1
As filed with the Securities and Exchange Commission on June 27, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESCO TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
MISSOURI 43-1554045
(State of incorporation) (I.R.S. Employer
Identification No.)
8888 Ladue Road, Suite 200
St. Louis, MO 63124
(Address of registrant's principal executive offices)
COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the Plan)
Alyson S. Barclay, Esq.
Vice President, Secretary and General Counsel
ESCO Technologies Inc.
8888 Ladue Road, Suite 200
St. Louis, MO 63124
(314) 213-7200
(Name, address, and telephone number,
including area code, of agent for service)
2
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed Amount
Class of Amount Maximum Maximum of
Securities To Be To Be Offering Price Aggregate Registration
Registered Registered(1) Per Unit (2) (3) Offering Price(2) (3) Fee
-------------------------- ------------------------- -------------------- ------------------------ -------------------
Common Stock 200,000 $28.95 $5,790,000 $1,447.50
and Preferred
Stock Purchase
Rights
-------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416, includes such additional indeterminate number of
shares as may be issuable pursuant to the anti-dilution provisions of the
Plan.
(2) Computed pursuant to Rule 457(h) and (c) solely for the purpose of
determining the registration fee. Proposed maximum offering price
represents the average of the high and low market prices of the
Registrant's Common Stock, par value $.01 per share ("Common Stock"), on
June 21, 2001, as reported on the New York Stock Exchange.
(3) Preferred Stock Purchase Rights are attached to and trade with the Common
Stock. Value attributable to such Preferred Stock Purchase Rights, if any,
is reflected in the market price of the Common Stock.
2
3
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act"), and the Note to part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Note to part I of Form
S-8.
3
4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by ESCO Technologies Inc. (the "Company")
with the Securities and Exchange Commission (File No. 1-10596) are incorporated
by reference into this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 2000, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "1934 Act").
(2) The Company's Current Report on Form 8-K dated November
13, 2000, filed pursuant to Section 13(a) of the 1934 Act.
(3) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 2000, filed pursuant to Section 13(a) of the 1934
Act.
(4) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2001, filed pursuant to Section 13(a) of the 1934 Act.
(5) The description of the Company's Common Stock and
Preferred Stock Purchase Rights contained in the Company's Registration
Statement on Form 10 filed under the 1934 Act, as amended under cover of Form 8
filed on September 27, 1990, as further amended under cover of Form 10/A on
March 3, 2000.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the 1934 Act, 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 this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be 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 herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
None.
4
5
Item 6. Indemnification of Directors and Officers.
The Company is a Missouri corporation. Section 351.355(1) of the
Revised Statutes of Missouri provides that a corporation may indemnify an
officer, director, employee or agent of the corporation in any action, suit or
proceeding (other than an action by or in the right of the corporation) against
expenses (including attorneys' fees), judgments, fines and settlement amounts
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, had no reasonable cause to believe his conduct was
unlawful. Section 351.355(2) provides that the corporation may indemnify any
such person in any action or suit by or in the right of the corporation against
expenses (including attorneys' fees) and settlement amounts actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit 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, except that no
such person may be indemnified in respect of any matter in which he has been
adjudged liable for negligence or misconduct in the performance of his duty to
the corporation, unless authorized by the court. Section 351.355(3) provides
that the corporation shall indemnify any such person against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
action, suit or proceeding if he has been successful in defense of such action,
suit or proceeding and if such action, suit or proceeding is one for which the
corporation may indemnify him under Section 351.355(1) or (2). Section
351.355(7) provides that the corporation shall have the power to give any
further indemnity to any such person, in addition to the indemnity otherwise
authorized under Section 351.355, provided such further indemnity is authorized,
directed or provided for in (i) the articles of incorporation of the
corporation, (ii) any duly adopted amendment thereof or (iii) any bylaw or
agreement of the corporation which has been adopted by the shareholders of the
corporation, provided that no such indemnity may indemnify any person from or on
account of such person's conduct which was finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct.
The Company's Articles of Incorporation (the "Articles") contain
provisions indemnifying the Company's directors and officers (other than a
director or officer suing on his own behalf or in the right of the Company) to
the full extent permitted by law. The Articles provide that the Company will
indemnify its directors and officers against all expenses (including attorneys'
fees), judgments, fines and settlement amounts actually and reasonably incurred
by them in any action, suit or proceeding, including any action by or on behalf
of the Company, on account of their services as a director or officer of the
Company, or their services as a director, officer, employee, member or agent of
another corporation, partnership, joint venture, trust, trade or industry
association or other enterprise when they are serving in such capacities at the
request of the Company, excepting only cases where the conduct of such person is
finally adjudged to be knowingly fraudulent, deliberately dishonest or willful
misconduct. The Articles further provide
5
6
that the Company shall pay or advance defense expenses to any director or
officer of the Company upon receipt of an undertaking from such director or
officer to repay those expenses if it is ultimately determined that he is not
entitled to be indemnified. The Articles further provide that the Company may
indemnify employees and agents of the Company to the same extent as provided in
the previous sentence or to such lesser extent as the Company in its discretion
may deem appropriate.
The Articles also authorize the Company to enter into indemnification
agreements with any director, officer, employee or agent of the Company
providing for indemnification rights to the maximum extent permitted by law. The
Company enters into indemnification agreements with members of its
Board of Directors. The indemnification agreements are approved separately by
all members of the Board of Directors (other than the director being indemnified
under the agreement) at meetings of the Board of Directors. In each agreement,
the Company agrees to indemnify the director and hold him harmless to the full
extent authorized or permitted by the General and Business Corporation Law of
Missouri, or by any amendment thereof, or by any other statutory provision
authorizing or permitting such indemnification which may be adopted, and
specifically against any and all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the director in connection with certain threatened, pending or completed
actions, suits or proceedings, to which the director is, was or becomes a party.
Indemnification will not be provided under certain circumstances set forth in
the indemnification agreements.
The directors and officers of the Company are covered by an insurance
policy which indemnifies them against certain civil liabilities including, under
certain circumstances, liabilities under the federal securities laws which might
be incurred by them in such capacity.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
4(a) Specimen Common Stock Certificate Incorporated by reference to Form 10-Q for the
fiscal quarter ended June 30, 2000 at Exhibit 4(a)
4(b) Specimen Rights Certificate Incorporated by reference to Exhibit B to
Exhibit 4.1 to the Registrant's Current Report
on Form 8-K dated February 3, 2000
4(c) Rights Agreement dated as of September 24, 1990 (as Incorporated by reference to Current Report on
amended and restated as of February 3, 2000) between Form 8-K dated February 3, 2000 at Exhibit 4.1
the Registrant and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent
6
7
4(d) Amended and Restated Credit Agreement dated as of Incorporated by reference to Form 10-Q for the
February 28, 2001 among the Registrant, Bank of fiscal quarter ended March 31, 2001 at Exhibit
America, N.A., as agent, and the lenders listed 4(d)
therein
23 Consent of KPMG LLP Filed herewith
24 Power of Attorney (included on page 9 hereof) Filed herewith
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, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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;
(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.
7
8
(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.
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 County of St. Louis, State of Missouri, on June 20, 2001.
ESCO TECHNOLOGIES INC.
By: /s/ C.J. Kretschmer
-------------------
C.J. Kretschmer, Senior Vice President and
Chief Financial Officer
8
9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints C.J. Kretschmer and A.S. Barclay, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and 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 and any other documents and instruments
incidental thereto, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, 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, thereby ratifying and confirming all
that said attorneys-in-fact and agents and/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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ D.J. Moore Chairman, President, Chief June 20, 2001
------------------------------------ Executive Officer and
D. J. Moore Director
/s/ C.J. Kretschmer Senior Vice President and June 20, 2001
------------------------------------ Chief Financial Officer
C.J. Kretschmer
/s/ G.E. Muenster Vice President and June 20, 2001
------------------------------------ Principal Accounting Officer
G.E. Muenster
/s/ W.S. Antle III Director June 20, 2001
------------------------------------
W.S. Antle III
/s/ J.M. McConnell Director June 20, 2001
------------------------------------
J.M. McConnell
/s/ L.W. Solley Director June 20, 2001
------------------------------------
L.W. Solley
9
10
/s/ J.M. Stolze Director June 20, 2001
------------------------------------
J.M. Stolze
/s/ D.C. Trauscht Director June 20, 2001
------------------------------------
D.C. Trauscht
/s/ J.M. Woods Director June 20, 2001
------------------------------------
J.M. Woods
10
11
INDEX TO EXHIBITS
Exhibits are listed by number corresponding to the Exhibit Table of
Item 601 in Regulation S-K.
EXHIBIT NO. EXHIBIT
23 Consent of KPMG LLP
24 Power of Attorney (included on page 9 hereof)
See Item 8 for a list of exhibits incorporated by reference.
11