As filed with the Securities and Exchange Commission on December 19, 2008

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

MERCURY COMPUTER SYSTEMS, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Massachusetts		04-2741391
(State of Incorporation)		(I.R.S. Employer Identification Number)

201 Riverneck Road

Chelmsford, Massachusetts 01824

(978) 256-1300

(Address of Principal Executive Offices)

 

 

MERCURY COMPUTER SYSTEMS, INC.

Amended and Restated 2005 Stock Incentive Plan

(Full Title of the Plan)

 

 

Alex A. Van Adzin

Vice President, General Counsel, and Corporation Secretary

Mercury Computer Systems, Inc.

201 Riverneck Road

Chelmsford, Massachusetts 01824

(978) 256-1300

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ¨		Accelerated filer                 x
Non-accelerated filer ¨		Smaller reporting company ¨
(Do not check if a smaller reporting company)

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities to be Registered				Amount to be Registered (1)(2)(3)				Proposed Maximum Offering Price Per Share (4)				Proposed Maximum Aggregate Offering Price (4)				Amount of Registration Fee
Common Stock				1,092,047				$4.39				$4,794,086.33				$188.41

 

 

(1)

442,047 shares of the registrant’s common stock listed were part of the shares previously registered by the registrant on Form S-8 (File No. 333-101993 filed on December 19, 2002) in connection with the registrant’s 1997 Stock Option Plan, as amended. Includes an additional 650,000 shares of the registrant’s common stock that were not previously registered.

 

(2)	This registration statement also covers preferred stock purchase rights (the “Rights”) which are presently attached to and trade with the registrant’s common stock. Any value attributable to the Rights is reflected in the market price of the common stock.

 

(3)

In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares of common stock to be offered or sold as a result of the anti-dilution provisions of the employee benefit plan described herein, including to prevent dilution resulting from any reorganization, recapitalization, reclassification, stock dividend, stock split or other similar change.

 

(4)	Calculated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of determining the amount of the registration fee, based on the average of the high and low prices on the NASDAQ Global Select Market on December 15, 2008.

 

 

 

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EXPLANATORY NOTE

This registration statement is being filed solely for the purpose of registering 1,092,047 additional shares of common stock, par value $0.01 per share (“Common Stock”), of Mercury Computer Systems, Inc. (the “Company”) to be offered to participants under the Company’s Amended and Restated 2005 Stock Incentive Plan (the “2005 Plan”), originally adopted in 2005. The number of shares of Common Stock reserved and available for issuance under the 2005 Plan includes 4,622,223 shares, which were previously registered with the Securities and Exchange Commission (the “Commission”) on Form S-8 (File Nos. 333-129929 filed on November 23, 2005, 333-139019 filed on November 30, 2006 and 333-149046 filed on February 4, 2008) (together, the “2005 Registration Statement”), plus the number of shares underlying any grants previously made under the Company’s 1997 Stock Option Plan, as amended (the “1997 Plan”) that are forfeited, canceled or are terminated (other than by exercise) from and after the effective date of the 2005 Plan. An aggregate of 442,047 additional shares have been included in the shares reserved for issuance under the 2005 Plan as a result of the forfeiture, cancellation or termination (other than by exercise) of grants previously made under the 1997 Plan. This registration statement also covers the registration of 650,000 shares of Common Stock added to the 2005 Plan in connection with its amendment and restatement, which was approved by the Company’s shareholders on November 17, 2008.

Pursuant to General Instruction E of Form S-8, the contents of the 2005 Registration Statement are incorporated herein by reference, except as otherwise noted below.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

The following documents are incorporated herein by reference:

 

(a)

The Company’s annual report on Form 10-K for the fiscal year ended June 30, 2008, as filed with the Commission on September 12, 2008;

 

(b)

The Company’s quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2008, as filed with the Commission on November 10, 2008;

 

(c)

The Company’s current reports on Form 8-K filed with the Commission on July 30, 2008, September 18, 2008, October 24, 2008, and November 20, 2008;

 

(d)

The description of the Company’s common stock contained in the Company’s registration statement on Form 8-A dated January 7, 1998, as filed with the Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment thereto or report filed for the purpose of updating such description; and

 

(e)

The description of the Company’s preferred stock purchase rights contained in the Company’s registration statement on Form 8-A dated December 15, 2005, as filed with the Commission pursuant to Section 12 of the Exchange Act, including any amendment thereto or report filed for the purpose of updating such description.

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents.

ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.

The validity of the Common Stock offered under this registration statement will be passed upon for the Company by Goodwin Procter LLP, Boston, Massachusetts. Anthony J. Medaglia, Jr., who is Of Counsel at Goodwin Procter LLP, is Assistant Secretary of the Company and owns 28,950 shares of Common Stock and options to purchase an additional 1,010 shares of Common Stock.

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ITEM 8. EXHIBITS.

 

Exhibit		Description
4.1		Articles of Organization (incorporated herein by reference to Exhibit 3.1 of the Company’s annual report on Form 10-K/A for the fiscal year ended June 30, 2002, as filed with the Commission on September 27, 2002).
4.2		Articles of Amendment (incorporated herein by reference to Exhibit 3.2 of the Company’s quarterly report on Form 10-Q for the fiscal quarter ended December 31, 2004, as filed with the Commission on February 8, 2005).
4.3		Articles of Amendment (incorporated herein by reference to Exhibit 1 of the Company’s registration statement on Form 8-A, as filed with the Commission on December 15, 2005).
4.4		By-laws, as amended through September 22, 2004 (incorporated herein by reference to Exhibit 3.2 of the Company’s quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2004, as filed with the Commission on November 1, 2004).
4.5		Amendment to By-laws dated December 17, 2007 (incorporated herein by reference to Exhibit 3.1 to the Company’s current report on Form 8-K, as filed with the Commission on December 20, 2007).
4.6		Amendment to By-laws dated January 21, 2008 (incorporated herein by reference to Exhibit 3.1 to the Company’s current report on Form 8-K, as filed with the Commission on January 24, 2008).
4.7		Shareholder Rights Agreement, dated as of December 14, 2005, between the Company and Computershare Trust Company, N.A. (formerly known as EquiServe Trust Company, N.A.) (incorporated herein by reference to Exhibit 2 of the Company’s registration statement on Form 8-A, as filed with the Commission on December 15, 2005).
4.8*		Mercury Computer Systems, Inc. Amended and Restated 2005 Stock Incentive Plan.
5.1*		Opinion of Goodwin Procter LLP.
23.1*		Consent of KPMG LLP.
23.2		Consent of Goodwin Procter LLP (contained in the opinion filed as Exhibit 5.1 to this registration statement).
24.1		Power of Attorney (included in signature page to this registration statement).
99.1		Form of Stock Option Agreement under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 of the Company’s current report on Form 8-K, as filed with the Commission on August 21, 2006).
99.2		Form of Restricted Stock Award Agreement under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.3 of the Company’s current report on Form 8-K, as filed with the Commission on November 16, 2005).
99.3		Form of Stock Option Agreement for performance stock options under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 of the Company’s current report on Form 8-K, as filed with the Commission on September 28, 2007).
99.4		Form of Deferred Stock Award Agreement under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 of the Company’s quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2006, as filed with the Commission on May 9, 2006).

 

*	Filed herewith

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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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the town of Chelmsford, the Commonwealth of Massachusetts on this 19th day of December, 2008.

 

Power of Attorney

KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Mark Aslett and Robert E. Hult his true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him or in his name, place and stead, in any and all capacities to sign any and all amendments or post-effective amendments to this registration statement (or any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/    Mark Aslett         Mark Aslett		President, Chief Executive Officer and Director (Principal Executive Officer)		December 19, 2008
/s/    Robert E. Hult         Robert E. Hult		Senior Vice President and Chief Financial Officer (Principal Financial Officer)		December 19, 2008
/s/    Karl D. Noone         Karl D. Noone		Vice President, Controller (Principal Accounting Officer)		December 19, 2008
/s/    Russell K. Johnsen         Russell K. Johnsen		Chairman of the Board of Directors		December 19, 2008
/s/    George W. Chamillard         George W. Chamillard		Director		December 19, 2008
/s/    William K. O’Brien         William K. O’Brien		Director		December 19, 2008
/s/    Lee C. Steele         Lee C. Steele		Director		December 19, 2008
/s/    Richard P. Wishner         Richard P. Wishner		Director		December 19, 2008

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EXHIBIT INDEX

 

Exhibit		Description
4.1		Articles of Organization (incorporated herein by reference to Exhibit 3.1 of the Company’s annual report on Form 10-K/A for the fiscal year ended June 30, 2002, as filed with the Commission on September 27, 2002).
4.2		Articles of Amendment (incorporated herein by reference to Exhibit 3.2 of the Company’s quarterly report on Form 10-Q for the fiscal quarter ended December 31, 2004, as filed with the Commission on February 8, 2005).
4.3		Articles of Amendment (incorporated herein by reference to Exhibit 1 of the Company’s registration statement on Form 8-A, as filed with the Commission on December 15, 2005).
4.4		By-laws, as amended through September 22, 2004 (incorporated herein by reference to Exhibit 3.2 of the Company’s quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2004, as filed with the Commission on November 1, 2004).
4.5		Amendment to By-laws dated December 17, 2007 (incorporated herein by reference to Exhibit 3.1 to the Company’s current report on Form 8-K, as filed with the Commission on December 20, 2007).
4.6		Amendment to By-laws dated January 21, 2008 (incorporated herein by reference to Exhibit 3.1 to the Company’s current report on Form 8-K, as filed with the Commission on January 24, 2008).
4.7		Shareholder Rights Agreement, dated as of December 14, 2005, between the Company and Computershare Trust Company, N.A. (formerly known as EquiServe Trust Company, N.A.) (incorporated herein by reference to Exhibit 2 of the Company’s registration statement on Form 8-A, as filed with the Commission on December 15, 2005).
4.8*		Mercury Computer Systems, Inc. Amended and Restated 2005 Stock Incentive Plan.
5.1*		Opinion of Goodwin Procter LLP.
23.1*		Consent of KPMG LLP.
23.2		Consent of Goodwin Procter LLP (contained in the opinion filed as Exhibit 5.1 to this registration statement).
24.1		Power of Attorney (included in signature page to this registration statement).
99.1		Form of Stock Option Agreement under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 of the Company’s current report on Form 8-K, as filed with the Commission on August 21, 2006).
99.2		Form of Restricted Stock Award Agreement under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.3 of the Company’s current report on Form 8-K, as filed with the Commission on November 16, 2005).
99.3		Form of Stock Option Agreement for performance stock options under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 of the Company’s current report on Form 8-K, as filed with the Commission on September 28, 2007).
99.4		Form of Deferred Stock Award Agreement under the 2005 Stock Incentive Plan (incorporated herein by reference to Exhibit 10.1 of the Company’s quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2006, as filed with the Commission on May 9, 2006).

 

*	Filed herewith