February 29, 1996
BY EDGAR
Securities and Exchange Commission
Judiciary Plaza
450 5th Street, N.W.
Washington, D.C. 20549
Re: Electromagnetic Sciences, Inc.
Registration Statement on Form S-3
Gentlemen:
Transmitted herewith is a Registration Statement on Form S-3 of
Electromagnetic Sciences, Inc. (the "Company"). Funds to cover the
filing fee are on deposit via Fedwire with the Commission's Mellon
Bank account.
The Registration Statement relates to shares of common stock of the
Company that are to be offered for resale from time to time by
certain shareholders of the Company in accordance with the
provisions of Rule 415 under the 1993 act. No preliminary
prospectus will be distributed or used prior to effectiveness of
the Registration Statement, and, for that reason, the "red herring"
legend is not included on the prospectus.
Any questions concerning this filing should be directed to the
undersigned.
Very truly yours,
ELECTROMAGNETIC SCIENCES, INC.
/s/ William S. Jacobs
William S. Jacobs
Vice President and General Counsel
<PAGE>
As filed with the Securities and Exchange Commission on February
29, 1996
Registration No. 2-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
Registration Statement Under The Securities Act of 1993
ELECTROMAGNETIC SCIENCES, INC.
(Exact name of registrant as specified in its governing
instrument)
Georgia 58-1035424
(State or other jurisdiction of I.R.S.Employer Identi-
incorporation or orgnaization) fication No.)
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
(770) 448-5770
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
William S. Jacobs, General Counsel
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
(770) 448-5770
(Name, address, including zip code, and
telephone number, including area code,
of Agent for Service)
Approximate date of commencement of proposed sale to the
public: As soon as practicable after effectiveness of this
Registration Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
If any of the securities being registered on this Form are
being offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. "X"
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
shares to to be price offering registration
be reported registered per unit (1) price (1) fee
Common 457,052
Stock shares $12.375 $5,656,019 $1,950.35
(1) Estimated solely for the purposes of calculating the
registration fee.
(2) Pursuant to Rule 457(c), based on the average of the high and
low sales prices for the Common Stock on February 23, 1996,
as reported by NASDAQ.
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
457,502 Shares
ELECTROMAGNETIC SCIENCES, INC.
Common Stock
The 457,502 shares of Common Stock, $.10 par value (the
"Common Stock"), of Electromagnetic Sciences, Inc. (the
"Company") to which this Prospectus relates are offered for the
account of certain persons (collectively, the "Selling
Shareholders") identified in this Prospectus under the heading
"SELLING SHAREHOLDERS."
Sales pursuant to this Prospectus may be effected by the
Selling Shareholders from time to time in ordinary brokers'
transactions or in transactions with any market maker with
respect to the Common Stock at such prices and on such terms as
may then be obtainable. The Company will receive no part of the
proceeds of any such sales.
The Common Stock is traded in the NASDAQ National Market
System. On ________ _____, 1996, the closing sales price for the
Common Stock, as reported on NASDAQ, was $__________.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is __________________, 1996<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports, proxy
statements, and other information with the Securities and
Exchange Commission. Such reports, proxy statements, and other
information can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C., and at the Commission's Regional
Offices in New York (7 World Trade Center, Suite 1300, New York,
New York 10048), and Chicago (Citicorp Center, 500 West Madison
St., Suite 1400, Chicago, Illinois 60661), and copies of such
materials can be obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Company's proxy statement and reports
on Forms 10-K, 10-Q and 8-K for periods after June 30, 1994, are
also available on the Commission's EDGAR electronic data system.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission
are hereby incorporated in this Prospectus by reference as of
their respective dates:
1. Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
2. Quarterly Report on Form 10-Q for the quarter ended March
31, 1995.
3. Quarterly Report on Form 10-Q for the quarter ended June
30, 1995, as amended.
4. Quarterly Report on form 10-Q for the quarter ended
September 30, 1995.
5. The description of the Company's Common Stock contained
in its Registration Statement on Form 8-A under the
Exchange Act with respect to such class of securities.
In addition, all documents filed by the Company pursuant to
Sections 13(a),13(c), 14, or 15(d) of the Exchange Act after the
date of this Prospectus and prior to the termination of the
offering of the Common Stock offered hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of any such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Prospectus.
The Company hereby undertakes to provide without charge to
each person to whom a Prospectus is delivered, on the written or
oral request of such person, a copy of any or all of the
documents referred to above, other than certain exhibits to such
documents. Written requests should be addressed to William S.
Jacobs, Secretary, Electromagnetic Sciences, Inc., 660
Engineering Dr., Technology Park/Atlanta, Norcross, Georgia
30092, and oral requests may be made to Mr. Jacobs by telephone
(770-263-9200), or in person at the above address.
The Company's principal executive offices are located at 660
Engineering Dr., Technology Park/Atlanta, Norcross, Georgia
30092, where its telephone number is (770) 263-9200. Unless the
context otherwise requires, references herein to the Company are
to the Company and its consolidated subsidiaries.
SELLING SHAREHOLDERS
The shares of Common Stock offered for sale by this
Prospectus are being offered by the following Selling
Shareholders in the respective amounts indicated. Each Selling
Shareholder is acting as principal for its own account, and is
offering the entire amount held by such person.
% of Class
Amount Amount Owned After
Beneficially Offered Completion
Name Owned For Sale Of Sales
Rocker Partners, L.P. 728,496 408,296 4.3%
Compass Holdings, Ltd. 81,956 48,756 0.4%
Each of the Selling Shareholders was previously a
shareholder in LXE Inc., a consolidated subsidiary of the
Company. On February 23, 1996, each Selling Shareholder sold to
the Company all shares of LXE Inc. then held by it (aggregating
548,200 LXE shares), and acquired the Common Stock offered hereby
in that transaction. As a part of that transaction, the Company
agreed to register the Common Stock for resale by the Selling
Shareholders.
LEGAL MATTERS
The validity of the securities offered hereby has been
passed upon by William S. Jacobs, Vice President and General
Counsel of the Company.
Mr. Jacobs is an officer and employee of the Company, and he
and/or members of his family are beneficial owners of an
aggregate of 11,651 outstanding shares of the Common Stock, and
of options to acquire 13,850 additional shares (of which options
for 5,850 shares may currently be exercised); they are also
beneficial owners of 2,000 shares of the outstanding common stock
of LXE Inc., and of currently exercisable options to acquire an
additional 5,000 shares.
FINANCIAL STATEMENTS AND INFORMATION
Reference is made to the Company's consolidated financial
statements and schedules thereto, and the related reports on such
statements by its independent certified public accountants,
contained in its Annual Report on Form 10-K for the year ended
December 31, 1994, which Report is incorporated herein by
reference. A copy of the referenced Report may be obtained free
of charge by request to the Company as set forth above under the
caption "INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
EXPERTS
The consolidated financial statements and schedules of
Electromagnetic Sciences, Inc. and subsidiaries as of December
31, 1994 and 1993, and for each of the years in the three-year
period ended December 31, 1994, included in its Annual Report on
Form 10-K for the year ended December 31, 1994, and incorporated
by reference herein, have been incorporated herein in reliance
upon the reports of KPMG Peat Marwick LLP, independent certified
public accountants, which reports are also incorporated by
reference herein, and upon the authority of said firm as experts
in accounting and auditing.
REGISTRATION STATEMENT
The Company has filed with the Securities and Exchange
Commission a Registration Statement under the Securities Act of
1933, as amended, with respect to the securities offered hereby.
This Prospectus omits certain information included in such
Registration Statement. For further information about the
Company and its securities, reference is hereby made to such
Registration Statement and to the exhibits filed as a part
thereof or otherwise incorporated therein. Each summary herein
of additional information included in the Registration Statement
or any exhibit thereto is qualified in its entirety by reference
to such information or exhibit. The Registration Statement may
be examined without charge, and copies thereof may be obtained
upon payment of a prescribed fee, at the principal office of the
Securities and Exchange Commission in Washington, D.C.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses of the sale of the Common Stock by the
Selling Shareholders (not including brokerage commissions), are
as follows:
Registration fees $1,900
Blue Sky fees and expenses *
Printing *
Accounting fees and expenses *
Miscellaneous *
TOTAL *
* To be filed by amendment.
All of the foregoing expenses are being borne by the
Company, in accordance with the terms of the agreement governing
the registration of the Common Stock for resale by the Selling
Shareholders. Any direct legal and other expenses incurred by
the Selling Shareholders (including brokerage commissions) are
the responsibility of the Selling Shareholders and are not
included in the foregoing table. With the exception of brokerage
commissions, such expenses are believed to be nominal.
Item 15. Indemnification of Directors and Officers.
The Bylaws of the Company provide that the Company will
indemnify its directors and officers, and persons serving at the
request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise, against all expenses, judgments and amounts paid in
settlement actually and reasonably incurred by any such person in
connection with threatened or actual actions, suits or
proceedings, whether civil, criminal, administrative or
investigative, to which such person becomes subject by having
served in such role. Such indemnification shall be made if such
person acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or
its equivalent, will not, of itself, create a presumption that
such person did not so act and did not have such reasonable cause
to believe. With respect to actions by or on behalf of the
Company, the foregoing indemnification pursuant to the Bylaws
shall not be paid for judgments or amounts paid in settlement,
but shall be paid for expenses; however, except as discussed
below, no indemnification will be made for any claim, issue or
matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of his duty to the
Company, except to the extent that a court of competent
jurisdiction determines upon application that such person is
fairly and reasonably entitled to indemnity.
The Company will indemnify the persons discussed in the
immediately preceding paragraph only when (a) the Company's Board
of Directors by a majority vote of a quorum consisting of
directors who are not parties to the action, suit or proceeding,
(b) if such a quorum is not obtainable, a committee, consisting
of two or more directors who are not parties to the actions, suit
or proceeding designated by the Board of Directors (in which
designation interested directors may participate), by a majority
vote, or (c) special legal counsel selected by the Board of
Directors or its committee in the manner described in (a) or (b)
above, or, if a quorum of the Board of Directors cannot be
obtained, by a majority vote of the full Board of Directors (in
which selection interested directors may participate), or (d) the
shareholders, by the affirmative vote of a majority of the shares
entitled to vote thereon, determine that indemnification is
proper in the circumstances because the person has met the
applicable standard of conduct discussed in the immediately
preceding paragraph. However, expenses shall be paid by the
Company as they are incurred and in advance of the final
disposition of the relevant case, upon receipt of an undertaking
by the director or officer to repay such amounts if it shall
ultimately be determined that he or she is not entitled to be
indemnified. Independent of these indemnification provisions
contained in the Bylaws, the Georgia Business Corporation Code
provides a statutory right to indemnification from the Company to
a director who is successful in the defense of any proceeding to
which he was a party because he is a director of the Company.
In addition to the foregoing indemnification provisions, the
Bylaws authorize further indemnification of directors and
officers. Pursuant to this provision, the Company is a party to
Indemnification Agreements that provide substantially broader
indemnity rights than those described above. Among other things,
these Agreements provide for indemnification in respect of
judgments in actions by or on behalf of the Company, and do not
require, as a condition of indemnification, independent
determinations that the individual met the specified standards of
conduct. However, under the Agreements and applicable Georgia
law, no indemnification may be paid: (i) if it is determined that
the individual's conduct constituted intentional misconduct,
fraud or a knowing violation of the law, or an appropriation, in
violation or his or her duties, of any business opportunity of
the Company; (ii) with respect to liability for distributions to
shareholders in excess of amounts legally available for such
distributions; or (iii) with respect to any transaction from
which he or she received an improper personal benefit.
The Company maintains a directors' and officers' liability
insurance policy covering certain losses arising from claims made
against them by reason of wrongful acts (with certain exceptions)
committed by them in their capacities as directors and officers.
The insurer's limit of liability under the policy is $10 million
per policy year.
Item 16. Exhibits.
The following documents are filed as exhibits to this
Registration Statement:
4.1 Amended and Restated Articles of Incorporation of the
Registrant, effective July 3, 1989 (incorporated by
reference to Exhibit 3.2 filed with the Registrant's
Report on Form 8-K filed July 17, 1989).
4.2 Bylaws of the Registrant, as amended through March 20,
1995 (incorporated by reference to Exhibit 3.2 filed
with the Registrant's Report on Form 10-K for the year
ended December 31, 1995).
4.3 Electromagnetic Sciences, Inc. Stockholders Rights Plan
dated as of July 3, 1989 (incorporated by reference to
Exhibit 4.2 to the Company's Report on Form 10-Q for
the quarter ended June 30, 1989).
5.1 Opinion of William S. Jacobs, General Counsel to the
Registrant, as to the legality of the securities being
registered.
24.1 Consent of KPMG Peat Marwick LLP. (to be filed by
amendment).
24.2 Consent of William S. Jacobs (appears in his opinion
filed as Exhibit 5.1).
Item 17. 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;
(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 paragraph (a) (1) (i) and
(a) (1) (ii) do no apply if the registration
statement is on Form S-3 or Form S-8, and the
information required to be included in a post-
effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in this 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
bonafide offering thereof.
(3) To remove from registration, by means of a post-effective
amendment, any of the securities being
registered that remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining 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 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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers, and controlling person of the
Registrant pursuant to the provisions described in
(Item 15, 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.
<PAGE>
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-3 and has duly caused this registration statement or amendment
thereto to be signed on its behalf by the undersigned, thereunto
duly authorized, in this City of Norcross and State of Georgia,
on this 28th day of February, 1996.
ELECTROMAGNETIC SCIENCES, INC.
By: /s/ Thomas E. Sharon
Thomas E. Sharon
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement or amendment thereto has been signed
below by the following persons in the capacities and on the dates
indicated.
Signature Title Date
/s/ Anthony J. Iorillo Director February 24, 1996
Anthony J. Iorillo
/s/ Jerry H. Lassiter Director February 26, 1996
Jerry H. Lassiter
/s/ John H. Levergood Director February 27, 1996
John H. Levergood
/s/ John B. Mowell Director February 27, 1996
John B. Mowell
/s/ John E. Pippin Chairman of February 27, 1996
John E. Pippin the Board
/s/ Don T. Scartz Director, Sr. February 27, 1996
Don T. Scartz Vice President
and Chief
Financial
Officer, and
Treasurer
(Principal
Financial and
Accounting
Officer)
/s/ Thomas E. Sharon Director, February 27, 1996
Thomas E. Sharon President
and Chief
Executive
Officer
(Principal
Executive
Officer)
INDEX TO EXHIBITS
Exhibit Sequential
Number Description Page Number
4.1 Amended and Restated Articles of ----
Incorporation of the Registrant,
Effective July 3, 1989, (incorporated
by reference to Exhibit 3.2 filed with
the Registrant's report on Form 8-K
Filed July 17, 1989).
4.2 Bylaws of the Registrant, as amended ----
through March 20, 1995 (incorporated
by reference to Exhibit 3.2 filed with
the Registrant's Report on Form 10-K
for the year ended December 31, 1995)
4.3 Electromagentic Sciences, Inc., Stock-
holders Rights Plan dates as of July 3,
1989 (incorporated by reference to
Exhibit 4.2 to the Company's report on
Form 10-Q for the quarter ended June 30,
1989).
5.1 Opinion of William S. Jacobs, General 15
Counsel to the Registrant, as to the
legality of the securities being
registered.
24.1 Consent of KPMG Peat Marwick LLP (to ----
be filed by amendment)
24.2 Consent of Wiliam S. Jacobs (appears
in his opinion filed as Exhibit 5.1)
<PAGE>
Exhibit 5.1
February 29, 1996
Electromagnetic Sciences, Inc.
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
Re: Registration on Form S-3 of 457,052 Shares of Common Stock
for Resale
Gentlemen:
This opinion is furnished to you in connection with your
registration statement on Form S-3 under the Securities Act of
1933, as amended (the "Registration Statement"), with respect to
457,052 shares of your common stock, $.10 par value per share
("Common Stock"), to be offered for resale by certain
shareholders. I have examined such corporate records,
certificates of public officials and of your officers, and such
other documents and records as I have considered necessary or
proper for purposes of this opinion.
Based upon the foregoing, and having regard to legal
considerations that I deem relevant, I am of the opinion that the
457,052 shares of Common Stock covered by the Registration
Statement have duly authorized and are validly issued, fully
paid, and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to
the Registration statement, and to the reference to me under the
caption "Legal Matters" in the Prospectus contained in the
Registration Statement.
Very truly yours,
/s/ William S. Jacobs
William S. Jacobs
General Counsel
