As filed with the Securities and Exchange Commission on September
9, 1999
Registration No. 333-76797
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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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EMS TECHNOLOGIES, 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
(770) 263-9200
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(Address of Principal Executive Offices)
EMS Technologies, Inc. Employee Stock Purchase Plan
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(Full Title of the plan)
William S. Jacobs
Vice President and General Counsel
EMS Technologies, 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, 590,000 $12.9375* $7,633,125 $2,313.07
$.10 par value
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*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 September 7, 1999.
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by EMS
Technologies, 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, 1998.
(2) The Company's Report on Form 10-Q for the quarter
ended April 2, 1999.
(3) The Company's Report on Form 10-Q for the quarter
ended July 2, 1999.
(4) The Company's current report on Form 8-K dated
January 29, 1999, as amended April 14, 1999.
(5) The Company's current report on Form 8-K dated
March 15, 1999.
(6) The Company's current report on Form 8-K dated
April 6, 1999, as amended April 9, 1999.
(7) The description of the Common Stock hereby
registered contained in the Company's Registration
Statement for the Common Stock on Form 8-A, as amended
April 12, 1999, under the Securities Exchange Act.
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 indicated 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 26,544 shares of the Registrant's
outstanding common stock. Mr. Jacobs also holds options to
acquire 30,000 additional shares (of which options for 4,000
shares currently may be exercised).
Item 6. Indemnification of Directors and Officers.
The Bylaws of EMS Technologies, Inc. (EMS) provide that EMS
will indemnify its directors and officers, and persons serving at
its request 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 EMS 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 EMS, 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 EMS, except to the extent that a court of competent
jurisdiction determines upon application that such person is
fairly and reasonably entitled to indemnity.
EMS will indemnify the persons discussed in the immediately
preceding paragraph only when (a) its 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 EMS 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 EMS to a director who is successful in the
defense of any proceeding to which he was a party because he is a
director.
In addition to the foregoing indemnification provisions, the
Bylaws authorize further indemnification of directors and
officers. Pursuant to this provision, EMS 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 EMS, 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.
EMS 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 Second Amended and Restated Articles of Incorporation
of the Registrant, effective March 22, 1999
(incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
4.2 Bylaws of the Registrant, as amended through March 15,
1999(incorporated by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
4.3 EMS Technologies, Inc. Stockholder Rights Plan dated as
of April 6, 1999 (incorporated by reference to Exhibit
4.1 to the Registrant's Report on Form 8-K dated April
6, 1999, as amended on April 9, 1999).
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 LLP.
24.2 Consent of Ernst & Young LLP.
24.3 Consent of William S. Jacobs (appears in his opinion
filed as Exhibit 5.1).
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;
(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 not 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 bona
fide 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.
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 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 9th day of September, 1999.
EMS TECHNOLOGIES, INC.
By: /s/Thomas E. Sharon
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Thomas E. Sharon
Chairman of the Board,
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/Thomas E. Sharon Chairman of the September 9, 1999
- - - - - -------------------- Board, President -----------------
Thomas E. Sharon and Chief Executive
Officer (Principal
Executive Officer)
/s/Don T. Scartz Director, Sr. September 9, 1999
- - - - - -------------------- Vice President -----------------
Don T. Scartz and Chief
Financial Officer,
and Treasurer
(Principal
Financial and
Accounting
Officer)
/s/Alfred G. Hansen Director September 9, 1999
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Alfred G. Hansen
/s/Jerry H. Lassiter Director September 9, 1999
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Jerry H. Lassiter
/s/John B. Mowell Director September 9, 1999
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John B. Mowell
/s/Norman E. Thagard Director September 9, 1999
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Norman E. Thagard
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Second Amended and Restated Articles of
Incorporation of the Registrant, effective March 22,
1999(incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
4.2 Bylaws of the Registrant, as amended through March
15, 1999(incorporated by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1998).
4.3 EMS Technologies, Inc. Stockholder Rights Plan dated
as of April 6, 1999 (incorporated by reference to
Exhibit 4.1 to the Registrant's Report on Form 8-K
dated April 6, 1999, as amended on April 9, 1999).
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 LLP.
24.2 Consent of Ernst & Young LLP.
24.3 Consent of William S. Jacobs (appears in his opinion
filed as Exhibit 5.1).
Exhibit 5.1
September 9, 1999
EMS Technologies, Inc.
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
Gentlemen:
This opinion is given to you in connection with the filing by EMS
Technologies, 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 590,000 shares of
the common stock, $.10 par value (the "Common Stock"), of the
Company issuable pursuant to the Company's Employee Stock
Purchase 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 upon approval by
the Company's Board of Directors of sales, if any, directly from
the Company to the Plan, the shares of Common Stock so sold, and
purchased and delivered in accordance with the provisions of the
Plan, will be legally issued, 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 24.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
EMS Technologies, Inc.
We consent to the use of our reports incorporated herein by
reference.
/s/ KPMG LLP
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KPMG LLP
Atlanta, Georgia
September 9, 1999
Exhibit 24.2
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-8) No. 333-76797
pertaining to the employee stock purchase plan of EMS
Technologies, Inc. and to the incorporation by reference therein
of our report dated February 18, 1999, with respect to the
combined financial statements of the Space Systems and Products
Division of Spar Aerospace Limited and Spar Holdings Inc. as at
and for the year ended December 31, 1998 included in EMS
Technologies, Inc.'s Form 8 K/A filed with the Securities and
Exchange Commission.
/s/Ernst & Young LLP
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Toronto, Canada Ernst & Young LLP
September, 9, 1999 Chartered Accountants
