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As filed with the Securities and Exchange Commission on May 22, 1998
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 Registrant 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)
1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
RELLAND M. WINAND
VICE PRESIDENT, FINANCE
ECC INTERNATIONAL CORP.
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
<TABLE>
<CAPTION>
================================================================================
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
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<S> <C> <C> <C> <C>
Common Stock, 600,000 $ 3.0625(1) $1,837,500(1) $542.07
$.10 par value shares
================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock on the
New York Stock Exchange on May 19, 1998 in accordance with Rules 457(c)
and 457(h) under 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 Registrant's 1998 Stock Incentive Plan 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
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) 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 on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section
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 Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
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. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered hereby will be passed
upon for the Company by Hale and Dorr LLP, Boston, Massachusetts. A partner of
Hale and Dorr LLP is a director of the Registrant and beneficially owns
approximately 57,570 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he 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, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite an adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
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
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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 Amended and Restated
By-Laws provides that a director, officer or trustee of the Registrant shall be
indemnified by the Registrant, to the fullest 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 Amended and Restated
By-Laws 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.
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Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
1. The 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; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
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 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
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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. 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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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Orlando, State of Florida on May 21, 1998.
ECC INTERNATIONAL CORP.
By: /s/ Ajit W. Hirani
-----------------------------------
Ajit W. Hirani
Vice President, General Manager Orlando
Training Simulation Division
POWER OF ATTORNEY
We, the undersigned officers and directors of ECC International Corp.
hereby severally constitute Relland M. 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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<PAGE> 9
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ajit W. Hirani Vice President, General May 22, 1998
- ------------------------ Manager Orlando
Ajit W. Hirani Training Simulation
Division and Director
(Principal Executive
Officer)
/s/ Relland M. Winand Vice President, Finance May 22, 1998
- ------------------------ (Principal Financial and
Relland M. Winand Accounting Officer)
/s/ Bruce A. Beda Director May 21, 1998
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Bruce A. Beda
/s/ Julian Demora Director May 20, 1998
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Julian Demora
Director
- ------------------------
Martin S. Kaplan
/s/ Jesse Krasnow Director May 22, 1998
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Jesse Krasnow
/s/ Thomas E. McGrath Director May 22, 1998
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Thomas E. McGrath
/s/ Merrill A. McPeak Chairman of the Board May 20, 1998
- ------------------------ of Directors
Merrill A. McPeak
/s/ George W. Murphy Director May 22, 1998
- ------------------------
George W. Murphy
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4 Specimen Certificate of Common Stock, $.10 par value per share, of
the Registrant is incorporated herein by reference to the
Registrant's Annual Report on Form 10-K for the year ended June 30,
1993 (Commission File No. 001-8988)
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included in the signature pages of this
Registration Statement)
</TABLE>
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EXHIBIT 5
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
May 22, 1998
ECC International Corp.
175 Strafford Avenue, Suite 116
Wayne, Pennsylvania 19087
Re: 1998 Stock Incentive 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 under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 600,000 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 1998 Stock Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company, as
amended to date, and the Amended and Restated 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 our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares in accordance with the Plan, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of The Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
<PAGE> 2
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
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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 of our report dated
October 10, 1997, on our audits of the consolidated financial statements of the
Company as of June 30, 1997 and 1996, and for the years ended June 30, 1997,
1996 and 1995, which report is included in the Company's Annual Report on Form
10-K for the year ended June 30, 1997.
/s/ Coopers & Lybrand L.L.P.
- ----------------------------
Coopers & Lybrand L.L.P.
2400 Eleven Penn Center
Philadelphia, Pennsylvania
May 21, 1998
