As filed with the Securities and Exchange Commission on October 20, 1998
Registration No. 333-31347
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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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)
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ELECTRONIC CLEARING HOUSE, INC.
1992 INCENTIVE STOCK OPTION PLAN
(Full Title of Plan)
Larry Thomas, 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)
The securities covered by this registration statement will be issued to
officers and key employees of Electronic Clearing House, Inc. and its
subsidiaries from time to time pursuant to the Electronic Clearing House, Inc.
1992 Incentive Stock Option Plan, as amended and restated (the "Plan").
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:
(a) the Registrant's Registration Statement on Form S-8 filed with the
Commission on July 15, 1997, (file no. 333-31347);
(b) the Registrant's Annual Report on Form 10-K for the Registrant's
fiscal year ended September 30, 1997 filed pursuant to Section 13(a) of
the Exchange Act;
(c) all reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Exchange Act since September 30, 1997, including the
Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30,
1998.
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 as of the filing date of each.
AMENDMENTS
1. The Plan has been amended to offer options to key employees.
2. The exercise period of an option which was not to exceed five years has
been changed to not exceed ten years.
3. The Plan has been amended to require that a Participant of the Plan hold
exercised shares a minimum of one year from exercise date and two years
from date of grant.
4. The Plan has been amended to require that the fair market value of shares
exercisable for the first time by any Participant in a calendar year may
not exceed $100,000.
5. The Plan has been amended to assure Participants that options are not to
be affected by any change in Participant's duties as long as Participant
remains an employee of the Company.
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.<F1>
4.2 Electronic Clearing House, Inc. 1992 Incentive Stock Option Plan, as
amended on September 1, 1998.
5. Opinion of R. Marshall Frost, Esq. as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of R. Marshall Frost, Esq. (included in Exhibit 5. of this
Registration Statement).
24. Power of Attorney (included on the signature page of the Registration
Statement).
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[FN]
<F1>
Filed as an Exhibit to Registrant's Form S-8, effective July 15, 1997 and
incorporated herein by reference.
</FN>
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 October 20, 1998.
ELECTRONIC CLEARING HOUSE, INC.
By: \s\Larry Thomas
Larry Thomas, President
and Chief Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Larry Thomas 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\Larry Thomas Director, President, and ) October 20, 1998
Larry Thomas Chief Operating Officer )
)
)
\s\Joel M. Barry Chairman of the Board ) October 20, 1998
Joel M. Barry and Chief Executive )
Officer )
)
)
\s\Carl W. Schafer Director ) October 20, 1998
Carl W. Schafer )
)
)
\s\Fariborz Hamzei Director ) October 20, 1998
Fariborz Hamzei )
)
)
\s\Herbert L. Lucas, Jr. Director ) October 20, 1998
Herbert L. Lucas, Jr. )
)
)
\s\Alice Cheung Treasurer and ) October 20, 1998
Alice Cheung Chief Financial Officer )
<PAGE>
EXHIBIT 4.2
ELECTRONIC CLEARING HOUSE, INC.
INCENTIVE STOCK OPTION PLAN 1992
Amended September 1, 1998
1. Purpose
The purpose of the Incentive Stock Option Plan is to provide
officers and key employees with proprietary interests in the Company in order
to aid in attracting and maintaining employees 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 per share NASDAQ
closing price for the Company's common stock on the day the
option is granted.
(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 an officer or employee 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 Participants; 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 officers or key
employees of the Company. In determining the employees 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 officers and key
employees of such acquired corporation, firm or association who become Company
employees.
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 ten (10)
years from the Date of Grant, and five (5) years from the Date of Grant for
options granted to a 10% shareholder at an option price at least 110% of the
fair market value of the stock subject to the Option.
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 must hold their exercised shares for a minimum of one year
from exercise date and two years from Date of Grant.
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. In addition, to the extent that the aggregate fair
market value of stock with respect to which incentive stock options are
exercisable for the first time by any Participant during any calendar year
exceeds $100,000, such options shall be treated as options which are not
incentive stock options.
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 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 an employee 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 Employment For Cause
If a Participant's 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. In no event may any Options be
exercised after the terms of the respective Options have expired.
13. Termination of Employment Other Than For Cause, Death or Disability
In the event that a Participant terminates employment with 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 employment with 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 employed,
(unless Section 12 hereof applies, in which event it shall control), or
employment 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 employment or
because of death:
or
(b) within one (1) year after his termination of employment 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 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 Participant.
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.
October 15, 1998
Electronic Clearing House, Inc.
28001 Dorothy Drive
Agoura Hills, CA 91301
Re: Amendment to Registration Statement on Form S-8 Covering
Shares Issuable Under Incentive Stock Option Plan
Ladies & Gentlemen:
I have acted as special counsel to Electronic Clearing House, Inc., a Nevada
corporation (the "Company"), in connection with the Company's original filing
and the current amendment 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 Company's 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 is 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.
In addition, since this amendment does not alter or affect current
shareholders' interests or rights, shareholder approval was not necessary nor
requested.
I hereby consent to the filing of this opinion as an exhibit to the Amendment
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 (Post Effective Amendment No. 1) of Electronic Clearing
House, Inc. of our report dated November 14, 1997 appearing on page F-1 of the
Annual Report on Form 10-K for the year ended September 30, 1997.
PRICEWATERHOUSECOOPERS LLP
Los Angeles, California
October 19, 1998
