-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L+ZwfmgqANvflyqMs52i5wiXqAfdQrOv5JtcqUw//N/TvRv28FPM/B8ydPSkdjmF p/gl24EaVWmZdCyvCLJNkA== 0000721773-98-000012.txt : 19981021 0000721773-98-000012.hdr.sgml : 19981021 ACCESSION NUMBER: 0000721773-98-000012 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19981020 EFFECTIVENESS DATE: 19981020 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: ELECTRONIC CLEARING HOUSE INC CENTRAL INDEX KEY: 0000721773 STANDARD INDUSTRIAL CLASSIFICATION: FUNCTIONS RELATED TO DEPOSITORY BANKING, NEC [6099] IRS NUMBER: 930946274 STATE OF INCORPORATION: NV FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-31347 FILM NUMBER: 98728187 BUSINESS ADDRESS: STREET 1: 28001 DOROTHY DR CITY: AGOURA HILLS STATE: CA ZIP: 91301-2697 BUSINESS PHONE: 8187068999 MAIL ADDRESS: STREET 1: 28001 DOROTHY DRIVE CITY: AGOURA HILLS STATE: CA ZIP: 91301 FORMER COMPANY: FORMER CONFORMED NAME: BIO RECOVERY TECHNOLOGY INC DATE OF NAME CHANGE: 19860122 S-8 POS 1 As filed with the Securities and Exchange Commission on October 20, 1998 Registration No. 333-31347 - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------------------------- POST EFFECTIVE AMENDMENT NO. 1 TO 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) 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. 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). - --------------------------------------------------- [FN] Filed as an Exhibit to Registrant's Form S-8, effective July 15, 1997 and incorporated herein by reference. 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 ) 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. 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 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 -----END PRIVACY-ENHANCED MESSAGE-----