As filed with the Securities and Exchange Commission on January 15, 2008.
Registration Statement No. 333-________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
ESPEY MFG. & ELECTRONICS CORP.
(Exact name of registrant as specified in its charter)
New York 14-1387171
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
233 Ballston Avenue
Saratoga Springs, New York 12866
(Address of Principal Executive Offices, including zip code)
Espey Mfg. & Electronics Corp. 2007 Stock Option
and Restricted Stock Plan
(Full title of the plan)
Howard Pinsley
President and Chief Executive Officer
233 Ballston Avenue
Saratoga Springs, New York 12866
(518) 584-4100
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Lawrence A. Goldman, Esq.
Gibbons P.C.
One Gateway Center
Newark, New Jersey 07102-5310
(973) 596-4500
- -----------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Each Class Amount Maximum Offering Maximum Amount of
of Securities To Be Price Aggregate Registration
to be Registered Registered(1) Per Share(3) Offering Fee(3)
Price(3)
- -----------------------------------------------------------------------------------------------------
Common Stock, par value $0.33 1/3 per 400,000 (2) $18.75 $7,500,000 $238.01
share
- -----------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as
amended, this registration statement also covers additional shares of Common
Stock pursuant to the anti-dilution provisions of the Plan.
(2) Includes 77,000 shares (the "Carryover Shares") previously
registered for issuance, offer or sale under the 2000 Stock Option Plan (the
"2000 Plan") on a Registration Statement on Form S-8 filed on October 11, 2005
(Registration No. 333-128922) (the `Initial Registration Statement") covering
129,700 shares. The Carryover Shares have not been issued and may be offered and
sold under the 2007 Plan. In connection with the Initial Registration Statement,
the registrant paid a total registration fee of $532.00 of which $315.84 related
to the Carryover Shares. Pursuant to Interpretation 89 under Section G of the
Division of Corporation Finance's Manual of Publicly available Telephone
Interpretations dated July 1997 and Instruction E to the General Instructions of
Form S-8, the registrant has carried forward the registration fee related to the
Carryover Shares. Therefore, no further registration fee is required with
respect to the Carryover Shares. The registrant is concurrently filing a
Post-Effective Amendment No. 1 to Registration Statement on the Initial
Registration Statement to deregister 77,000 unissued shares.
(3) Estimated in accordance with Rule 457(c) solely for the purposes of
calculating the registration fee, based on the average high and low prices per
share of the Registrant's Common Stock as reported on The American Stock
Exchange on January 9, 2008.
================================================================================
-2-
EXPLANATORY NOTE
On November 30, 2007, the stockholders of Espey Mfg. & Electronics
Corp. (the "Company") approved the 2007 Stock Option and Restricted Stock Plan
(the "2007 Plan"), which replaced the Company's 2000 Stock Option Plan (the
"2000 Plan"). The 2000 Plan has 77,000 shares of Common Stock that would
otherwise be available for grant under such plan (the "Carryover Shares") now
available for issuance, offer and sale under the 2007 Plan.
This registration statement on Form S-8 relates to the 400,000 shares
of Common Stock that may be issued under the 2007 Plan, inclusive of the
Carryover Shares. None of the Carryover Shares may be issued under the 2000
Plan; such Carryover Shares may only be issued, offered and sold under the 2007
Plan.
In accordance with the principals set forth in Interpretation 89 under
Section G of the Division of Corporation Finance's Manual of Publicly Available
Telephone Interpretations dated July 1997 and Instruction E to the General
Instructions of Form S-8, this Registration Statement on Form S-8 carries
forward the $315.84 registration fee previously paid with respect to the
Carryover Shares. The Company is filing a Post-Effective Amendment to the
Registration Statement on Form S-8 (Registration No. 333-128922) to deregister
the Carryover Shares contemporaneously with the filing of this Registration
Statement.
-3-
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Espey Mfg. & Electronics Corp. ("we", "us", "our" or the "Company")
incorporates by reference in this registration statement the following documents
previously filed by us with the Securities and Exchange Commission (the
"Commission"):
(1) Our Annual Report on Form 10-K for the year ended June 30,
2007;
(2) The description of our common stock, $.33 1/3 par value per
share (the "Common Stock"), set forth in our report on Form
8-K filed with the Commission on October 7, 2005, including
any amendment or report filed for the purpose of updating such
description; and
(3) All documents subsequently filed by us 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 offered have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the respective date of
filing of such documents. Any statement contained in a
document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement
contained in this Registration Statement or in any other
subsequently filed document which is incorporated by reference
modifies or replaces such statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our Certificate of Incorporation, as amended, provides that the Company
will indemnify each director and officer of the Company and the estate of each
such person, against the reasonable expense, including attorneys' fees, incurred
in connection with the defense of any action, suit or proceeding to which such
person is a party by reason of being an officer or director of the Company or of
any corporation which he or she served at the request of the Company. The right
of indemnification includes indemnification for the reasonable cost of a
settlement made with a view to avoiding costs of litigation. Indemnification
shall not be available if it shall be adjudged in any action, suit or proceeding
that the officer or director is liable for negligence or misconduct in the
performance of his or her duties.
The determination of the amount payable by way of indemnification shall
be made either by the applicable court or by a vote of the majority of the
entire Board of Directors, excluding the vote of the affected directors. If the
determination of an indemnification payment is made by the Board of Directors or
in any manner other than by court order, the Company is obligated, within 18
months from the date of
-4-
payment, to mail to stockholders of record entitled to vote for the election of
directors a statement specifying the person paid, the amount of the payments and
the final disposition of the litigation.
Our Amended and Restated Bylaws provide that the Company shall
indemnify any director or officer who is a party or is threatened to be made a
party to any threatened, pending or completed action, proceeding or suit,
whether civil or criminal, by reason of the fact that such person was serving
the Company as a director or officer or serving any other entity at the request
of the Company, against judgments, fines, amounts paid in settlement and
expenses, including attorney fees.
It is a condition to indemnification that the officer or director acted
in good faith for a purpose which he or she reasonably believed to be in or not
opposed to the best interests of the Company and, in criminal action, that the
person had no reason to believe that his or her conduct was unlawful. The Bylaws
further provide that no indemnification shall be made if a judgment or other
final adjudication adverse to the director or officer establishes that the
person's acts were committed in bad faith or were the result of active and
deliberate dishonesty or that the person gained a financial profit or other
advantage to which he or she was not entitled.
The right to indemnification under the Amended and Restated Bylaws is
not exclusive to any rights that a director or officer may be entitled or the
Company provides.
The Amended and Restated Bylaws also authorize the Company to advance
expenses to any director or officer to the fullest extent permitted by the New
York Business Corporation Law ("BCL") and authorize the Company to purchase and
maintain insurance for indemnification of directors and officers. The Company
maintains such insurance.
Section 722(b) of the BCL provides that the termination of any civil or
criminal action or proceeding by judgment, settlement, conviction or upon a plea
of nolo contendere, or its equivalent, shall not itself create a presumption
that any director or officer did not act in good faith, for a purpose which he
or she reasonably believed to be in the best interests of the Company or, in
criminal proceedings, not opposed to the best interests of the Company.
Section 725 of the BCL provides that expenses incurred or advanced in
defending a civil or criminal action or proceeding shall be repaid in case the
person receiving the advancement is found not to be entitled to indemnification
or to the extent the amount of the advancement exceeds the indemnification to
which the person is entitled.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Gibbons P.C.
10.1 2007 Stock Option and Restricted Stock Plan incorporated
by reference to the Company's Definitive Proxy Statement
dated October 23, 2007 for the November 30, 2007 annual
meeting.
-5-
23.1 Consent of Rotenberg & Company, LLP
23.2 Consent of Gibbons P.C. (included in Exhibit 5.1)
24.1 Powers of Attorney
Item 9. Undertakings.
The Company 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, as amended;
(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 paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with the Commission
by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934, as amended, (and where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing procedures, or otherwise, the
Company 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, as amended, and is, therefore, unenforceable. In the
event that a claim for indemnification against
-6-
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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, as amended, and will be
governed by the final adjudication of such issue.
-7-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned 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 Saratoga Springs, State of New York, on this 15th
day of January, 2008.
ESPEY MFG. & ELECTRONICS CORP.
By: /s/ Howard Pinsley
-------------------------------------
Howard Pinsley
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 and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Howard Pinsley Chairman of the Board, President January 15, 2008
- ----------------------- and Chief Executive Officer
Howard Pinsley
/s/ Barry Pinsley* Director January 15, 2008
- -----------------------
Barry Pinsley
/s/ Seymour Saslow* Director January 15, 2008
- -----------------------
Seymour Saslow
/s/ Michael W. Wool* Director January 15, 2008
- -----------------------
Michael W. Wool
/s/ Alvin O. Sabo* Director January 15, 2008
- -----------------------
Alvin O. Sabo
/s/ Carl Helmetag* Director January 15, 2008
- -----------------------
Carl Helmetag
/s/ Paul J. Corr* Director January 15, 2008
- -----------------------
Paul J. Corr
/s/ David O'Neil Principal Accounting Officer January 15, 2008
- -----------------------
David O'Neil
- -----------------------
*By Howard Pinsley
Attorney in Fact
-8-
EXHIBIT INDEX
No. Description Method of Filing
5.1 Opinion of Gibbons P.C. Filed with this Registration
Statement
10.1 2007 Stock Option and Incorporated by reference to the
Restricted Stock Plan Company's Definitive Proxy
Statement dated October 23, 2007
23.1 Consent of Rotenberg & Filed with this Registration
Company, LLP Statement
23.2 Consent of Gibbons P.C. Included in Exhibit 5.1
24.1 Powers of Attorney Filed with this Registration
Statement