As filed with the Securities and Exchange Commission on September 27, 2004
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESSEX CORPORATION
(Exact name of registrant as specified in its charter)
VIRGINIA 54-0846569
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9150 GUILFORD ROAD
COLUMBIA, MARYLAND 21046
(Address of Principal Executive Offices) (Zip Code)
-------------------------------------
ESSEX CORPORATION
2004 STOCK INCENTIVE PLAN
2004 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
------------------------------------
LEONARD E. MOODISPAW, ESQUIRE WITH A COPY TO:
President and Chief Executive Officer JOHN R. HEMPILL, ESQUIRE
Essex Corporation Morrison & Foerster LLP
9150 Guilford Road 1290 Avenue of the Americas
Columbia, Maryland 21046 New York, New York 10104
(301) 939-7000 (212) 468-8082
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities Amount Proposed maximum Proposed maximum
to be registered to be offering price aggregate Amount of
------------------- registered per share offering price registration fee
------------ ---------------- ---------------- ----------------
Plan Options
Common Stock (no par
value per share) 1,000,000 (1) $11.53 (2) $23,060,000 (2) $2,921.70 (2)
Stock Purchase Plan
Common Stock (no par
value per share) 1,000,000 (1) $11.53 (2)
(1)Together with an indeterminable number of additional shares in order to
adjust the number of shares reserved for issuance pursuant to the plan or non
plan agreements as the result of a stock split, stock dividend or similar
transaction affecting the common stock, pursuant to 17 C.F.R. ss. 230.416.
(2)Pursuant to Rule 457(h)(1), the proposed maximum offering price per share,
proposed maximum aggregate offering price and the amount of the registration fee
are based upon the average of the high and low prices reported on NASDAQ on
September 23, 2004 of $11.95 and $11.10 per share, respectively.
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of registered securities will
begin as soon as possible after such effective date.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS1
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
1 Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (hereinafter, the "Securities Act"), and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed or to be filed with the
Commission, are, or shall be deemed to be, incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 28, 2003.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 28, 2004 and June 27, 2004.
(c) The Company's Current Reports on Form 8-K filed on February 9,
2004, March 10, 2004, March 29, 2004, April 22, 2004, May 3, 2004, May 4, 2004,
June 7, 2004, July 6, 2004, July 21, 2004, August 10, 2004 and Form 8-K/A filed
on June 25, 2004, September 3, 2004.
(d) The Company's Proxy Statement on Schedule 14A dated June 9, 2004.
(e) The description of the common stock, no par value per share (the
"Common Stock"), of the Registrant contained in its Registration Statement on
Form 8-A, and amendments thereto are incorporated by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(f) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
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 which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. The
documents required to be so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Virginia Stock Corporation Act ("Act") permits indemnification of
directors and officers of a corporation under certain conditions and subject to
certain limitations. Articles (h) and (I) of the Articles of Incorporation of
the Company contain provisions for the indemnification of directors and officers
of the Company within the limitations permitted by the Act. In addition, the
Company has entered into indemnity agreements with all of its directors and
officers which provide the maximum indemnification allowed by the Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index on Page II-6.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if 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 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, 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
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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in Columbia, State of Maryland, on September 24, 2004.
ESSEX CORPORATION
By:/s/ Leonard E. Moodispaw
--------------------------------------
Leonard E. Moodispaw
President and Chief Executive Officer
POWER OF ATTORNEY
Each director whose signature appears below constitutes and appoints
Leonard E. Moodispaw and Lisa G. Jacobson, or either of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign for the undersigned any and all amendments or post-effective
amendments to this Registration Statement on Form S-8 relating to the issuance
of Common Stock of the Registrant and participation interests in the Plan or
under non plan agreements, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission. We hereby confirm all acts taken by such agents and
attorneys-in-fact, or any one or more of them, as herein authorized.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
/s/ H. Jeffrey Leonard Chairman of the Board September 24, 2004
----------------------
H. Jeffrey Leonard
/s/ Leonard E. Moodispaw President, Chief Executive September 24, 2004
------------------------ Officer, Chief Operating
Leonard E. Moodispaw Officer and Director
(principal executive officer)
/s/ Lisa G. Jacobson Executive Vice President and September 24, 2004
-------------------- Chief Financial Officer
Lisa G. Jacobson (principal financial and
accounting officer)
/s/ John G. Hannon Director September 24, 2004
------------------
John G. Hannon
/s/ Robert W. Hicks Director September 24, 2004
-------------------
Robert W. Hicks
/s/ Anthony M. Johnson Director September 24, 2004
----------------------
Anthony M. Johnson
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/s/ Ray M. Keeler Director September 24, 2004
-----------------
Ray M. Keeler
/s/ Marie S. Minton Director September 24, 2004
-------------------
Marie S. Minton
/s/ Arthur L. Money Director September 24, 2004
-------------------
Arthur L. Money
/s/ Terry M. Turpin Director September 24, 2004
-------------------
Terry M. Turpin
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Essex Corporation 2004 Stock Incentive Plan
4.2 Essex Corporation 2004 Employee Stock Purchase Plan
5.1 Opinion of Morrison & Foerster LLP (contains Consent of Counsel).
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1 filed
herewith).
23.2 Consent of Stegman & Company
24.1 Power of Attorney (contained on Page II-4)
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