-----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, S17MnW5mt0zuoZV+I5T55sh5+FwZIfyaHDGkCG8/dDRumo8ByZUb4PKZiDgKqQql llrsiHO/PDBWItvtv1IN7A== 0000950131-98-004764.txt : 19980813 0000950131-98-004764.hdr.sgml : 19980813 ACCESSION NUMBER: 0000950131-98-004764 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980812 EFFECTIVENESS DATE: 19980812 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: 333-61281 FILM NUMBER: 98684011 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 August 12, 1998 ================================================================================ 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) ---------------------- APPLIED POWER INC. EMPLOYEE STOCK PURCHASE PLAN (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 (1) $29.9375 (2) $14,968,750 (2) $4,415.79 ==================================================================================================================
(1) The Registrant has taken action in connection with its Employee Stock Purchase Plan, as amended (the "Plan"), to increase the number of shares available under the Plan. (2) Pursuant to Rule 457(h), estimated solely for the purpose of computing the registration fee, based upon $29.9375 per share, which is the average of the high and low sales prices of the Registrant's Class A Common Stock, par value $.20 per share ("Common Stock"), reported on the New York Stock Exchange Composite Tape on August 7, 1998. ================================================================================ 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: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended August 31, 1997 (as amended by Amendment No. 1 thereto on Form 10-K/A filed June 19, 1998); (b) The Registrant's Quarterly Reports on Form 10-Q for the quarterly periods ended November 30, 1997, February 28, 1998 and May 31, 1998; (c) The Registrant's Current Reports on Form 8-K reporting events occurring on October 3, 1997 (as amended by Amendment No. 1 thereto on Form 8-K/A filed December 17, 1997), November 4, 1997, April 6, 1998, April 16, 1998, June 5, 1998 (as amended by Amendment No. 1 thereto on Form 8-K/A filed July 1, 1998) and July 31, 1998; and (d) The Registrant's Current Report on Form 8-K dated August 12, 1998, including specifically the description of the Common Stock in Item 5 thereof, which updates and supersedes the description of the Common Stock contained in the Registrant's Registration Statement on Form 8-A filed on August 11, 1987, as previously updated by the Registrant's Current Report on Form 8-K dated January 28, 1991; and any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant 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(d) above. -1- 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. 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. -2- Item 8. Exhibits. See Exhibit Index following the Signatures page in this Registration Statement, which Exhibit Index is incorporated herein by reference. 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 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. -3- (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 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 August 12, 1998. APPLIED POWER INC. (Registrant) By: /s/ ROBERT C. ARZBAECHER ---------------------------------- Robert C. Arzbaecher Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY 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 Treasurer, Controller and - ---------------------------- 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 Director - ---------------------------- John J. McDonough - ------------ *Each of the above signatures is affixed as of August 12, 1998. S-2 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 Restated Articles of Incorporation of the Exhibit 4.1 to the Registrant's Registrant (dated as of February 13, Registration Statement on 1998) Form S-8 (File No. 333-46469) 4.2 Amended and Restated Bylaws of the Exhibit 3.2 to the Registrant's Registrant (effective as of January 8, Form 10-K for the fiscal year 1997) ended August 31, 1997 5 Opinion of Quarles & Brady X 23.1 Consent of Deloitte & Touche LLP, the X Registrant's independent accountants (and independent accountants for Versa Technologies, Inc.) 23.2 Consent of Deloitte & Touche LLP, X ZERO's independent accountants 23.3 Consent of Ernst & Young, VERO X Group plc's independent accountants 23.4 Consent of Quarles & Brady Contained in Exhibit 5 24 Power of Attorney Contained in Signatures page to this Registration Statement
EI-1 EX-5 2 OPINION OF QUARLES & BRADY Exhibit 5 Quarles & Brady 411 East Wisconsin Avenue Milwaukee, WI 53202-4497 August 12, 1998 Applied Power Inc. 13000 West Silver Spring Drive Butler, Wisconsin 53007-1093 Re: Applied Power Inc. Employee Stock Purchase 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 additional shares of Class A Common Stock, par value $.20 per share ("Shares"), of the Company pursuant to the Applied Power Inc. Employee Stock Purchase Plan, as amended (the "Plan"). We have examined: (i) the Registration Statement; (ii) the Company's Restated Articles of Incorporation and Amended and Restated Bylaws, each as amended to date; (iii) the Plan; (iv) the corporate proceedings relating to the authorization for the sale of the Shares pursuant to the Plan; 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. August 12, 1998 Page 2 The Company's Secretary, Anthony W. Asmuth III, is a partner of Quarles & Brady, which serves as counsel to the Company. 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, QUARLES & BRADY EX-23.1 3 CONSENT OF DELOITTE & TOUCHE (REGISTRANTS IND.) 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 (October 16, 1997 as to Note O), appearing in Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K of Applied Power Inc. for the year ended August 31, 1997, and our report dated May 9, 1997 relating to Versa Technologies, Inc. appearing in the Current Report on Form 8-K of Applied Power Inc. dated October 3, 1997. DELOITTE & TOUCHE LLP Milwaukee, Wisconsin August 10, 1998 EX-23.2 4 CONSENT OF DELOITTE & TOUCHE (ZERO'S IND.) Exhibit 23.2 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 May 11, 1998, appearing in the Annual Report on Form 10-K of ZERO Corporation for the year ended March 31, 1998. DELOITTE & TOUCHE LLP Los Angeles, California August 12, 1998 EX-23.3 5 CONSENT OF ERNST & YOUNG Exhibit 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) of Applied Power Inc. pertaining to the Applied Power Inc. Employee Stock Purchase Plan of our report dated March 23, 1998, on the consolidated financial statements of VERO Group plc as at December 31, 1997, and for the year then ended included in the Amendment No. 1 (Form 8-K/A) to the Current Report (Form 8-K) of Applied Power Inc. dated June 30, 1998, filed with the Securities and Exchange Commission. ERNST & YOUNG Southampton, England August 12, 1998 -----END PRIVACY-ENHANCED MESSAGE-----