
Prospectus and subject to certain conditions, the holders of not less than 50%
of the Registrable Securities may also require the Company, on not more than
two occasions, to file a registration statement under the Securities Act with
respect to at least 1,500,000 of Registrable Securities. Further, if the
Company is a registrant entitled to use Form S-3, the holders of Registrable
Securities may require the Company to file a registration statement on Form S-
3 under the Securities Act with respect to such Registrable Securities,
subject to certain conditions and limitations. See "Risk Factors--Shares
Eligible for Future Sale" and "Shares Eligible for Future Sale."
DELAWARE LAW AND CERTAIN CHARTER AND BYLAW PROVISIONS
The Company is subject to Section 203 of the Delaware General Corporation
Law ("Section 203"), which, subject to certain exceptions, prohibits a
Delaware corporation from engaging in any business combination with any
"interested stockholder" for a period of three (3) years following the date
that such stockholder became an interested stockholder, unless: (i) prior to
such date, the board of directors of the corporation approved either the
business combination or the transaction that resulted in the stockholder
becoming an interested stockholder; (ii) upon consummation of the transaction
that resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding, for
purposes of determining the number of shares outstanding, those shares owned
(x) by persons who are directors and also officers and (y) by employee stock
plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer; or (iii) on or subsequent to such date, the business
combination is approved by the board of directors and authorized at an annual
or special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock that is
not owned by the interested stockholder.
Section 203 defines business combination to include: (i) any merger or
consolidation involving the corporation and the interested stockholder; (ii)
any sale, transfer, pledge or other disposition of 10% or more of the assets
of the corporation involving the interested stockholder; (iii) subject to
certain exceptions, any transaction that results in the issuance or transfer
by the corporation of any stock of the corporation to the interested
stockholder; (iv) any transaction involving the corporation that has the
effect of increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested stockholder; or
(v) the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation. In general, Section 203 defines an interested
stockholder as any entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by such entity or person.
The Company's Amended and Restated Certificate of Incorporation requires
that any action required or permitted to be taken by the stockholders of the
Company must be effected at a duly called annual or special meeting of the
stockholders and may not be effected by a consent in writing. In addition, as
provided by the Company's Bylaws, special meetings of the stockholders of the
Company may be called only by the Board of Directors. The Amended and Restated
Certificate of Incorporation also provides that, beginning upon the closing of
this offering, the Board of Directors will be divided into three classes, with
each class serving staggered three-
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<PAGE>
year terms, and that certain amendments of the Company's Amended and Restated
Certificate of Incorporation and certain amendments by the stockholders of the
Company's Bylaws, require the approval of holders of at least 66 2/3% of the
voting power of all outstanding stock. These provisions may have the effect of
deferring hostile takeovers or delaying changes in control or management of
the Company. See "Risk Factors--Antitakover Provisions."
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Company's Common Stock is
ChaseMellon Shareholder Services, L.L.C.
LISTING
The Company's Common Stock has been approved for listing on the Nasdaq
National Market under the symbol ELON.
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<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, based on the outstanding shares of Common
Stock at March 31, 1998, the Company will have outstanding 32,125,612 shares
of Common Stock (32,875,612 if the Underwriters' over-allotment option is
exercised in full). Of these shares, the 5,000,000 shares sold in this
offering (5,750,000 if the Underwriters' over-allotment option is exercised in
full) will be freely tradeable without restriction or further registration
under the Securities Act unless such shares are owned by "affiliates" of the
Company as that term is defined under Rule 144 under the Securities Act.
247,375 shares are held by existing stockholders pursuant to a Regulation A
Offering Statement and will become eligible for sale 180 days after the date
of this Prospectus upon the expiration of contractual lock-up agreements which
provide that the holders of these shares shall not sell or otherwise transfer
such shares for a period of 180 days after the date of this Prospectus. The
remaining 26,878,237 shares of Common Stock held by existing stockholders are
deemed to be "restricted" securities within the meaning of the Securities Act
and may be publicly sold only if registered under the Securities Act or sold
in accordance with an applicable exemption from registration, such as those
provided by Rule 144 promulgated under the Securities Act, as described below.
In addition to the 5,000,000 shares sold in this offering, 483,674 shares of
Common Stock held by existing stockholders will be immediately eligible for
sale in the public market without restriction pursuant to Rule 144(k). The
remaining 26,641,938 shares of Common Stock (including 247,375 shares covered
by the Regulation A Offering Statement) will be eligible for sale beginning
180 days after the date of this Prospectus upon the expiration of contractual
lock-up agreements which provide that the holders of these shares shall not
sell or otherwise transfer such shares for a period of 180 days after the date
of this Prospectus. See "Risk Factors--Shares Eligible for Future Sale."
In general, under Rule 144 as currently in effect, if one year has elapsed
since the later of the date of acquisition of restricted securities from the
Company or from an "affiliate" of the Company, as that term is defined under
the Securities Act, the acquiror or subsequent holder would be entitled to
sell within any three-month period commencing 90 days after the date of this
Prospectus a number of those shares that does not exceed the greater of one
percent of the number of shares of such class of stock then outstanding or the
average weekly trading volume of the shares of such class of stock during the
four calendar weeks preceding the filing of a Form 144 with respect to such
sale. Sales under Rule 144 are also subject to certain manner of sale
provisions and notice requirements and to the availability of current public
information about the Company. In addition, if two years have elapsed since
the later of the date of acquisition of restricted securities from the Company
or from any affiliate of the Company, and the acquirer or subsequent holder
thereof is deemed not to have been an affiliate of the Company of such
restricted securities at any time during the 90 days preceding a sale, such
person would be entitled to sell such restricted securities under Rule 144(k)
without regard to the requirements described above.
Following this offering, the Company intends to file a registration
statement under the Securities Act covering shares of Common Stock reserved
for issuance under the Company's stock plans (other than shares issued upon
the exercise of options prior to the effective date of such registration
statement). Based on the number of shares of Common Stock subject to
outstanding options as of March 31, 1998 and the number of shares of Common
Stock reserved for issuance, such registration statement would cover
approximately 8,025,395 shares (including 4,082,695 shares subject to
outstanding options at March 31, 1998). Such registration statement will
automatically become effective upon filing. Shares of Common Stock issued
under the Company's Stock Plans after the effective date of such registration
will be freely tradeable in the public market, subject to the 180 day lock-up
referred to above and subject in the case of sales by affiliates to the volume
limitation, manner of sale, notice and public information requirements of Rule
144.
No prediction can be made of the effect, if any, that sales of shares under
Rule 144 or the availability of shares for sale will have on the market price
of the Common Stock prevailing from time to time after this offering. The
Company is unable to estimate the number of shares that may be sold in the
public market under Rule 144, because such amount will depend on the trading
volume in, and market price for, the Common Stock
57
<PAGE>
and other factors. Nevertheless, sales of substantial amounts of shares in the
public market, or the perception that such sales could occur, could adversely
affect the market price of the Common Stock. See "Underwriting."
After this offering, the holders of approximately 18,665,548 shares of
Common Stock will be entitled to certain rights with respect to registration
of such shares under the Securities Act. Registration of such shares under the
Securities Act would result in such shares becoming freely tradeable without
restriction under the Securities Act (except for shares purchased by
affiliates of the Company pursuant to any such registration) immediately upon
the effectiveness of such registration. Such registration rights terminate for
each holder to the extent such holder's shares may be sold within a given
three month period under Rule 144 or other applicable exemption. See
"Description of Capital Stock--Registration Rights."
58
<PAGE>
UNDERWRITING
The Underwriters named below, represented by NationsBanc Montgomery
Securities LLC, BancAmerica Robertson Stephens and Volpe Brown Whelan &
Company, LLC (the "Representatives"), have severally agreed, subject to the
terms and conditions set forth in the Underwriting Agreement, to purchase from
the Company the number of shares of Common Stock indicated below opposite
their respective names at the initial public offering price less the
underwriting discount set forth on the cover page of this Prospectus. The
Underwriting Agreement provides that the obligations of the Underwriters to
pay for and accept delivery of the shares of Common Stock are subject to
certain conditions precedent, and that the Underwriters are committed to
purchase all of such shares, if any are purchased.
<TABLE>
<CAPTION>
NUMBER
UNDERWRITERS OF SHARES
------------ ---------
<S> <C>
NationsBanc Montgomery Securities LLC..............................
BancAmerica Robertson Stephens.....................................
Volpe Brown Whelan & Company, LLC..................................
---------
Total............................................................ 5,000,000
=========
</TABLE>
The Representatives have advised the Company that the Underwriters initially
propose to offer the shares of Common Stock to the public on the terms set
forth on the cover page of this Prospectus. The Underwriters may allow to
selected dealers a concession of not more than $ per share, and the
Underwriters may allow, and such dealers may reallow, a concession of not more
than $ per share to certain other dealers. After this offering, the
offering price and concessions and reallowances to dealers may be changed by
the Representatives. The Common Stock is offered subject to receipt and
acceptance by the Underwriters and to certain other conditions, including the
right to reject orders in whole or in part.
The Company has granted an option to the Underwriters, exercisable during
the 30-day period after the date of this Prospectus, to purchase up to a
maximum of 750,000 additional shares of Common Stock to cover over-allotments,
if any, at the same price per share as the initial 5,000,000 shares to be
purchased by the Underwriters. To the extent that the Underwriters exercise
this option, each of the Underwriters will be committed, subject to certain
conditions, to purchase such additional shares in approximately the same
proportion as set forth in the above table. The Underwriters may purchase such
shares only to cover over-allotments made in connection with this offering.
The directors, officers and certain stockholders of the Company holding in
the aggregate 20,558,361 shares of Common Stock after this offering have
agreed that, for a period of 180 days after the date of this Prospectus, they
will not, without the prior written consent of NationsBanc Montgomery
Securities LLC, directly or indirectly sell, offer to sell or otherwise
dispose of any such shares of Common Stock or any right to acquire such
shares. In addition, the Company has agreed that, for a period of 180 days
after the date of this Prospectus, it will not, without the prior written
consent of NationsBanc Montgomery Securities LLC, issue, offer, sell, grant
options to purchase or otherwise dispose of any of the Company's equity
securities or any other securities convertible into or exercisable or
exchangeable for the Common Stock or other equity security, other than the
grant of options to purchase Common Stock or the issuance of shares of Common
Stock under the Company's stock option and stock purchase plans and the
issuance of shares of Common Stock pursuant to the exercise of outstanding
options and warrants.
Under the terms of the Company's Stock Option Plans, the Modification
Agreement and representations made by various stockholders, the holders of
approximately 6,118,963 additional shares of the Company's
59
<PAGE>
Common Stock have agreed not to sell or transfer their shares prior to the
expiration of 180 days after the date of this Prospectus. The Company has
agreed not to waive any such restriction without the prior written consent of
NationsBanc Montgomery Securities LLC.
The Underwriting Agreement provides that the Company will indemnify the
several Underwriters against certain liabilities, including civil liabilities
under the Securities Act, or will contribute to payments the Underwriters may
be required to make in respect thereof.
Prior to this offering, there has been no public market for the Common
Stock. Consequently, the initial public offering price was determined by
negotiations between the Company and the Representatives. Among the factors
considered in such negotiations were the history of, and the prospects for,
the Company and the industry in which it competes, an assessment of the
Company's management, the Company's past and present operations, its past and
present financial performance, the prospects for future earnings of the
Company, the present state of the Company's development, the general condition
of the securities markets at the time of this offering and the market prices
of and demand for publicly traded common stock of comparable companies in
recent periods and other factors deemed relevant.
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the Common Stock
offered hereby. Such transactions may include stabilizing, the purchase of
Common Stock to cover syndicate short positions and the imposition of penalty
bids. A stabilizing bid means the placing of any bid or the effecting of any
purchase for the purpose of pegging, fixing or maintaining the price of the
Common Stock. A syndicate covering transaction means the placing of any bid on
behalf of the underwriting syndicate or the effecting of any purchase to
reduce a short position created in connection with this offering. A penalty
bid means an arrangement that permits the Underwriters to reclaim a selling
concession from a syndicate member in connection with this offering when
shares of Common Stock sold by the syndicate member are purchased in syndicate
covering transactions. Such transactions may stabilize or maintain the market
price of the Common Stock at a level above that which otherwise might prevail
in the open market and, if commenced, may be discontinued at any time.
The Underwriters have reserved for sale, at the initial public offering
price, up to 250,000 shares of the Common Stock offered hereby for certain
individuals designated by the Company who have expressed an interest in
purchasing such shares of Common Stock in the offering. The number of shares
available for sale to the general public will be reduced to the extent such
persons purchase such reserved shares. Any reserved shares not so purchased
will be offered by the Underwriters to the general public on the same basis as
other shares offered hereby.
The Representatives have informed the Company that the Underwriters do not
expect to make sales to accounts over which they exercise discretionary
authority in excess of 5% of the number of shares of Common Stock offered
hereby.
Mr. Arthur Rock, one of the Company's directors, has an ownership interest
in Volpe Brown Whelan & Company, LLC.
60
<PAGE>
LEGAL MATTERS
Certain legal matters with respect to the legality of the issuance of the
shares of Common Stock offered hereby will be passed upon for the Company by
Wilson Sonsini Goodrich & Rosati, Professional Corporation ("WSGR"), Palo
Alto, California. Certain legal matters in connection with this offering will
be passed upon for the Underwriters by Brobeck, Phleger & Harrison LLP.
Messrs. Larry W. Sonsini and John V. Roos, who are members of WSGR, own 22,500
and 5,000 shares, respectively, of Common Stock. In addition, 60,000 shares of
Common Stock are held by investment accounts of WSGR, in which Messrs. Sonsini
and Roos are participants.
EXPERTS
The Consolidated Financial Statements included in this Prospectus have been
audited by Arthur Andersen LLP, independent public accountants, to the extent
and for the periods indicated in their report and are included herein in
reliance upon the authority of said firm as experts in giving said report.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement (of which this Prospectus is a part and
which term shall encompass any amendments thereto) on Form S-1 pursuant to the
Securities Act with respect to the Common Stock offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement and the exhibits and schedules thereto, certain portions of which
are omitted as permitted by the rules and regulations of the Commission.
Statements made in this Prospectus as to the contents of any contract,
agreement or other document referred to are not necessarily complete. With
respect to any such contract, agreement or other document filed as an exhibit
to the Registration Statement, reference is made to the exhibit for a more
complete description of the matters involved, and each such statement shall be
deemed qualified in its entirety by such reference.
Upon completion of the Offering, the Company will be subject to the
information requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and, in accordance therewith, will file reports and
other information with the Commission. The Registration Statement, the
exhibits and schedules forming a part thereof and the report and other
information filed by the Company with the Commission in accordance with the
Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New York, New
York 10048; and Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material can also be
obtained at prescribed rates from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Such material may
also be accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov.
The Company intends to furnish to its stockholders annual reports containing
audited consolidated financial statements examined by an independent
accounting firm and quarterly reports for the first three quarters of each
fiscal year containing interim unaudited consolidated financial information.
61
<PAGE>
ECHELON CORPORATION
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Report of Independent Public Accountants.................................... F-2
Consolidated Balance Sheets................................................. F-3
Consolidated Statements of Operations....................................... F-4
Consolidated Statements of Stockholders' Equity............................. F-5
Consolidated Statements of Cash Flows....................................... F-6
Notes to Consolidated Financial Statements.................................. F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Echelon Corporation:
We have audited the accompanying consolidated balance sheets of Echelon
Corporation (a Delaware corporation) and subsidiaries as of December 31, 1996
and 1997, and the related consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended December
31, 1997. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Echelon Corporation and
subsidiaries as of December 31, 1996 and 1997, and the results of their
operations and their cash flows for each of the three years in the period
ended December 31, 1997 in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
San Jose, California
February 17, 1998
F-2
<PAGE>
ECHELON CORPORATION
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
MARCH 31,
1998
DECEMBER 31, PRO FORMA
------------------ MARCH 31, STOCKHOLDERS'
1996 1997 1998 EQUITY
-------- -------- --------- -------------
(UNAUDITED)
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents......... $ 8,051 $ 4,872 $ 5,165
Short-term investments............ -- 2,981 --
Accounts receivable, net of
allowances of $819, $562 and
$857, respectively............... 3,231 3,810 4,486
Inventories....................... 1,592 2,444 3,176
Other current assets.............. 1,346 1,196 1,382
-------- -------- --------
Total current assets............ 14,220 15,303 14,209
-------- -------- --------
PROPERTY AND EQUIPMENT:
Computer and other equipment...... 6,486 6,816 6,832
Furniture and fixtures............ 1,297 1,323 1,337
Leasehold improvements............ 543 548 526
-------- -------- --------
8,326 8,687 8,695
Less: Accumulated depreciation and
amortization..................... (6,691) (7,174) (7,209)
-------- -------- --------
Net property and equipment...... 1,635 1,513 1,486
-------- -------- --------
$ 15,855 $ 16,816 $ 15,695
======== ======== ========
LIABILITIES AND STOCKHOLDERS'
EQUITY
CURRENT LIABILITIES:
Accounts payable.................. $ 1,800 $ 2,081 $ 2,758
Accrued payroll and related
expenses......................... 1,045 1,081 1,027
Accrued liabilities............... 617 907 793
Current portion of deferred
revenues......................... 2,853 2,351 2,255
-------- -------- --------
Total current liabilities....... 6,315 6,420 6,833
-------- -------- --------
LONG-TERM LIABILITIES:
Deferred rent, net of current
portion.......................... 377 246 198
Deferred revenues, net of current
portion.......................... 2,025 1,350 1,182
-------- -------- --------
Total long-term liabilities..... 2,402 1,596 1,380
-------- -------- --------
STOCKHOLDERS' EQUITY:
Convertible preferred stock, $.01
par value; aggregate liquidation
preference of $60,294 at December
31, 1997:
Authorized--11,000,000 shares
Outstanding--(Series B, C, D and
E)--5,887,381 shares in 1996,
7,887,381 shares in 1997 and at
March 31, 1998; 5,000,000 shares
authorized, none issued and
outstanding pro forma (Note 8).. 59 79 79 $ --
Common stock, $.01 par value:
Authorized--50,000,000 shares
Outstanding--18,494,020,
18,832,430 and 19,238,231 shares
in 1996, 1997 and at March 31,
1998, respectively; 100,000,000
shares authorized, 27,125,612
shares outstanding pro forma.... 185 188 192 271
Additional paid-in capital........ 83,359 93,532 94,530 94,530
Deferred compensation............. -- -- (519) (519)
Cumulative translation
adjustment....................... (31) (351) (415) (415)
Accumulated deficit............... (76,434) (84,648) (86,385) (86,385)
-------- -------- -------- --------
Total stockholders' equity...... 7,138 8,800 7,482 $ 7,482
-------- -------- -------- ========
$ 15,855 $ 16,816 $ 15,695
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
F-3
<PAGE>
ECHELON CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
FOR THE YEAR ENDED DECEMBER 31, ENDED MARCH 31,
----------------------------------- ----------------------
1995 1996 1997 1997 1998
---------- ----------- ---------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
REVENUES:
Product................ $ 20,183 $20,708 $ 24,665 $ 6,548 $ 7,188
Service................ 3,160 3,282 3,637 926 771
---------- ----------- ---------- ---------- ----------
Total revenues........ 23,343 23,990 28,302 7,474 7,959
---------- ----------- ---------- ---------- ----------
COST OF REVENUES:
Cost of product........ 9,434 10,761 11,761 3,111 3,249
Cost of service........ 1,141 1,142 1,810 455 543
---------- ----------- ---------- ---------- ----------
Total cost of
revenues............. 10,575 11,903 13,571 3,566 3,792
---------- ----------- ---------- ---------- ----------
Gross profit.......... 12,768 12,087 14,731 3,908 4,167
---------- ----------- ---------- ---------- ----------
OPERATING EXPENSES:
Product development.... 7,355 7,526 7,121 1,740 1,958
Sales and marketing.... 10,881 11,577 12,128 3,014 3,031
General and
administrative........ 4,386 3,921 4,004 1,098 935
---------- ----------- ---------- ---------- ----------
Total operating
expenses............. 22,622 23,024 23,253 5,852 5,924
---------- ----------- ---------- ---------- ----------
Loss from operations.. (9,854) (10,937) (8,522) (1,944) (1,757)
---------- ----------- ---------- ---------- ----------
OTHER INCOME (EXPENSE):
Interest income, net... 1,109 536 429 71 67
Other income (expense),
net................... 175 (163) 68 21 8
---------- ----------- ---------- ---------- ----------
Total other income
(expense)............ 1,284 373 497 92 75
---------- ----------- ---------- ---------- ----------
Loss before provision
for income taxes..... (8,570) (10,564) (8,025) (1,852) (1,682)
PROVISION FOR INCOME
TAXES.................. 143 152 189 55 55
---------- ----------- ---------- ---------- ----------
Net loss............... $ (8,713) $ (10,716) $ (8,214) $ (1,907) $ (1,737)
========== =========== ========== ========== ==========
Basic net loss per
share................. $ (0.56) $ (0.62) $ (0.44) $ (0.10) $ (0.09)
========== =========== ========== ========== ==========
Shares used in
computing basic net
loss per share........ 15,695 17,354 18,603 18,511 19,029
========== =========== ========== ========== ==========
Pro forma basic net
loss per share........ $ (0.32) $ (0.08) $ (0.06)
========== ========== ==========
Shares used in
computing pro forma
basic
net loss per share.... 25,756 24,399 26,916
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
ECHELON CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
CONVERTIBLE
PREFERRED STOCK COMMON STOCK ADDITIONAL CUMULATIVE
----------------- -------------- PAID-IN DEFERRED TRANSLATION ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL COMPENSATION ADJUSTMENT DEFICIT TOTAL
-------- ------- ------ ------ ---------- ------------ ----------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31,
1994................... 5,858 $ 59 14,830 $148 $79,531 $ -- $ 66 $(57,005) $ 22,799
Exercise of stock op-
tions................. -- -- 1,072 11 558 -- -- -- 569
Sale of common stock... -- -- 975 10 1,082 -- -- -- 1,092
Sale of Series D pre-
ferred stock.......... 29 -- -- -- 293 -- -- -- 293
Foreign currency trans-
lation adjustment..... -- -- -- -- -- -- (62) -- (62)
Net loss............... -- -- -- -- -- -- -- (8,713) (8,713)
-------- ------ ------ ---- ------- ------ ----- -------- --------
BALANCE AT DECEMBER 31,
1995................... 5,887 59 16,877 169 81,464 -- 4 (65,718) 15,978
Exercise of stock op-
tions................. -- -- 630 6 514 -- -- -- 520
Sale of common stock,
net................... -- -- 987 10 1,381 -- -- -- 1,391
Foreign currency trans-
lation adjustment..... -- -- -- -- -- -- (35) -- (35)
Net loss............... -- -- -- -- -- -- -- (10,716) (10,716)
-------- ------ ------ ---- ------- ------ ----- -------- --------
BALANCE AT DECEMBER 31,
1996................... 5,887 59 18,494 185 83,359 -- (31) (76,434) 7,138
Exercise of stock op-
tions................. -- -- 354 3 289 -- -- -- 292
Repurchase of common
stock, net............ -- -- (16) -- (16) -- -- -- (16)
Sale of Series E pre-
ferred stock.......... 2,000 20 -- -- 9,900 -- -- -- 9,920
Foreign currency trans-
lation adjustment..... -- -- -- -- -- -- (320) -- (320)
Net loss............... -- -- -- -- -- -- -- (8,214) (8,214)
-------- ------ ------ ---- ------- ------ ----- -------- --------
BALANCE AT DECEMBER 31,
1997................... 7,887 79 18,832 188 93,532 -- (351) (84,648) 8,800
unaudited:
Exercise of stock
options.............. -- -- 405 4 467 -- -- -- 471
Sale of common stock,
net.................. -- -- 1 -- 1 -- -- -- 1
Deferred
compensation......... -- -- -- -- 530 (530) -- -- --
Amortization of
deferred
compensation......... -- -- -- -- -- 11 -- -- 11
Foreign currency
translation
adjustment........... -- -- -- -- -- -- (64) -- (64)
Net loss.............. -- -- -- -- -- -- -- (1,737) (1,737)
-------- ------ ------ ---- ------- ------ ----- -------- --------
BALANCE AT MARCH 31,
1998
(unaudited)............ 7,887 $ 79 19,238 $192 $94,530 $(519) $(415) $(86,385) $ 7,482
======== ====== ====== ==== ======= ====== ===== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
ECHELON CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE
THREE MONTHS
FOR THE YEAR ENDED DECEMBER 31, ENDED MARCH 31,
---------------------------------- ----------------
1995 1996 1997 1997 1998
---------- ---------- ---------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES:
Net loss................ $ (8,713) $ (10,716) $ (8,214) $(1,907) $(1,737)
Adjustments to reconcile
net loss to net cash
used in operating
activities:
Depreciation and
amortization.......... 988 771 715 141 194
Deferred compensation
expense............... -- -- -- -- 11
Loss (gain) on disposal
of fixed assets....... 10 (13) -- -- --
Change in operating
assets and
liabilities:
Accounts receivable... (929) 332 (579) (216) (676)
Inventories........... (476) 319 (852) (18) (732)
Other current assets.. (300) 149 150 123 (186)
Accounts payable...... 887 (439) 281 (142) 677
Accrued liabilities... 231 104 252 (57) (186)
Deferred revenues..... (788) 552 (1,177) (853) (264)
Deferred rent......... (86) (69) (57) (14) (30)
---------- ---------- ---------- ------- -------
Net cash used in
operating
activities........... (9,176) (9,010) (9,481) (2,943) (2,929)
---------- ---------- ---------- ------- -------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Purchase of held-to-
maturity short-term
investments............ (31,974) (10,068) (10,740) -- --
Proceeds from maturities
of held-to-maturity
short-term
investments............ 39,313 22,117 7,759 -- 2,981
Capital expenditures.... (882) (872) (628) (84) (167)
Proceeds from sale of
fixed assets........... -- 13 35 14 --
---------- ---------- ---------- ------- -------
Net cash provided by
(used in)
investing activities.. 6,457 11,190 (3,574) (70) 2,814
---------- ---------- ---------- ------- -------
CASH FLOWS FROM FINANCING
ACTIVITIES:
Proceeds from issuance
of preferred and
common stock........... 1,954 1,911 10,196 16 472
---------- ---------- ---------- ------- -------
EFFECT OF EXCHANGE RATES
ON CASH................. (62) (35) (320) (201) (64)
---------- ---------- ---------- ------- -------
NET INCREASE (DECREASE)
IN CASH AND
CASH EQUIVALENTS........ (827) 4,056 (3,179) (3,198) 293
CASH AND CASH
EQUIVALENTS:
Beginning of period..... 4,822 3,995 8,051 8,051 4,872
---------- ---------- ---------- ------- -------
End of period........... $ 3,995 $ 8,051 $ 4,872 $ 4,853 $ 5,165
========== ========== ========== ======= =======
SUPPLEMENTAL DISCLOSURES
OF CASH
FLOW INFORMATION:
Cash paid for income
taxes.................. $ 111 $ 123 $ 185 $ 14 $ 42
========== ========== ========== ======= =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
(ALL INFORMATION FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND 1998 IS
UNAUDITED)
1. ORGANIZATION OF THE COMPANY:
Echelon Corporation (the "Company") was incorporated in Delaware in January
1989. The Company develops, markets and supports a family of hardware and
software products and services that enable OEMs and systems integrators to
design and implement open, interoperable, distributed control networks. The
Company's products are based on its LonWorks networking technology, an open
standard for interoperable networked control developed by the Company. In a
LonWorks control network, intelligent control devices, called nodes,
communicate using the Company's LonTalk protocol. The Company sells its
products and services to the building, industrial, transportation, home and
other automation markets.
The Company emerged from the development stage during 1990. However, the
Company continues to be subject to the risks and challenges associated with
other companies in a comparable stage of development including among others:
history of losses; fluctuation in operating results; dependence on OEMs and
distribution channels; dependence on key manufacturers; competition;
dependence on key personnel; new products and rapid technological change;
market acceptance of interoperability; international operations and currency
fluctuations; lengthy sales cycle; limited protection of intellectual property
rights; risks of product defects or misuse; regulatory actions.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Consolidation
The Company's consolidated financial statements reflect operations of the
Company and its wholly owned subsidiaries. All significant intercompany
transactions and balances have been eliminated.
Unaudited Interim Financial Data
The unaudited financial statement data as of March 31, 1998 and for the
three months ended March 31, 1997 and 1998 has been prepared on the same basis
as the audited consolidated financial statements and, in the opinion of
management, include all adjustments (consisting of only normal recurring
adjustments) necessary to present fairly the financial information set forth
therein, in accordance with generally accepted accounting principles.
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Revenue Recognition and Product Warranty
The Company's revenues are derived from the sale and license of its products
and to a lesser extent, from fees associated with training and technical
support offered to its customers. Product revenues consist of revenues from
hardware sales and software licensing arrangements. Revenues from software
licensing arrangements have not been significant to date. Service revenues
consist of product support (including software post-contract support services)
and training.
Revenue from hardware sales are recognized upon shipment to the customer.
Estimated reserves for warranty costs as well as reserves for sales returns
and allowances related to anticipated return of products sold to distributors
with limited rights of return, which are not material to the consolidated
financial statements, are
F-7
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
recorded at the time of sale. Revenue from software sales, including sales to
distributors, are recognized upon shipment of the software if there are no
significant post-delivery obligations and if collection is probable. The
Company generally has not had any significant post-delivery obligations
associated with the sale of its products. Service revenue is recognized as the
training services are performed, or ratably over the term of the support
period.
During 1990, the Company entered into separate licensing agreements with
Motorola, Inc. ("Motorola") and one other major semiconductor company which
expire in December 1999 and January 2000, respectively, unless renewed.
Motorola and the other major semiconductor company have the right to terminate
the agreement at any time. Motorola is a significant stockholder and is also a
related party to the Company due to its representation on the Company's Board
of Directors during 1995, 1996 and part of 1997. The agreements provide, among
other things, for the worldwide right to manufacture and distribute products
subject to the licensed technology and requires the Company to provide support
and unspecified updates to the licensed technology over the terms of the
agreements. The agreements also provide for nonrefundable advance royalty
payments. As of December 31, 1997, the Company has deferred $2,025,000 (of
which $1,350,000 is classified as a long-term liability) of royalty payments
that will be recognized in future periods. These payments are being recognized
as revenue ratably over the ten-year royalty period due to the ongoing
obligation to provide support and unspecified updates to the licensed
technology. Any additional royalties that are reported by Motorola or the
other company are recognized as revenue upon receipt of such royalties by the
Company. Product revenues for the years ended December 31, 1995, 1996 and 1997
each include $675,000 related to these advance royalty payments. For the years
ended December 31, 1995, 1996 and 1997, Motorola accounted for approximately
$595,000, $845,000 and $360,000 of total revenues, respectively.
Cash and Cash Equivalents
The Company considers bank deposits, money market investments and U.S.
government securities with an original maturity of three months or less as
cash and cash equivalents.
Short-Term Investments
At December 31, 1997, short-term investments consist of U.S. government
securities with original maturities of approximately five months. These short-
term investments are classified as held-to-maturity and valued using the
amortized cost method, which approximated the fair market value.
Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market
and include material, labor and manufacturing overhead. Inventories consist of
the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
------------- MARCH 31,
1996 1997 1998
------ ------ -----------
(UNAUDITED)
<S> <C> <C> <C>
Purchased materials................................ $1,079 $1,791 $2,286
Work-in-process.................................... 129 130 133
Finished goods..................................... 384 523 757
------ ------ ------
$1,592 $2,444 $3,176
====== ====== ======
</TABLE>
Property and Equipment
Property and equipment are stated at cost. Depreciation is provided using
the straight-line method over the estimated useful lives of two to five years
for computer and other equipment and furniture and fixtures. Leasehold
improvements are amortized over the shorter of the remaining lease term or the
estimated useful life of the improvements using the straight-line method.
F-8
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Software Development Costs
The Company capitalizes eligible computer software development costs upon
the establishment of technological feasibility, which the Company has defined
as completion of a working model. For the years ended December 31, 1995, 1996
and 1997, and for the three months ended March 31, 1997 and 1998, costs that
were eligible for capitalization were insignificant and, thus, the Company has
charged all software development costs to product development expense in the
accompanying consolidated statements of operations.
Foreign Currency Translation
The functional currency of the Company's subsidiaries is the local currency.
Accordingly, all assets and liabilities are translated into U.S. dollars at
the current exchange rate as of the applicable balance sheet date. Revenues
and expenses are translated at the average exchange rate prevailing during the
period. Gains and losses resulting from the translation of the financial
statements are reported as a separate component of stockholders' equity.
Concentrations of Credit Risk
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of temporary cash
investments and trade receivables. The Company has cash investment policies
that limit the amount of credit exposure to any one financial institution and
restrict placement of these investments to financial institutions evaluated as
highly creditworthy. Concentrations of credit risk with respect to trade
receivables are limited due to the large number of customers comprising the
Company's customer base and their dispersion across many different industries
and geographies. With respect to trade receivables, the Company performs
ongoing credit evaluations of its customers' financial condition.
Additionally, the Company establishes an allowance for doubtful accounts based
upon factors surrounding the credit risk of specific customers, historical
trends and other available information.
Computation of Basic Net Loss Per Share and Pro Forma Basic Net Loss Per
Share
Historical net loss per share has been calculated under Statement of
Financial Accounting Standards (SFAS) No. 128, "Earnings per Share." SFAS No.
128 requires companies to compute earnings per share under two different
methods (basic and diluted). Basic net loss per share is calculated by
dividing net loss by the weighted average shares of common stock outstanding
during the period. No diluted loss per share information has been presented in
the accompanying consolidated statements of operations since potential common
shares from the conversion of preferred stock, stock options and warrants are
antidilutive. The Company evaluated the requirements of the Securities and
Exchange Commission Staff Accounting Bulletin No. 98 ("SAB 98"), and concluded
that there are no nominal issuances of common stock or potential common stock
which would be required to be shown as outstanding for all periods as outlined
in SAB 98.
Pro forma basic net loss per share has been calculated assuming the
conversion of the outstanding preferred stock into an equivalent number of
shares of common stock, as if the shares had been converted on the dates of
their issuance.
New Pronouncements
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income," which establishes standards for reporting
and presentation of comprehensive income. SFAS No. 130, which was adopted by
the Company in the first quarter of 1998, requires companies to report a new
measurement of income. "Comprehensive Income (Loss)" is to include foreign
currency translation gains and losses and other unrealized gains and losses
that have historically been excluded from net income (loss) and reflected
instead in equity. The following table reconciles comprehensive net loss under
the provisions of SFAS No. 130 for
F-9
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
the years ended December 31, 1995, 1996 and 1997 and for the three months
ended March 31, 1997 and 1998 (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
-------------------------- ----------------
1995 1996 1997 1997 1998
------- -------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Net loss..................... $(8,713) $(10,716) $(8,214) $(1,907) $(1,737)
Foreign currency translation
adjustments................. (62) (35) (320) (201) (64)
------- -------- ------- ------- -------
Comprehensive net loss....... $(8,775) $(10,751) $(8,534) $(2,108) $(1,801)
======= ======== ======= ======= =======
</TABLE>
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information," which
establishes standards for disclosure of segment information and which will be
adopted by the Company in the fourth quarter of 1998. The Company anticipates
that SFAS No. 131 will not have a material impact on its financial statements.
In December 1997, the American Institute of Certified Public Accountants
("AICPA") issued Statement of Position ("SOP") 97-2 which superseded SOP 91-1,
"Software Revenue Recognition." SOP 97-2 is effective for transactions entered
into in the Company's fiscal year beginning January 1, 1998. Management has
assessed this new statement and the adoption in the first quarter of fiscal
1998 did not have a material effect on the Company's financial statements or
on the timing of the Company's revenue recognition, or cause changes to its
revenue recognition policies.
In April 1998, the AICPA issued SOP 98-5 "Reporting the Costs of Start-up
Activities". SOP 98-5 is effective for the Company's fiscal year beginning
January 1, 1999. SOP 98-5 provides guidance on the financial reporting of
start-up costs and organization costs and requires such costs to be expensed
as incurred. Management believes the adoption of SOP 98-5 will not have a
material effect on the Company's financial statements.
3. COMMITMENTS:
The Company leases its facilities under operating leases which expire on
various dates through 2002. As of December 31, 1997, future minimum lease
payments under such agreements were as follows (in thousands):
<TABLE>
<S> <C>
1998.................................. $1,579
1999.................................. 1,593
2000.................................. 804
2001.................................. 35
2002.................................. 35
------
$4,046
======
</TABLE>
Rent expense for the years ended December 31, 1995, 1996 and 1997 was
approximately $1,645,000, $1,768,000 and $1,818,000, respectively. Certain
lease agreements provide for escalating rent payments over the term of the
lease. Rent expense under these agreements is recognized on a straight-line
basis. As of December 31, 1996 and 1997, the Company has accrued approximately
$440,000 and $383,000, respectively, of deferred rent related to these
agreements of which $63,000 and $137,000 is included in accrued liabilities as
of December 31, 1996 and 1997, respectively, in the accompanying consolidated
balance sheets.
4. MAJOR CUSTOMER AND GEOGRAPHIC AREA:
In 1996, no single customer accounted for 10% or more of total revenues. In
1995, 1997 and the three months ended March 31, 1998, one customer, who is
also a distributor of the Company's products, accounted for 12.0%, 10.9% and
20.6% of total revenues, respectively. For the three months ended March 31,
1997, no single customer accounted for 10% or more of total revenues.
F-10
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The Company operates in the control network industry segment. The Company's
operations by geographic area were as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
-------------------------- ----------------
1995 1996 1997 1997 1998
------- -------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues from customers:
United States............... $20,323 $ 21,445 $25,610 $ 6,805 $ 7,244
Japan....................... 3,020 2,545 2,692 669 715
------- -------- ------- ------- -------
Total...................... $23,343 $ 23,990 $28,302 $ 7,474 $ 7,959
======= ======== ======= ======= =======
Intercompany revenues between
geographic areas:
United States............... $ 1,405 $ 2,085 $ 2,455 $ 741 $ 693
Japan....................... -- -- -- -- --
Europe and Other............ 3,257 4,025 4,523 1,024 1,031
Eliminations................ (4,662) (6,110) (6,978) (1,765) (1,724)
------- -------- ------- ------- -------
Total...................... $ -- $ -- $ -- $ -- $ --
======= ======== ======= ======= =======
Income (loss) from
operations:
United States............... $(6,974) $ (6,414) $(3,413) $ (777) $ (642)
Japan....................... 118 (854) (1,084) (158) (174)
Europe and Other............ 250 380 350 75 83
Eliminations................ (3,248) (4,049) (4,375) (1,084) (1,024)
------- -------- ------- ------- -------
Total...................... $(9,854) $(10,937) $(8,522) $(1,944) $(1,757)
======= ======== ======= ======= =======
Identifiable assets:
United States............... $22,741 $ 13,789 $14,203 $13,044
Japan....................... 1,264 1,191 1,800 1,886
Europe and Other............ 542 875 813 765
------- -------- ------- -------
Total...................... $24,547 $ 15,855 $16,816 $15,695
======= ======== ======= =======
</TABLE>
Revenues from export sales (primarily to Europe) accounted for approximately
39.1%, 43.0%, 48.0%, 45.7% and 48.0% of total revenues for the years ended
December 31, 1995, 1996 and 1997 and for the three months ended March 31, 1997
and 1998, respectively.
The Company's operations are structured to achieve consolidated objectives.
As a result, significant interdependencies and overlaps exist among the
Company's operating units. Accordingly, the revenues from customers, income
(loss) from operations and identifiable assets shown for each geographic area
may not be indicative of the amounts that would have been reported if the
operating units were independent of one another.
Intercompany sales and transfers of manufacturing materials and finished
goods between areas are accounted for based on established intercompany sales
prices.
F-11
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
5. PREFERRED STOCK:
Preferred stock outstanding consists of the following (in thousands, except
share amounts):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------- MARCH 31,
1996 1997 1998
---------------- ---------------- ----------------
ADDITIONAL ADDITIONAL ADDITIONAL
PAR PAID-IN PAR PAID-IN PAR PAID-IN
VALUE CAPITAL VALUE CAPITAL VALUE CAPITAL
----- ---------- ----- ---------- ----- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Series B, 1,250,000 shares
authorized, 1,250,000
shares outstanding in 1996,
1997 and 1998, liquidation
preference of $7,500....... $13 $ 7,463 $13 $ 7,463 $13 $ 7,463
Series C, 1,608,000 shares
authorized, 1,608,000
shares outstanding in 1996,
1997 and 1998, liquidation
preference of $12,500...... 16 12,483 16 12,483 16 12,483
Series D, 3,172,000 shares
authorized, 3,029,381
shares outstanding in 1996,
1997 and 1998, liquidation
preference of $30,294...... 30 30,234 30 30,234 30 30,234
Series E, 2,400,000 shares
authorized, no shares
outstanding
in 1996, 2,000,000 shares
outstanding in 1997 and
1998, liquidation
preference of $10,000...... -- -- 20 9,900 20 9,900
--- ------- --- ------- --- -------
Total...................... $59 $50,180 $79 $60,080 $79 $60,080
=== ======= === ======= === =======
</TABLE>
In February 1992, the Company completed a stock purchase agreement with
Motorola whereby it sold 1,250,000 shares of its authorized Series B preferred
stock at $6.00 per share for total gross proceeds of $7,500,000 to the
Company. In January 1993, the Company completed a stock purchase agreement
with Motorola whereby it sold 1,608,000 shares of its authorized Series C
preferred stock at $7.77 per share for total gross proceeds of $12,500,000 to
the Company. In 1994, the Company completed a stock purchase agreement with
Motorola and two new investors whereby it sold 1,000,000 shares of its
authorized Series D preferred stock at $10.00 per share to each investor for
total gross proceeds of $30,000,000 to the Company. In May 1997, the Company
completed a stock purchase agreement with existing shareholders whereby it
sold 2,000,000 shares of its authorized Series E preferred stock at $5.00 per
share for total gross proceeds of $10,000,000 to the Company. Motorola is a
party to certain licensing agreements discussed in Note 2.
In connection with the issuance of the Series D preferred stock to Motorola
in 1994, Motorola was granted the right to purchase additional shares of
Series D preferred stock in order to maintain its ownership percentage (the
"Motorola Purchase Right"). The Motorola Purchase Right expires upon the
closing of an underwritten public offering of the common stock which results
in gross proceeds to the Company of not less than $15,000,000. The exercise
price of the stock purchase right is the last sales price per share of
preferred stock sold by the Company. During 1995, Motorola purchased 29,381
shares of Series D preferred stock at $10.00 per share under this agreement.
During 1996 and 1997, Motorola did not purchase any shares of preferred stock
under this agreement. As of December 31, 1997, Motorola had the right to
purchase approximately 49,000 additional shares of Series D preferred stock
under this agreement which expired in February 1998.
The rights and preferences of the Series B, C, D and E convertible preferred
stock are as follows:
(A) Each holder of Series B, C, D and E convertible preferred stock is
entitled to receive noncumulative dividends at a rate of $0.48, $0.622,
$0.80 and $0.40 per share, respectively, per annum, when and as declared by
the Board of Directors, prior to payment of dividends on common stock. To
date, no dividends have been declared by the Board of Directors for the
preferred stock.
(B) Each share of Series B, C, D and E preferred stock is convertible at
the option of the holder, at any time after the issuance of such share,
into such number of fully paid and nonassessable shares of common stock as
is determined by the conversion rate. The initial conversion rate shall be
one for one and is subject to adjustment upon the occurrence of specific
events. The preferred shares automatically convert into shares of common
stock upon the earlier of (1) the affirmative vote of the holders of a
majority of the
F-12
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Series B, C, D and E preferred stock to cause all outstanding shares of
Series B, C, D and E preferred stock to be converted; or (2) the closing of
an underwritten public offering of the common stock which results in gross
proceeds to the Company of not less than $15,000,000.
(C) In the event of any liquidation, dissolution or winding up of the
Company, either voluntary or involuntary, the holders of the Series B, C, D
and E preferred stock shall be entitled to receive $6.00, $7.7736, $10.00
and $5.00 per share, respectively, plus any declared but unpaid dividends,
prior to any distribution to the holders of common stock.
(D) The holder of each share of Series B, C, D and E preferred stock is
entitled to vote in an amount equivalent to the number of shares of common
stock into which the preferred stock could be converted.
(E) Without the approval of a majority of the holders of the outstanding
shares of Series B, C, D and E preferred stock, the Company cannot, among
other things, materially alter or change the powers, preferences or special
rights of the Series B, C, D and E preferred stock so as to affect them
adversely.
6. COMMON STOCK:
The Company sold 975,000, 1,005,000 and 5,000 shares of common stock during
1995, 1996 and 1997, respectively, at the fair value, as determined by the
Board of Directors, of $1.00 per share to $1.29 per share during 1995, $1.29
per share to $1.40 per share during 1996 and $1.40 per share during 1997 under
stock purchase agreements, primarily to certain officers of the Company. The
stock purchased under these agreements vests annually over four years. As of
December 31, 1997, 1,322,500 shares of common stock issued and outstanding
under these stock purchase agreements and previous stock purchase agreements
were unvested and subject to repurchase by the Company, at the Company's
discretion, at prices ranging from $0.77 to $1.40 per share and a weighted
average price of $1.26 per share.
Warrants
In connection with the issuance of the Series D preferred stock in 1994, the
Company granted certain investment bankers warrants to purchase 30,000 shares
of the Company's common stock at $12.00 per share (the "Common Stock
Warrants"). The Common Stock Warrants expire upon the earlier of (i) February
2, 1999 or (ii) the consummation of any transaction resulting in the sale,
transfer or disposition of all or substantially all of the Company's assets or
the merger of the Company with or into, or consolidation with, any other
corporation, whereby the holders of the Company's voting securities prior to
the transaction do not hold more than 50% of the voting securities of the
surviving entity following consummation of the transaction ("Change in
Control"). At December 31, 1997, these Common Stock Warrants were exercisable
but no warrants had been exercised.
In addition, in connection with the issuance of the Series E preferred stock
in 1997, warrants to purchase an aggregate of 400,000 shares of Series E
preferred stock (or common stock, if all Series E preferred stock has then
been converted into common stock) at a per share exercise price of $5.00 were
issued (the "Series E Warrants" and together with the Common Stock Warrants,
the "Warrants"). The Series E Warrants are exercisable at any time until their
expiration on the earlier of May 15, 2002 or a Change in Control. Each
Warrant contains a cashless conversion right that allows the holder to receive
a number of shares of the Company's common stock or Series E preferred stock,
as applicable, equal to the quotient obtained by dividing the value of the
Warrant on the date of exercise, which value is determined by subtracting (i)
the aggregate exercise price of the Warrant from (ii) the aggregate fair
market value of the Warrant shares on the date of exercise, by the fair market
value of one share of the Company's Common Stock or Series E Preferred Stock,
as applicable, on the date of exercise, as determined by the Company's Board
of Directors. At December 31, 1997, these Series E Warrants are exercisable
but no warrants had been exercised.
At the date of issuance, the fair market value of these Warrants was deemed
to be immaterial.
F-13
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
1988 Stock Option Plan
During 1988, the Company adopted the 1988 Stock Option Plan (the "1988
Plan") for key employees, officers and directors. The Company has reserved
8,900,000 shares under the 1988 Plan. Incentive stock options to purchase
shares of common stock may be granted at not less than 100% of the fair market
value, as determined by the Board of Directors, and generally have a term of
five years from the date of grant, not to exceed ten years. The 1988 Plan also
provides for holders of non-qualified stock options to purchase shares at not
less than 85% of the fair market value, as determined by the Board of
Directors. Options generally vest ratably over four years.
The 1988 Plan also allows for the issuance of options which are immediately
exercisable through execution of a restricted stock purchase agreement. Shares
purchased pursuant to a stock purchase agreement generally vest over four
years. In the event of termination of employment, the Company, at its
discretion, may repurchase unvested shares at a price equal to the original
issue price. Options granted under the 1988 Plan will remain outstanding in
accordance with their original terms. However, effective April 1997, the Board
of Directors determined that no further options will be granted under the 1988
Plan.
1997 Stock Plan
During 1997, the Company adopted the 1997 Stock Plan (the "1997 Plan") for
key employees, officers and directors. The Company has reserved 5,000,000
shares under the 1997 Plan. In February 1998, the Board of Directors
authorized an increase in the number of shares reserved for issuance under the
1997 Plan to 6,200,000 shares. Incentive stock options to purchase shares of
common stock may be granted at not less than 100% of the fair market value, as
determined by the Board of Directors, and generally have a term of five years
from the date of grant, not to exceed ten years. The 1997 Plan also provides
for holders of non-qualified stock options to purchase shares at not less than
85% of the fair market value, as determined by the Board of Directors. Options
generally vest ratably over four years.
The 1997 Plan also allows for the issuance of options which are immediately
exercisable through execution of a restricted stock purchase agreement. Shares
purchased pursuant to a stock purchase agreement generally vest annually over
four years. In the event of termination of employment, the Company, at its
discretion, may repurchase unvested shares at a price equal to the original
issuance price. As of December 31, 1997, no shares of common stock were issued
and outstanding under these restricted stock purchase agreements.
F-14
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Stock option activity under the 1988 and 1997 Plans is summarized below:
<TABLE>
<CAPTION>
WEIGHTED
NUMBER AVERAGE
OF OPTIONS EXERCISE PRICE
---------- --------------
<S> <C> <C>
Options outstanding,
December 31, 1994....... 2,227,000 $0.57
Grants.................. 943,800 1.11
Cancellations........... (104,551) 0.80
Exercises............... (1,072,373) 0.53
---------- -----
Options outstanding,
December 31, 1995....... 1,993,876 0.84
Grants.................. 1,618,700 1.38
Cancellations........... (130,938) 1.07
Exercises............... (630,124) 0.83
---------- -----
Options outstanding,
December 31, 1996....... 2,851,514 1.14
Grants.................. 2,185,700 1.40
Cancellations........... (366,626) 1.29
Exercises............... (354,156) 0.83
---------- -----
Options outstanding,
December 31, 1997....... 4,316,432 1.28
Grants.................. 215,250 2.00
Cancellations........... (43,938) 1.24
Exercises............... (405,049) 1.16
---------- -----
Options outstanding,
March 31, 1998
(unaudited)............. 4,082,695 $1.33
========== =====
Exercisable at December
31, 1996................ 2,851,514 $1.14
========== =====
Exercisable at December
31, 1997................ 4,316,432 $1.28
========== =====
Exercisable at March 31,
1998 (unaudited)........ 3,932,695 $1.31
========== =====
</TABLE>
The following table summarizes the stock options outstanding as of December
31, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
---------------------------------------------------------------------
WEIGHTED
NUMBER AVERAGE WEIGHTED NUMBER WEIGHTED
OUTSTANDING AT REMAINING AVERAGE EXERCISABLE AVERAGE
EXERCISE DECEMBER 31, LIFE (IN EXERCISE DECEMBER 31, EXERCISE
PRICE RANGE 1997 YEARS) PRICE 1997 PRICE
----------- -------------- --------- -------- ------------ --------
<S> <C> <C> <C> <C> <C>
$0.15 25,500 1.7 $0.15 25,500 $0.15
0.60-0.77 431,189 1.2 0.72 431,189 0.72
0.97-1.40 3,859,743 3.8 1.35 3,859,743 1.35
--------- --- ----- --------- -----
0.15-1.40 4,316,432 3.5 $1.28 4,316,432 $1.28
========= === ===== ========= =====
</TABLE>
Certain options issued under the 1988 and 1997 Plans may be exercised any
time prior to their expiration. In addition, the Company has the right, upon
termination of an optionholder's employment or service with the Company, at
its discretion, to repurchase any unvested shares issued under the 1988 and
1997 Plans at the original purchase price. As of December 31, 1997 and March
31, 1998, 220,938 and 479,938 shares, respectively, were subject to repurchase
by the Company at prices ranging from $0.77 to $1.40 per share and a weighted
average repurchase price of $1.12 and $1.27, respectively. Of the 4,316,432
options exercisable at December 31, 1997, 871,290 were vested, and of the
3,932,695 options exercisable at March 31, 1998, 764,915 were vested.
F-15
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
In connection with the issuance of stock options to employees during the
three months ended March 31, 1998, the Company has recorded deferred
compensation in the aggregate amount of approximately $530,000, representing
the difference between the deemed fair value of the Company's common stock and
the exercise price of the stock options at the date of grant. The Company is
amortizing the deferred compensation expense over the shorter of the period in
which the employee provides services or the applicable vesting period, which
is typically 48 months. For the three-month period ended March 31, 1998,
amortization expense was approximately $11,000. Deferred compensation is
decreased in the period of forfeiture arising from the early termination of an
option holder's services. No compensation expense related to any other periods
presented has been recorded.
The Company accounts for the Plans under APB Opinion No. 25, "Accounting for
Stock Issued to Employees." Had compensation expense for the Plans been
determined consistent with SFAS No. 123, "Accounting for Stock-Based
Compensation," the Company's net loss and basic net loss per share would have
been increased to the following pro forma amounts (in thousands, except per
share amounts):
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------
1995 1996 1997
------- -------- -------
<S> <C> <C> <C>
Net loss:
As reported.................................... $(8,713) $(10,716) $(8,214)
Pro forma...................................... (8,789) (10,992) (8,626)
Basic net loss per share:
As reported.................................... $ (0.56) $ (0.62) $ (0.44)
Pro forma...................................... (0.56) (0.63) (0.46)
</TABLE>
The weighted-average grant date fair value of options granted during 1995,
1996 and 1997 was $0.08, $0.17 and $0.19, respectively. The fair value of each
option grant is estimated on the date of grant using the minimum value method
and the Black-Scholes option pricing model with the following weighted average
assumptions used for grants in 1995, 1996 and 1997: risk-free interest rates
of 5.95%, 6.10% and 5.60%, respectively; expected dividend yields of zero
percent; expected lives of 4 years. Because the Company has been a non-public
entity, it has omitted expected volatility in determining a value for its
options.
Shares Reserved
At December 31, 1997, the Company has reserved shares of its common stock as
follows:
<TABLE>
<S> <C>
Conversion of convertible preferred stock......................... 7,887,381
Exercise and future issuance of stock options..................... 7,265,382
Warrants.......................................................... 430,000
Series D purchase right-Motorola.................................. 49,000
----------
15,631,763
==========
</TABLE>
7. INCOME TAXES:
The Company accounts for income taxes using SFAS No. 109, "Accounting for
Income Taxes". SFAS No. 109 provides for an asset and liability approach under
which deferred income taxes are based upon enacted tax laws and rates
applicable to the periods in which the taxes become payable.
Income taxes for the years ended December 31, 1995, 1996 and 1997 primarily
consist of taxes related to foreign subsidiaries.
F-16
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The components of the net deferred income tax asset as of December 31, 1996
and 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
1996 1997
-------- --------
<S> <C> <C>
Net operating loss carryforwards......................... $ 23,986 $ 26,315
Deferred revenue......................................... 1,084 940
Tax credit carryforwards................................. 3,051 3,537
Capitalized research and development costs............... 1,469 1,852
Reserves and other cumulative temporary differences...... 1,104 906
-------- --------
30,694 33,550
Valuation allowance...................................... (30,694) (33,550)
-------- --------
Net deferred income tax asset............................ $ -- $ --
======== ========
</TABLE>
As of December 31, 1997, the Company had net operating loss carryforwards
for Federal and state income tax reporting purposes of approximately $76.0
million and $5.0 million, respectively, which expire at various dates through
2012. In addition, as of December 31, 1997, the Company had tax credit
carryforwards of approximately $3.5 million, which expire at various dates
through 2012. The Internal Revenue Code of 1986, as amended, contains
provisions that may limit the net operating loss and credit carryforwards
available for use in any given period upon the occurrence of certain events,
including a significant change in ownership interests.
A valuation allowance has been recorded for the entire deferred tax asset as
a result of uncertainties regarding the realization of the asset balance due
to the history of losses and the variability of operating results. As of
December 31, 1996 and 1997, the Company had no significant deferred tax
liabilities.
8. SUBSEQUENT EVENTS (UNAUDITED):
Pro Forma Stockholders' Equity
In April 1998, the Board of Directors authorized the filing of a
registration statement with the Securities and Exchange Commission permitting
the Company to sell shares of its common stock in connection with the proposed
initial public offering ("IPO"). In addition, the Board of Directors
authorized the Company to amend its articles of incorporation, whereby the
Company will be authorized to issue 100,000,000 shares of common stock and
5,000,000 shares of preferred stock. If the offering is consummated under the
terms presently anticipated, all of the currently outstanding preferred stock
will automatically convert into 7,887,381 shares of common stock upon the
closing of the IPO. The effect of the above has been reflected in the
accompanying unaudited pro forma stockholders' equity as of March 31, 1998.
1998 Directors Option Plan
Non-employee directors are entitled to participate in the 1998 Director
Option Plan (the "Director Plan"). The Director Plan was adopted by the Board
of Directors in May 1998, is subject to stockholder approval and will not
become effective until the date of this offering. The Director Plan has a term
of ten years, unless terminated sooner by the Board. A total of 300,000 shares
of Common Stock have been reserved for issuance under the Director Plan, plus
an increase each year equal to 100,000 shares or such lesser amount as the
Board may determine.
The Director Plan provides for the automatic grant of 25,000 shares of
common stock (the "First Option") to each non-employee director on the date he
or she first becomes a director (provided that such person joins the Board
after May 29, 1998). Each non-employee director shall also automatically be
granted an option to purchase 10,000 shares (a "Subsequent Option") on both
the effective date of this offering and on the date of the
F-17
<PAGE>
ECHELON CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Company's Annual Stockholder Meeting provided that he or she is re-elected to
the Board or otherwise remains on the Board, if on such date he or shall have
served on the Board for at least the preceding six months. Each First Option
and each Subsequent Option shall have a term of five years and the shares
subject to the option shall vest as to 25% of the shares subject to option on
each anniversary of the date of grant. The exercise price of each First Option
and Subsequent Option shall be 100% of the fair market value per share of the
common stock, generally determined with reference to the closing price of the
common stock as reported on the Nasdaq National Market on the date of grant.
On the effective date of this offering options to purchase an aggregate of
60,000 shares will be granted under the Director Plan, with an exercise price
equal to the initial public offering price per share.
In the event of a merger of the Company with or into another corporation or
the sale of substantially all of the assets of the Company, each option shall
be assumed or an equivalent option may be substituted by the successor
corporation. Following such assumption or substitution, if the optionee's
status as a director of the successor corporation terminates other than upon a
voluntary resignation by the optionee, the option shall become fully
exercisable, including as to shares as to which it would not otherwise be
exercisable. If the outstanding options are not assumed or substituted, the
options shall become fully vested and exercisable. Options granted under the
Director Plan must be exercised within three months of the end of the
optionee's tenure as a director of the Company, or within twelve months after
such director's termination by death or disability, but in no event later than
the expiration of the option's five year term; provided, however, that shares
subject to an option granted to a director who has served as a director with
the Company for at least five years shall become fully vested and exercisable
for the remainder of the option's five year term upon such director's
termination. No option granted under the Director Plan is transferable by the
optionee other than by will or the laws of descent and distribution, and each
option is exercisable, during the lifetime of the optionee, only by such
optionee.
Bank Revolving Line of Credit Agreement
In May 1998, the Company entered into a revolving line of credit agreement
with a bank, whereby the Company may borrow up to 85% of eligible accounts
receivable, not to exceed $5.0 million. If the credit agreement had been in
place as of April 30, 1998, the amount available to be borrowed would have
been $2.6 million. Advances under the credit agreement bear interest at the
bank's reference rate or, at the option of the Company, at a fixed rate of
interest equal to the London interbank offered rate plus 150 basis points. As
of May 31, 1998, there was approximately $65,000 outstanding under this line
of credit in the form of a letter of credit. The credit agreement, which
expires in May 1999, contains certain negative covenants restricting the
Company's ability to pay dividends or enter into certain financial
transactions. The credit agreement also contains a minimum tangible net worth
requirement, determined on a quarterly basis.
F-18
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No dealer, sales representative, or any other person has been authorized to
give any information or to make any representations in connection with this of-
fering other than those contained in this Prospectus, and, if given or made,
such information or representations must not be relied upon as having been au-
thorized by the Company or any of the Underwriters. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than the Common Stock to which it relates or an offer to, or a solicita-
tion of, any person in any jurisdiction where such an offer or solicitation
would be unlawful. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to the date
hereof.
--------------------------
TABLE OF CONTENTS
--------------------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary....................................................... 3
Risk Factors............................................................. 5
Use of Proceeds.......................................................... 16
Dividend Policy.......................................................... 16
Capitalization........................................................... 17
Dilution................................................................. 18
Selected Consolidated Financial Data..................................... 19
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 20
Business................................................................. 29
Management............................................................... 40
Certain Transactions..................................................... 49
Principal Stockholders................................................... 51
Description of Capital Stock............................................. 54
Shares Eligible for Future Sale.......................................... 57
Underwriting............................................................. 59
Legal Matters............................................................ 61
Experts.................................................................. 61
Additional Information................................................... 61
Index to Consolidated Financial Statements............................... F-1
</TABLE>
Until , 1998 (25 days after the date of this Prospectus), all dealers ef-
fecting transactions in the Common Stock offered hereby, whether or not partic-
ipating in this distribution, may be required to deliver a Prospectus. This is
in addition to the obligation of dealers to deliver a Prospectus when acting as
Underwriters and with respect to their unsold allotments or subscriptions.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
5,000,000 SHARES
[LOGO OF ECHELON(R)]
COMMON STOCK
---------------
PROSPECTUS
---------------
NationsBanc Montgomery Securities LLC
BancAmerica Robertson Stephens
Volpe Brown Whelan & Company
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by the Registrant in connection with the sale
of Common Stock being registered. All amounts are estimates except the SEC
registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE
PAID
--------
<S> <C>
SEC registration fee............................................... $ 15,266
NASD filing fee.................................................... 5,675
Printing and engraving expenses.................................... 125,000
Legal fees and expenses............................................ 300,000
Accounting fees and expenses....................................... 150,000
Blue Sky qualification fees and expenses........................... 10,000
Transfer agent and registrar fees.................................. 10,000
Miscellaneous fees................................................. 84,059
--------
Total............................................................ $700,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach or
alleged breach of their duty of care. In addition, as permitted by Section 145
of the Delaware General Corporation Law, the Bylaws of the Registrant provide
that: (i) the Registrant is required to indemnify its directors and executive
officers and persons serving in such capacities in other business enterprises
(including, for example, subsidiaries of the Registrant) at the Registrant's
request, to the fullest extent permitted by Delaware law, including in those
circumstances in which indemnification would otherwise be discretionary; (ii)
the Registrant may, in its discretion, indemnify employees and agents in those
circumstances where indemnification is not required by law; (iii) the
Registrant is required to advance expenses, as incurred, to its directors and
executive officers in connection with defending a proceeding (except that it
is not required to advance expenses to a person against whom the Registrant
brings a claim for breach of the duty of loyalty, failure to act in good
faith, intentional misconduct, knowing violation of law or deriving an
improper personal benefit; (iv) the rights conferred in the Bylaws are not
exclusive, and the Registrant is authorized to enter into indemnification
agreements with its directors, executive officers and employees; and (v) the
Registrant may not retroactively amend the Bylaw provisions in a way that is
adverse to such directors, executive officers and employees.
The Registrant's policy is to enter into indemnification agreements with
each of its directors and executive officers that provide the maximum
indemnity allowed to directors and executive officers by Section 145 of the
Delaware General Corporation Law and Bylaws, as well as certain additional
procedural protections. In addition, such indemnity agreements provide that
directors and executive officers will be indemnified to the fullest possible
extent not prohibited by law against all expenses (including attorney's fees)
and settlement amounts paid or incurred by them in any action or proceeding,
including any derivative action by or in the right of the Registrant, on
account of their services as directors or executive officers of the Registrant
or as directors or officers of any other Company or enterprise when they are
serving in such capacities at the request of the Registrant. The Company will
not be obligated pursuant to the indemnity agreements to indemnify or advance
expenses to an indemnified party with respect to proceedings or claims
initiated by the indemnified party and not by way of defense, except with
respect to proceedings specifically authorized by the Board of Directors or
brought to enforce a right to indemnification under the indemnity agreement,
the Company's Bylaws or any statute or law. Under the agreements, the Company
is not obligated to indemnify the indemnified party (i) for any expenses
II-1
<PAGE>
incurred by the indemnified party with respect to any proceeding instituted by
the indemnified party to enforce or interpret the agreement, if a court of
competent jurisdiction determines that each of the material assertions made by
the indemnified party in such proceeding was not made in good faith or was
frivolous; (ii) for any amounts paid in settlement of a proceeding unless the
Company consents to such settlement; (iii) with respect to any proceeding
brought by the Company against the indemnified party for willful misconduct,
unless a court determines that each of such claims was not made in good faith
or was frivolous; (iv) on account of any suit in which judgment is rendered
against the indemnified party for an accounting of profits made from the
purchase or sale by the indemnified party of securities of the Company
pursuant to the provisions of (S)16(b) of the Exchange Act and related laws;
(v) on account of the indemnified party's conduct which is finally adjudged to
have been knowingly fraudulent or deliberately dishonest, or to constitute
willful misconduct or a knowing violation of the law; (vi) an account of any
conduct from which the indemnified party derived an improper personal benefit;
(vii) on account of conduct the indemnified party believed to be contrary to
the best interests of the Company or its stockholders; (viii) on account of
conduct that constituted a breach of the indemnified party's duty of loyalty
to the Company or its stockholders; or (ix) if a final decision by a court
having jurisdiction in the matter shall determine that such indemnification is
not lawful.
The indemnification provision in the Bylaws and the indemnification
agreements entered into between the Registrant and its directors and executive
officers, may be sufficiently broad to permit indemnification of the
Registrant's officers and directors for liabilities arising under the
Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) During the period from June 1, 1995, to June 30, 1998, the Company sold
an aggregate of 1,826,570 shares of unregistered Common Stock to 134
individuals who were officers, employees or former employees of the Company,
for an aggregate offering price of $1,405,045. These shares were sold pursuant
to the exercise of options issued under the Company's 1988 Stock Option Plan.
As to each employee, officer and director of the Company who was issued such
securities, the Company relied upon Rule 701 of the Securities Act. Each such
person purchased securities of the Company pursuant to a written contract
between such person and the Company; in addition, the Company met the
conditions imposed under Rule 701(b).
(b) During the period from June 1, 1995 to June 30, 1998, the Company sold
an aggregate of 1,984,000 shares of unregistered Common Stock to eight
individuals who were officers or employees of the Company or an entity
affiliated with a member of the Company's Board of Directors, for an aggregate
offering price of $2,672,750. These shares were sold pursuant to stock
purchase agreements between the Company and such individuals and entities. As
to each person who was issued such securities, the Company relied upon Section
4(2) of the Securities Act.
(c) In May 1997 the Company sold an aggregate of 2,000,000 shares of
unregistered Series E Preferred Stock to certain investors, each of which was
an existing stockholder of the Company, for an aggregate offering price of
$10,000,000. In connection therewith, the Company issued Warrants to seven
investors to purchase an aggregate of 400,000 shares of Series E Preferred
Stock. As to each investor constituting a "U.S. person" (within the meaning of
Regulation S) who was issued such shares of Series E Preferred Stock, the
Company relied upon Section 4(2) of the 1933 Act and Regulation D, Rule 506,
thereunder. The sale of Series E Preferred Stock and the issuance of Warrants
were made in compliance with all of the terms of Rules 501 and 502 of
Regulation D, there were no more than 35 investors (as calculated pursuant to
Rule 501(e) of Regulation D), and each investor who was not an accredited
investor represented to the Company that he or she had such knowledge and
experience in financial and business matters that he or she was capable of
evaluating the merits and risks of the investment.
Appropriate legends were affixed to the share certificates issued in the
transactions described above. All recipients had adequate access, through
their relationships with the Company, to information about the Company.
II-2
<PAGE>
(d) In January 1998, the Company registered with the Commission pursuant to
a Regulation A Offering Statement options granted under the Company's 1997
Stock Plan to purchase up to 3,571,428 of the Company's Common Stock and the
Common Stock issuable upon the exercise of such options. As of June 30, 1998,
an aggregate of 347,750 shares of unregistered Common Stock have been sold
upon exercise of stock options to 27 individuals who were officers, employers
or former employees of the Company for an aggregate offering price of
$516,850.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of Registrant.
3.2 Amended and Restated Certificate of Incorporation of Registrant (to be
effective upon closing of Offering).
3.3* Amended and Restated Bylaws of Registrant.
4.1 Form of Registrant's Common Stock Certificate.
4.2* Second Amended and Restated Modification Agreement dated May 15, 1997.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati P.C., regarding the
legality of the securities being issued.
10.1* Form of Indemnification Agreement entered into by Registrant with each
of its directors and executive officers.
10.2 1997 Stock Plan and forms of related agreements.
10.3* 1988 Stock Option Plan and forms of related agreements.
10.4* Second Amended and Restated Modification Agreement dated May 15, 1997
(included in Exhibit 4.2).
10.5* Form of International Distributor Agreement.
10.6* Form of OEM License Agreement.
10.7* Form of Software License Agreement.
10.8* International Distributor Agreement between the Company and EBV
Elektronik GmbH as of December 1, 1997.
10.9* 1998 Director Option Plan.
21.1 Subsidiaries of the Registrant.
23.1 Consent of Wilson Sonsini Goodrich & Rosati P.C. (included in Exhibit
5.1).
23.2 Consent of Arthur Andersen LLP (see page II-6).
24.1* Power of Attorney.
27.1* Financial Data Schedule (available in EDGAR format only).
</TABLE>
- --------
*Previously filed.
<TABLE>
<CAPTION>
(B) FINANCIAL STATEMENT SCHEDULE
<S> <C>
Report of Independent Public Accountants on Schedule S-1
Schedule II--Valuation and Qualifying Accounts S-2
</TABLE>
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
financial statements or notes thereto.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act,
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the California Corporation Law, the Registrant's
Amended and Restated Certificate of Incorporation, the Registrant's Amended
and Restated Bylaws, the Registrant's indemnification agreements 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, 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 hereunder, 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 and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement on Form S-1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
city of Palo Alto, State of California, on this 9th day of July, 1998.
By: /s/ M. Kenneth Oshman
----------------------------------
M. Kenneth Oshman
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ M. Kenneth Oshman Chairman of the July 9, 1998
- ------------------------------------- Board, President
M. KENNETH OSHMAN and Chief Executive
Officer (Principal
Executive Officer)
* Vice President of July 9, 1998
- ------------------------------------- Finance and Chief
OLIVER R. STANFIELD Financial Officer
(Principal
Financial Officer
and Principal
Accounting Officer)
* Vice Chairman July 9, 1998
- -------------------------------------
ARMAS CLIFFORD MARKKULA, JR.
* Director July 9, 1998
- -------------------------------------
BERTRAND CAMBOU
* Director July 9, 1998
- -------------------------------------
ROBERT R. MAXFIELD
* Director July 9, 1998
- -------------------------------------
RICHARD M. MOLEY
* Director July 9, 1998
- -------------------------------------
ARTHUR ROCK
* Director July 9, 1998
- -------------------------------------
LARRY W. SONSINI
*By: /s/ M. Kenneth Oshman
---------------------------------
M. KENNETH OSHMAN
Attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports and to all references to our Firm included in or made a part of this
Registration Statement.
ARTHUR ANDERSEN LLP
San Jose, California
July 9, 1998
II-6
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON SCHEDULE
To Echelon Corporation:
We have audited, in accordance with generally accepted auditing standards,
the consolidated financial statements of Echelon Corporation and subsidiaries
included in this Registration Statement and have issued our report thereon
dated February 17, 1998. Our audits were made for the purpose of forming an
opinion on the basic financial statements taken as a whole. The schedule
listed in the index above is the responsibility of the Company's management
and is presented for the purpose of complying with the Securities and Exchange
Commission's rules and is not part of the basic financial statements. This
schedule has been subjected to the auditing procedures applied in the audit of
the basic financial statements and, in our opinion, fairly states in all
material respects the financial data required to be set forth therein in
relation to the basic financial statements taken as a whole.
ARTHUR ANDERSEN LLP
San Jose, California
February 17, 1998
S-1
<PAGE>
ECHELON CORPORATION
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS (IN THOUSANDS)
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
- ----------------------------------- ---------- ---------- ---------- ---------
BALANCE AT CHARGED TO BALANCE
BEGINNING COSTS AND AT END
DESCRIPTION OF PERIOD EXPENSES DEDUCTIONS OF PERIOD
- ----------------------------------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Year ended December 31, 1995:
Allowance for returns and doubtful
accounts.......................... $174 $304 $-- $478
Year ended December 31, 1996:
Allowance for returns and doubtful
accounts.......................... 478 341 -- 819
Year ended December 31, 1997:
Allowance for returns and doubtful
accounts.......................... 819 -- 257 562
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of Registrant.
3.2 Amended and Restated Certificate of Incorporation of Registrant (to be
effective upon closing of Offering).
3.3* Amended and Restated Bylaws of Registrant.
4.1 Form of Registrant's Common Stock Certificate.
4.2* Second Amended and Restated Modification Agreement dated May 15, 1997.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati P.C., regarding the
legality of the securities being issued.
10.1* Form of Indemnification Agreement entered into by Registrant with each
of its directors and executive officers.
10.2 1997 Stock Plan and forms of related agreements.
10.3* 1988 Stock Option Plan and forms of related agreements.
10.4* Second Amended and Restated Modification Agreement dated May 15, 1997
(included in Exhibit 4.2).
10.5* Form of International Distributor Agreement.
10.6* Form of OEM License Agreement.
10.7* Form of Software License Agreement.
10.8* International Distributor Agreement between the Company and EBV
Elektronik GmbH as of December 1, 1997.
10.9* 1998 Director Option Plan.
21.1 Subsidiaries of the Registrant.
23.1 Consent of Wilson Sonsini Goodrich & Rosati P.C. (included in Exhibit
5.1).
23.2 Consent of Arthur Andersen LLP (see page II-6).
24.1* Power of Attorney.
27.1* Financial Data Schedule (available in EDGAR format only).
</TABLE>
- --------
*Previously filed.
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ECHELON CORPORATION
Echelon Corporation, a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), certifies that:
A. The name of the Corporation is Echelon Corporation. Echelon
Corporation was originally incorporated under the name Echelon Systems, Inc.,
and the original Certificate of Incorporation was filed with the Secretary of
State of the State of Delaware on December 7, 1988.
B. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate restates, integrates
and further amends the provisions of the Corporation's Certificate of
Incorporation.
C. The text of the Amended and Restated Certificate of Incorporation as
previously amended or supplemented is restated and further amended to read as
follows:
ONE. The name of this Corporation is Echelon Corporation.
---
TWO. The address of the Corporation's registered office in the State
---
of Delaware is The Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
office is The Corporation Trust Company.
THREE. The nature of the business or purposes to be conducted by this
-----
Corporation is to engage in any lawful act or activity for which a corporation
may be organized under the General Corporation Law of Delaware.
FOUR. This Corporation is authorized to issue two classes of shares
----
to be designated respectively Common Stock and Preferred Stock. The total
number of shares of Common Stock this Corporation shall have authority to issue
is 100,000,000, with par value of $0.01 per share, and the total number of
shares of Preferred Stock this Corporation shall have authority to issue is
13,430,000, with par value of $0.01 per share. Of the Preferred Stock,
1,250,000 shares shall be designated Series B Preferred Stock ("Series B
Stock"), 1,608,000 shares shall be designated Series C Preferred Stock ("Series
C Stock"), 3,172,000 shares shall be designated Series D Preferred Stock
("Series D Stock") and 2,400,000 shares shall be designated Series E Preferred
Stock ("Series E Stock").
<PAGE>
The undesignated 5,000,000 shares of Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is authorized to
determine the number of shares of any such series. The Board of Directors is
also authorized to determine or alter the powers, designations, preferences,
rights and restrictions to be imposed upon any wholly unissued series of
Preferred Stock and, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series, to increase (but not above the total number of
authorized shares of the class) or decrease (but not below the number of shares
of such series then outstanding) the number of shares of any series subsequent
to the issue of shares of that series.
The Corporation shall from time to time in accordance with the laws of the
State of Delaware increase the authorized amount of its Common Stock if at any
time the number of shares of Common Stock remaining unissued and available for
issuance shall not be sufficient to permit conversion of the Preferred Stock.
The rights, preferences, privileges and restrictions granted to or imposed
on the Common Stock and Preferred Stock are as follows:
1. Dividends. The holders of the Preferred Stock shall be entitled to
---------
receive when and as declared by the Board of Directors out of any funds legally
available therefor, dividends at the rate of (i) $0.48 per share per annum, on
each outstanding share of Series B Stock, (ii) $0.622 per share per annum, on
each outstanding share of Series C Stock, (iii) $0.80 per share per annum, on
each outstanding share of Series D Stock and (iv) $0.40 per share per annum, on
each outstanding share of Series E Stock, adjusted for any combinations,
consolidations, or stock distributions or dividends with respect to such shares.
No dividends (other than those payable solely in Common Stock) shall be paid
with respect to the Common Stock during any fiscal year of the Corporation until
dividends in the total amount of $0.48 per share on the Series B Stock, $0.622
per share on the Series C Stock, $0.80 per share on the Series D Stock and $0.40
per share on the Series E Stock (adjusted for any combinations, consolidations,
or stock distributions or dividends with respect to such shares) shall have been
paid or declared and set apart during that fiscal year. Dividends on the Series
B Stock, Series C Stock, Series D Stock and Series E Stock shall not be
cumulative and no rights shall accrue to the holders of Series B Stock, Series C
Stock, Series D Stock and Series E Stock in the event that the Corporation shall
fail to declare or pay dividends on the Series B Stock in the amount of $0.48
per share, the Series C Stock in the amount of $0.622 per share, the Series D
Stock in the amount of $0.80 per share or the Series E Stock in the amount of
$0.40 per share (adjusted for any combina tions, consolidations, or stock
distributions or dividends with respect to such shares) or in any amount in any
previous fiscal year of the Corporation, whether or not the earnings of the
Corporation in that previous fiscal year were sufficient to pay such dividends
in whole or in part. After dividends in the amount of $0.48 per share on the
Series B Stock, dividends in the amount of $0.622 per share on the Series C
Stock, dividends in the amount of $0.80 per share on the Series D Stock and
dividends in the amount of $0.40 per share on the Series E Stock (adjusted for
any combinations, consolidations, or stock distributions or dividends with
respect to such shares) have been paid or declared and set apart in any one
fiscal year of the Corporation, if the Board shall elect to declare
-2-
<PAGE>
additional dividends out of funds legally available therefor in that fiscal
year, such additional dividends shall be declared solely on the Common Stock.
2. Liquidation Preference.
----------------------
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of Preferred Stock
shall be entitled to receive, prior and in preference to any distribution of any
of the assets or surplus funds of the Corporation to the holders of the Common
Stock by reason of their ownership of such stock, the amount of (i) $6.00 per
share for each share of Series B Stock then held by them, (ii) $7.7736 per share
for each share of Series C Stock then held by them, (iii) $10.00 per share for
each share of Series D Stock then held by them and (iv) $5.00 per share for each
share of Series E Stock then held by them (adjusted for any combinations,
consolidations, or stock distributions or dividends with respect to such
shares), and, in addition, the amount of any declared but unpaid dividends on
each share of Preferred Stock then held by them.
(b) If upon the occurrence of such event, the assets and funds thus
distributed among the holders of the Preferred Stock shall be insufficient to
permit the payment to such holders of the full aforesaid preferential amount,
then the entire assets and funds of the Corporation legally available for
distribution shall be distributed among the holders of the Preferred Stock in
proportion to the aggregate preferential amount of all shares of Preferred Stock
then held by them bears to the aggregate preferential amount of all shares of
Preferred Stock outstanding as of the date of the distribution upon the
occurrence of such event.
(c) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after payment has been made to
the holders of Preferred Stock of the full amounts to which they shall be
entitled as aforesaid, the holders of Common Stock shall be entitled to share
ratably in the remaining assets, based on the number of shares of Common Stock
held.
(d) For purposes of this Section 2, a consolidation or merger of the
Corporation with and into any other corporation or corporations, or a sale of
all or substantially all of the assets of the Corporation, or a reorganization
of the Corporation in which more than fifty percent (50%) of the outstanding
stock of the Corporation is exchanged, shall be treated as a liquidation,
dissolution or winding up within the meaning of this paragraph.
3. Voting Rights. The holders of shares of Preferred Stock shall have
-------------
the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, the
holder of each share of Preferred Stock shall be entitled to the number of votes
equal to the number of shares of Common Stock into which such share of Preferred
Stock could be converted at the record date for the determination of the
stockholders entitled to vote on such matters, or, if no such record date is
established, at the date such vote is taken or any written consent of the
stockholders is solicited. Holders of Preferred Stock shall be entitled to
notice of any stockholders' meeting in accordance with
-3-
<PAGE>
the Bylaws of the Corporation. Fractional votes by the holders of Preferred
Stock shall not, however, be permitted and any fractional voting rights shall
(after aggregating all shares into which shares of Preferred Stock held by each
holder could be converted) be rounded to the nearest whole number.
(b) Except as otherwise provided herein or by law, the holders of
shares of Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation, and except as required by law, holders of Preferred Stock shall
have no special voting rights.
4. Conversion. The holders of Preferred Stock shall have conversion
----------
rights as follows (the "Conversion Rights"):
(a) Right to Convert. Subject to the adjustment provisions of this
----------------
Section 4, each share of Preferred Stock shall be convertible, at the option of
the holder and without payment of additional consideration, at any time after
the date of issuance of such share at the office of the Corporation or any
transfer agent for such stock, into such number of fully paid and nonassessable
shares of Common Stock, as is determined (i) in the case of Series B Stock, by
dividing $6.00 by the Series B Conversion Price, (ii) in the case of the Series
C Stock, by dividing $7.7736 by the Series C Conversion Price, (iii) in the case
of the Series D Stock, by dividing $10.00 by the Series D Conversion Price and
(iv) in the case of the Series E Stock, by dividing $5.00 by the Series E
Conversion Price, determined as hereinafter provided, in effect at the time of
the conversion. The respective prices at which shares of Common Stock shall be
deliverable upon conversion of shares of each series of Preferred Stock shall
initially be $6.00 with respect to shares of Series B Stock (the "Series B
Conversion Price"), $7.7736 with respect to shares of Series C Stock (the
"Series C Conversion Price"), $10.00 with respect to shares of Series D Stock
(the "Series D Conversion Price") and $5.00 with respect to shares of Series E
Stock (the "Series E Conversion Price"). The term "Conversion Price" as used
herein shall refer to the Series B Conversion Price, the Series C Conversion
Price and the Series D Conversion Price and the Series E Conversion Price, as
applicable. The initial Conversion Price shall be subject to adjustment as
provided below.
(b) Automatic Conversion. Each share of Preferred Stock shall
--------------------
automatically be converted into shares of Common Stock at the then effective
Conversion Price:
(i) upon the affirmative vote of the holders of a majority of the
outstanding Preferred Stock voting together as a single class to cause all
outstanding shares of Preferred Stock to be converted.
(ii) upon the closing of a firm commitment underwritten public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering the offer and sale of equity securities for
the account of the Corporation to the public at an aggregate price (prior to
underwriter's commissions and offering expenses) of not less than $15,000,000 (a
"Qualified Public Offering"). In the event of the automatic conversion of the
Preferred Stock upon a Qualified Public Offering as aforesaid, the person(s)
entitled to receive the
-4-
<PAGE>
Common Stock issuable upon such conversion of the Preferred Stock shall not be
deemed to have converted such Preferred Stock until immediately prior to the
closing of such sale of securities.
(c) Mechanics of Conversion. No fractional shares of Common Stock
-----------------------
shall be issued upon conversion of the Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price. Before any holder of Preferred Stock shall be
entitled to convert the same into full shares of Common Stock and to receive
certificates therefor, he shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer
agent for the Preferred Stock, and shall give written notice to the Corporation
at such office that he elects to convert the same; provided, however, that in
the event of an automatic conversion pursuant to Section 4(b), the outstanding
shares of Preferred Stock shall be converted automatically without any further
action by the holders of such shares and whether or not the certificates
representing such shares are surrendered to the Corporation or its transfer
agent, and provided further that the Corporation shall not be obligated to issue
certificates evidencing the shares of Common Stock issuable upon such automatic
conversion unless the certificates evidencing such shares of Preferred Stock are
either delivered to the Corporation or its transfer agent as provided above, or
the holder notifies the Corporation or its transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement satisfactory to
the Corporation to indemnify the Corporation from any loss incurred by it in
connection with such certificates. The Corporation shall, as soon as practicable
after such delivery, or such agreement and indemnification in the case of a lost
certificate, issue and deliver at such office to such holder of Preferred Stock,
a certificate or certificates for the number of shares of Common Stock to which
he shall be entitled as aforesaid and a check payable to the holder in the
amount of any cash amounts payable as the result of a conversion into fractional
shares of Common Stock. Such conversion shall be deemed to have been immediately
prior to the close of business on the date of such surrender of the shares of
Preferred Stock to be converted, or in the case of automatic conversion on the
date of closing of the offering, and the person or persons entitled to receive
the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock on
such date.
(d) Adjustments to Conversion Price for Diluting Issues.
---------------------------------------------------
(i) Adjustments for Subdivisions, Combinations or Consolidation of
--------------------------------------------------------------
Common Stock. In the event the outstanding shares of Common Stock shall be
- ------------
subdivided (by stock split, stock dividends or otherwise), into a greater number
of shares of Common Stock, the Conversion Price then in effect shall,
concurrently with the effectiveness of such subdivision, be proportionately
decreased. In the event the outstanding shares of Common Stock shall be
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares of Common Stock, the Conversion Price then in effect shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
(ii) Adjustments for Stock Dividends and Other Distributions. In
-------------------------------------------------------
the event the Corporation at any time or from time to time makes, or fixes a
record date for the determination of holders of Common Stock entitled to receive
any distribution (excluding any
-5-
<PAGE>
repurchases of securities by the Corporation not made on a pro-rata basis from
all holders of any class of the Corporation's securities) payable in property or
in securities of the Corporation other than shares of Common Stock, and other
than as otherwise adjusted in this Section 4 or as provided in Section 1, then
and in each such event the holders of Preferred Stock shall receive at the time
of such distribution, the amount of property or the number of securities of the
Corporation that they would have received had their Preferred Stock been
converted into Common stock on the date of such event.
(iii) Adjustments for Reclassification, Exchange and Substitution.
-----------------------------------------------------------
Except as provided in Section 2 upon any liquidation, dissolution or winding up
of the Corporation, if the Common Stock issuable upon conversion of the
Preferred Stock shall be changed into the same or a different number of shares
of any other class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
provided for above), the Conversion Price then in effect shall, concurrently
with the effectiveness of such reorganization or reclassification, be
proportionately adjusted such that the Preferred Stock shall be convertible
into, in lieu of the number of shares of Common Stock which the holders would
otherwise have been entitled to receive, a number of shares of such other class
or classes of stock equivalent to the number of shares of Common Stock that
would have been subject to receipt by the holders upon conversion of the
Preferred Stock immediately before that exchange.
(e) No Impairment. The Corporation will not, by amendment of its Amended
-------------
and Restated Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this
certificate by the Corporation, but will at all times in good faith assist in
the carrying out of all the provisions of Section 4 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Preferred Stock against impairment.
(f) Certificate as to Adjustments. Upon the occurrence of each adjustment
-----------------------------
or readjustment of the Conversion Price pursuant to Section 4, the Corporation
at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms of this certificate and cause independent public
accountants selected by the Corporation to verify such computation and prepare
and furnish to each holder of Preferred Stock a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such adjustments
and readjustments, (ii) the Conversion Price at the time in effect, and (iii)
the number of shares of Common Stock and the amount, if any, of other property
that at the time would be received upon the conversion of the Preferred Stock.
(g) Notices of Record Date. In the event of any taking by the Corporation
----------------------
of a record of the holders of any class of securities for the purpose of
determining the holders of such securities who are entitled to receive any
dividend or other distribution whether in cash, property, stock or other
securities, or any right to subscribe for, purchase, or otherwise acquire any
shares of
-6-
<PAGE>
stock of any class or any other securities or property, or to receive any other
right, the Corporation shall mail to each holder of Preferred Stock at least
twenty (20) days prior to the date specified in such notice, a notice specifying
the date on which any such record is to be taken for the purpose of such
dividend, distribution, or rights, and the amount and character of such
dividend, distribution, or right.
(h) Reservation of Stock Issuable Upon Conversion. The Corporation shall
---------------------------------------------
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the conversion of the
shares of the Preferred Stock such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of the Preferred Stock. If at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of all then outstanding shares of the Preferred Stock, the Corporation will take
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose.
(i) Notices. Any notice required by the provisions of Section 4 to be
-------
given to the holders of shares of Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his address appearing on the books of the Corporation.
(j) Status of Converted Shares. In the event any shares of Preferred Stock
--------------------------
shall be converted pursuant to Section 4, the shares so converted shall be
cancelled and shall not be reissuable by the Corporation.
5. Amendment. The Amended and Restated Certificate of Incorporation of the
---------
Corporation shall not be further amended without the affirmative vote of the
holders of a majority of the outstanding shares of Preferred Stock, voting
separately as a class, if the amendment would (i) increase or decrease the
aggregate number of authorized shares of Preferred Stock, (ii) increase or
decrease the par value of the shares of Preferred Stock, or (iii) alter or
change the powers, preferences or special rights of the shares of Preferred
Stock so as to affect them adversely.
FIVE. The Corporation is to have perpetual existence.
----
SIX. In furtherance and not in limitation of the powers conferred by
---
statute, the Board of Directors is expressly authorized to make, alter, amend or
repeal the Bylaws of the Corporation.
SEVEN. The exact number of directors shall be as set forth in the Bylaws
-----
of the Corporation. Prior to the closing of a Qualified Public Offering, the
number of directors of the Corporation shall be not less than five (5) nor more
than seven (7). Effective upon the closing of a Qualified Public Offering, the
preceding sentence shall have no further force or effect.
-7-
<PAGE>
EIGHT. Vacancies existing in the Board of Directors for any reason, and
-----
any directorships resulting from any increase in the authorized number of
directors, may be filled between annual meetings of stockholders only by the
Board of Directors acting according to the procedures for the filling of
vacancies set forth in the Bylaws of the Corporation.
NINE. This Article shall become effective immediately upon the
----
Corporation's no longer being subject to Section 2115 of the California
Corporations Code. Upon the effectiveness of this Article, the Board of
Directors shall be divided into three classes consisting of as nearly equal
numbers of directors as possible, and designated Class A, Class B, and Class C.
The term of office of Class A shall expire at the first annual meeting of
stockholders following the effectiveness of this Article, and each third annual
meeting of stockholders thereafter; the term of office of Class B shall expire
at the second annual meeting of stockholders following the effectiveness of this
Article, and each third annual meeting of stockholders thereafter; and the term
of office of Class C shall expire at the third annual meeting of stockholders
following the effectiveness of this Article, and each third annual meeting of
stockholders thereafter. If Section 2115 of the California Corporations Code
becomes inapplicable to the Corporation upon the occurrence of an annual
stockholders meeting, then the election of directors at such meeting shall be in
accordance with the terms set forth in this Article NINE. If Section 2115 of
the California Corporations Code becomes inapplicable to the Corporation between
annual meetings of stockholders, then as soon as practicable following the
effectiveness of this Article, the directors then in office shall by resolution
of the Board of Directors select which of such directors shall be Class A
directors, Class B directors and Class C directors. Directors added to the board
of directors between annual meetings of stockholders by reason of an increase in
the authorized number of directors shall belong to the class designated by the
Board of Directors; provided however that the number of board seats designated
to belong to Class A, Class B and Class C must be as nearly equal in number as
possible. Following the effectiveness of this Article, stockholders may effect
the removal of a director only for cause. This provision shall supersede any
provision to the contrary in the Corporation's Bylaws.
TEN. At all elections of directors of the Corporation, if any holder of
---
stock of this Corporation entitled to vote at an election of directors shall
have given the Corporation notice in accordance with the manner therefor set
forth in the Corporation's Bylaws of such holder's intention to cumulate his or
her votes for the election of directors, then each holder of stock or of any
class or classes or of a series or series thereof shall be entitled to as many
votes as shall equal the number of votes which (except for this provision as to
cumulative voting) such holder would be entitled to cast for the election of
directors with respect to his or her shares of stock multiplied by the number of
directors to be elected, and the holder may cast all of such votes for a single
director or may distribute them among the number of directors to be voted for,
or for any two or more of them as such holder may see fit.
ELEVEN. Article TEN of this Amended and Restated Certificate of
------
Incorporation, providing for cumulative voting, shall cease to be effective
immediately upon the Corporation's no longer being subject to Section 2115 of
the California Corporations Code, and any provision to the contrary in the
Bylaws of the Corporation shall then be null and void.
-8-
<PAGE>
TWELVE. Anything in this Amended and Restated Certificate of Incorporation
------
to the contrary notwithstanding, neither the provisions of this Article nor the
provisions of Article ELEVEN (elimination of cumulative voting), Article NINE
(classification of the Board of Directors), or Article SEVEN (authorized number
of directors) of this Amended and Restated Certificate of Incorporation nor the
provisions of Section 2.3 (special meeting), Section 2.15 (advance notice of
stockholder nominees), Section 2.16 (advance notice of stockholder business), or
Section 9.2 (super majority vote) of the Bylaws shall be repealed or amended,
nor shall any provision inconsistent with the aforementioned provisions be
adopted and added to this Amended and Restated Certificate of Incorporation or
the Bylaws except upon the affirmative vote of not less than two-thirds of the
shares of the Corporation issued and outstanding.
THIRTEEN. Meetings of stockholders may be held within or without the State
--------
of Delaware, as the Bylaws may provide. Effective upon the closing of a
Qualified Public Offering, no action that is required or permitted to be taken
by the stockholders of the Corporation at any annual or special meeting of
stockholders may be effected by written consent of stockholders in lieu of a
meeting of stockholders. The books of the Corporation may be kept (subject to
any provision contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the Board of Directors
or in the Bylaws of the Corporation.
FOURTEEN. To the fullest extent permitted by the Delaware General
--------
Corporation Law, a director of the Corporation shall not be personally liable to
the Corporation or its stock holders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exception from liability
or limitation thereof is not permitted under the Delaware Corporation Law as the
same exists or may hereafter be amended. Neither any amendment nor repeal of
this Article FOURTEEN, nor the adoption of any provision of this Amended and
Restated Certificate of Incorporation inconsistent with this Article FOURTEEN,
shall eliminate or reduce the effect of this Article FOURTEEN in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article FOURTEEN, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
FIFTEEN. Advance notice of new business and stockholder nominations for
-------
the election of directors shall be given in the manner and to the extent
provided in the Bylaws of the Corporation. Election of directors need not be by
written ballot unless the Bylaws of the Corporation shall so provide.
SIXTEEN. The Corporation reserves the right to amend, alter, change or
-------
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
-9-
<PAGE>
IN WITNESS WHEREOF, Echelon Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by M. Kenneth Oshman, its President,
this _____ day of _______________, 1998.
ECHELON CORPORATION
----------------------------------------
M. Kenneth Oshman, President
-10-
<PAGE>
EXHIBIT 4.1
ECHELON
NUMBER SHARES
ECH
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR CERTAIN DEFINITIONS
IN NEW YORK, N.Y. AND RIDGEFIELD AND A STATEMENT AS TO RIGHTS,
PARK, N.J. PREFERENCES, PRIVILEGES AND
RESTRICTIONS, IF ANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP 27874N 10 5
THIS CERTIFIES THAT
________________________________________________________________________________
IS THE RECORD HOLDER OF
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, $0.01 PAR VALUE PER SHARE,
OF
ECHELON CORPORATION
transferable only on the books of the Corporation by the holder hereof in person
or by duly authorized Attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated
/s/ /s/
VICE PRESIDENT AND CHIEF CHAIRMAN OF THE BOARD, PRESIDENT
FINANCIAL OFFICER AND CHIEF EXECUTIVE OFFICER
[ECHELON CORPORATION DELAWARE CORPORATE SEAL DECEMBER 7, 1988]
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTRAR
BY__________________________________________________
AUTHORIZED SIGNATURE
<PAGE>
A statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights as established, from time to time, by the Certificate of
Incorporation of the Corporation and by any certificate of determination, the
number of shares constituting each class and series, and the designations
thereof, may be obtained by the holder hereof upon request and without charge
from the Secretary of the Corporation at the principal office of the
Corporation.
The following abbreviations, when used in the inscription on the face of
the certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
COM PROP -- as community property
UNIF GIFT MIN ACT -- _________________________Custodian_________________________
(Cust) (Minor)
under Uniform Gifts to Minors Act__________________________
(State)
UNIF TRF MIN ACT -- ________________________________Custodian (until age______)
(Cust)
____________________________________under Uniform Transfers
(Minor)
to Minor Act_______________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED,______________________________________________ hereby sell,
assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFICATION NUMBER OF ASSIGNEE
______________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated______________________________
X _____________________________________
X _____________________________________
NOTICE: THE SIGNATURE(S) TO THE ASSIGNMENT
MUST CORRESPOND WITH THE NAMES AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By______________________________________________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-
15.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
Echelon Corporation
4015 Miranda Avenue
Palo Alto, CA 94304
RE: REGISTRATION STATEMENT ON FORM S-1
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-1 filed by you
with the Securities and Exchange Commission on June 1, 1998 (Registration No.
333-55719) (the "Registration Statement"), in connection with the registration
under the Securities Act of 1933, as amended, of up to 5,750,000 shares of your
Common Stock, par value $0.01 per share (the "Shares"). The Shares include an
over-allotment option granted to the underwriters of the offering to purchase
750,000 shares. We understand that the Shares are to be sold to the underwriters
of the offering for resale to the public as described in the Registration
Statement. As your legal counsel, we have examined the proceedings taken, and
are familiar with the proceedings proposed to be taken, by you in connection
with the sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, including the proceedings being taken in order to permit such
transaction to be carried out in accordance with applicable state securities
laws, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by the
Board of Directors of the Company, will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 10.2
ECHELON CORPORATION
1997 STOCK PLAN
(AS AMENDED AND RESTATED MAY 29, 1998)
1. Purposes of the Plan. The purposes of this 1997 Stock Plan are:
--------------------
. to attract and retain the best available personnel for positions of
substantial responsibility,
. to provide additional incentive to Employees, Directors and
Consultants, and
. to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time of
grant. Stock Purchase Rights may also be granted under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Board or any of its Committees as shall be
-------------
administering the Plan, in accordance with Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating to the
---------------
administration of stock option plans under U. S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options or Stock Purchase Rights are,
or will be, granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
-----
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Committee" means a committee of Directors appointed by the Board
---------
in accordance with Section 4 of the Plan.
(f) "Common Stock" means the common stock of the Company.
------------
(g) "Company" means Echelon Corporation, a Delaware corporation.
-------
(h) "Consultant" means any person, including an advisor, engaged by the
----------
Company or a Parent or Subsidiary to render services to such entity.
<PAGE>
(i) "Director" means a member of the Board.
--------
(j) "Disability" means total and permanent disability as defined in
----------
Section 22(e)(3) of the Code.
(k) "Employee" means any person, including Officers and Directors,
--------
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor.
For purposes of Incentive Stock Options, no such leave may exceed ninety days,
unless reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option.
Neither service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
(m) "Fair Market Value" means, as of any date, the value of Common Stock
-----------------
determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system for the last market
trading day prior to the time of determination, as reported in The Wall Street
---------------
Journal or such other source as the Administrator deems reliable;
- -------
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day of
determination, as reported in The Wall Street Journal or such other source as
-----------------------
the Administrator deems reliable; or
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value shall be determined in good faith by the Administrator.
(n) "Incentive Stock Option" means an Option intended to qualify as an
----------------------
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
-2-
<PAGE>
(o) "Nonstatutory Stock Option" means an Option not intended to qualify
-------------------------
as an Incentive Stock Option.
(p) "Notice of Grant" means a written or electronic notice evidencing
---------------
certain terms and conditions of an individual Option or Stock Purchase Right
grant. The Notice of Grant is part of the Option Agreement.
(q) "Officer" means a person who is an officer of the Company within the
-------
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(r) "Option" means a stock option granted pursuant to the Plan.
------
(s) "Option Agreement" means an agreement between the Company and an
----------------
Optionee evidencing the terms and conditions of an individual Option grant. The
Option Agreement is subject to the terms and conditions of the Plan.
(t) "Option Exchange Program" means a program whereby outstanding
-----------------------
Options are surrendered in exchange for Options with a lower exercise price.
(u) "Optioned Stock" means the Common Stock subject to an Option or
--------------
Stock Purchase Right.
(v) "Optionee" means the holder of an outstanding Option or Stock
--------
Purchase Right granted under the Plan.
(w) "Parent" means a "parent corporation," whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
(x) "Plan" means this 1997 Stock Plan.
----
(y) "Restricted Stock" means shares of Common Stock acquired pursuant to
----------------
a grant of Stock Purchase Rights under Section 11 of the Plan.
(z) "Restricted Stock Purchase Agreement" means a written agreement
-----------------------------------
between the Company and the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase Right. The Restricted Stock
Purchase Agreement is subject to the terms and conditions of the Plan and the
Notice of Grant.
(aa) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor
----------
to Rule 16b-3, as in effect when discretion is being exercised with respect to
the Plan.
(bb) "Section 16(b)" means Section 16(b) of the Exchange Act.
-------------
-3-
<PAGE>
(cc) "Service Provider" means an Employee, Director or Consultant.
----------------
(dd) "Share" means a share of the Common Stock, as adjusted in
-----
accordance with Section 13 of the Plan.
(ee) "Stock Purchase Right" means the right to purchase Common Stock
--------------------
pursuant to Section 11 of the Plan, as evidenced by a Notice of Grant.
(ff) "Subsidiary" means a "subsidiary corporation", whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 13 of
-------------------------
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 6,200,000 Shares, plus an annual increase to be added on the
first day of the Company's fiscal year (beginning in 1999) equal to the lesser
of (i) 5,000,000 Shares, (ii) 5% of the outstanding shares on such date or (iii)
a lesser amount determined by the Board. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an Option
Exchange Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued under
--------
the Plan, whether upon exercise of an Option or Right, shall not be returned to
the Plan and shall not become available for future distribution under the Plan,
except that if Shares of Restricted Stock are repurchased by the Company at
their original purchase price, such Shares shall become available for future
grant under the Plan.
4. Administration of the Plan.
--------------------------
(a) Procedure.
---------
(i) Multiple Administrative Bodies. The Plan may be administered by
------------------------------
different Committees with respect to different groups of Service Providers.
(ii) Section 162(m). To the extent that the Administrator determines
--------------
it to be desirable to qualify Options granted hereunder as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the Plan shall
be administered by a Committee of two or more "outside directors" within the
meaning of Section 162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to qualify transactions
----------
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
shall be structured to satisfy the requirements for exemption under Rule 16b-3.
-4-
<PAGE>
(iv) Other Administration. Other than as provided above, the Plan
--------------------
shall be administered by (A) the Board or (B) a Committee, which committee shall
be constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan,
---------------------------
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options and Stock
Purchase Rights may be granted hereunder;
(iii) to determine the number of shares of Common Stock to be
covered by each Option and Stock Purchase Right granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Option or Stock Purchase Right granted hereunder.
Such terms and conditions include, but are not limited to, the exercise price,
the time or times when Options or Stock Purchase Rights may be exercised (which
may be based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any Option
or Stock Purchase Right or the shares of Common Stock relating thereto, based in
each case on such factors as the Administrator, in its sole discretion, shall
determine;
(vi) to reduce the exercise price of any Option or Stock Purchase
Right to the then current Fair Market Value if the Fair Market Value of the
Common Stock covered by such Option or Stock Purchase Right shall have declined
since the date the Option or Stock Purchase Right was granted;
(vii) to institute an Option Exchange Program;
(viii) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(x) to modify or amend each Option or Stock Purchase Right
(subject to Section 15(c) of the Plan), including the discretionary authority to
extend the post-termination exercisability period of Options longer than is
otherwise provided for in the Plan;
-5-
<PAGE>
(xi) to allow Optionees to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued upon exercise
of an Option or Stock Purchase Right that number of Shares having a Fair Market
Value equal to the amount required to be withheld. The Fair Market Value of the
Shares to be withheld shall be determined on the date that the amount of tax to
be withheld is to be determined. All elections by an Optionee to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable;
(xii) to authorize any person to execute on behalf of the Company
any instrument required to effect the grant of an Option or Stock Purchase Right
previously granted by the Administrator;
(xiii) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's decisions,
----------------------------------
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options or Stock Purchase Rights.
5. Eligibility. Nonstatutory Stock Options and Stock Purchase Rights may
-----------
be granted to Service Providers. Incentive Stock Options may be granted only to
Employees.
6. Limitations.
-----------
(a) Each Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding
such designation, to the extent that the aggregate Fair Market Value of the
Shares with respect to which Incentive Stock Options are exercisable for the
first time by the Optionee during any calendar year (under all plans of the
Company and any Parent or Subsidiary) exceeds $100,000, such Options shall be
treated as Nonstatutory Stock Options. For purposes of this Section 6(a),
Incentive Stock Options shall be taken into account in the order in which they
were granted. The Fair Market Value of the Shares shall be determined as of the
time the Option with respect to such Shares is granted.
(b) Neither the Plan nor any Option or Stock Purchase Right shall confer
upon an Optionee any right with respect to continuing the Optionee's
relationship as a Service Provider with the Company, nor shall they interfere in
any way with the Optionee's right or the Company's right to terminate such
relationship at any time, with or without cause.
(c) The following limitations shall apply to grants of Options:
(i) No Service Provider shall be granted, in any fiscal year of the
Company, Options to purchase more than 1,860,000 Shares.
-6-
<PAGE>
(ii) In connection with his or her initial service, a Service
Provider may be granted Options to purchase up to an additional 1,860,000 Shares
which shall not count against the limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted proportionately
in connection with any change in the Company's capitalization as described in
Section 13.
(iv) If an Option is cancelled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 13), the cancelled Option will be counted against the
limits set forth in subsections (i) and (ii) above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
7. Term of Plan. Subject to Section 19 of the Plan, the Plan shall become
------------
effective upon its adoption by the Board. It shall continue in effect for a
term of ten (10) years unless terminated earlier under Section 15 of the Plan.
8. Term of Option. The term of each Option shall be stated in the Option
--------------
Agreement. In the case of an Incentive Stock Option, the term shall be ten (10)
years from the date of grant or such shorter term as may be provided in the
Option Agreement. Moreover, in the case of an Incentive Stock Option granted to
an Optionee who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option shall be five (5) years from the date of grant or such
shorter term as may be provided in the Option Agreement.
9. Option Exercise Price and Consideration.
---------------------------------------
(a) Exercise Price. The per share exercise price for the Shares to be
--------------
issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive Stock
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant.
(B) granted to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share on the date of grant.
-7-
<PAGE>
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator. In the case of a
Nonstatutory Stock Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share on
the date of grant. Notwithstanding the foregoing, at no time shall the Shares
underlying Nonstatutory Stock Options with exercise prices that are less than
100% of the Fair Market Value per Share on the date of grant constitute more
than 10% of the aggregate number of Shares reserved for issuance under the Plan
(including any Shares that have been issued or are issuable in connection with
Options exercised or granted under the Plan).
(iii) Notwithstanding the foregoing, Options may be granted with a
per Share exercise price of less than 100% of the Fair Market Value per Share on
the date of grant pursuant to a merger or other corporate transaction.
(b) Waiting Period and Exercise Dates. At the time an Option is
---------------------------------
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised.
(c) Form of Consideration. The Administrator shall determine the
---------------------
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which (A) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six months
on the date of surrender, and (B) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised;
(v) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan;
(vi) a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee's participation
in any Company-sponsored deferred compensation program or arrangement;
(vii) any combination of the foregoing methods of payment; or
-8-
<PAGE>
(viii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
10. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Stockholder. Any Option granted
-----------------------------------------------
hereunder shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator and set forth
in the Option Agreement. Unless the Administrator provides otherwise, vesting
of Options granted hereunder shall be tolled during any unpaid leave of absence.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except as
provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Relationship as a Service Provider. If an Optionee
-------------------------------------------------
ceases to be a Service Provider, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option within such period of
time as is specified in the Option Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement). In the absence
of a specified time in the Option Agreement, the Option shall remain exercisable
for three (3) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a Service
----------------------
Provider as a result of the Optionee's Disability, the Optionee may exercise his
or her Option within such period of time
-9-
<PAGE>
as is specified in the Option Agreement to the extent the Option is vested on
the date of termination (but in no event later than the expiration of the term
of such Option as set forth in the Option Agreement). In the absence of a
specified time in the Option Agreement, the Option shall remain exercisable for
twelve (12) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service Provider,
-----------------
the Option may be exercised within such period of time as is specified in the
Option Agreement (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquires the right to exercise the Option by bequest or inheritance,
but only to the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Optionee's termination. If, at
the time of death, the Optionee is not vested as to his or her entire Option,
the Shares covered by the unvested portion of the Option shall immediately
revert to the Plan. The Option may be exercised by the executor or
administrator of the Optionee's estate or, if none, by the person(s) entitled to
exercise the Option under the Optionee's will or the laws of descent or
distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to buy
-----------------
out for a payment in cash or Shares an Option previously granted based on such
terms and conditions as the Administrator shall establish and communicate to the
Optionee at the time that such offer is made.
11. Stock Purchase Rights.
---------------------
(a) Rights to Purchase. Stock Purchase Rights may be issued either
------------------
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing or electronically, by means of a Notice of Grant, of the
terms, conditions and restrictions related to the offer, including the number of
Shares that the offeree shall be entitled to purchase, the price to be paid, and
the time within which the offeree must accept such offer. The offer shall be
accepted by execution of a Restricted Stock Purchase Agreement in the form
determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise,
-----------------
the Restricted Stock Purchase Agreement shall grant the Company a repurchase
option exercisable upon the voluntary or involuntary termination of the
purchaser's service with the Company for any reason (including death or
Disability). The purchase price for Shares repurchased pursuant to the
Restricted Stock Purchase Agreement shall be the original price paid by
-10-
<PAGE>
the purchaser and may be paid by cancellation of any indebtedness of the
purchaser to the Company. The repurchase option shall lapse at a rate determined
by the Administrator.
(c) Other Provisions. The Restricted Stock Purchase Agreement shall
----------------
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.
(d) Rights as a Stockholder. Once the Stock Purchase Right is
-----------------------
exercised, the purchaser shall have the rights equivalent to those of a
shareholder, and shall be a shareholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the Stock Purchase Right is exercised, except as provided in Section 13
of the Plan.
12. Non-Transferability of Options and Stock Purchase Rights. Unless
--------------------------------------------------------
determined otherwise by the Administrator, an Option or Stock Purchase Right may
not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee. If the
Administrator makes an Option or Stock Purchase Right transferable, such Option
or Stock Purchase Right shall contain such additional terms and conditions as
the Administrator deems appropriate.
13. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset
------------------------------------------------------------------------
Sale.
----
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and Stock Purchase Right, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of Common Stock covered by each
such outstanding Option or Stock Purchase Right, and the Share numbers referred
to in Sections 6(c)(i) and (ii) and Section 3(i) shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option or Stock
Purchase Right.
-11-
<PAGE>
(b) Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Shares as
to which the Option would not otherwise be exercisable. In addition, the
Administrator may provide that any Company repurchase option applicable to any
Shares purchased upon exercise of an Option or Stock Purchase Right shall lapse
as to all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent it has not been
previously exercised, an Option or Stock Purchase Right will terminate
immediately prior to the consummation of such proposed action.
(c) Merger or Asset Sale.
--------------------
(i) General. In the event of a merger of the Company with or into
-------
another corporation, or the sale of substantially all of the assets of the
Company (a "Merger"), each outstanding Option and Stock Purchase Right shall be
assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation (the
"Successor Corporation"). In the event that the Successor Corporation refuses
to assume or substitute for the Option or Stock Purchase Right, the Optionee
shall fully vest in and have the right to exercise the Option or Stock Purchase
Right as to all of the Optioned Stock, including Shares as to which it would not
otherwise be vested or exercisable. If an Option or Stock Purchase Right
becomes fully vested and exercisable in lieu of assumption or substitution in
the event of a Merger, the Administrator shall notify the Optionee in writing or
electronically that the Option or Stock Purchase Right shall be fully vested and
exercisable for a period of fifteen (15) days from the date of such notice, and
the Option or Stock Purchase Right shall terminate upon the expiration of such
period. For the purposes of this paragraph, the Option or Stock Purchase Right
shall be considered assumed if, following the Merger, the option or right
confers the right to purchase or receive, for each Share of Optioned Stock
subject to the Option or Stock Purchase Right immediately prior to the Merger,
the consideration (whether stock, cash, or other securities or property)
received in the Merger by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the Merger is not solely common stock of the Successor Corporation or its
Parent, the Administrator may, with the consent of the Successor Corporation,
provide for the consideration to be received upon the exercise of the Option or
Stock Purchase Right, for each Share of Optioned Stock subject to the Option or
Stock Purchase Right, to be solely common stock of the Successor Corporation or
its Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the Merger.
(ii) Employee Options Following Assumption or Substitution. Following
-----------------------------------------------------
an assumption or substitution in connection with a Merger as described in
Section 13(c)(i) above, and in the event that upon the Merger the stockholders
of the Company immediately prior to the Merger hold less than 50% of the
outstanding voting equity securities of the Successor Corporation
-12-
<PAGE>
following the Merger (a "Change of Control Merger"), if an Optionee's status as
an Employee of the Successor Corporation is terminated by the Successor
Corporation as a result of an Involuntary Termination (as defined below) within
twelve months following the Change of Control Merger, the Optionee shall fully
vest in and have the right to exercise Optionee's Option or Stock Purchase Right
as to all of the Optioned Stock, including Shares as to which Optionee would not
otherwise be vested or exercisable. Thereafter, the Option or Stock Purchase
Right shall remain exercisable in accordance with Section 10.
(A) For purposes of this section, any of the following events
shall constitute an "Involuntary Termination": (i) without the Optionee's
express written consent, a significant reduction of the Optionee's duties,
authority or responsibilities, relative to the Optionee's duties, authority or
responsibilities as in effect immediately prior to the Change of Control Merger;
(ii) without the Optionee's express written consent, a substantial reduction,
without good business reasons, of the facilities and perquisites (including
office space and location) available to the Optionee immediately prior to the
Change of Control Merger; (iii) a reduction in the base salary of the Optionee
as in effect immediately prior to the Change of Control Merger; (iv) a material
reduction in the kind or level of employee benefits, including bonuses, to which
the Optionee was entitled immediately prior to the Change of Control Merger with
the result that the Optionee's overall benefits package is significantly
reduced; (v) the relocation of the Optionee to a facility or a location more
than thirty (30) miles from the Optionee's then present location, without the
Optionee's express written consent; (vi) any purported termination of the
Optionee which is not effected for Disability or for Cause (as defined below),
or any purported termination for which the grounds relied upon are not valid;
(vii) or any act or set of facts or circumstances which would, under California
case law or statute, constitute a constructive termination of the Optionee.
(B) For purposes of this section, "Cause" shall mean (i) any act
of personal dishonesty taken by the Optionee in connection with his
responsibilities as a Service Provider and intended to result in substantial
personal enrichment of the Optionee, (ii) Optionee's conviction of a felony,
(iii) a willful act by the Optionee which constitutes gross misconduct and which
is injurious to the Successor Corporation, and (iv) following delivery to the
Optionee of a written demand for performance from the Successor Corporation
which describes the basis for the Successor Corporation's belief that the
Optionee has not substantially performed his duties, continued violations by the
Optionee of the Optionee's obligations to the Successor Corporation which are
demonstrably willful and deliberate on the Optionee's part.
(iii) Director Options Following Assumption or Substitution.
-----------------------------------------------------
Following an assumption or substitution in connection with a Change of Control
Merger, if an Optionee's status as a director of the Successor Corporation
terminates other than upon a voluntary resignation by the Optionee, the Optionee
shall fully vest in and have the right to exercise Optionee's Option or Stock
Purchase Right as to all of the Optioned Stock, including Shares as to which
Optionee would not otherwise be vested or exercisable. Thereafter, the Option
or Stock Purchase Right shall remain exercisable in accordance with Section 10.
-13-
<PAGE>
14. Date of Grant. The date of grant of an Option or Stock Purchase Right
-------------
shall be, for all purposes, the date on which the Administrator makes the
determination granting such Option or Stock Purchase Right, or such other later
date as is determined by the Administrator. Notice of the determination shall
be provided to each Optionee within a reasonable time after the date of such
grant.
15. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may at any time amend, alter,
-------------------------
suspend or terminate the Plan.
(b) Stockholder Approval. The Company shall obtain shareholder approval
--------------------
of any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
----------------------------------
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Options granted under the
Plan prior to the date of such termination.
16. Conditions Upon Issuance of Shares.
----------------------------------
(a) Legal Compliance. Shares shall not be issued pursuant to the
----------------
exercise of an Option or Stock Purchase Right unless the exercise of such Option
or Stock Purchase Right and the issuance and delivery of such Shares shall
comply with Applicable Laws and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
--------------------------
Option or Stock Purchase Right, the Company may require the person exercising
such Option or Stock Purchase Right to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required.
17. Inability to Obtain Authority. The inability of the Company to obtain
-----------------------------
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
18. Reservation of Shares. The Company, during the term of this Plan, will
---------------------
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
-14-
<PAGE>
19. Stockholder Approval. The Plan shall be subject to approval by
--------------------
the shareholders of the Company within twelve (12) months after the date the
Plan is adopted. Such shareholder approval shall be obtained in the manner and
to the degree required under Applicable Laws.
-15-
<PAGE>
ECHELON CORPORATION
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have
the same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
----------------------------
[Optionee's Name and Address]
You have been granted an option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as
follows:
Grant Number _________________________
Date of Grant _________________________
Vesting Commencement Date _________________________
Exercise Price per Share $________________________
Total Number of Shares Granted _________________________
Total Exercise Price $________________________
Type of Option: ___ Incentive Stock Option
___ Nonstatutory Stock Option
Term/Expiration Date: _________________________
Vesting Schedule:
----------------
This Option may be exercised, in whole or in part, in accordance with the
following schedule:
25% of the Shares subject to the Option shall vest on each anniversary of
the date of grant subject to the Optionee continuing to be a Service Provider on
such dates.
<PAGE>
Termination Period:
------------------
This Option may be exercised for _____ after Optionee ceases to be a
Service Provider. Upon the death or Disability of the Optionee, this Option may
be exercised for __________ after Optionee ceases to be a Service Provider. In
no event shall this Option be exercised later than the Term/Expiration Date as
provided above.
II. AGREEMENT
---------
1. Grant of Option. The Plan Administrator of the Company hereby grants to
---------------
the Optionee named in the Notice of Grant attached as Part I of this Agreement
(the "Optionee") an option (the "Option") to purchase the number of Shares, as
set forth in the Notice of Grant, at the exercise price per share set forth in
the Notice of Grant (the "Exercise Price"), subject to the terms and conditions
of the Plan, which is incorporated herein by reference. Subject to Section
15(c) of the Plan, in the event of a conflict between the terms and conditions
of the Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option under
Section 422 of the Code. However, if this Option is intended to be an Incentive
Stock Option, to the extent that it exceeds the $100,000 rule of Code Section
422(d) it shall be treated as a Nonstatutory Stock Option ("NSO").
2. Exercise of Option.
------------------
(a) Right to Exercise. This Option is exercisable during its term in
-----------------
accordance with the Vesting Schedule set out in the Notice of Grant and the
applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an
------------------
exercise notice, in the form attached as Exhibit A (the "Exercise Notice"),
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised (the "Exercised Shares"), and
such other representations and agreements as may be required by the Company
pursuant to the provisions of the Plan. The Exercise Notice shall be completed
by the Optionee and delivered to the Chief Financial Officer of the Company.
The Exercise Notice shall be accompanied by payment of the aggregate Exercise
Price as to all Exercised Shares. This Option shall be deemed to be exercised
upon receipt by the Company of such fully executed Exercise Notice accompanied
by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this Option unless
such issuance and exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Exercised Shares shall be considered
transferred to the Optionee on the date the Option is exercised with respect to
such Exercised Shares.
-2-
<PAGE>
3. Method of Payment. Payment of the aggregate Exercise Price shall be by
-----------------
any of the following, or a combination thereof, at the election of the Optionee:
(a) cash; or
(b) check; or
(c) consideration received by the Company under a cashless exercise
program implemented by the Company in connection with the Plan; or
(d) surrender of other Shares which (i) in the case of Shares acquired
upon exercise of an option, have been owned by the Optionee for more than six
(6) months on the date of surrender, and (ii) have a Fair Market Value on the
date of surrender equal to the aggregate Exercise Price of the Exercised Shares;
or
(e) with the Administrator's consent, delivery of Optionee's promissory
note (the "Note") in the form attached hereto as Exhibit C, in the amount of the
aggregate Exercise Price of the Exercised Shares together with the execution and
delivery by the Optionee of the Security Agreement attached hereto as Exhibit B.
The Note shall bear interest at the "applicable federal rate" prescribed under
the Code and its regulations at time of purchase, and shall be secured by a
pledge of the Shares purchased by the Note pursuant to the Security Agreement.
4. Non-Transferability of Option. This Option may not be transferred in
-----------------------------
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by the Optionee. The
terms of the Plan and this Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the term set
--------------
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
6. Tax Consequences. Some of the federal tax consequences relating to this
----------------
Option, as of the date of this Option, are set forth below. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
(a) Exercising the Option.
---------------------
(i) Nonstatutory Stock Option. The Optionee may incur regular
-------------------------
federal income tax liability upon exercise of a NSO. The Optionee will be
treated as having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the Fair Market Value of the Exercised
Shares on the date of exercise over their aggregate Exercise Price. If
-3-
<PAGE>
the Optionee is an Employee or a former Employee, the Company will be required
to withhold from his or her compensation or collect from Optionee and pay to the
applicable taxing authorities an amount in cash equal to a percentage of this
compensation income at the time of exercise, and may refuse to honor the
exercise and refuse to deliver Shares if such withholding amounts are not
delivered at the time of exercise.
(ii) Incentive Stock Option. If this Option qualifies as an ISO,
----------------------
the Optionee will have no regular federal income tax liability upon its
exercise, although the excess, if any, of the Fair Market Value of the Exercised
Shares on the date of exercise over their aggregate Exercise Price will be
treated as an adjustment to alternative minimum taxable income for federal tax
purposes and may subject the Optionee to alternative minimum tax in the year of
exercise. In the event that the Optionee ceases to be an Employee but remains a
Service Provider, any Incentive Stock Option of the Optionee that remains
unexercised shall cease to qualify as an Incentive Stock Option and will be
treated for tax purposes as a Nonstatutory Stock Option on the date three (3)
months and one (1) day following such change of status.
(b) Disposition of Shares.
---------------------
(i) NSO. If the Optionee holds NSO Shares for at least one year,
---
any gain realized on disposition of the Shares will be treated as long-term
capital gain for federal income tax purposes.
(ii) ISO. If the Optionee holds ISO Shares for at least one year
---
after exercise and two years after the grant date, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
income tax purposes. If the Optionee disposes of ISO Shares within one year
after exercise or two years after the grant date, any gain realized on such
disposition will be treated as compensation income (taxable at ordinary income
rates) to the extent of the excess, if any, of the lesser of (A) the difference
between the Fair Market Value of the Shares acquired on the date of exercise and
the aggregate Exercise Price, or (B) the difference between the sale price of
such Shares and the aggregate Exercise Price. Any additional gain will be taxed
as capital gain, short-term or long-term depending on the period that the ISO
Shares were held.
(c) Notice of Disqualifying Disposition of ISO Shares. If the Optionee
-------------------------------------------------
sells or otherwise disposes of any of the Shares acquired pursuant to an ISO on
or before the later of (i) two years after the grant date, or (ii) one year
after the exercise date, the Optionee shall immediately notify the Company in
writing of such disposition. The Optionee agrees that he or she may be subject
to income tax withholding by the Company on the compensation income recognized
from such early disposition of ISO Shares by payment in cash or out of the
current earnings paid to the Optionee.
7. Entire Agreement; Governing Law. The Plan is incorporated herein by
-------------------------------
reference. The Plan and this Option Agreement constitute the entire agreement
of the parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the
-4-
<PAGE>
Company and Optionee with respect to the subject matter hereof, and may not be
modified adversely to the Optionee's interest except by means of a writing
signed by the Company and Optionee. This agreement is governed by the internal
substantive laws, but not the choice of law rules, of California.
8. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES
---------------------------------
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE
OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
By your signature and the signature of the Company's representative below,
you and the Company agree that this Option is granted under and governed by the
terms and conditions of the Plan and this Option Agreement. Optionee has
reviewed the Plan and this Option Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option
Agreement and fully understands all provisions of the Plan and Option Agreement.
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions relating to the Plan
and Option Agreement. Optionee further agrees to notify the Company upon any
change in the residence address indicated below.
OPTIONEE: ECHELON CORPORATION
____________________________________ _________________________________
Signature By
____________________________________ _________________________________
Print Name Title
____________________________________
Residence Address
____________________________________
-5-
<PAGE>
CONSENT OF SPOUSE
-----------------
The undersigned spouse of Optionee has read and hereby approves the terms
and conditions of the Plan and this Option Agreement. In consideration of the
Company's granting his or her spouse the right to purchase Shares as set forth
in the Plan and this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
_______________________________________
Spouse of Optionee
-6-
<PAGE>
EXHIBIT A
---------
1997 STOCK PLAN
EXERCISE NOTICE
Echelon Corporation
4015 Miranda Avenue
Palo Alto, CA 94304
Attention: Chief Financial Officer
1. Exercise of Option. Effective as of today, ________________, 199__, the
------------------
undersigned ("Purchaser") hereby elects to purchase ______________ shares (the
"Shares") of the Common Stock of Echelon Corporation (the "Company") under and
pursuant to the 1997 Stock Plan (the "Plan") and the Stock Option Agreement
dated _____________, 19___ (the "Option Agreement"). The purchase price for the
Shares shall be $_____________, as required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
-------------------
full purchase price for the Shares.
3. Representations of Purchaser. Purchaser acknowledges that Purchaser has
----------------------------
received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. Rights as Stockholder. Until the issuance (as evidenced by the
---------------------
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares so acquired shall
be issued to the Optionee as soon as practicable after exercise of the Option.
No adjustment will be made for a dividend or other right for which the record
date is prior to the date of issuance, except as provided in Section 13 of the
Plan.
5. Tax Consultation. Purchaser understands that Purchaser may suffer
----------------
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
-------------------------------
incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing
<PAGE>
signed by the Company and Purchaser. This agreement is governed by the internal
substantive laws, but not the choice of law rules, of California.
Submitted by: Accepted by:
PURCHASER: ECHELON CORPORATION
_________________________________ ______________________________
Signature By
_________________________________ ______________________________
Print Name Its
Address: Address:
- ------- -------
_________________________________ Echelon Corporation
_________________________________ 4015 Miranda Avenue
Palo Alto, CA 94304
______________________________
Date Received
-2-
<PAGE>
EXHIBIT B
---------
SECURITY AGREEMENT
This Security Agreement is made as of __________, 19___ between Echelon
Corporation, a Delaware corporation ("Pledgee"), and _________________________
("Pledgor").
Recitals
--------
Pursuant to Pledgor's election to purchase Shares under the Option Agreement
dated ________ (the "Option"), between Pledgor and Pledgee under Pledgee's 1997
Stock Plan, and Pledgor's election under the terms of the Option to pay for such
shares with his promissory note (the "Note"), Pledgor has purchased _________
shares of Pledgee's Common Stock (the "Shares") at a price of $________ per
share, for a total purchase price of $__________. The Note and the obligations
thereunder are as set forth in Exhibit C to the Option.
NOW, THEREFORE, it is agreed as follows:
1. Creation and Description of Security Interest. In consideration of the
---------------------------------------------
transfer of the Shares to Pledgor under the Option Agreement, Pledgor, pursuant
to the California Commercial Code, hereby pledges all of such Shares (herein
sometimes referred to as the "Collateral") represented by certificate number
______, duly endorsed in blank or with executed stock powers, and herewith
delivers said certificate to the Secretary of Pledgee ("Pledgeholder"), who
shall hold said certificate subject to the terms and conditions of this Security
Agreement.
The pledged stock (together with an executed blank stock assignment for use
in transferring all or a portion of the Shares to Pledgee if, as and when
required pursuant to this Security Agreement) shall be held by the Pledgeholder
as security for the repayment of the Note, and any extensions or renewals
thereof, to be executed by Pledgor pursuant to the terms of the Option, and the
Pledge holder shall not encumber or dispose of such Shares except in accordance
with the provisions of this Security Agreement.
2. Pledgor's Representations and Covenants. To induce Pledgee to enter
---------------------------------------
into this Security Agreement, Pledgor represents and covenants to Pledgee, its
successors and assigns, as follows:
a. Payment of Indebtedness. Pledgor will pay the principal sum of the
-----------------------
Note secured hereby, together with interest thereon, at the time and in the
manner provided in the Note.
b. Encumbrances. The Shares are free of all other encumbrances,
------------
defenses and liens, and Pledgor will not further encumber the Shares without the
prior written consent of Pledgee.
c. Margin Regulations. In the event that Pledgee's Common Stock is now
------------------
or later becomes margin-listed by the Federal Reserve Board and Pledgee is
classified as a "lender" within
<PAGE>
the meaning of the regulations under Part 207 of Title 12 of the Code of Federal
Regulations ("Regulation G"), Pledgor agrees to cooperate with Pledgee in making
any amendments to the Note or providing any additional collateral as may be
necessary to comply with such regulations.
3. Voting Rights. During the term of this pledge and so long as all
-------------
payments of principal and interest are made as they become due under the terms
of the Note, Pledgor shall have the right to vote all of the Shares pledged
hereunder.
4. Stock Adjustments. In the event that during the term of the pledge any
-----------------
stock dividend, reclassification, readjustment or other changes are declared or
made in the capital structure of Pledgee, all new, substituted and additional
shares or other securities issued by reason of any such change shall be
delivered to and held by the Pledgee under the terms of this Security Agreement
in the same manner as the Shares originally pledged hereunder. In the event of
substitution of such securities, Pledgor, Pledgee and Pledgeholder shall
cooperate and execute such documents as are reasonable so as to provide for the
substitution of such Collateral and, upon such substitution, references to
"Shares" in this Security Agreement shall include the substituted shares of
capital stock of Pledgor as a result thereof.
5. Options and Rights. In the event that, during the term of this pledge,
------------------
subscription Options or other rights or options shall be issued in connection
with the pledged Shares, such rights, Options and options shall be the property
of Pledgor and, if exercised by Pledgor, all new stock or other securities so
acquired by Pledgor as it relates to the pledged Shares then held by
Pledgeholder shall be immediately delivered to Pledgeholder, to be held under
the terms of this Security Agreement in the same manner as the Shares pledged.
6. Default. Pledgor shall be deemed to be in default of the Note and of
-------
this Security Agreement in the event:
a. Payment of principal or interest on the Note shall be delinquent for
a period of 10 days or more; or
b. Pledgor fails to perform any of the covenants set forth in the
Option or contained in this Security Agreement for a period of 10 days after
written notice thereof from Pledgee.
In the case of an event of Default, as set forth above, Pledgee shall have
the right to accelerate payment of the Note upon notice to Pledgor, and Pledgee
shall thereafter be entitled to pursue its remedies under the California
Commercial Code.
7. Release of Collateral. Subject to any applicable contrary rules under
---------------------
Regulation G, there shall be released from this pledge a portion of the pledged
Shares held by Pledgeholder here under upon payments of the principal of the
Note. The number of the pledged Shares which shall be released shall be that
number of full Shares which bears the same proportion to the initial number of
-2-
<PAGE>
Shares pledged hereunder as the payment of principal bears to the initial full
principal amount of the Note.
8. Withdrawal or Substitution of Collateral. Pledgor shall not sell,
----------------------------------------
withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
9. Term. The within pledge of Shares shall continue until the payment of
----
all indebtedness secured hereby, at which time the remaining pledged stock shall
be promptly delivered to Pledgor, subject to the provisions for prior release of
a portion of the Collateral as provided in paragraph 7 above.
10. Insolvency. Pledgor agrees that if a bankruptcy or insolvency
----------
proceeding is instituted by or against it, or if a receiver is appointed for the
property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due and
payable, and Pledgee may proceed as provided in the case of default.
11. Pledgeholder Liability. In the absence of willful or gross negligence,
----------------------
Pledgeholder shall not be liable to any party for any of his acts, or omissions
to act, as Pledgeholder.
12. Invalidity of Particular Provisions. Pledgor and Pledgee agree that the
-----------------------------------
enforceability or invalidity of any provision or provisions of this Security
Agreement shall not render any other provision or provisions herein contained
unenforceable or invalid.
13. Successors or Assigns. Pledgor and Pledgee agree that all of the terms
---------------------
of this Security Agreement shall be binding on their respective successors and
assigns, and that the term "Pledgor" and the term "Pledgee" as used herein shall
be deemed to include, for all purposes, the respective designees, successors,
assigns, heirs, executors and administrators.
14. Governing Law. This Security Agreement shall be interpreted and
-------------
governed under the internal substantive laws, but not the choice of law rules,
of California.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"PLEDGOR" _________________________________
Signature
_________________________________
Print Name
Address: _________________________________
_________________________________
"PLEDGEE" Echelon Corporation,
a Delaware corporation
________________________________
Signature
________________________________
Print Name
________________________________
Title
"PLEDGEHOLDER" ________________________________
Secretary of
Echelon Corporation
-4-
<PAGE>
EXHIBIT C
---------
NOTE
$_______________ Palo Alto, California
______________, 19___
FOR VALUE RECEIVED, _______________ promises to pay to Echelon Corporation,
a Delaware corporation (the "Company"), or order, the principal sum of
_______________________ ($_____________), together with interest on the unpaid
principal hereof from the date hereof at the rate of _______________ percent
(____%) per annum, compounded semiannually.
Principal and interest shall be due and payable on __________, 19___.
Payment of principal and interest shall be made in lawful money of the United
States of America.
The undersigned may at any time prepay all or any portion of the principal
or interest owing hereunder.
This Note is subject to the terms of the Option, dated as of
________________. This Note is secured in part by a pledge of the Company's
Common Stock under the terms of a Security Agreement of even date herewith and
is subject to all the provisions thereof.
The holder of this Note shall have full recourse against the undersigned,
and shall not be required to proceed against the collateral securing this Note
in the event of default.
In the event the undersigned shall cease to be an employee, director or
consultant of the Company for any reason, this Note shall, at the option of the
Company, be accelerated, and the whole unpaid balance on this Note of principal
and accrued interest shall be immediately due and payable.
Should any action be instituted for the collection of this Note, the
reasonable costs and attorneys' fees therein of the holder shall be paid by the
undersigned.
____________________________________
____________________________________
<PAGE>
EXHIBIT 21.1
Subsidiaries of the Registrant
Echelon Corporation
Echelon Credit Corporation
Echelon BV
Echelon China
Echelon Europe Ltd.
Echelon France
Echelon GmbH
Echelon Asia-Pacific
Echelon Japan K.K.
