As filed with the Securities and Exchange Commission on July 30, 1997
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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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ELECTROMAGNETIC SCIENCES, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-1035424
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(State of Incorporation) (IRS Employer Identification No.)
660 Engineering Drive, Technology Park/Atlanta, Norcross, Georgia
30092
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(Address of Principal Executive Offices) (Zip Code)
Electromagnetic Sciences, Inc. 1997 Stock Incentive Plan
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(Full title of the plan)
William S. Jacobs
Vice President and General Counsel
Electromagnetic Sciences, Inc.
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
(770) 263-9200, ext. 4214
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
to be Registered Offering Price Aggregate Fee
Registered Per Share Offering Price
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Common Stock, 161,800 $23.50* $3,802,300 $1,152.22
$.10 par value 13,000 18.25* 237,250 71.89
225,200 21.625** 4,869,950 1,475.74
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TOTAL 400,000 $8,909,500 $2,699.85
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*Determined in accordance with Rule 457(h), based on the price at
which options to purchase these shares may be exercised.
**Determined in accordance with Rule 457(h) and (c), based on the
average of the high and low sales prices reported in the NASDAQ system for
July 24, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by Electromagnetic
Sciences, Inc. (the "Company") with the Securities and Exchange
Commission under the Securities Exchange Act of 1934 (the
"Exchange Act") are hereby incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996, as amended.
(2) The Company's Report on Form 10-Q for the quarter
ended March 31, 1997.
(3) The description of the Common Stock hereby registered
contained in the Company's Report on Form 8-K dated
July 3, 1989.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date hereof and 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 the
registration statement and to be a part thereof from the
respective date of filing of each such document.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
William S. Jacobs, Vice President and General Counsel of the
Registrant, who has given his opinion as to the validity of the
securities hereby registered, is an officer and employee of the
Registrant, and he and/or members of his family are beneficial
owners of an aggregate of 14,869 shares of the Registrant's
outstanding common stock. Mr. Jacobs also holds options to
acquire 22,750 additional shares (of which options for 12,750
shares currently may be exercised).
Item 6. 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 or her 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 if (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 action, 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 as required by law,
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 or officer who is
successful in the defense of any proceeding to which he was a
party because he is a director or officer 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 of 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. 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 3.1 to the Registrant's Annual
Report on Form 10-K for the year ended December 31,
1995).
4.2 Bylaws of the Registrant, as amended and restated
through July 28, 1989 (incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1995).
4.3 Electromagnetic Sciences, Inc. Stockholder Rights Plan
dated as of July 3, 1989 (incorporated by reference to
Exhibit 4.1 to the Registrant's Annual Report on Form
10-K for the year ended December 31, 1995).
5.1 Opinion of William S. Jacobs, General Counsel of the
Registrant, as to the legality of the securities being
registered.
24.1 Consent of William S. Jacobs (appears in his opinion
filed as Exhibit 5.1).
24.2 Consent of KPMG Peat Marwick LLP.
Item 9. Undertakings.
(a) The undersigned 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;
(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 reports pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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 persons of the
Registrant pursuant to the provisions described in Item
6, 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 Securities Act of 1933 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Norcross, State of Georgia, on July 25, 1997.
ELECTROMAGNETIC SCIENCES, INC.
By: /s/ Thomas E. Sharon
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Thomas E. Sharon
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities indicated.
Signature Title Date
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/s/ Thomas E. Sharon President and Chief July 25, 1997
- -------------------- Executive Officer and
Thomas E. Sharon Director (Principal
Executive Officer)
/s/ John E. Pippin Chairman of the Board July 25, 1997
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John E. Pippin
/s/ Don T. Scartz Senior Vice President July 25, 1997
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Don T. Scartz Officer, Treasurer, and
Director (Principal
Financial and Accounting
Officer)
/s/ Anthony J. Iorillo Director July 25, 1997
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Anthony J. Iorillo
/s/ Jerry H. Lassiter Director July 25, 1997
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Jerry H. Lassiter
/s/ John H. Levergood Director July 25, 1997
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John H. Levergood
/s/ John B. Mowell Director July 25, 1997
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John B. Mowell
Exhibit 5.1
July 28, 1997
Electromagnetic Sciences, Inc.
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
Gentlemen:
This opinion is given to you in connection with the filing
by Electromagnetic Sciences, Inc., a Georgia corporation (the
"Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of the Registration Statement
on Form S-8 (the "Registration Statement") with respect to
400,000 shares of the common stock, $.10 par value (the "Common
Stock"), of the Company issuable pursuant to the Company's 1997
Stock Incentive Plan (the "Plan"). As counsel for the Company I
have examined the relevant corporate documents incident to the
giving of this opinion.
Based on the foregoing, I am of the opinion that the shares
of Common Stock issuable under the Plan, when issued and
delivered in accordance with the provisions of options issued in
accordance with the Plan, will be legally issued, fully paid and
non-assessable, and when issued and delivered as Restricted Stock
in accordance with the Plan will be legally issued and, upon
lapse of applicable restrictions, will be fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ William S. Jacobs
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William S. Jacobs
General Counsel
Exhibit 24.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Electromagnetic Sciences, Inc.
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Atlanta, Georgia
July 30, 1997
