AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 2002
REGISTRATION NO. 333-
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UNITED STATES
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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ENGINEERED SUPPORT SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
MISSOURI 43-1313242
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
201 EVANS LANE
ST. LOUIS, MISSOURI 63121
(Address of principal executive offices) (Zip Code)
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ENGINEERED SUPPORT SYSTEMS, INC.
2002 NON-EXECUTIVE STOCK OPTION PLAN
DAVID DOUGLASS MATTERN
SECRETARY AND GENERAL COUNSEL
ENGINEERED SUPPORT SYSTEMS, INC.
201 EVANS LANE
ST. LOUIS, MISSOURI 63121
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (314) 553-4000
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Copy to:
THOMAS A. LITZ, ESQ.
THOMPSON COBURN LLP
ONE US BANK PLAZA
ST. LOUIS, MISSOURI 63101
(314) 552-6000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered Share(1) Price(1) Fee
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Common stock, $0.01 par value 300,000 shares $32.51 $9,753,000 $897.28
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(1) Estimated solely for purposes of computing the Registration Fee
pursuant to the provisions of Section 457(h), based upon the average
of the high and low sale prices of common stock, $0.01 par value, of
the Registrant as reported on the Nasdaq National Market on November
5, 2002.
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The undersigned Registrant hereby files this Registration Statement
on Form S-8 (this "Registration Statement") to register 300,000 shares of
Engineered Support Systems, Inc. (the "Company") common stock, $0.01 par
value (the "Common Stock"), for issuance to participants under the
Engineered Support Systems, Inc. 2002 Non-Executive Stock Option Plan (the
"Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal
year ended October 31, 2001;
(ii) The Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended January 31, 2002, April 30, 2002 and
July 31, 2002;
(iii) The Company's Current Report on Form 8-K dated May 10,
2002; and
(iv) The description of the Company's Common Stock as contained
in the Registration Statement filed pursuant to Section 12
of the Securities Exchange Act of 1934, as amended,
including any amendments or reports filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and
to be made a part hereof from the date of filing of such documents. Any
statements contained herein or in a document incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in a
subsequently filed document incorporated herein by reference modifies or
supersedes such document. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Where any document or part thereof is incorporated by reference in
this Registration Statement, the Company will provide without charge to each
person to whom a Prospectus with respect to the Plan is delivered, upon
written or oral request of such person, a copy of any and all of the
information incorporated by reference in this Registration Statement,
excluding exhibits unless such exhibits are specifically incorporated by
reference.
Item 6. Indemnification of Directors and Officers.
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The By-Laws of the Company provide for indemnification of any
person who is or was a director, officer, employee or agent of the Company
or officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses actually and reasonably
incurred by him in connection with any civil, criminal, administrative or
investigative action, suit, proceeding or
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claim to the full extent and in the manner permitted by law. The Company
also maintains officers' and directors' liability insurance for the benefit
of its officers and directors.
Section 351.355 of The General and Business Corporation Law of
Missouri provides that a corporation may 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 by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. In
the case of an action or suit by or in the right of the corporation, no
person shall be indemnified as to any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation, unless and
only to the extent that the court in which the action or suit was brought
determines that such person is fairly and reasonably entitled to indemnity
for such expenses.
Indemnification shall be made by a corporation only upon a
determination that the person to be indemnified has met the applicable
standard of conduct required. To the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in the defense of any such action, suit or proceeding, he shall be
indemnified against expenses incurred in such defense.
Expenses incurred in defense of any action, suit or proceeding may
be paid in advance of the final disposition upon receipt by the corporation
of a written undertaking by or on behalf of the person to repay such amount
if it is ultimately determined that the person is not entitled to
indemnification under the statute. The indemnification provided by statute
is not exclusive of any other rights to which such person may be entitled
under the articles of incorporation or by-laws, or any agreement, vote of
shareholders or disinterested directors or otherwise, and shall inure to the
benefit of the heirs, executors and administrators of such person.
Item 8. Exhibits.
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See Exhibit Index on page 7 hereof.
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and 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, represent a fundamental change in the
information set forth in the registration statement;
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(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, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission 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 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act
of 1933, as amended, 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 County of St. Louis
County, State of Missouri, on November 11, 2002.
ENGINEERED SUPPORT SYSTEMS, INC.
By /s/ Michael F. Shanahan, Sr.
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Michael F. Shanahan, Sr.
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary C. Gerhardt and David
Douglass Mattern, or either of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including, without limitation, post-effective amendments) to
this Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents
and purposes as he might or could do in person hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
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/s/ Michael F. Shanahan, Sr.
-------------------------------- Chairman, Chief Executive November 11, 2002
Michael F. Shanahan, Sr. Officer and Director
Principal Executive Officer
/s/ Gerald A. Potthoff
-------------------------------- President, Chief Operating November 11, 2002
Gerald A. Potthoff Officer and Director
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SIGNATURE TITLE DATE
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/s/ Gary C. Gerhardt
-------------------------------- Vice Chairman - Administration, November 12, 2002
Gary C. Gerhardt Chief Financial Officer
Principal Financial and and Director
Accounting Officer
/s/ William H. T. Bush
-------------------------------- Director November 8, 2002
William H. T. Bush
/s/ Michael P. C. Carns
-------------------------------- Director November 8, 2002
Michael P. C. Carns
-------------------------------- Director November , 2002
Timothy B. Fleischer --
/s/ George E. Friel
-------------------------------- Director November 9, 2002
George E. Friel
/s/ Thomas J. Guilfoil
-------------------------------- Director November 8, 2002
Thomas J. Guilfoil
/s/ S. Lee Kling
-------------------------------- Director November 8, 2002
S. Lee Kling
/s/ Kenneth E. Lewi
-------------------------------- Director November 8, 2002
Kenneth E. Lewi
/s/ Charles T. Robertson, Jr.
-------------------------------- Director November 11, 2002
Charles T. Robertson, Jr.
-------------------------------- Director November , 2002
Crosbie E. Saint --
-------------------------------- Director November , 2002
Michael F. Shanahan, Jr. --
/s/ Earl W. Wims
-------------------------------- Director November 8, 2002
Earl W. Wims
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EXHIBIT INDEX
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EXHIBIT NO.
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5.1 Opinion of Thompson Coburn LLP as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Thompson Coburn LLP (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on signature page hereto).
99.1 Engineered Support Systems, Inc. 2002 Non-Executive Stock
Option Plan.
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