-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QTvP/ntcuKs2Ted/+qv2IWfgBSLW7jP28wK2lqQAeMX7FZ3b2zEL0AXdJvdvyeC5 O2VRgkspL+2P1XRh2QHx1Q== 0000950131-97-007301.txt : 19971217 0000950131-97-007301.hdr.sgml : 19971217 ACCESSION NUMBER: 0000950131-97-007301 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971216 EFFECTIVENESS DATE: 19971216 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: APPLIED POWER INC CENTRAL INDEX KEY: 0000006955 STANDARD INDUSTRIAL CLASSIFICATION: MISC INDUSTRIAL & COMMERCIAL MACHINERY & EQUIPMENT [3590] IRS NUMBER: 390168610 STATE OF INCORPORATION: WI FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42353 FILM NUMBER: 97739113 BUSINESS ADDRESS: STREET 1: P O BOX 325 CITY: MILWAUKEE STATE: WI ZIP: 53201 BUSINESS PHONE: 4147816600 MAIL ADDRESS: STREET 1: PO BOX 325 CITY: MILWAUKEE STATE: WI ZIP: 53201 FORMER COMPANY: FORMER CONFORMED NAME: APPLIED POWER INDUSTRIES INC DATE OF NAME CHANGE: 19730123 S-8 1 FORM S-8 Registration No. 333-_______________ As filed with the Securities and Exchange Commission on December 16, 1997 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________ APPLIED POWER INC. (Exact name of registrant as specified in its charter) WISCONSIN 39-0168610 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 13000 West Silver Spring Drive Butler, Wisconsin 53007-1093 (Address of Principal Executive Offices) (Zip Code) _______________ APW 401(K) PLAN (1) (Full title of the plan) ___________________ ROBERT C. ARZBAECHER Copy to: Vice President and Chief Financial Officer ANTHONY W. ASMUTH III, ESQ. Applied Power Inc. Quarles & Brady 13000 West Silver Spring Drive 411 East Wisconsin Avenue Butler, Wisconsin 53007-1093 Milwaukee, Wisconsin 53202 (Name and address of agent for service) (414) 781-6600 (Telephone number, including area code, of agent for service) Calculation of Registration Fee
- ---------------------------------------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Amount of Title of Securities Amount to be Offering Price Aggregate Registration to be Registered Registered Per Share Offering Price Fee ---------------- ---------- --------- -------------- ---- Class A Common Stock, par value $.20 per share 500,000 shares (2) $67.125(3) $33,562,500(3) $9,901 - ----------------------------------------------------------------------------------------------------------
(1) This Registration Statement is being filed by the Registrant, the Applied Power Inc. Employee Stock Ownership Plan ("ESOP") and the Applied Power Inc. Employee Savings Plan ("Savings Plan") to register shares of Applied Power Inc. Class A Common Stock, par value $.20 per share ("Common Stock"), to be issued beginning January 1, 1998 pursuant to the APW 401(k) Plan. Effective December 31, 1997, the ESOP and the Savings Plan shall merge to become the APW 401(k) Plan (the "Plan"). (2) The APW 401(k) Plan provides for the issuance of up to 500,000 shares of Common Stock. Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement covers, in addition to the above stated 500,000 shares, an indeterminate amount of interests to be sold pursuant to the APW 401(k) Plan. (3) Pursuant to Rule 457(h), estimated solely for the purpose of computing the registration fee, based upon $67.125 per share, which is the average of the high and low sales prices of the Common Stock reported on the New York Stock Exchange on December 10, 1997. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or given to Plan participants as specified by Rule 428(b)(1) under the Securities Act of 1933. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by Applied Power Inc. (the "Registrant") (Commission File No. 1-11288) with the Securities and Exchange Commission (the "Commission") pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, (the "1934 Act") are incorporated herein by reference by the Registrant, the ESOP and the Savings Plan: (a) Annual Report on Form 10-K for the fiscal year ended August 31, 1997; and (b) The Company's Current Report on Form 8-K dated January 28, 1991, including specifically the description of the Common Stock in Item 5 thereof filed for the purpose of updating the description of the Common Stock contained in the Company's registration statement filed with respect thereto under the 1934 Act, including any amendment or report filed for the purpose of updating such description. Pursuant to Instruction A.2. to Form S-8 and the Commission's interpretations thereunder, the Item 3 requirement pertaining to incorporation by reference in this Registration Statement of the Plan's most recent annual report is not applicable. All documents subsequently filed by the Registrant and the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, 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 herein and to be a part hereof from the date of the 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 hereof 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. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof. Item 4. Description of Securities. Not applicable. See Item 3(b) above. Item 5. Interests of Named Experts and Counsel. The legality of the shares of Common Stock registered hereunder will be passed on for the Registrant by Quarles & Brady, the Registrant's legal counsel. The Registrant's Secretary, Anthony W. Asmuth III, is a partner of Quarles & Brady which serves as counsel to the Registrant. -1- Item 6. Indemnification of Directors and Officers. The Registrant is incorporated under the Wisconsin Business Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Registrant is required to indemnify a director or officer, to the extent such person is successful on the merits or otherwise in the defense of a proceeding, for all reasonable expenses incurred in the proceeding if such person was a party because he or she was a director or officer of the Registrant. In all other cases, the Registrant is required by Section 180.0851(2) of the WBCL to indemnify a director or officer against liability incurred in a proceeding to which such person was a party because he or she was an officer or director of the Registrant, unless it is determined that he or she breached or failed to perform a duty owed to the Registrant and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the Registrant or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation of criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful; (iii) a transaction from which the director or officer derived an improper personal profit; or (iv) willful misconduct. Section 180.0858(1) of the WBCL provides that, subject to certain limitations, the mandatory indemnification provisions do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under the Registrant's articles of incorporation, bylaws, a written agreement or a resolution of the Board of Directors or shareholders. Section 180.0859 of the WBCL provides that it is the public policy of the State of Wisconsin to require or permit indemnification, allowance of expenses and insurance to the extent required or permitted under Sections 180.0850 to 180.0858 of the WBCL for any liability incurred in connection with a proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities. Section 180.0828 of the WBCL provides that, with certain exceptions, a director is not liable to a corporation, its shareholders, or any person asserting rights on behalf of the corporation or its shareholders, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director, unless the person asserting liability proves that the breach or failure to perform constitutes any of the four exceptions to mandatory indemnification under Section 180.0851(2) referred to above. Under Section 180.0833 of the WBCL, directors of the Registrant against whom claims are asserted with respect to the declaration of an improper dividend or other distribution to shareholders to which they assented are entitled to contribution from other directors who assented to such distribution and from shareholders who knowingly accepted the improper distribution, as provided therein. Article VIII of the Registrant's Bylaws contains provisions that generally parallel the indemnification provisions of the WBCL and cover certain procedural matters not dealt with in the WBCL. Directors and officers of the Registrant are also covered by directors' and officers' liability insurance under which they are insured (subject to certain exceptions and limitations specified in the policy) against expenses and liabilities arising out of proceedings to which they are parties by reason of being or having been directors or officers. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. See Exhibit Index following the Signatures page in this Registration Statement, which Exhibit Index is incorporated herein by reference. The Registrant undertakes to submit the APW 401(k) Plan to the Internal Revenue Service ("IRS") in a timely manner and will make all changes required by the IRS in order to qualify such plan. -2- 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 (a)(1)(i) and (a)(1)(ii) of this section 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 with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the 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 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 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 (and each filing of an employee benefit plan's annual report pursuant to 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) Reference is made to the indemnification provisions described in Item 6 of this Registration Statement. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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 -3- 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. -4- 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 City of Butler, State of Wisconsin, on December 16, 1997. APPLIED POWER INC. (Registrant) By: /s/ Robert C. Arzbaecher ------------------------ Robert C. Arzbaecher Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BE THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard G. Sim and Robert C. Arzbaecher, and each 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 any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and 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 or any of them, or their 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 date indicated.* Signature Title /s/ Richard G. Sim Chairman of the Board, President and - ------------------------ Chief Executive Officer; Director Richard G. Sim /s/ Robert C. Arzbaecher Vice President and Chief Financial Officer - ------------------------ (Principal Financial Officer) Robert C. Arzbaecher /s/ Richard D. Carroll Controller - ------------------------ (Principal Accounting Officer) Richard D. Carroll /s/ H. Richard Crowther Director - ------------------------ H. Richard Crowther /s/ Jack L. Heckel Director - ------------------------ Jack L. Heckel /s/ Richard A. Kashnow Director - ------------------------ Richard A. Kashnow S-1 /s/ L. Dennis Kozlowski Director - ----------------------- L. Dennis Kozlowski /s/ John J. McDonough Director - ----------------------- John J. McDonough ______________ *Each of the above signatures is affixed as of December 16, 1997. S-2 Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Milwaukee, State of Wisconsin, on December 15, 1997. APPLIED POWER INC. EMPLOYEE STOCK OWNERSHIP PLAN By: FIRSTAR TRUST COMPANY, Trustee By: /s/ Kenton S. Anderson --------------------------------- Name: Kenton S. Anderson --------------------------- Title: V.P. and Relationship Mgr. -------------------------- Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the Village of Butler, State of Wisconsin, on December 15, 1997. APPLIED POWER INC. EMPLOYEE SAVINGS PLAN By: APPLIED POWER INC. BENEFIT PLAN ADMINISTRATIVE COMMITTEE, Plan Administrator By: /s/ Donald R. Cleveland --------------------------------------- Name: Donald R. Cleveland -------------------------------- Title: Administrative Committee Member ------------------------------- S-3 APPLIED POWER INC. (the "Registrant") (Commission File No. 1-11288) EXHIBIT INDEX TO FORM S-8 REGISTRATION STATEMENT
Exhibit Incorporated Herein Filed Number Description by Reference To Herewith - ------- ----------- ------------------- -------- 4.1(a) Amended and Restated Articles of Exhibit 19.1(a) to the Incorporation of the Registrant (as Registrant's Form 10-Q for adopted January 8, 1987) quarter ended February 28, 1990 ("2/28/90 10-Q") (b) Articles of Amendment to Amended and Exhibit 19.1(b) to 2/28/90 Restated Articles of Incorporation, 10-Q amending Sections 3.1 and 3.2 of Article III and Article IV (as adopted January 13, 1990) 4.2 Amended and Restated Bylaws of the Exhibit 3.2 to the Registrant (as last amended by Registrant's amendment to Section 3.01 decreasing Form 10-K for year ended the number of directors to six, adopted August 31, 1997 ("1997 August 8, 1996 and effective as of 10-K") January 8, 1997) 5 Opinion of Counsel X 23.1 Consent of Independent Accountants X 23.2 Consent of Counsel Contained in Opinion filed as Exhibit 5 24 Power of Attorney Contained in Signatures Page to this Registration Statement
EX-5 2 OPINION OF COUNSEL Exhibit (5) December 16, 1997 Applied Power Inc. 13000 West Silver Spring Drive Butler, Wisconsin 53007-1093 Re: APW 401(k) Plan Ladies and Gentlemen: We are providing this opinion in connection with the Registration Statement of Applied Power Inc. (the "Company") on Form S-8 (the "Registration Statement") to be filed under the Securities Act of 1933, as amended (the "Act"), with respect to the proposed sale by the Company of up to 500,000 shares of Class A Common Stock, par value $.20 per share ("Shares"), of the Company pursuant to the APW 401(k) Plan (the "Plan") beginning on January 1, 1998. Effective December 31, 1997, the Applied Power Inc. Employee Stock Ownership Plan ("ESOP") and the Applied Power Inc. Employee Savings Plan ("Savings Plan") shall merge to become the Plan. The Registration Statement is being filed because the Plan will provide for the purchase of Shares with employee contributions, unlike the ESOP and the Savings Plan which did not involve this feature and, accordingly, were not registered. We have examined: (i) the Registration Statement; (ii) the Company's Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, each as amended to date; (iii) the Plan, the ESOP and the Savings Plan; (iv) the corporate proceedings relating to the merger of the ESOP and the Savings Plan and the authorization for the issuance of the Shares; and (v) such other documents and records and such matters of law as we have deemed necessary in order to render this opinion. On the basis of the foregoing, we advise you that, in our opinion: 1. The Company is a corporation duly incorporated and validly existing under the laws of the State of Wisconsin. 2. The shares to be sold from time to time pursuant to the Plan which are original issuance shares, when issued and paid for as contemplated by the Registration Statement and the Plan, will be validly issued, fully paid and nonassessable by the Company, subject to the personal liability which may be imposed on shareholders by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted, for debts owing to employees for services performed, but not exceeding six months service in any one case. Although Section 180.0622(2)(b) provides that such personal liability of shareholders shall be "to an amount equal to the par value of shares owned by them respectively, and to the consideration for which their shares without par value was issued," the Wisconsin Supreme Court, by a split decision without a written opinion, has affirmed a judgment holding shareholders of a corporation liable under the substantially identical predecessor statute in effect prior to January 1, 1991 (Section 180.40(6)) for unpaid employee wages to an amount equal to the consideration for which their par value shares were issued rather than the shares' lower stated par value. Local 257 of Hotel and Restaurant Employees and Bartenders International Union v. Wilson Street East Dinner Playhouse, Inc., 126 Wis. 2d 284, 375 N.W.2d 664 (1985) (affirming the 1983 decision of the Circuit Court for Dane County, Wisconsin, in Case No. 82-CV-0023). Applied Power Inc. December 16, 1997 Page 2 The Company's Secretary, Anthony W. Asmuth III, is a partner of Quarles & Brady, which serves as counsel to the Registrant. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving consent, we do not admit that we are "experts" within the meaning of Section 11 of the Act, or that we come within the category of persons whose consent is required by Section 7 of the Act. Very truly yours, /s/ QUARLES & BRADY Quarles & Brady EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Applied Power Inc. on Form S-8 of our report dated September 25, 1997, appearing in the Annual Report on Form 10-K of Applied Power Inc. for the year ended August 31, 1997. /s/ DELOITTE & TOUCHE LLP DELOITTE & TOUCHE LLP Milwaukee, Wisconsin December 12, 1997 -----END PRIVACY-ENHANCED MESSAGE-----