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As filed with the Securities and Exchange Commission on May 19, 1999
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)
2001 WEST OAK RIDGE ROAD, ORLANDO, FL 32809-3803
(Address of Principal Executive Offices) (Zip Code)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
JAMES C. GARRETT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ECC INTERNATIONAL CORP.
2001 WEST OAK RIDGE ROAD
ORLANDO, FL 32809-3803
(Name and Address of Agent for Service)
(407) 859-7410
(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
---------- ---------- --------- --------- ------------
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock, 360,000 $ 2.875(1) $1,035,000(1) $ 287.73
$.10 par value shares
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</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 13, 1999 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 1999 Employee Stock Purchase 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. Partners of Hale and Dorr LLP
beneficially own approximately 57,200 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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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 18, 1999.
ECC INTERNATIONAL CORP.
By: /s/ James C. Garrett
-----------------------
James C. Garrett
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of ECC International Corp.
hereby severally constitute James C. Garrett, 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 by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ JAMES C. GARRETT President and Chief May 18, 1999
- --------------------------- Executive Officer and
James C. Garrett Director (Principal
Executive Officer,
Principal Financial
Officer and Principal
Accounting Officer)
/s/ MELISSA VAN VALKENBURGH Vice President of Finance, May 18, 1999
- --------------------------- Chief Financial Officer
Melissa Van Valkenburgh and Treasurer (Principal
Financial Officer and
Principal Accounting
Officer)
/s/ BRUCE A. BEDA Director May 18, 1999
- ---------------------------
Bruce A. Beda
/s/ JULIAN DEMORA Director May 18, 1999
- ---------------------------
Julian Demora
/s/ MARTIN S. KAPLAN Director May 18, 1999
- ---------------------------
Martin S. Kaplan
/s/ JESSE KRASNOW Director May 18, 1999
- ---------------------------
Jesse Krasnow
/s/ THOMAS E. MCGRATH Director May 18, 1999
- ---------------------------
Thomas E. McGrath
/s/ MERRILL A. MCPEAK Chairman of the Board May 18, 1999
- --------------------------- of Directors
Merrill A. McPeak
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EXHIBIT INDEX
Exhibit
Number Description
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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 PricewaterhouseCoopers LLP
24 Power of Attorney (included in the signature pages of this
Registration Statement)
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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 19, 1999
ECC International Corp.
2001 West Oak Ridge Road
Orlando, FL 32809-3803
Re: 1999 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 under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 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 1999 Employee Stock Purchase 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.
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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 Corp. (the "Company") on Form S-8 of our report dated
October 12, 1998, which includes the explanatory paragraph relating to
substantial doubt about the Company's ability to continue as a going concern,
on our audits of the consolidated financial statements of the Company as of
June 30, 1998 and 1997, and for the years ended June 30, 1998, 1997 and 1996,
which report is included in the Company's Annual Report on Form 10-K for the
year ended June 30, 1998.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
May 17, 1999
