As filed with the Securities and Exchange Commission on August 5, 2004
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)
ESCO TECHNOLOGIES INC. 2004 INCENTIVE COMPENSATION 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
(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 1,000,000 $52.275 $52,275,000 $6,623.24
and Preferred
Stock Purchase
Rights(2)
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(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
August 2, 2004, 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.
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.
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, 2003, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "1934 Act").
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 2003 and March 31, 2004, filed
pursuant to Section 13(a) of the 1934 Act.
(3) The Company's Current Reports on Form 8-K dated November 20,
2003, February 5, 2004, April 5, 2004 and May 11, 2004, filed
pursuant to Section 13 of the 1934 Act.
(4) 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.
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, except as otherwise provided in the articles of incorporation or the
bylaws, 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, and provided further 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 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 by all members
of the Board of Directors 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 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
4a. Restated Articles of Incorporation Incorporated by reference to Form
10-K for fiscal year ended
September 30, 1999, at Exhibit 3(a)
4b. Amended Certificate of Designation, Incorporated by reference to Form
Preferences and Rights of Series A 10-Q for the fiscal quarter ended
Participating Cumulative Preferred March 31, 2000 at Exhibit 4(e)
Stock of the Company
4c. Specimen Common Stock Certificate Incorporated by reference to Form
10-Q for the fiscal quarter ended
June 30, 2000 at Exhibit 4(a)
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
4e. Rights Agreement, dated as of Incorporated by reference to
September 24, 1990 (amended and Current Report on Form 8-K, dated
restated as of February 3, 2000) February 3, 2000, at Exhibit 4.1
between the Company and Registrar
and Transfer Company, as successor
Rights Agent
4f. Amended and Restated Credit Incorporated by reference to Form
Agreement dated as of February 10-Q for the fiscal quarter ended
28, 2001 among the Company, March 31, 2001 at Exhibit 4(d)
Bank of America, N.A.,
as agent and the lenders listed
therein
4g. Amendment No. 1 dated as of April Incorporated by reference to Form
5, 2002 to Credit Agreement 10-Q for the fiscal quarter ended
listed as Exhibit 4(f) above June 30, 2002, at Exhibit 4(e)
4h. Amendment No. 2 and Consent Incorporated by reference to Form
dated as of September 5, 2003 10-K for the fiscal year ended
to Credit Agreement listed as September 30, 2003, at Exhibit 4.6
Exhibit 4(f) above
4i. 2004 Incentive Compensation Plan Incorporated by reference to Notice
of Annual Meeting of Stockholders
and Proxy Statement dated December
29, 2003, at Appendix B
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-6)
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.
(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 August 4, 2004.
ESCO TECHNOLOGIES INC.
By: /s/G.E. Muenster
G.E. Muenster, Vice President
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints G.E. Muenster, 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
/s/V.L. Richey, Jr. Chairman, Chief August 4, 2004
V.L. Richey, Jr. Executive Officer and
Director
/s/C.J. Kretschmer President, Chief August 4, 2004
C.J. Kretschmer Operating Officer and
Director
/s/G.E. Muenster Vice President and Chief August 4, 2004
G.E. Muenster Financial Officer
(Principal Accounting
Officer)
/s/W.S. Antle III Director August 4, 2004
W.S. Antle III
/s/J.M. McConnell Director August 4, 2004
J.M. McConnell
/s/L.W. Solley Director August 4, 2004
L.W. Solley
J.M. Stolze Director August 4, 2004
/s/D.C. Trauscht Director August 4, 2004
D.C. Trauscht
/s/J.D. Woods Director August 4, 2004
J.D. Woods
INDEX TO EXHIBITS
Exhibits are listed by number corresponding to the Exhibit Table of Item 601 in
Regulation S-K.
EXHIBIT NO. EXHIBIT
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-6)
See Item 8 for a list of exhibits incorporated by reference.
EXHIBIT 5
August 4, 2004
ESCO Technologies Inc.
8888 Ladue Road, Suite 200
St. Louis, MO 63124
Ladies and Gentlemen:
I am Assistant Secretary and Associate General Counsel of ESCO Technologies
Inc., a Missouri corporation (the "Company"), and in such capacity I am familiar
with the Registration Statement on Form S-8 (the "Registration Statement")
relating to the Company's 2004 Incentive Compensation Plan (the "Plan") to which
this letter is filed as an exhibit. The Registration Statement registers
1,000,000 shares of the Company's common stock, par value $0.01 per share (the
"Common Stock"), offered pursuant to stock options, stock appreciation rights,
performance share awards, restricted stock awards and other stock-based awards,
granted and which may be granted under the Plan, including the Preferred Stock
Purchase Rights associated with such Common Stock (the Common Stock and its
associated Preferred Stock Purchase Rights, the "Securities").
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I deemed necessary for the purpose of the
opinion expressed herein.
On the basis of the foregoing, I am of the opinion that the Securities,
when sold in accordance with the provisions of the Plan, will be legally issued,
fully paid and non-assessable.
I consent to the filing of this letter as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Thomas B. Martin
Thomas B. Martin
Enclosures
EXHIBIT 23b
Consent of Independent Registered Public Accounting Firm
The Board of Directors
ESCO Technologies Inc.:
We consent to the use of our reports dated November 17, 2003, with respect to
the consolidated balance sheets of ESCO Technologies Inc. as of September 30,
2003 and 2002, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the three-year
period ended September 30, 2003, and related financial statement schedule,
incorporated herein by reference in this registration statement on Form S-8 of
ESCO Technologies Inc.
Our reports refer to a change in accounting for goodwill and other intangible
assets for the year ended September 30, 2002 and a change in accounting for the
consolidation of variable interest entities on July 1, 2003.
/s/ KPMG LLP
------------
KPMG LLP
St. Louis, Missouri
August 5, 2004