As filed with the Securities and Exchange Commission on April 28,
2000
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
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Registration Statement Under The Securities Act of 1933
EMS TECHNOLOGIES, INC.
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(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. Director's 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
- ------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Number of Offering Aggregate Amount
to be Shares to be Price Per Offering Registration
Registered Registered Share Price Fee
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Common Stock, 50,000 $15.125* $756,250 $199.65
$.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 April 24, 2000.
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, 1999.
(2) 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 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 27,371 shares of the Registrant's
outstanding common stock. Mr. Jacobs also holds options to
acquire 38,000 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 27th day of
April, 2000.
EMS TECHNOLOGIES, INC.
By: /s/Thomas E. Sharon
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Thomas E. Sharon
Chairman of the Board,
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 Board, April 27, 2000
- -------------------- and Chief Executive --------------
Thomas E. Sharon Officer (Principal
Executive Officer)
/s/Alfred G. Hansen Director, President April 27, 2000
- -------------------- and Chief Operating --------------
Alfred G. Hansen Officer
/s/Don T. Scartz Director, Senior Vice April 27, 2000
- -------------------- President and Chief --------------
Don T. Scartz Financial Officer,
and Treasurer
(Principal Financial
and Accounting Officer)
/s/Jerry H. Lassiter Director April 27, 2000
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Jerry H. Lassiter
/s/John B. Mowell Director April 27, 2000
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John B. Mowell
/s/Norman E. Thagard Director April 16, 2000
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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
April 27, 2000
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 50,000 shares of
the common stock, $.10 par value (the "Common Stock"), of the
Company issuable pursuant to the Company's Director's 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 the shares of
Common Stock offered, purchased and issued 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 report incorporated herein by
reference.
/s/ KPMG LLP
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KPMG LLP
Atlanta, Georgia
April 28, 2000
Exhibit 24.2
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We consent to incorporation by reference, in the Registration
Statement Form S-8 pertaining to the Directors' Stock Purchase Plan of EMS
Technologies, Inc., of our report dated January 28, 2000, with
respect to the consolidated balance sheet of EMS Technologies
Canada, Ltd. as at December 31, 1999 and the consolidated
statements of operations, stockholder's equity and cash flows for
the year then ended, which was included in the EMS Technologies,
Inc. Annual Report on Form 10-K for the year ended December 31,
1999.
/s/Ernst & Young LLP
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Ernst & Young LLP
Chartered Accountants
Ottawa, Canada
April 28, 2000
