As filed with the Securities and Exchange Commission on July 15, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
ELECTRONIC CLEARING HOUSE, INC.
(Exact name of registrant as specified in its charter)
Nevada 93-0946274
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
28001 Dorothy Drive, Agoura Hills, California 91301
(818) 706-8999; FAX (818) 597-8999; www.echo-inc.com
(Address, including zip code, and telephone number, including
area code, fax number and web site of principal executive offices)
ELECTRONIC CLEARING HOUSE, INC.
1992 INCENTIVE STOCK OPTION PLAN
(Full Title of Plan)
Donald R. Anderson, President
28001 Dorothy Drive, Agoura Hills, CA 91301-2697
(818) 706-8999; FAX (818) 597-8999
(Name, address, including zip code, telephone number, including area
code and fax number of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION> Proposed
Title of Proposed maximum
each class maximum aggregate Amount of
of securities Amount to be offering price offering registration
to be registered registered per Share<F1><F2> price<F1> fee
<C> <C> <C> <C> <C>
Common Stock,
$0.01 par 3,175,000<F3> $1.437 $4,562,475 $1,382.57
<FN>
<F1>
Estimated solely for computing registration fee pursuant to Rule 457.
<F2>
Pursuant to Rule 457(c) based upon the average high and low prices of the
Registrant's Common Stock, $0.01 par value per share on July 14,1997.
<F3>
Represents common stock underlying 2,040,000 shares of Incentive Stock Options
outstanding; and 1,135,000 shares of Incentive Stock Options still
available under the Plan.
</FN>
</TABLE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
NOTE: The document containing the information specified in this Part I will
be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act. Such documents need not be filed with the Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
See Rule 428(a)(1) under the Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Electronic Clearing House, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are
hereby incorporated by reference into this Registration Statement: (1) the
Registrant's Annual Report on Form 10-K for the Registrant's fiscal year ended
September 30, 1996 filed pursuant to Section 13(a) of the Exchange Act; (2)
all reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of the
Exchange Act since September 30, 1996, including the Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997.
In addition, all documents filed pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities registered hereby have been sold or which
deregisters all of such securities then remaining unsold shall be incorporated
by reference into this Registration Statement as of the filing date of each.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Names Experts and Counsel
R. Marshall Frost, In-House Counsel to the Registrant, is an eligible
participant in the Registrant's 1992 Incentive Stock Option Plan. To date,
Mr. Frost has been granted 100,000 shares of stock options to purchase 100,000
shares of common stock, has exercised 40,000 shares of these stock options and
has 60,000 shares of stock options remaining.
Item 6. Indemnification of Directors and Officers
The General Corporation Law of the State of Nevada authorizes the
indemnification of directors and officers against liability incurred by reason
of being a director or officer and against expenses (including attorneys'
fees) in connection with defending any action seeking to establish such
liability, in the case of third-party claims, if the officer or director acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interest of the corporation, and, in the case of actions by or in
the right of the corporation, if the officer or director 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 if such officer or director shall not have
been adjudged liable for negligence or misconduct, unless a court otherwise
determines. Indemnification is also authorized with respect to any criminal
action or proceeding where the officer or director had no reasonable cause to
believe his conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted of directors, officers and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company 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 Company of expenses
incurred or paid by a director or officer or controlling person of the Company
in the successful defense of any action, suit or proceeding), is asserted by
such director or officer or controlling person in connection with the
securities being registered, the Company 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 of 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.
Item 7. Exemption from Registration Claimed
With respect to the outstanding incentive stock options to purchase up to
3,175,000 shares of common stock, these options have been issued to a total of
ten (10) employees and are exercisable at varying prices depending upon the
date of grant ranging from $0.40 to $1.47. In granting these options, the
Registrant relied upon Section 4(2) of the Securities Act of 1933 to exempt
such grants from registration because they were transactions not involving any
public offering.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
4.1 Electronic Clearing House, Inc. 1992 Incentive Stock Option Plan, as
amended.
5.1 Opinion of R. Marshall Frost, Esq. as to the legality of the
securities being registered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of R. Marshall Frost, Esq. (included in Exhibit 5.1 of this
Registration Statement).
24.1 Power of Attorney (included on the signature page of the Registration
Statement).
Item 9. Undertakings.
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 this Registration Statement or any material change to such
information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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 Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
<PAGE>
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 Agoura Hills, State of California,
on July 15, 1997.
ELECTRONIC CLEARING HOUSE, INC.
By: \s\Donald R. Anderson
Donald R. Anderson, President
and Chief Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Donald R. Anderson his true and lawful attorney-in-fact and agent, with full
power of substitution and re-substitution for him in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission under the Securities
Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Signature Title Date
\s\Donald R. Anderson Director, President, and ) July 15, 1997
Donald R. Anderson Chief Operating Officer )
)
)
\s\Joel M. Barry Chairman of the Board ) July 15, 1997
Joel M. Barry and Chief Executive )
Officer )
)
)
\s\Carl W. Schafer Director ) July 15, 1997
Carl W. Schafer )
)
)
\s\Fariborz Hamzei Director ) July 15, 1997
Fariborz Hamzei )
)
)
\s\Herbert L. Lucas, Jr. Director ) July 15, 1997
Herbert L. Lucas, Jr. )
)
)
\s\Alice Cheung Treasurer and ) July 15, 1997
Alice Cheung Chief Financial Officer )
<PAGE>
EXHIBIT 4.1
ELECTRONIC CLEARING HOUSE, INC.
INCENTIVE STOCK OPTION PLAN 1992
Amended February 6, 1997
1. Purpose
The purpose of the Directors and Officers Stock Option Plan is to
provide directors and officers with proprietary interests in the Company in
order to aid in attracting and maintaining directors and officers who are
capable of contributing to the future success of the Company.
2. Definitions
(a) "Agreement(s)" shall mean the stock option agreement(s) entered into
between the Company and a Participant pursuant to the Plan.
(b) "Board of Directors" shall mean the Board of Directors of the
Company.
(c) "Committee" shall mean the Stock Option Committee, consisting of not
more than three (3) members, which may administer the Plan in
accordance with Section 5 hereof.
(d) "Company" shall mean Electronic Clearing House, Inc.
(e) "Date of Grant" shall mean the date of each Agreement.
(f) "Director(s)" shall mean a member of the Board of Directors.
(g) "Fair Market Value" shall mean the average daily bid price for the
previous twenty (20) working days.
(h) "Option(s)" shall mean a Participant's right to purchase Shares
subject to the terms and conditions of the Agreement and the Plan.
(i) "Participant(s)" shall mean a Director of Officer of the Company who
is designated as such by the Committee.
(j) "Plan" shall mean this Incentive Stock Option Plan 1992 of the
Company, as amended from time to time.
(k) "Share(s)" shall mean share(s) of the Company's par value $0.01
common stock.
(l) "Officer" shall mean any person designated by the Board of Directors
as an Officer of the Company.
3. Shares Subject to the Plan
Subject to adjustment as provided in Section 15 hereof, the aggregate
maximum number of Shares which are available for the grant of Options under
this Plan is Three Million Three Hundred Seventy-Five Thousand (3,375,000)
Shares. The Shares may be, in whole or in part as the Board of Directors
shall from time to time determine, issued Shares that shall have been
reacquired by the Company or authorized but unissued Shares, whether now or
hereafter authorized. If any Option granted under the Plan shall expire or
terminate for any reason without having been exercised in full, the unused
Shares subject thereto shall again be available for other Options to be
granted under the Plan.
4. Effective Date
The Plan shall become effective on May 13, 1992, provided that the
Committee has been advised by counsel that the Company has complied with all
other applicable legal requirements, including relevant securities laws;
provided further, that if the Plan is not approved by shareholders of the
Company within twelve (12) months from the date of adoption by the Board of
Directors, this Plan shall terminate and all Options granted hereunder shall
be canceled. All Options must be granted within ten (10) years from the date
of adoption or approval of this Plan, whichever is earlier. All Options must
be exercised within ten (10) years from the date they are granted.
5. Administration
The Plan may be administered by the Executive Compensation Committee
("Committee") consisting of not more than three (3) members of the Board who
shall be appointed from time to time by the Board of Directors. Only the
Board of Directors shall have authority to grant Options under the Plan. If
no Committee has been appointed by the Board of Directors, each reference
herein to the Committee shall be deemed to refer to the entire Board of
Directors (unless the context otherwise requires) until such time, if ever,
that a Committee is appointed by the Board of Directors.
Subject to the provisions of the Plan and relevant law, the
Committee shall have plenary authority in its sole discretion: (i) to select
the Participants in the Plan; (ii) to specify the purchase price, subject to
Section 7 hereof, and number of the Shares covered by Options; (iii) to set
the time when Options shall be granted; (iv) to determine the term, subject to
Section 8 hereof, of the Options granted hereunder; (v) to interpret the Plan;
(vi) to prescribe, amend and rescind rules and regulations relating to the
Plan; (vii) to specify and amend the terms and provisions of the Agreements;
(viii) to modify the Plan to conform with relevant law; (ix) to cancel
existing options and warrants held by Directors and Officers; and (x) to make
all other determinations and to do all other acts deemed necessary or
advisable for the administration of the Plan. The Committee may in its
discretion specify different Agreements for the Participants; provided,
however, that any Agreement adopted by the Committee shall conform with the
terms of the Plan. The Committee shall report to the Board of Directors the
names of the Participants granted Options, the number of Shares covered
thereby and the terms and conditions thereof. The Committee's determination
on the foregoing matters shall be conclusive. No member of the Committee or
of the Board of Directors shall be liable for any action or determination made
in good faith.
The Committee shall select one of its members as its chairman and
shall hold its meetings at such times and places as it shall deem advisable. A
majority of the members of the Committee shall constitute a quorum. All
determinations of the Committee shall be made by not less than a majority of
its members. A decision or determination reduced to writing and signed by a
majority of the members shall be fully as effective as if it had been made by
a majority vote at a meeting duly called and held. The Committee may appoint
a secretary, who shall keep minutes of its meetings, and shall make such rules
and regulations for the conduct of its business as it shall deem advisable.
The Committee may designate the Secretary of the Company or any other
employees of the Company to assist it in the administration of the Plan and
may grant authority to such persons to execute Agreements or other documents
on the Company's behalf.
6. Eligibility
Options included in this plan may be granted only to Directors and
Officers of the Company. In determining the Directors and Officers who shall
be Participants to whom Options shall be granted and the number of Shares to
be covered thereby, the Committee may consider the nature of the services
rendered by the respective Participants, their present and potential
contributions to the success of the Company and such other factors as the
Committee in its discretion shall deem relevant. A Participant who has been
granted Options under the Plan or under any other stock option plans of the
Company may be granted additional Options if the Committee shall so determine.
Nothing contained herein shall be construed to limit the Company's right to
grant or assume options or other rights other than under the Plan in
connection with any acquisition by purchase, lease, merger, consolidation or
otherwise of the business and assets of any corporation, firm or association,
including, without limitation, the right to grant Options to directors and
officers of such acquired corporation, firm or association who become
Directors and Officers.
7. Price
The purchase price of the Shares covered by each Option shall be
determined by the Committee, and normally such price shall not be less than
the Fair Market Value of the Shares on the Date of Grant. In the case of a
stock option granted to a shareholder owning at least ten percent (10%) of the
stock of the Company, the option price per share shall be not less than one
hundred ten percent (110%) of the fair market value on the date the option is
granted. All Shares acquired pursuant to the Plan must be fully paid for in
cash or Shares (the value of which shall be the Fair Market Value of such
Shares as of the date of exercise of the Option), or a combination thereof, by
the Participant.
8. Term
In no event shall the exercise period for an Option exceed five (5)
years.
9. Exercise of Options
The Committee shall have the authority in its sole discretion to
prescribe in any Agreement that an Option will be exercisable in full at any
time, or from time to time, during the term thereof, or to provide for the
exercise in such installments and at such times during said term as the
Committee may determine. A Participant may exercise Option(s) at any time or
from time to time during the term thereof with respect to any or all Shares
that have become available for purchase thereunder; provided, however, that in
no event shall an Option be exercised for less than 100 shares, unless such
lesser amount is the entire remaining amount of Shares available under that
Option, and in no event shall fractional Shares be issued. Upon exercise of
Option, Participant may sell shares of stock no less than one year from date
of exercise of Option.
The Participant shall not have any of the rights of a shareholder
with respect to the Shares covered by an Option until such Shares have been
issued to the Participant.
As a condition of exercising any Option granted hereunder, the
Company may require any Participant, his legal representative, heir, legatee
or distributee to give written assurances, in form and substance satisfactory
to the Company, to the effect that such person is acquiring the Shares subject
to the Option for his own account for investment purposes and not with any
present intention of selling or further distributing them; provided, however,
that upon the registration with the Securities and Exchange Commission, if
any, of the Shares subject to any Option, any such investment representation
previously required of the Participant or his successor shall become void.
10. Non-Transferability
Options granted under the Plan shall not be transferable other than
by will or the laws of descent and distribution, and during the lifetime of a
Participant, an Option may be exercised only by the Participant.
11. No Effect on Director or Officer Status
Options granted under the Plan shall not be affected by any change
in a Participant's duties or position so long as the Participant continues to
be a Director or Officer of the Company. Nothing in the Plan or in any Option
granted pursuant thereto shall confer on any Participant any right to continue
as a member of the Board of Directors or Officer of the Company.
12. Termination of Directorship or Officer Status For Cause
If a Participant's directorship or employment is terminated for
deliberate, willful or gross misconduct, as determined by the majority of the
Board of Directors of the Company in its sole discretion (for "Cause"), all
unexpired Options granted to such Participant shall cease immediately upon his
receipt of notice of such termination; provided, however, that the Board of
Directors may, in its sole discretion, prior to the expiration of thirty days
from such termination, by written notice to Participant, determine that any
such Options that were exercisable on the date of such termination shall not
terminate pursuant to this Section 12 until the expiration of three (3) months
from the date of such termination of employment or directorship. In no event
may any Options be exercised after the terms of the respective Options have
expired.
13. Termination of Directorship or Employment as Officer Other Than For
Cause, Death or Disability
In the event that a Participant terminates membership on the Board
of Directors or employment as an Officer of the Company for any reason other
than for Cause, Death or Disability, all unexpired Options granted to such
Participant shall terminate three (3) months after such termination. Such
Options may be exercised within three (3) months after the date that the
Participant ceases to be a Director or Officer of the Company, but only to the
extent that any such Option is otherwise exercisable.
14. Death or Disability of a Participant
If a Participant under the Plan shall die while he is a member of
the Board of Directors or employed as an Officer, (unless Section 12 hereof
applies, in which event it shall control), or the directorship or employment
as an Officer of a Participant is terminated because of Disability, such
Participant's Options may be exercised by his legatees under his will, or by
his personal representatives, or by his distributees, or by him, as the case
may be, at any time:
(a) within three (3) months after his termination of membership on the
Board of Directors or as an Officer because of death:
or
(b) within one (1) year after his termination of membership on the Board
of Directors or as an Officer because of a disability, but in no event
after the expiration of the term of the Option specified in the Agreement
therefor and only to the extent any such Option is exercisable within such
specified period following such Participant's termination of membership on the
Board of Directors or term of employment. In no event may an Option be
exercised pursuant to this Section 14 prior to the date it would be otherwise
exercisable.
15. Dilution and Other Adjustments
If, after fiscal 1995, the outstanding Shares are increased,
decreased, or changed into, or exchanged for a different number or kind of
shares or securities of the Company, without receipt of consideration by the
Company, through reorganization, merger, recapitalization, reclassification,
stock split, stock dividend, stock consolidation, or otherwise, an appropriate
and proportionate adjustment shall be made in number and kind of Shares or
shares as to which Options may be granted. A corresponding adjustment
changing the number or kind of shares and the exercise price per share
allocated to unexercised Options, or portions thereof, which shall have been
granted prior to any such change shall be made. Any such adjustment, however,
in an outstanding Option shall be made without change in the total price
applicable to the unexercised portion of the Option but with a corresponding
adjustment in the price for each share subject to the Option. Adjustments
under this section shall be made by the Committee, whose determination as to
what adjustments shall be made, and the extent thereof, shall be final and
conclusive. No fractional shares of stock shall be issued under the Plan on
account of any such adjustment.
In the event the Company is dissolved or liquidated, the Company
shall use its best efforts to arrange for the Participants to have the right
immediately prior to such dissolution or liquidation to exercise, in whole or
in part, any outstanding Options held by such Participants provided. In the
event that the Company is involved in a merger, consolidation, or other
reorganization in which it is not the surviving corporation or in any sale or
transfer of all or substantially all of the assets of the Company, all Options
that have been granted, but not fully vested, will immediately vest and the
surviving corporation must honor the exercise of any or all Options for a
period of one (1) year after acquisition or three (3) months after termination
of any officer or director.
An Option may not be granted while the Plan is suspended or after it is
terminated. Any suspension of the Plan shall not serve to expand the
termination date thereof.
All rights and obligations under any Option granted while the Plan
is in effect shall not be altered or impaired by the suspension or termination
of the Plan, except upon written consent to the specific alteration or
impairment by the Participant to whom the Option was granted.
16. Consent of Participant
Every Participant who accepts an Option under the Plan shall be
bound by the terms and conditions of the Plan as in effect on the Date of
Grant and his acceptance thereof may be made only by his execution of an
Agreement. The grant of any Option under the Plan shall become void if any
Participant shall fail to execute and deliver a copy of the Agreement to the
Committee or the Company within thirty (30) days after the Agreement is sent
by the Company to such Participant.
17. Deliveries of Certificates and Resale
Certificates for the Share shall be delivered to the Participant as
soon after exercise of an Option and receipt of payment as is reasonable.
Such certificates shall be subject to such legends or other conditions as
counsel for the Company may require in order to ensure the Company's
compliance with all applicable State and federal laws. There is no assurance
that the Participant may sell the Shares acquired through the exercise of an
Option until such Shares have been registered or qualified for such sale with
the Securities and Exchange Commission and the appropriate State agency. The
Company is not obligated to so register or qualify such Shares.
18. Gender
As used in this Plan, the masculine, feminine or neuter gender and
the singular or plural numbers shall be deemed to include the others, whenever
the context so indicates.
<PAGE> EXHIBIT 5.1
July 10, 1997
Electronic Clearing House, Inc.
28001 Dorothy Drive
Agoura Hills, California 91301
Re: Registration Statement on Form S-8 Covering Shares Issuable
Under Incentive Stock Option Plan
Ladies and Gentlemen:
I have acted as special counsel to Electronic Clearing House, Inc., a
Nevada corporation (the "Company"), in connection with the Company's filing of
a Registration Statement on Form S-8 (the "Registration Statement"), covering
an aggregate of 3,175,000 authorized shares of the Company's Common Stock, par
value $0.01 ("Common Stock"), that are issuable pursuant to the Electronic
Clearing House, Inc. 1992 Incentive Stock Option Plan, as amended (the
"Plan").
I have made such investigation and have examined such documents, records
and matters of law as I have deemed necessary for the purpose of this opinion,
and based thereon, I am of the opinion that the Common Stock that may be
issued under the Plan are duly authorized and will be validly issued, fully
paid and nonassessable when issued in accordance with the Plan, providing that
the consideration received is at least equal to the par value of the Common
Stock.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
R. Marshall Frost
Attorney at Law
RMF:mf
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 15, 1996, which appears on
page F-1 of the Electronic Clearing House, Inc. Annual Report on Form 10-K for
the year ended September 30, 1996.
PRICE WATERHOUSE LLP
Los Angeles, California
July 8, 1997
