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As filed with the Securities and Exchange Commission on April , 2002
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESCO TECHNOLOGIES INC.
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(Exact name of registrant as specified in its charter)
MISSOURI 43-1554045
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(State of incorporation) (I.R.S. Employer
Identification No.)
8888 Ladue Road, Suite 200
St. Louis, MO 63124
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(Address of registrant's principal executive offices)
ESCO TECHNOLOGIES INC. 2001 STOCK INCENTIVE PLAN
(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
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(Name, address, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Amount
Securities Amount maximum Maximum of
to be to be offering price Aggregate registration
registered registered per share (1) offering price (1) fee (1)
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Common Stock and 1,105,365 $ 37.80 $41,782,797 $3,844.02
Preferred Stock
Purchase Rights (2)
(1) 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 March 25,2002, as
reported on the New York Stock Exchange.
(2) 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.
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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.
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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, 2001, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "1934 Act").
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 2001, filed pursuant to Section 13(a) of the 1934 Act.
(3) The Company's Current Reports on Form 8-K dated October 8, 2001,
November 28, 2001, February 5, 2002 and February 6, 2002, filed pursuant to
Section 13 of the 1934 Act.
(4) The Company's Current Report on Form 8-K/A dated November 28,
2001, filed pursuant to Section 13 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
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statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
None.
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
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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 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 has entered into an indemnification agreement with each member of its
board of directors. Each indemnification agreement was 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 agreed 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
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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.
Filed Herewith
Exhibit or Incorporated
Number Description by Reference
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4a. Restated Articles of Incorporation Incorporated by reference to Form 10-K for fiscal year ended
September 30, 1999, Exhibit 3(a)
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4b. Amended Certificate of Designation, Incorporated by reference to Form 10-Q for the fiscal quarter
Preferences and Rights of Series A ended March 31, 2000 at Exhibit 4(e)
Participating Cumulative Preferred Stock of
the Company
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4c. Specimen Common Stock Certificate Incorporated by reference to Form 10-Q for the fiscal quarter
ended June 30, 2000 at Exhibit 4(a)
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4d. Specimen Rights Certificate Incorporated by reference to Exhibit B to Exhibit 4.1 to
Current Report on Form 8-K dated February 3, 2000
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4e. Rights Agreement, dated as of September 24, Incorporated by reference to Current Report on Form 8-K, dated
1990 (amended and restated as of February February 3, 2000, Exhibit 4.1
3, 2000) between the Company and Registrar
and Transfer Company, as successor Rights
Agent
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4f. Amended and Restated Credit Agreement dated Incorporated by reference to Form 10-Q for the fiscal quarter
as of February 28, 2001 among the Company, ended March 31, 2001 at Exhibit 4(d)
Bank of America, N.A., as agent and the
lenders listed therein
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Filed Herewith
Exhibit or Incorporated
Number Description by Reference
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4g. 2001 Stock Incentive Plan Incorporated by reference to Notice of Annual Meeting of the
Stockholders and Proxy Statement dated December 11, 2000, at
Exhibit B
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5. Opinion of Counsel
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23a. Consent of Counsel (included in Exhibit 5)
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23b. Consent of KPMG LLP
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24. Power of Attorney (included on Page II-8)
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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
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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.
(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
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 March 28, 2002.
ESCO TECHNOLOGIES INC.
By: /s/ C.J. Kretschmer
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C.J. Kretschmer, Senior Vice
President and Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints C.J. Kretschmer, A.S. Barclay and T.B. Martin,
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
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/s/ D.J. Moore Chairman, Chief March 28, 2002
-------------------- Executive Officer and
D. J. Moore Director
/s/ V.L. Richey, Jr. President and Chief March 28, 2002
--------------------- Operating officer
V.L. Richey, Jr.
/s/ C.J. Kretschmer Senior Vice President and March 28, 2002
--------------------- Chief Financial Officer
C.J. Kretschmer
/s/ G.E. Muenster Vice President and Principal March 28, 2002
--------------------- Accounting Officer
G.E. Muenster
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Signature Title Date
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Director
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W.S. Antle III
/s/ J.M. McConnell Director March 28, 2002
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J.M. McConnell
/s/ L.W. Solley Director March 28, 2002
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L.W. Solley
/s/ J.M. Stolze Director March 28, 2002
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J.M. Stolze
/s/ D.C. Trauscht Director March 28, 2002
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D.C. Trauscht
/s/ J.D. Woods Director March 28, 2002
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J.D. Woods
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INDEX TO EXHIBITS
Exhibits are listed by number corresponding to the Exhibit Table of Item 601 in
Regulation S-K.
EXHIBIT NO. EXHIBIT
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5. Opinion of Counsel
23a. Consent of Counsel (included in Exhibit 5)
23b. Consent of KPMG LLP
24. Power of Attorney (included on Page II-8)
See Item 8 for a list of exhibits incorporated by reference.
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