As filed with the Securities and Exchange Commission on June 29, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ELCOM INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 04-3175156
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(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)
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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) 440-3333 (216) 622-8200
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock, par value
$.01 per share 2,000,000 (2) $4.0625 $8,125,000 $2,258.75
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(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 June 22, 1999.
(2) The 2,000,000 shares of Common Stock being registered are issuable pursuant
to The 1997 Stock Option Plan of Elcom International, Inc.
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This Registration Statement is being filed by Elcom International, Inc.
(the "Company") for the purpose of registering additional securities of the same
class as other securities for which a registration statement of Form S-8 has
already been filed. Accordingly, pursuant to General Instruction E to Form S-8,
the contents of the Company's Registration Statement on Form S-8 (Commission
File No. 333-34193) registering 1,000,000 shares of Common Stock, par value $.01
per share, of the Company for issuance under The 1997 Stock Option Plan of the
Company, as amended, are hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents of the Company previously filed with the Securities
and Exchange Commission (the "Commission"), are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1998;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999; and
3. The description of 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 that, 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 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 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. Section 145 provides that a corporation shall have
the power to 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
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reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or was serving at the request of the corporation in a
similar capacity with another corporation or other entity, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred in connection therewith if he or she acted in good faith and in a
manner that he or she reasonably believed to be in or not opposed to the best
interests of the corporation. With respect to a suit by or in the right of the
corporation, indemnity may be provided to the foregoing persons under Section
145 on a basis similar to that set forth above, except that no indemnity may be
provided in respect of any claim, issue or matter as to which such person has
been adjudged to be liable to the corporation unless and to the extent that the
Delaware Court of Chancery or the court in which such action, suit or proceeding
was brought determines that despite the adjudication of liability, but in view
of all the circumstances of the case, such person is entitled to indemnity for
such expenses as the court deems proper. Moreover, Section 145 provides for
mandatory indemnification of a Director, officer, employee or agent of the
corporation to the extent that such person has been successful in defense of any
such action, suit or proceeding and provides that a corporation may pay the
expenses of an officer or director in defending an action, suit or proceeding
upon receipt of an undertaking to repay such amounts if it is ultimately
determined that such person is not entitled to be indemnified. Section 145
establishes provisions for determining that a given person is entitled to
indemnification, and also provides that the indemnification provided by or
granted under Section 145 is not exclusive of any rights to indemnity or
advancement of expenses to which such person may be entitled under any by-law,
agreement, vote of stockholders or disinterested Directors or otherwise.
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 Company. The Company maintains
insurance policies insuring its directors and officers against certain losses
incured by them as a result of claims based upon their actions or statements
(including omissions to act or to make statements) as directors and officers.
The aggregate amount payable for individual
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directors and officers under such policies during the three year policy term is
limited to $15 million. After certain deductibles, the Company is entitled to
reimbursement of up to $15 million under such policies in connection with its
indemnification of directors and officers.
The Company also maintains an insurance policy insuring those individuals
who are fiduciaries, as defined by the Employee Retirement Income Security Act
of 1974, under certain employee benefit plans of the Company and its
subsidiaries against certain losses incurred by them as a result of claims based
on their responsibilities, obligations and duties under such Act. This fiduciary
policy is subject to certain deductibles and has an annual aggregate limit of $3
million
Item 8. Exhibits.
See the Exhibit Index at Page E-1 of this Registration Statement.
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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 29th day of
June, 1999.
ELCOM INTERNATIONAL, INC.
By: /s/ Robert J. Crowell
Robert J. Crowell
Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
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 June 29, 1999.
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, Chief
Laurence F. Mulhern 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
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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)
4.6 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)
4.7 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)
4.8 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)
4.9 Securities Agreement, dated December 1, 1993, as amended February 1,
1994, by and among the Registrant, Robert J. Crowell, and 19 other
listed cpurchasers, as of June 2, 1995 (2) and list of other assignees
of certain registration rights thereunder. (3)
4.10 Securities Agreement, dated October 28, 1994, by and among the former
stockholders of Computer Specialties, Inc. and the Registrant. (2)
4.11 Computerware Stockholders' Agreement, dated February 6, 1995, by and
among the Registrant, Robert J. Crowell and the former shareholders of
Computerware Business Trust. (2)
4.12 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)
4.13 Form of Lantec Warrant Agreement, dated June 22, 1995 (2), with
attached list of holders and number of warrants held. (5)
4.14 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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4.15 The 1997 Stock Option Plan of Elcom International, Inc.,(6), Amendment
One thereto (7), and Amendment Two thereto. (8)
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).
(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.
(8) Previously filed as an exhibit to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1998, and incorporated herein by reference.
(x) Filed herewith.
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CALFEE, HALTER & GRISWOLD LLP
ATTORNEYS AT LAW
1400 McDonald Investment Center
800 Superior Avenue Cleveland, Ohio 44114-2688
Exhibit 5.1
June 29, 1999
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 March 23,
1999 included in Elcom International Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
June 29, 1999
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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 1998 and 1997.
/s/DELOITTE & TOUCHE
DELOITTE & TOUCHE
Chartered Accountants
London, England
28 June 1999
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