<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- -------------------------------------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENGINEERED SUPPORT SYTEMS, INC.
(Exact name of Registrant as specified in its charter)
MISSOURI 43-1313242
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1270 North Price Road
St. Louis, Missouri 63132
(314) 993-5880
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
ENGINEERED SUPPORT SYSTEMS, INC.
1998 STOCK OPTION PLAN
(Full Title of Plan)
DAVID D. MATTERN
Bearden, Mattern, Breckenridge, Washburn,
Gidlow and Kazanas LLC
1034 South Brentwood Blvd., Suite 1250
St. Louis, Missouri 63117
(314) 726-6618
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
- -------------------------------------------------------------------------------
<PAGE> 2
PROSPECTUS
ENGINEERED SUPPORT SYSTEMS, INC.
1998 STOCK OPTION PLAN
400,000 Shares
Engineered Support Systems Inc.
Common Stock
$.01 Par Value
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
- -------------------------------------------------------------------------------
Engineered Support Systems, Inc., by this prospectus, offers to
eligible employees and consultants of the Company, upon the terms and
conditions set forth in this prospectus, the possibility of receiving awards
of, or options to purchase, no more than 400,000 shares of common stock of
the Company.
No person has been authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
contained in this prospectus, and if given or made, such information or
representations must not be relied upon. This prospectus does not constitute
an offer of any securities other than the registered securities to which it
relates or an offer to any person in any state where such an offer would be
unlawful.
- -------------------------------------------------------------------------------
THE DATE OF THIS PROSPECTUS IS MAY 15, 1998
<PAGE> 3
<TABLE>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
<CAPTION>
Title of Each Class Amount to Proposed Proposed Amount of
of Securities to be be Maximum Maximum Registration
Registered Registered Offering Assessment Fee
Price Price
Per
Share <F1>
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 400,000 $24.00 $9,600,000 $2,832.00
Par Value
========================================================================================================================
<FN>
<F1> Represents the closing price as reported on April 30, 1998.
</TABLE>
<PAGE> 4
ENGINEERED SUPPORT SYSTEMS, INC.
Cross-Reference Sheet
Pursuant to Item 501 (b) of Regulation S-K
1. Forepart of Registration Statement Outside Front Cover
and Outside Front Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Inside Front and Outside
Pages of Prospectus Back Cover Pages
3. Summary Information and Risk Factors Incorporation of Certain
Documents by Reference;
Engineered Support
Systems, Inc.
4. General Information Regarding Creation, Duration,
the Plan Purposes and Securities
to be Offered; Tax
Effects
5. Securities to be Offered and Eligibility, Creation,
Employees Who May Participate Duration, Purpose and
in the Plan Securities to be Offered
6. Purchase of Securities Pursuant Awards
to the Plan
7. Payment for Securities Offered Awards
8. Contributions Under the Plan Not Applicable
9. Withdrawal from the Plan - Assignment; Forfeiture
Assignment of Interest of Awards
10. Defaults Under the Plan Forfeiture of Awards
11. Administration of the Plan Administration
12. Investment of Funds Not Applicable
13. Charges and Deductions and Liens Therefore Not Applicable
14. Description of Registrant's Description of Common
Securities Stock
15. Incorporation of Certain Incorporation of Certain
Documents by Reference Documents by Reference
16. Additional Information Not Applicable
17. Interest of Named Experts Legal Opinion
18. Disclosure of Commission Indemnification of
Position on Indemnification Directors and
for Securities Act Liabilities Officers
<PAGE> 5
AVAILABLE INFORMATION
---------------------
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission. Information as of a particular date, concerning the directors
and officers, their remuneration, options granted to them, principal holders
of securities and any information of material interest of such persons in
transactions with the Company, is set forth in proxy statements distributed
to the shareholders and filed with the Securities and Exchange Commission.
Such reports, proxy statements and other information can be obtained from the
Public Reference Section of the Commission, Washington, D.C. 20549 at
prescribed rates. This information may also be inspected at the offices of
Engineered Support Systems, Inc., 1270 North Price Road, St. Louis, Missouri
63132. The Company will supply a copy of any and all such information
(exclusive of any exhibits) without charge upon request of Gary C. Gerhardt,
Corporate Secretary, 1270 North Price Road, St. Louis, Missouri 63132,
telephone number (314) 993-5880.
<PAGE> 6
ENGINEERED SUPPORT SYSTEMS, INC.
--------------------------------
Engineered Support Systems, Inc. was incorporated under the laws of the
State of Missouri in December 1983. Engineered Support Systems, Inc. has
three wholly-owned subsidiaries: Engineered Air Systems, Inc. ("Engineered
Air"), which was incorporated under the laws of the State of Missouri on
December 24, 1981 and acquired the assets of the Defense Systems Division of
Allis-Chalmers Corporation on March 30, 1982; Engineered Specialty Plastics,
Inc. ("ESP"), which was acquired on March 9, 1993; and, Engineered Coil
Company, d/b/a Marlo Coil, (Marlo), which acquired substantially all of the
net assets of Nuclear Cooling, Inc. effective February 1, 1998. Unless the
context otherwise requires, the term "Company" refers to Engineered Support
Systems, Inc. and to Engineered Air Systems, Inc., Engineered Specialty
Plastics, Inc. and Engineered Coil Company. The Company's headquarters are
located at 1270 North Price Road, St. Louis, Missouri 63132 and its
telephone number is (314) 993-5880. This offering relates to the Company's
1998 Stock Option Plan. Any proceeds will be added to the general funds of
the Company and used for its corporate purposes as determined by the Board of
Directors.
STOCK OPTION PLAN
-----------------
Creation, Duration, Purpose and Securities to be Offered
- --------------------------------------------------------
The Engineered Support Systems, Inc. 1998 Stock Option Plan (the
"Plan") was approved by the Board of Directors and by the shareholders of
Engineered Support Systems, Inc. on March 10, 1998. The purpose of the Plan
is to enhance the profitability and value of the Company for the Benefit of
its shareholders by providing stock options to attract, retain and motivate
officers, other key employees and consultants of Engineered Support Systems,
Inc. The Plan has made available 400,000 shares of Engineered Support
Systems, Inc. $.01 par value common stock for purposes of making awards under
the Plan. The shares available for use will consist of authorized but
unissued shares of the common stock. The number of shares available for
awards under the Plan may be increased from time to time by the Board of
Directors of the Company and will be adjusted to reflect any stock split,
stock dividend, combination or reclassification of shares of stock or
consolidation, merger or sale of all or substantially all of the assets of
the Company. Any awards made under the Plan will likewise be adjusted upon
the occurrence of any of those events. The Plan terminates on October 31,
2003 for the purpose of granting awards thereunder, but is deemed to continue
for administration of the awards granted prior to termination of the Plan.
The Plan is not qualified under Section 401(a) of the Internal Revenue Code
and is not subject to any provision of the Employee Retirement Income
Security Act of 1974.
<PAGE> 7
Amendments
- ----------
The Board of Directors of the Company may from time to time amend,
suspend or terminate the Plan in whole or in part, and if terminated may
reinstate any and all of the provisions of the Plan, except that (1) no
amendment, suspension or termination may apply to the terms of any award
(contingent or otherwise) granted prior to the effective date of such
amendment, suspension or termination without the recipient's consent; (2) no
amendment may withdraw the authority from the Plan Administrator to
administer the Plan; (3) no amendment may change the persons who may be
eligible; and (4) no amendment may change the restrictions in the Plan
against the transferability of awards.
Administration
- --------------
The Plan is administered by the Compensation Committee of the Board of
Directors of Engineered Support Systems, Inc., subject to the approval of the
Chairman of the Board. The business address of the Plan Administrator is
1270 North Price Road, St. Louis, Missouri 63132. The Plan Administrator
has full power to grant awards, construe and interpret the Plan, establish
rules and regulations and perform all other acts the Plan Administrator
believes reasonable and proper including the power to delegate related
responsibilities. Any Plan participant requiring additional information
regarding the Plan should contact Mr. Gary C. Gerhardt, Secretary, at 1270
North Price Road, St. Louis, Missouri 63132 or by telephone at (314)
993-5880.
Eligibility
- -----------
Any employee or consultant shall be eligible to participate in the
Plan. As of the date of this prospectus, options on 2,175 shares of common
stock have been granted under the Plan.
Awards
- ------
The terms and conditions of a grant of any stock option must be set
forth in a written notice consistent with the provisions of the Plan. The
option price of shares subject to any stock option shall be the closing price
of the stock on the date the option is granted. No stock options may be
exercised more that five years after the date the stock option is granted.
The purchase price of any shares exercised under any stock options must be
made in full upon such exercise. The payment shall be made in such form,
which may be in cash or stock, as the Plan Administrator may determine.
<PAGE> 8
Death of Recipient
- ------------------
In the event of the death of a stock option recipient, the option, to
the extent exercisable on the date of the recipient's death, may be exercised
by the recipient's personal representative or the person or persons entitled
thereto by will or in accordance with the laws of descent and distribution at
any time within six (6) months after the recipient's death, but not after the
expiration of the term of the option.
Forfeiture of Awards
- --------------------
Unless the Plan Administrator determines otherwise, the recipient of an
award shall forfeit all amounts not payable or rights not exercisable if he
is (1) discharged for cause (2) voluntarily terminates his employment other
than by Normal Retirement as defined in the Engineered Support Systems, Inc.
Employee Stock Ownership Plan (3) engages in competition with the Company or
any affiliate or (4) engages in any activity or conduct contrary to the best
interest of the Company or any affiliate.
Assignment
- ----------
No recipient of an award under the Plan, or any person claiming by,
under or through him, has any right with respect to the Plan or in the shares
reserved or in any award thereof, contingent or otherwise, unless and until
such award or written notice of such award has been delivered to the
recipient, and all the terms and provisions of the Plan have been complied
with. Hence, no assignment or hypothecation of any employee or consultant
expectation of receiving any award under the Plan may be made except by will
or the laws of descent and distribution.
<PAGE> 9
TAX EFFECTS
- -----------
In the opinion of Bearden, Mattern, Breckenridge, Washburn, Gidlow and
Kazanas LLC, attorneys for the Company, the federal income tax consequences
to the Company and the employee of the grant and exercise of stock options
under the Plan under the now applicable provisions of the Internal Revenue
Code of 1986 as amended (the "Code") and the regulations thereunder are
substantially as follows:
Stock Options
- -------------
The stock options to be issued under the Plan will be treated as non-
statutory options and will be taxed in accordance with the provisions of Code
Section 83. The stock options will have the following tax consequences:
1. The optionee (person exercising the option) will have ordinary income
at the time the option is exercised in an amount equal to the excess
of the fair market value at the date of exercise over the option price
of the common stock;
2. The Company will have a deductible expense in an amount equal to the
ordinary income of the optionee;
3. No amount other than the price paid under the option shall be
considered as received by the Company for shares so transferred;
4. Any gain from the subsequent sale of the shares for an amount in excess
of fair market value on the date the option is exercised will be
capital gain and any loss will be capital loss; and,
5. Upon the exercise of the option, the optionee will be required to pay
withholding for federal and state income tax for the ordinary income
recognized. The ordinary income will be included in the optionee's
W-2 in the year of exercise.
This brief summary of applicable tax provisions is furnished for the
information of recipients, who are cautioned to review the tax laws
carefully and consider the need for professional assistance before
determining their actions under this Plan.
<PAGE> 10
OPTIONS TO PURCHASE SECURITIES
- ------------------------------
There are 2,175 shares of common stock issuable under outstanding
options granted under the terms of the Plan as of the date of this
prospectus. Updated information regarding options to purchase securities
under the Plan will be contained in the Company's annual report to
shareholders and proxy statement which will be delivered to Plan
participants annually.
Description of Common Stock
- ---------------------------
The authorized common stock of the Company consists of 10,000,000
shares of common stock, $.01 par value per share. There are, as of April 30,
1998, 3,174,895 shares of common stock validly issued, outstanding, fully paid
and non-assessable. The common stock offered hereby for the account of the
Company, when issued and sold as contemplated by this prospectus, will be
validly issued, outstanding, fully paid and non-assessable.
Holders of common stock, except at elections of directors, are entitled
to cast one vote for each share held of record on all matters presented to
the shareholders. At all elections of directors, each shareholder is
entitled to as many votes as equals the number of his shares of common stock
multiplied by the number of directors to be elected, and he may cast all of
such votes for a single director or may distribute them among any two or more
directors as he may see fit. The common stock of the Company has equal
rights to participate in dividends declared by the Board of Directors out of
such funds legally available therefore and to participate, in the event of
liquidation of the Company, in the distribution of the net assets of the
Company legally available therefore. There are no pre-emptive rights with
respect to the common stock.
The Company's transfer agent and registrar is ChaseMellon Shareholder
Services, St. Louis, Missouri.
<PAGE> 11
LEGAL OPINION
- -------------
The legality of the common stock offered hereby will be passed upon for
the Company by Bearden, Mattern, Breckenridge, Washburn, Gidlow and Kazanas
LLC, attorneys for the Company.
INDEMNIFICAITON OF DIRECTORS AND OFFICERS
-----------------------------------------
Under the Company's by-laws, the Company may indemnify any person who
is or was a director, officer, employee or agent of the Company or is or was
serving, at the request of the Company, as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses actually and reasonably incurred by him in
connection with any civil, criminal, administrative or investigative action,
suit, proceeding or claim to the full extent and in the manner permitted by
law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, the registrant has been
informed 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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
-----------------------------------------------
The documents listed below of Engineered Support Systems, Inc. and all
such documents subsequently filed by it pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities have been sold
or which de-registers all securities then remaining unsold, shall be deemed
to be incorporated by reference in this prospectus and be deemed to be a part
thereof from the date of filing of such documents.
1. Engineered Support Systems, Inc. Form 10-K Annual Report for the
fiscal year ended October 31, 1997 and Form 10-Q for the quarter
ended January 31, 1998 filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934.
2. Engineered Support Systems, Inc. definitive proxy statement dated
February 5, 1998 filed pursuant to Section 14 of the Securities
Exchange Act of 1934 in connection with the annual meeting of
shareholders held March 10, 1998.
3. Engineered Support Systems, Inc. Form 8-K dated February 24,
1998, as amended by Form 8-K/A dated April 24, 1998, filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934.
<PAGE> 12
<TABLE>
TABLE OF CONTENTS
-----------------
<CAPTION>
Page
----
<S> <C>
STOCK OPTION PLAN
Creation, Duration, Purpose and
Securities to be Offered 3
Amendments 4
Admissions 4
Eligibility 4
Awards 4
Death of Recipient 5
Forfeiture of Awards 5
Assignment 5
TAX EFFECTS
Stock Options 6
OPTIONS TO PURCHASE SECURITIES 7
Description of Common Stock 7
LEGAL OPINION 8
INDEMNIFICATION OF DIRECTORS AND OFFICERS 8
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 8
</TABLE>
<PAGE> 13
PART II
-------
INFORMATION NOT REQUIRED IN PROSPECTUS
--------------------------------------
Item 19. Indemnification of Directors and Officers.
-----------------------------------------
Section 351.355 of the General and Business Corporation Law of Missouri
authorizes a corporation, under certain circumstances, to indemnify its
officers, directors and others. The By-Laws of the Registrant authorize
indemnification of officers and directors to the full extent permitted by the
above-mentioned Missouri statute.
In addition, the Registrant maintains officers' and directors'
liability insurance for the benefit of its officers and directors.
Item 20. Exhibits.
--------
See Exhibit Index on Page II-2.
Item 21. Undertakings.
------------
(1) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus to each employee or
consultant to whom the prospectus is sent or given a copy of the
registrant's annual report to shareholders for its last fiscal
year, unless such employee or consultant otherwise has received a
copy of such report, in which case the registrant shall state in
the prospectus that it will promptly furnish, without charge, a
copy of such report on written request of the employee or
consultant. If the last fiscal year of the registrant has ended
within 120 days prior to the use of the prospectus, the annual
report of the registrant for the preceding fiscal year may be so
delivered, but within such 120 day period the annual report for
the last fiscal year will be furnished to each such employee or
consultant.
(2) The undersigned registrant hereby undertakes to transmit or cause
to be transmitted to all employees or consultants participating
in the Plan who do not otherwise receive such material as
shareholders of the registrant, at the time and in the manner
such material is sent to its shareholders, copies of all reports,
proxy statements and other communications distributed to its
shareholders generally.
II-1
<PAGE> 14
<TABLE>
EXHIBIT INDEX
-------------
<CAPTION>
Page #
------
<S> <C> <C>
4.0 Engineered Support Systems, Inc.
1998 Stock Option Plan II-3
5.0 Opinion of Bearden, Mattern, Breckenridge,
Washburn, Gidlow and Kazanas LLC II-6
23.0 Consent of Price Waterhouse LLP II-8
24.0 Power of Attorney II-9
</TABLE>
II-2
<PAGE> 1
ENGINEERED SUPPORT SYSTEMS, INC.
1998 STOCK OPTION PLAN
ARTICLE I. GENERAL PROVISIONS
Section 1. Purpose of Plan. The purpose of the Engineered Support
Systems, Inc. 1998 Stock Option Plan (the "Plan") is to enhance the
profitability and value of Engineered Support Systems, Inc. (the "Company")
and its shareholders by strengthening the Company's ability to attract,
retain and motivate officers, other key employees, and consultants of the
Company who make important contributions to the success of the Company.
Section 2. Definitions of Terms as Used in the Plan.
(a) "Affiliate" means any subsidiary or parent of the Company.
(b) "Award" means a Stock Option granted under Article II.
(c) "Plan Administrator" means the Compensation Committee of the Board
of Engineered Support Systems, Inc.
(d) "Company" means Engineered Support Systems, Inc.
(e) "Consultant" shall mean such party or entity or employee of such
Consultant which has a written agreement with the company to
provide consulting services.
(f) "Plan" means the Engineered Support Systems, Inc. 1998 Stock Option
Plan.
(g) "Stock" means the $.0l par value common stock of Engineered Support
Systems, Inc.
Section 3. Authorization and Reservation. There shall be established a
reserve of 400,000 shares of Stock of authorized and unissued shares, which
shall be the total number of shares of Stock that may be issued pursuant to
Awards. The Board of Directors may, from time to time, increase the number
of shares allocated to the Plan as approved by the Board of Directors. The
reserve may consist of authorized but unissued shares of Stock or of
reacquired shares, or both. Upon the cancellation or expiration of an Award,
all shares of Stock not issued thereunder shall become available for the
granting of additional Awards.
Section 4. Administration of the Plan. The Compensation Committee,
subject to the approval of the Chairman, shall administer the Plan. Subject
to the terms of the Plan, the Plan Administrator shall have full power to
grant Awards, construe and interpret the Plan, establish rules and
regulations and perform all other acts the Plan Administrator believes
reasonable and proper, including the power to delegate responsibility to
others to assist in administering the Plan.
Section 5. Participation in the Plan. Any employee or consultant shall
be eligible to participate in the Plan.
ARTICLE II. STOCK OPTIONS
Section 1. Description. All options granted under the Plan shall be
nonstatutory options not intended to qualify under Section 422 of the
Internal Revenue Code of 1986, as amended.
Section 2. Terms and Conditions.
(a) Each Stock Option shall be set forth in a written Notice
containing such terms and conditions as the Plan Administrator may determine,
subject to the provisions of the Plan.
(b) The purchase price of any shares exercised under any Stock
Option must be paid in full upon such exercise. The payment shall be made in
such form, which may be in cash or stock, as the Plan Administrator may
determine.
(c) No Stock Option may be exercised after the expiration of
five (5) years from the date such Option is granted unless such term is
extended by the Plan Administrator as evidenced in writing.
(d) The option price of shares subject to any Stock Option
shall be closing price of the Stock on the date that the Stock Option is
granted.
II-3
<PAGE> 2
ARTICLE III. FORFEITURE OF AWARDS
(a) The recipient of an Award shall forfeit all amounts due or rights
not exercised upon the occurrence of any of the following events:
(i) The recipient is discharged for cause.
(ii) The recipient voluntarily terminates his employment other
than by Normal Retirement as defined in the Engineered Support
Systems, Inc. Employee Stock Ownership Plan.
(iii) The recipient engages in competition with the Company or
any affiliate.
(iv) The recipient engages in any activity or conduct contrary
to the best interest of the Company or Affiliate.
(b) The Plan Administrator may include in any Award any additional or
different conditions of forfeiture he may deem appropriate. The Plan
Administrator may also, after taking into account the relevant circumstances,
waive any condition of forfeiture stated above or in the Award.
(c) In the event of forfeiture, the recipient shall lose all rights
in and to the Award. This provision, however, shall not be invoked to force any
recipient to return any Stock already received or due under an Award at the
time of the event of forfeiture.
(d) Such determinations as may be necessary for application of this
section, including any grant of authority to others to make determinations
under this section, shall be at the sole discretion of the Plan Administrator
and his determinations shall be conclusive.
ARTICLE IV. DEATH OF AWARDEE
Section 1. Death Of Optionee. Upon the death of an Award recipient, a
Stock Option, to the extent exercisable on the date of his death, may be
exercised at any time within six (6) months after the recipient's death, but
not after the expiration of the term of the option, by the recipient's
personal representative or the person or persons entitled thereto by will or
in accordance with the laws of descent and distribution for the State of
Missouri.
ARTICLE V. EXERCISE OF OPTION AND ISSUANCE OF STOCK
Section 1. Exercise of Option. The holder of an Award shall exercise
their right to acquire the Stock pursuant to the Award by written notice to
the Secretary of the Company at 1270 North Price Road, St. Louis, Missouri,
63132. Written notice shall set forth the number of shares for which the
exercise is applicable together with a check for the purchase price for the
Stock. If the holder of the Award exercises his option for less than the
total number of Shares awarded, he will execute such documents as required by
the Corporate Secretary for the remaining number of shares subject to the
Award.
Section 2. Endorsement on Stock Certificates.
(a) The Stock issued pursuant to an Award shall be restricted
before Stock is issued until the Plan is registered in accordance with the
provisions of the applicable Securities Act and the provisions of applicable
state securities laws or until the Stock may be transferred in accordance
with an exemption from registration.
(b) Until registered, the certificate or certificates
representing the shares issued by the Company to any of the parties hereto
shall have endorsed upon them the following legend:
"The shares represented by this certificate have not been registered
pursuant to the Securities Act of 1934 or the Missouri Uniform
Securities Act, and therefore are 'restricted securities' within the
meaning of the Act. These shares have been acquired for investment
and not with a view to distribution or resale and may not be made
subject to a security interest, pledge, hypothecation, or otherwise
transferred without an effective registration statement for such
shares under the Securities Act of 1934 or the Missouri Uniform
Securities Act or an opinion of counsel for the corporation that
registration is not required under the Acts."
II-4
<PAGE> 3
ARTICLE VI. OTHER GOVERNING PROVISIONS
Section 1. Transferability. No Award shall be transferable other than
by will or the laws of descent and distribution as set out in Article V, and
any right granted under an Award may be exercised during the lifetime of the
holder thereof only by him or at his death by his legal representative within
six (6) months after such date.
Section 2. Rights as a Shareholder. A recipient of an Award shall,
unless the terms of the Award provide otherwise, have no rights as a
shareholder with respect to any options or shares which may be issued in
connection with the Award until the issuance of a Stock certificate for such
shares, and no adjustment shall be made for dividends or other rights for which
the record date is prior to the issuance of such stock certificate.
Section 3. General Conditions of Awards. No employee or other person
shall have any right with respect to this Plan, in the shares reserved, or in
any Award, contingent or otherwise, until written evidence of the Award shall
have been delivered to the recipient and all the terms, conditions and
provisions of the Plan applicable to such recipient have been met.
Section 4. Limitation as to Service. Neither the Plan, nor the
granting of an option, nor any other action taken pursuant to the Plan shall
constitute or be evidence of any agreement or understanding, express or
implied, that an eligible participant has a right to continue as an employee
or consultant for any period of time or at any particular rate of
compensation.
Section 5. Acceleration. The Plan Administrator may in its sole
discretion accelerate the date of exercise of any Award.
Section 6. Adjustments. Upon any Stock split-up, Stock dividend,
combination or reclassification of shares of Stock, or consolidation, merger
or sale of all or substantially all of the assets of the Company, appropriate
adjustments shall be made to the shares reserved under Article I of the Plan
and the terms of the outstanding Awards.
Section 7. Withholding of Taxes. The Company shall deduct from any
payment, or otherwise collect from the recipient, any taxes required to be
withheld by federal, state or local governments in connection with any Award.
Section 8. No Warranty of Tax Effect. Except as may be contained in
the terms of any Award, no opinion is expressed nor warranties made as to the
effect for federal, state, or local tax purposes of any Awards.
Section 9. Amendment of Plan. The Board of Directors of the Company
may from time to time amend, suspend or terminate the Plan, in whole or in
part, and if terminated may reinstate any or all of the provisions of the
Plan, except that (1) no amendment, suspension or termination may apply to
the terms of any Award (contingent or otherwise) granted prior to the
effective date of such amendment, suspension or termination without the
recipient's consent; (2) no amendment may withdraw the authority from the
Plan Administrator to administer the Plan; (3) no amendment may change the
persons who may be eligible; and (4) no amendment may change the restrictions
in the Plan against the transferability of Awards.
Section 10. Construction of Plan. The place of administration of the
Plan shall be in the State of Missouri, and the validity, construction,
interpretation, administration and effect of the Plan and of its rules and
regulations, and rights relating to the Plan, shall be determined solely in
accordance with the laws of the State of Missouri.
ARTICLE VII. EFFECTIVE DATE AND TERM
This Plan shall be effective upon approval by the Stockholders of the
Company. The Plan shall continue until October 31, 2003 unless extended by
the Board of Directors, when it shall terminate. Any balances in the Share
Reserve shall be canceled, and no Awards shall be granted under the Plan
thereafter. The Plan shall continue in effect, however, insofar as is
necessary to complete all of the Company's obligations under outstanding
Awards and to conclude the administration of the Plan.
II-5
<PAGE> 1
BEARDEN, MATTERN, BRECKENRIDGE, WASHBURN
GIDLOW & KAZANAS, L.L.C.
ATTORNEYS & COUNSELORS AT LAW
SUITE 1250
UNIVERSITY CLUB TOWER
1034 SOUTH BRENTWOOD BLVD.
ST. LOUIS, MISSOURI 63117-1212
MAY 15, 1998
Engineered Support Systems, Inc.
1270 North Price Road
St. Louis, Missouri 63132
Re: Registration of Engineered Support Systems, Inc.
1998 Stock Option Plan
To Whom It May Concern:
We have assisted in the preparation and filing with the Securities and
Exchange Commission of a Registration Statement on Form S-8 ("Registration
Statement"), relating to 400,000 shares of common stock, $.01 par value per
share ("Common Stock") of Engineered Support Systems, Inc. ("Company") to be
offered pursuant to the Engineered Support Systems, Inc. 1998 Stock Option
Plan.
We have examined the Company's Article of Incorporation, and all
amendments thereto, which have been duly certified by the Secretary of the
State of Missouri, the By-laws of the Company, and all amendments thereto,
which have been duly certified by the Secretary of the Company, and have
examined and relied upon the originals or copies, duly certified to our
satisfaction, of such records of meetings of the directors and shareholders
of the Company, and such other documents and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinions
expressed below.
We assume that appropriate action will be taken, prior to the sale of
the shares of the Common Stock to which the Registration Statement relates,
to register and qualify such shares for sale under any applicable state
securities laws.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Missouri, with corporate power and
authority adequate for the conduct of its business as described
in the Registration Statement and the Prospectus constituting a
part thereof.
2. The shares of Common Stock to be offered to the Plan on behalf of
the Company have been duly authorized for issuance and, upon
issuance of the certificates by the Company, the shares will be
validly issued, fully paid, and non-assessable.
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3. The section of the Prospectus entitled "Tax Effects" describes
the current federal income tax consequences to the Company and
the recipient of a grant.
We hereby consent to the use of our name in the Registration Statement
and under the caption "Legal Opinion" in the related Prospectus and consent
to the filing of this opinion as an exhibit to the Registration Statement.
Respectfully submitted,
Bearden, Mattern, Breckenridge,
Washburn, Gidlow & Kazanas, L.L.C.
/s/ David D. Mattern
----------------------------------------
David D. Mattern, Esq.
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the Engineered Support Systems, Inc. 1998
Stock Option Plan of our report dated December 5, 1997, which appears on page
15 of the 1997 Annual Report to Shareholders of Engineered Support Systems,
Inc., which is incorporated by reference in Engineered Support Systems, Inc.'s
Annual Report on Form 10-K for the year ended October 31, 1997. We also
consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears as Exhibit 24 of such Annual Report on
Form 10-K.
/s/ Price Waterhouse LLP
- ------------------------
Price Waterhouse LLP
St. Louis, Missouri
May 15, 1998
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<PAGE> 1
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 of 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 and State of Missouri on May 15,
1998.
ENGINEERED SUPPORT SYSTEMS, INC.
By /s/ Michael F. Shanahan Sr.
---------------------------
Michael F. Shanahan Sr.
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on May 15, 1998 by the following
persons in the capacities indicated.
Each of the persons whose signature appears below authorizes Michael F.
Shanahan Sr., Gary C. Gerhardt and David D. Mattern, or any one of them, as
Attorney-In-Fact to sign on his behalf individually and in each capacity
stated below, and to file any amendments, including post-effective
amendments to registration statements.
<TABLE>
<CAPTION>
Capacity in Which Signed
------------------------
<S> <C>
/s/ Michael F. Shanahan Sr. Chairman of the Board, President and
- ------------------------------------------ Chief Executive Officer
MICHAEL F. SHANAHAN SR.
/s/ Gary C. Gerhardt Director, Executive Vice President and
- ------------------------------------------ Chief Financial Officer
GARY C. GERHARDT
/s/ W. Raymond Barrett Director
- ------------------------------------------
W. RAYMOND BARRETT
/s/ Alexander M. Cornwell Director
- ------------------------------------------
ALEXANDER M. CORNWELL
/s/ R. Bruce Earls Director
- ------------------------------------------
R. BRUCE EARLS
/s/ Thomas J. Guilfoil Director
- ------------------------------------------
THOMAS J. GUILFOIL
/s/ Kenneth E. Lewi Director
- ------------------------------------------
KENNETH E. LEWI
/s/ Michael F. Shanahan Jr. Director
- ------------------------------------------
MICHAEL F. SHANAHAN JR.
/s/ Earl W. Walker Director
- ------------------------------------------
EARL W. WALKER
/s/ John J. Wichlenski Director
- ------------------------------------------
JOHN J. WICHLENSKI
/s/ Earl W. Wims Director
- ------------------------------------------
EARL W. WIMS
</TABLE>
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<PAGE> 2
Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused this registration statement to be signed,
thereunto duly authorized in the County of St. Louis, State of Missouri on
May 15, 1998.
ENGINEERED SUPPORT SYSTEMS, INC.
1998 STOCK OPTION PLAN
By: /s/ Michael F. Shanahan Sr.
-------------------------------------
Michael F. Shanahan Sr.
Plan Administrator
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