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As filed with the Securities and Exchange Commission
on August 23, 1996
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
ECC INTERNATIONAL CORP.
(Exact name of issuer as specified in its charter)
DELAWARE 23-1714658
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
175 STRAFFORD AVENUE, SUITE 116, WAYNE, PENNSYLVANIA 19087
(Address of Principal Executive Offices) (Zip Code)
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
GEORGE W. MURPHY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
175 STRAFFORD AVENUE, SUITE 116
WAYNE, PENNSYLVANIA 19087
(Name and address of agent for service)
(610) 687-2600
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ---------- ---------- --------- --------- ------------
Common Stock, 360,000 $7.3125(1) $2,632,500(1) $907.76
$.10 par shares
value
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common
Stock on the New York Stock Exchange on August 21, 1996 in accordance
with Rules 457(c) and 457(h) of the Securities Act of 1933.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1996 Employee Stock Purchase Plan of ECC
International Corp. (the "Registrant") pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The Registrant is subject to the informational and reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). The
following documents, which are filed with the Commission, are incorporated in
this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.10 par
value per share (the "Common Stock"), contained in a Registration Statement
filed under the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
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Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Hale and Dorr, Boston, Massachusetts, will pass upon the validity of
the shares offered hereby for the Registrant. A partner of Hale and Dorr is a
director of the Registrant and beneficially owns approximately 57,000 shares of
the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and other expenses
actually and reasonably incurred in connection with an action or proceeding to
which he is or is threatened to be made a party by reason of such position, if
such person shall have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
in any criminal proceeding, if such person had no reasonable cause to believe
his conduct was unlawful; provided that, in the case of actions brought by or in
the right of the corporation, no indemnification shall be been made with respect
to any matter as to which such person shall have adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court determines
that such indemnification is proper under the circumstances.
Article Tenth of the Registrant's Certificate of Incorporation, as
amended, provides that no Person shall be liable for monetary damages for any
breach of his or her fiduciary duty to the Registrant, except to the extent that
the Delaware General Corporation Law prohibits the elimination or limitation of
liability of directors for breach of fiduciary duty (i) for any breach of a
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. The provisions of Article Tenth shall inure to the
benefit of any person who serves as a director of the Registrant after the
effective date of the Article and to the heirs, executors and administrators of
such person.
Section 13 of Article III of the Registrant's By-laws, as amended,
provides that a director, officer or trustee of the Registrant shall be
indemnified by the Registrant, to the fullest
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extent permitted by Section 145 of the Delaware General Corporation Law, against
any expenses, liabilities or other matters referred to or covered by Section
145. To assure indemnification of all such persons who are determined by the
Registrant to be or to have been "fiduciaries" of any employee benefit plan of
the Registrant, certain specific provisions of Section 145 have been interpreted
for purposes of Section 13 of Article III.
Section 13 of Article III of the Registrant's By-laws, as amended,
further provides that the indemnification provided therein (i) is not exclusive,
and provides that in the event that Section 145 of the Delaware General
Corporation Law is amended to expand the indemnification permitted to directors
or officers the Registrant must indemnify those persons to the fullest extent
permitted by such law as so amended, (ii) shall continue as to a person who has
ceased to be a director, officer or trustee and (iii) shall inure to the benefit
of the heirs, executors and administrators of such a person. The Registrant's
obligation to provide indemnification under Section 13 of Article III shall be
offset to the extent of any other source of indemnification or any otherwise
applicable insurance coverage under a policy maintained by the Registrant or any
other person.
The Registrant has entered into an Agreement to Defend and Indemnify
with each of its directors and officers, providing that the Registrant shall
indemnify each director and officer against expenses, judgments, fines and other
losses arising by reason of the fact that such director or officer was in
service to the Registrant; provided, that no indemnification shall be provided
by the Registrant with respect to any claim, issue or matter as to which such
director or officer shall not have acted in good faith and in a manner he
reasonably believed to be in the best interests of the Registrant and as to
which such director or officer had reasonable cause to believe his conduct was
unlawful.
The Registrant has directors and officers liability insurance for the
benefit of its directors and officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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Item 9. Undertakings
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1. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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.
(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.
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2. 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 in the initial
bona fide offering thereof.
3. 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 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, 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.
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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 Town of Wayne, Commonwealth of Pennsylvania, on July 31,
1996.
ECC INTERNATIONAL CORP.
By:/s/ George W. Murphy
-------------------------
George W. Murphy
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of ECC International Corp.
hereby severally constitute Relland Winand, Martin S. Kaplan and Philip P.
Rossetti, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable ECC International Corp. to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title Date
--------- ----- ----
/s/ George W. Murphy President, Chief )
- ----------------------- Executive Officer and )
George W. Murphy Director (Principal )
Executive Officer) )
)
)
)
/s/ Relland Winand Vice President, )
- ----------------------- Finance (Principal )
Relland Winand Financial and )
Accounting Officer) )
)
)
) July 31, 1996
/s/ Julian Demora Director )
- ----------------------- )
Julian Demora )
)
)
)
/s/ Ajit W. Hirani Director )
- ----------------------- )
Ajit W. Hirani )
)
)
)
/s/ Martin S. Kaplan Director )
- ----------------------- )
Martin S. Kaplan )
)
)
)
/s/ Herbert S. Krasnow Director )
- ----------------------- )
Herbert S. Krasnow )
)
)
)
/s/ Jesse Krasnow Director )
- ----------------------- )
Jesse Krasnow )
)
)
)
/s/ Thomas E. McGrath Director )
- ----------------------- )
Thomas E. McGrath )
)
)
)
/s/ Merrill A. McPeak Director )
- ----------------------- )
Merrill A. McPeak )
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EXHIBIT INDEX
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Exhibit
Number Description
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4 (1) Specimen Certificate for Shares of Common
Stock, $.10 par value, of the Registrant
5 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in
Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the
signature page of this Registration Statement)
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(1) Incorporated herein by reference to the Registrant's Annual Report on
Form 10-K for the year ended June 30, 1993. (Commission File No. 1-8988).
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EXHIBIT 5
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July 31, 1996
ECC International Corp.
175 Strafford Avenue
Suite 116
Wayne, PA 19087
Re: 1996 Employee Stock Purchase Plan
---------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 360,000 shares of common stock, $.10 par value per share
(the "Shares"), of ECC International Corp., a Delaware corporation (the
"Company"), issuable under the Company's 1996 Employee Stock Purchase Plan (the
"Plan").
We have examined the Certificate of Incorporation of the Company, the
By-Laws of the Company, and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of
the Company, the Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies and the authenticity of the
originals of such latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the Shares covered by the Registration Statement to be
issued under the Plan, as described in the Registration Statement, and such
Shares, when issued in accordance with the terms of the Plan, will be legally
issued, fully paid and nonassessable.
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ECC International Corp.
July 31, 1996
Page 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
HALE AND DORR
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
ECC International Corporation (the "Company") on Form S-8 (File No.333- ) of
our report dated August 9, 1995, on our audits of the consolidated financial
statements of the Company as of June 30, 1995 and 1994, and for the years ended
June 30, 1995, 1994 and 1993, which report is included in the Company's Annual
Report on Form 10-K for the year ended June 30, 1995.
Coopers & Lybrand L.L.P.
Philadelphia, Pennsylvania
August 20, 1996
