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As filed with the Securities and Exchange Commission on August 21, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ECHELON CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C>
DELAWARE 77-0203595
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
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415 Oakmead Parkway
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Sunnyvale, California 94086
(Address of principal executive offices)
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1997 Stock Plan
1998 Director Option Plan
(Full titles of the plans)
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M. Kenneth Oshman
Chairman of the Board, President and Chief
Executive Officer
Echelon Corporation
415 Oakmead Parkway
Sunnyvale, California 94086
(408) 938-5200
(Name, address and telephone number of agent for service)
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Copy to:
John V. Roos, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of Securities to be Registered Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Amount of
Registered (1) Per Share (2) Offering Price (2) Registration Fee
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Common Stock, $.01 par value 3,489,153 $34.41 $120,066,858.50 $31,697.65
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(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the prospectus delivered to participants under the
Registrant's 1997 Stock Plan (the "1997 Plan") and 1998 Director Option Plan
(the "Director Plan"), also relates to an aggregate of 6,131,163 shares
previously registered under Form S-8 Registration No. 333-62045. Includes
3,289,153 shares to be registered under the 1997 Plan and 200,000 shares to
be registered under the Director Plan.
(2) The Proposed Maximum Offering Price Per Share was estimated in part pursuant
to Rule 457(h) under the Securities Act, and, in part, pursuant to Rule
457(c) under the Securities Act. With respect to 21,695 shares which are
subject to outstanding options to purchase Common Stock under the 1997 Plan,
the Proposed Maximum Offering Price Per Share was estimated pursuant to Rule
457(h) under which Rule the per share price of options to purchase stock
under an employee stock option plan may be estimated by reference to the
exercise price of such options. The weighted average exercise price of the
21,695 shares subject to outstanding options under the 1997 Plan to be
registered is $30.25. With respect to (i) 3,267,458 shares of Common Stock
available for future grant under the 1997 Plan and (ii) 200,000 shares of
Common Stock available for future grant under the Director Plan, the
Proposed Maximum Offering Price Per Share was estimated pursuant to Rule
457(c) whereby the per share price was determined by reference to the
average between the high and low prices reported in the Nasdaq National
Market on August 14, 2000, which average was $34.4375. The number referenced
above in the table entitled "Proposed Maximum Offering Price per Share"
represents a weighted average of the foregoing estimates calculated in
accordance with Rules 457(h) and 457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Echelon Corporation (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, pursuant to Section 13 of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2000 and June 30, 2000, filed pursuant to Section 13 of the
Exchange Act.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(d) The description of the Company's Common Stock to be offered hereby
is contained in the Company's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 2, 1998 pursuant to Section 12(g) of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
------ --------------------------------------
The validity of the securities registered hereby has been passed upon
for the Company by Wilson Sonsini Goodrich & Rosati, Professional Corporation
("WSGR"), Palo Alto, California. Larry W. Sonsini, a member of WSGR and a member
of the Board of Directors of the Company, owns 12,761 shares of the Company's
Common Stock. Mr. Sonsini holds options to purchase 35,000 shares of Common
Stock. Upon exercise of such options, 10% of the shares shall be issued to Mr.
Sonsini and 90% of the shares shall be issued to the applicable partnership
investment accounts of WSGR, in which Mr. Sonsini is a participant. In addition,
an aggregate of 63,989 shares of the Company's Common Stock have been
distributed to certain current and former members or employees of WSGR.
II-1
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Item 6. Indemnification of Directors and Officers
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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.
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Item 7. Exemption From Registration Claimed
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Not applicable.
Item 8. Exhibits
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4.1* 1997 Stock Plan and form of stock option agreement for use
thereunder.
4.2 1998 Director Option Plan.
4.3 Form of Stock Option Agreement for use under the 1998 Director
Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the
legality of securities being registered.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-5).
__________
* Incorporated by reference to the exhibit filed with the Company's
registration statement on Form S-1 (File No. 333-55719) filed with the
Securities and Exchange Commission on June 1, 1998.
Item 9. Undertakings
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(a) Rule 415 Offering The undersigned registrant hereby undertakes:
-----------------
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
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(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent Exchange Act documents by reference
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The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for acceleration of effective date or filing of registration
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statement on Form S-8
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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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on August 21, 2000.
ECHELON CORPORATION
By: /s/ M. Kenneth Oshman
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M. Kenneth Oshman
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints M. Kenneth Oshman and Oliver R.
Stanfield, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may do or cause to be done by virtue
hereof.
II-5
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ M. Kenneth Oshman Chairman of the Board, President and Chief August 21, 2000
------------------------------------ Executive Officer (Principal Executive
(M. Kenneth Oshman) Officer)
/s/ Oliver R. Stanfield Vice President of Finance an Chief Financial August 21, 2000
------------------------------------ Officer (Principal Financial and Accounting
(Oliver R. Stanfield) Officer)
/s/ Robert J. Finocchio, Jr. Director August 21, 2000
------------------------------------
(Robert J. Finocchio, Jr.)
/s/ Armas Clifford Markkula, Jr. Director August 21, 2000
------------------------------------
(Armas Clifford Markkula, Jr.)
/s/ Robert R. Maxfield Director August 21, 2000
------------------------------------
(Robert R. Maxfield)
/s/ Richard M. Moley Director August 21, 2000
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(Richard M. Moley)
/s/ Arthur Rock Director August 21, 2000
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(Arthur Rock)
/s/ Larry W. Sonsini Director August 21, 2000
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(Larry W. Sonsini)
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ECHELON CORPORATION
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit
Number Description
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4.1* 1997 Stock Plan and form of stock option agreement for use thereunder.
4.2 1998 Director Option Plan.
4.3 Form of Stock Option Agreement for use under the 1998 Director Option
Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the legality
of securities being registered.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-5).
________
* Incorporated by reference to the exhibit filed with the Company's registration
statement on Form S-1 (File No. 333-55719) filed with the Securities and
Exchange Commission on June 1, 1998.
