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As filed with the Securities and Exchange Commission on November 24, 1998
Registration No. 333-34193
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
ELCOM INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 04-3175156
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Elcom International, Inc.
10 Oceana Way
Norwood, Massachusetts 02062
(Address of Principal Executive Offices, including Zip Code)
---------------------
THE 1997 STOCK OPTION PLAN OF ELCOM INTERNATIONAL, INC.
(Full Title of the Plan)
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Laurence F. Mulhern With a copy to:
Corporate Executive Vice President, Chief Douglas A. Neary, Esq.
Financial Officer, Treasurer and Secretary Calfee, Halter & Griswold LLP
Elcom International, Inc. 1400 McDonald Investment Center
10 Oceana Way 800 Superior Avenue
Norwood, Massachusetts 02062 Cleveland, Ohio 44114
(781) 501-4015 (216) 622-8200
(Name, Address and Telephone Number, including Area Code, of Agent
for Service)
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price offering registration
to be registered registered per share(1) price(1) fee (2)
- ---------------------- ----------- ------------- ------------ ------------
Common Stock, par value 2,000,000(3) $6.75 $8,160,000 $2,461.41
$.01 per share
- ------------------------ ------------ ------------- ------------ -------------
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high and low
sales price of the Common Stock of Elcom International, Inc. reported on the
Nasdaq National Market on August 20, 1997, as to the 1,000,000 shares of Common
Stock registered upon the initial filing of this Registration Statement; and on
November 24, 1998, as to the 1,000,000 shares of Common Stock being registered
upon the filing of Post-Effective Amendment No. 1 to this Registration
Statement.
(2) A registration fee in the amount of $2,045.46 was paid upon the initial
filing of this Registration Statement on August 22, 1997. The remainder of the
indicated registration fee is being paid with respect to the 1,000,000 shares of
Common Stock being registered upon the filing of Post-Effective Amendment No. 1
to this Registration Statement.
(3) 1,000,000 shares of Common Stock issuable pursuant to the Plan were
registered with the Commission upon the initial filing of this Registration
Statement on August 22, 1997. The 2,000,000 shares of Common Stock being
registered are issuable pursuant to The 1997 Stock Option Plan of Elcom
International, Inc. (the "Plan").
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The Registration Statement on Form S-8 (Registration No. 333-34193) (the
"Registration Statement") is being amended for the purpose of registering an
additional 1,000,000 shares of Common Stock, par value $.01 per share, of Elcom
International, Inc. issuable upon the exercise of options granted pursuant to
The 1997 Stock Option Plan of Elcom International, Inc. (the "Plan"). The
information provided in Part II of the Registration Statement is hereby amended
to read as follows:
"PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents of Elcom International, Inc. (the "Company"),
previously filed with the Securities and Exchange Commission, are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31,1997;
2. Amendment No. 1 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1997;
3. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998, and September 30, 1998.
4. The Company's Current Reports on Form 8-K dated December 12, 1997, and
June 2, 1998;
5. The Company's Definitive Proxy Statement used in connection
with the Company's Annual Meeting of Stockholders held on April 28,
1998; and
6. The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A (Reg. No. 0-27376);
other than the portions of such documents which by statute, by designation in
such document or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
after the date of this Registration Statement, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be a part
hereof from the date of filing of such documents, other than the portions of
such documents which by statute, by designation in such document or otherwise,
are not deemed to be filed with the Commission or are not required to be
incorporated herein by reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this
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Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document that also is
or is deemed to be incorporated by reference in this Registration Statement
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") sets forth
the conditions and limitations governing the indemnification of officers,
directors and other persons.
Article SEVENTH of the Company's Certificate of Incorporation, as amended
(the "Certificate"), provides that the directors of the Company shall incur no
personal liability to the Company or its stockholders for monetary damages for
the breach of fiduciary duty as a director; provided, that such director
liability shall not be limited or eliminated (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for any acts
or omissions by the director not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) for any transaction from which the director derived an improper personal
benefit.
Article EIGHTH of the Company's Certificate provides in part that the
Company shall indemnify any director or officer who was or is a party or is
threatened to be made a party to, or is involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of the Company, or is or was serving at the request of the Company, as a
director, officer, partner, trustee, employee or agent of certain other
entities, against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or penalties and amounts paid or to be paid in
settlement) actually or reasonably incurred or suffered by such person in
connection with such action, suit or proceeding.
The Company also has entered into indemnity agreements (the "Indemnity
Agreements") with its directors and executive officers that expand the
protection provided to the Company's directors and officers and are based upon
sections of the DGCL and Article EIGHTH of the Company's Certificate that
recognize the validity of additional indemnity rights granted by agreement. The
substantive content of the Indemnity Agreements and Article EIGHTH of the
Certificate is substantially the same except that, pursuant to the Indemnity
Agreements, indemnity is expressly provided for settlements in derivative
actions and partial indemnification is permitted in the event that the director
or executive officer is not entitled to full indemnification.
Both the DGCL and Article EIGHTH of the Company's Certificate provide that
the Company may maintain insurance to cover losses incurred pursuant to
liability of directors and officers of the
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Company. Although the Company does not currently have such insurance, it intends
to evaluate the acquisition of such coverage.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index at Page E-1 of this Registration Statement.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(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, represents a fundamental change
in the information set forth in the Registration Statement;
(iii)to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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.
(b) 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 that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities
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offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to 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 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 Company
of expenses incurred or paid by a Director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
against the Company by such Director, 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 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."
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Norwood, State of Massachusetts, on the 24th day of
November, 1998.
ELCOM INTERNATIONAL, INC.
By: /s/ Robert J. Crowell
Robert J. Crowell
Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on November 24, 1998.
Signature Title
/s/ Robert J. Crowell Chairman of the Board of Directors
Robert J. Crowell and Chief Executive Officer
(Principal Executive Officer)
/s/ Laurence F. Mulhern Corporate Executive Vice President,
Laurence F. Mulhern Chief Financial Officer,
Treasurer and Secretary
(Principal Financial and Accounting Officer)
* /s/ William W. Smith Director
William W. Smith
* /s/ Richard J. Harries, Jr. Director
Richard J. Harries, Jr.
* /s/ John W. Ortiz Director
John W. Ortiz
* /s/ James Rousou Director
James Rousou
/s/ James G. Jameson Director
James G. Jameson
* The undersigned, by signing his name herto, does herby sign this Statement
No. 1 on behalf of the above-named Directors of Elcom International, Inc.
pursuant to a Power of Attorney ececuted on behalf of such Directors and
executive officers and which has been filed with the Securities and Exchange
Commission.
/s/Laurence F. Mulhern
Laurence F. Mulhern
Attorney-in-Fact
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ELCOM INTERNATIONAL, INC.
EXHIBIT INDEX
Exhibit Exhibit
Number Description
4.1 Restated Certificate of Incorporation of the Registrant. (1)
4.2 By-Laws of the Registrant, amended as of November 6, 1995. (2)
4.4 Specimen certificate for the Common Stock, par value
$.01, of the Registrant. (2)
4.5 Form of 8% Series A Convertible Preferred Stock Purchase
Agreement, with attached list of purchasers and number of
shares purchased, as of December 10, 1993. (2)
4.8 Form of Series B Preferred Stock Purchase Agreement for
Closings held on April 15, June 21 and August 11, 1994, with
attached list of purchasers and number of shares purchased. (2)
4.9 Form of Series B Preferred Stock Purchase Agreement for Closings
held on December 30, 1994 and February 6, 1995, with attached
list of purchasers and number of shares purchased. (2)
4.10 Form of Series C Preferred Stock Purchase Agreement for Closings
held on June 22 and June 30, 1995, with attached list of
purchasers and number of shares purchased. (2)
4.12 Securities Agreement, dated December 1, 1993, as amended
February 1, 1994, by and among the Registrant, Robert J.Crowell,
and 19 other listed purchasers, as of June 2, 1995 (2)and list
of other assignees of certain registration rights thereunder.(3)
4.13 Securities Agreement, dated October 28, 1994, by and among the
former stockholders of Computer Specialties, Inc. and the
Registrant. (2)
4.14 Computerware Stockholders' Agreement, dated February 6, 1995,
by and among the Registrant, Robert J. Crowell and the former
shareholders of Computerware Business Trust. (2)
4.15 Amended and Restated Lantec Stockholders' Agreement, dated
April 6, 1996, by and among the Registrant, Robert J. Crowell
and the former shareholders of a group of related United Kingdom
corporations known as "Lantec." (4)
4.16 Form of Lantec Warrant Agreement, dated June 22, 1995 (2), with
attached list of holders and number of warrants held. (5)
4.17 AMA Securities Agreement, dated February 29, 1996, by and
among the Registrant and the former stockholders of AMA (UK)
Limited. (3)
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4.18 The 1997 Stock Option Plan of Elcom International, Inc., (6) and
Amendment One thereto. (7)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of
the securities being offered. (x)
23.1 Consent of Arthur Andersen LLP. (x)
23.2 Consent of Deloitte & Touche. (x)
23.3 Consent of Calfee, Halter & Griswold LLP (included in Exhibit
5.1).
24.1 Power of Attorney and related certified resolution. (y)
(1) Previously filed as an exhibit to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1995, and incorporated herein by reference.
(2) Previously filed as an exhibit to Registration Statement No. 33-98866
on Form S-1, and incorporated herein by reference.
(3) Previously filed as an exhibit to Registrant's Annual Report on Form
10-K for the year ended December 31, 1996, and incorporated herein by
reference.
(4) Previously filed as an exhibit to Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1996, and incorporated herein by
reference.
(5) Previously filed as an exhibit to Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997, and incorporated herein by
reference.
(6) Previously filed as an exhibit to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997, and incorporated herein by
reference.
(7) Previously filed as an exhibit to Registrant's Annual Report on Form
10-K for the year ended December 31, 1997, and incorporated herein by
reference.
(x) Filed herewith.
(y) Previously filed.
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Exhibit 5.1
November 24, 1998
Elcom International, Inc.
10 Oceana Way
Norwood, Massachusetts 02062
We are acting as counsel for Elcom International, Inc., a Delaware
corporation (the "Company"), in connection with the sale from time to time of
2,000,000 shares of Common Stock, par value $.01 per share (the "Shares"), of
the Company upon the exercise of options granted pursuant to The 1997 Stock
Option Plan of the Company, as amended (the "Plan").
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, and based thereon we are of the
opinion that the Shares are duly authorized and, when issued in accordance with
the terms of the Plan, will be validly issued, fully paid and nonassessable.
This opinion is limited to the General Corporation Law of the State of
Delaware, and we express no view as to the effect of any other law on the
opinions set forth herein.
This opinion is intended solely for your use and may not be reproduced,
filed publicly or relied upon by any other person for any purpose without the
express written consent of the undersigned.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 by the Company to effect the registration of
the Shares under the Securities Act of 1933, as amended.
Very truly yours,
/s/CALFEE, HALTER & GRISWOLD LLP
CALFEE, HALTER & GRISWOLD LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 pertaining to The 1997
Stock Option Plan of Elcom International, Inc. of our report dated February 17,
1998 included in Elcom International Inc.'s Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
November 24, 1998
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our reports each dated 21 March 1997 (relating to the financial
statements of Elcom International Limited and AMA (UK) Limited as of and for the
year ended 31 December, 1996), appearing in the Annual Report on Form 10-K of
Elcom International, Inc. for the years ended 31 December 1997 and 1996.
/s/ DELOITTE & TOUCHE
DELOITTE & TOUCHE
Chartered Accountants
London, England
20 November 1998
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Exhibit 24.1
ELCOM INTERNATIONAL, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Elcom International, Inc. hereby
constitutes and appoints Robert J. Crowell, Laurence F. Mulhern, Douglas A.
Neary and David L. Morehous, or any one or more of them, its attorneys-in-fact
and agents, each with full power of substitution and resubstitution, for it in
any and all capacities, to sign any or all amendments or post-effective
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact and agents or
any one of them full power and authority to do and perform each and every act
and thing requisite and necessary in connection with such matters and hereby
ratifying and confirming all that each of such attorneys-in-fact and agents or
any of them or his substitute or substitutes may do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at Norwood,
Massachusetts on November 24, 1998.
ELCOM INTERNATIONAL, INC.
By: /s/ Laurence F. Mulhern
Laurence F. Mulhern
Corporate Executive Vice President,
Chief Financial Officer, Secretary
and Treasurer
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Exhibit 24.1
(Continued)
ELCOM INTERNATIONAL, INC.
CERTIFIED RESOLUTION
I, Laurence F. Mulhern, Secretary of Elcom International, Inc., a Delaware
corporation (the "Company"), do hereby certify that the following is a true copy
of a resolution adopted by the Company's Board of Directors as of April 29,
1997, and that the same has not been changed and remains in full force and
effect.
RESOLVED, that Robert J. Crowell, Laurence F. Mulhern, Douglas A.
Neary and David L. Morehous, and each of them, hereby is appointed as
the attorney of the Company, with full power of substitution and
resubstitution for and in the name, place and stead of the Company to
sign, attest and file a Registration Statement on Form S-8, or any
other appropriate form that may be used from time to time, with
respect to the issue, sale and grant of the Plan Shares covered by
such Registration Statement, and any and all amendments and exhibits
to such Registration Statement, any and all applications or other
documents to be filed with the Securities and Exchange Commission or
any securities exchange pertaining to the listing thereon of the Plan
Shares covered by such Registration Statement or pertaining to such
registration, any and all applications or other documents to be filed
with the National Association of Securities Dealers, Inc. in
connection with inclusion on the Nasdaq National Market of the Plan
Shares covered by such Registration Statement, and any and all
applications or other documents to be filed with any governmental or
private agency or official relative to the registration of the Plan
Shares, with full power and authority to do and perform any and all
acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorneys or
any such substitute or substitutes and, without implied limitation,
including in the above the authority to do the foregoing things on
behalf of the Company in the name of the person so acting or on behalf
and in the name of any duly authorized officer of the Company; and the
Chief Executive Officer, and the Corporate Executive Vice President,
Chief Financial Officer, Secretary and Treasurer of the Company, and
each of them, hereby are authorized for and on behalf of the Company
to execute a Power of Attorney evidencing the foregoing appointment.
/s/ Laurence F. Mulhern
Laurence F. Mulhern
Secretary
Dated: November 24, 1998
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