As filed with the Securities and Exchange Commission on March 6,1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-3
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 (I.R.S. Employer
of incorporation or organization) Identification No.)
13000 West Silver Spring Drive
Butler, Wisconsin 53007-1093
(414) 781-6600
(Address, including ZIP Code, and telephone number,
including area code, of Registrant's principal executive offices)
ROBERT C. ARZBAECHER
Vice President and Chief Financial Officer
Applied Power Inc.
13000 West Silver Spring Drive
Butler, Wisconsin 53007-1093
(414) 781-6600
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
________________
Copies to:
BRUCE C. DAVIDSON GARY W. WOLF
Quarles & Brady Cahill Gordon & Reindel
411 East Wisconsin Avenue 80 Pine Street
Milwaukee, Wisconsin 53202 New York, New York 10005
(414) 277-5000 (212) 701-3600
________________
Approximate date of commencement of proposed sale of the securities to
the public: At such time or from time to time after the effective date of this
Registration Statement as the Registrant shall determine in light of market
conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Amount maximum aggregate Amount of
Title of each class of to be offering price offering registration
securities to be registered registered per unit price fee
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Debt Securities (1) (3) (3) $300,000,000 (4) $88,500 (5)
Class A Common Stock,
par value $.20 per share (2)
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(1) Subject to note (4) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant. If any Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price not
to exceed U.S. $300,000,000, less the dollar amount of any securities
previously issued hereunder.
(2) Subject to note (4) below, there are being registered hereunder an
indeterminate number of shares of Class A Common Stock as may be sold, from
time to time, by the Registrant.
(3) Not applicable pursuant to the Note following the Calculation of
Registration Fee Table and General Instruction II.D. to Form S-3, which
provide that only the maximum aggregate offering price for all classes of
securities to be registered need be specified.
(4) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
U.S. $300,000,000. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(5) Calculated pursuant to Rule 457(o) at the statutory rate of .000295 of the
maximum aggregate offering price.
________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 6, 1998
$300,000,000
APPLIED POWER INC.
DEBT SECURITIES
CLASS A COMMON STOCK
Applied Power Inc. (the "Company") may offer from time to time (i)
unsecured debt securities ("Debt Securities") consisting of debentures, notes
and/or other evidences of unsecured indebtedness in one or more series or (ii)
Class A Common Stock, par value $.20 per share ("Common Stock") (the Debt
Securities and Common Stock are collectively referred to as "Securities"), or
any combination of the foregoing, at an aggregate initial offering price not to
exceed U.S. $300,000,000, at prices and on terms to be determined at or prior to
the time of sale in light of market conditions at the time of sale.
Specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Securities and the initial price and the net proceeds to
the Company from the sale thereof. The Prospectus Supplement will set forth with
regard to the particular Securities, without limitation, the following: (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior debt or subordinated debt, authorized denomination,
maturity, rate or method of calculation of interest and dates for payment
thereof, any exchangeability, conversion, redemption, prepayment or sinking fund
provisions, any covenants which may apply, and any other specific terms thereof,
and (ii) in the case of Common Stock, the number of shares of Common Stock and
the terms of the offering and sale thereof.
The Company may sell Securities offered hereby to or through underwriters
or dealers, and also may sell Securities directly to other purchasers or through
agents. The Prospectus Supplement will also set forth the names of the
underwriters, dealers and agents involved in the sale of the Securities offered
hereby, the principal amounts, if any, to be purchased by the underwriters or
agents and the compensation, if any, of such underwriters or agents and any
applicable commissions or discounts. The net proceeds to the Company from the
sale of the Securities offered hereby will also be set forth in the Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998.
No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus or
the accompanying Prospectus Supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by the
Company or any underwriter, dealer or agent. Neither the delivery of this
Prospectus or the accompanying Prospectus Supplement nor any sale made hereunder
or thereunder shall, under any circumstances, create an implication that the
information contained herein or in the accompanying Prospectus Supplement is
correct as of any date subsequent to the date hereof or thereof or that there
has been no change in the affairs of the Company since the date hereof or
thereof. Neither this Prospectus nor the accompanying Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy Securities in
any jurisdiction in which such offer or solicitation is not authorized or in
which the person making such offer or solicitation is not qualified to do so or
to any person to whom it is unlawful to make such offer or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy or information statements and other information
with the Securities and Exchange Commission (the "Commission"), all of which may
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and at the following Regional Offices of the Commission: Chicago
Regional Office, Suite 1400, Northwestern Atrium Center, 500 West Madison
Street, Chicago, Illinois 60661; and New York Regional Office, 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained at the prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
The Commission maintains a site on the World Wide Web, and the reports,
statements and other information filed by the Company with the Commission may be
accessed electronically on the Web at http://www.sec.gov. Such material can
also be inspected at the offices of the New York Stock Exchange (the "NYSE"), 20
Broad Street, New York, New York 10005, where the Common Stock is listed (symbol
"APW").
This Prospectus constitutes part of a Registration Statement on Form S-3
filed by the Company with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus omits certain of the information
contained in the Registration Statement in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Company and the Securities. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in each instance,
where a copy of such document has been filed as an exhibit to the Registration
Statement or otherwise has been filed with the Commission, reference is made to
the copy of the applicable document so filed. Each such statement is qualified
in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company (Commission File
No. 1-11288) with the Commission pursuant to the Exchange Act are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended November 30, 1997;
(c) The Company's Current Report on Form 8-K dated October 3, 1997 and the
Company's Amendment to Current Report on Form 8-K/A filed December 17,
1997; and
(d) The Company's Current Report on Form 8-K dated November 4, 1997.
In lieu of incorporating by reference the description of the Common Stock
contained in the Company's Current Report on Form 8-K dated January 28, 1991,
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
Exchange Act, such description is included in this Prospectus. See "Description
of Capital Stock."
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All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Securities made hereby shall
be deemed to be incorporated by reference into this Prospectus 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. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, including any beneficial owner of Securities,
upon the written or oral request of any such person, a copy of any and all of
the documents that have been or may be incorporated by reference herein, other
than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Such requests should be
directed to Investor Relations, Applied Power Inc., 13000 West Silver Spring
Drive, Butler, Wisconsin 53007 (telephone: (414) 781-6600).
FORWARD-LOOKING STATEMENTS AND CAUTIONARY FACTORS
This Prospectus and any Prospectus Supplement (including the documents
incorporated herein or therein by reference) may contain statements that
constitute forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Prospective investors are cautioned
that any such forward-looking statements are not guarantees of future
performance and involve known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements to differ
materially from the future results, performance or achievements expressed or
implied in such forward-looking statements. The words "anticipate," "believe,"
"estimate," "expect," "project," "objective" and similar expressions are
intended to identify forward-looking statements. In addition to the assumptions
and other factors referred to specifically in connection with such statements,
factors that could cause the Company's actual results to differ materially from
those contemplated in the forward-looking statements include factors described
under the caption "Risk Factors That May Affect Future Results" or similar
cautionary captions in the documents incorporated herein by reference.
THE COMPANY
Applied Power Inc. (the "Company"), a Wisconsin corporation incorporated in
1910, is a diversified global company engaged in the business of providing
tools, equipment, systems, and supply items to a variety of end-users and
original equipment manufacturers ("OEMs") in the manufacturing, computer,
semiconductor, telecommunication, datacom, construction, electrical,
transportation, recreational vehicle, natural resources, aerospace, defense, and
other industries.
The Company's operations are divided into three segments: (i) Tools &
Supplies -- Industrial and electrical tools and supplies sold primarily through
distribution; (ii) Engineered Solutions -- Motion and vibration control products
and systems customized and primarily sold to OEM customers; and (iii) Technical
Environments and Enclosures ("TEE") -- Technical environment solutions for
computer rooms, offices, laboratories and manufacturing, and enclosures for
electronic equipment.
Tools & Supplies
Tools & Supplies is engaged in the design, manufacture, and distribution of
tools and supplies to the construction, electrical wholesale, retail Do-It-
Yourself, datacom, retail automotive, industrial, and production automation
markets. These products are sold under a variety of brand names of which the two
most well known are Enerpac and GB Electrical.
Tools & Supplies furnishes over 10,000 products. The majority of products
are manufactured or assembled, while select low volume products are sourced.
Enerpac is a specialist in hydraulic high force tools for the construction and
industrial markets, and also supplies quick mold change systems for the plastic
injection molding industry, quick die change systems for the metal stamping
industry, industrial products for the professional automotive repair market,
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and workholding products for the machining industry. GB Electrical is a large
volume manufacturer of wire connectors, conduit benders, plastic cable ties, and
fish tapes for the electrical wiring industry.
Engineered Solutions
Engineered Solutions focuses on developing and marketing value-added,
customized solutions for OEMs in the automotive, truck, off-highway equipment,
medical, aerospace, recreational vehicle, semiconductor, defense, and industrial
markets. Engineered Solutions markets under a variety of well known brand names
such as APITECH/Power-Packer, Power Gear, MoxMed, and Barry Controls. Engineered
Solutions' expertise is primarily in the areas of motion and vibration control.
The business is particularly skilled in using electronics to create smart or
active systems to control motion.
Primary applications in the automotive industry include convertible top
actuation systems and electric hydraulic valves used to control hydraulic
systems on cars. In the truck industry, the business supplies cab-over-engine
hydraulic tilt systems, cab suspension systems, engine mount systems, and other
vibration isolation components. Medical applications include self-contained
hydraulic actuators that are primarily used in conjunction with hospital beds as
well as vibration isolation products for medical instrumentation. In aerospace,
the segment is a leading supplier of engine vibration isolation systems to
aircraft manufacturers as well as directly to airlines to support maintenance
operations. In recreational vehicles, the Company supplies leveling and slide-
out systems. In addition to these major markets, the segment's products are used
in a wide variety of applications in other industries.
Technical Environments and Enclosures
TEE designs, manufactures, and sells furnishings and enclosures utilized in
technology intensive business environments. The business is comprised of two
product lines which are Wright Line (Technical Environments) and APW Enclosures.
Wright Line applications include local area networks, multimedia production,
electrical engineering and testing, electronic manufacturing, telecommunication
centers, and R&D laboratories. In addition, Wright Line provides modular
workstations used in the computerized office. APW Enclosures designs,
manufactures, and sells metal and plastic enclosures to a wide variety of
electronic OEMs in the computer, semiconductor, telecommunication, medical, and
electronic industries.
* * * * *
The Company has had an active acquisition program and regularly reviews
acquisition opportunities in the ordinary course of its business, some of which
may be potentially material. Such opportunities may be under investigation,
discussion, or negotiation at any particular time or from time to time.
The Company's principal executive offices are located at 13000 West Silver
Spring Drive, Butler, Wisconsin 53007, and its telephone number is (414) 781-
6600.
RECENT DEVELOPMENTS
Increase in Authorized Class A Common Stock. At the Annual Meeting of
Shareholders held on January 9, 1998, the shareholders of the Company approved
an increase in the number of authorized shares of Class A Common Stock from
40,000,000 to 80,000,000.
1998 Stock Split. On January 9, 1998, the Company's Board of Directors
approved a two-for-one stock split in the form of a 100% share dividend,
resulting in the issuance on February 3, 1998 of one additional share of Class A
Common Stock for each share held by shareholders of record on January 22, 1998.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the Securities to
refinance, in part, existing indebtedness, to finance, in part, the cost of
acquisitions, and/or for general corporate purposes. Funds not required
immediately for such purposes may be invested temporarily in short-term
marketable securities.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the three months ended November 30, 1997, and the years ended
August 31, 1997, 1996, 1995, 1994 and 1993.
Years Ended August 31,
----------------------
Three Months Ended
November 30, 1997 (1) 1997 1996 1995 1994 1993(2)
------------------ ---- ---- ---- ---- ----
Ratio of Earnings to
Fixed Charges (3) 4.6 4.9 5.1 3.6 2.7 1.6
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(1) The Company has historically had a seasonality effect where the second half
of the fiscal year is generally better than the first half. Therefore, the
results for the first quarter ended November 30, 1997, are not necessarily
indicative of full year results.
(2) Net earnings from continuing operations in 1993 include a non-recurring
restructuring charge of $7,721,000. Excluding this charge, the ratio of
earnings to fixed charges would have been 2.0.
(3) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of income before income taxes, cumulative effect of change in
accounting methods, discontinued operations, extraordinary items, and fixed
charges. Fixed charges consist of interest on indebtedness, amortization of
debt expenses and one-third of rent expense which is deemed representative
of an interest factor.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued in one or more series under an Indenture
(the "Indenture") between the Company and The First National Bank of Chicago, as
Trustee, the form of which is filed as an exhibit to the Registration Statement.
The Indenture will be subject to, and governed by, the Trust Indenture Act of
1939, as amended. The following summary of certain provisions of the Indenture
does not purport to be complete and is qualified in its entirety by express
reference to the Indenture and the Securities Resolution or the indenture
supplemental thereto authorizing a series (copies of which have been or will be
filed with the Commission). Capitalized terms used in this section without
definition have the meanings given such terms in the Indenture.
The particular terms of the Debt Securities offered by a Prospectus
Supplement will be described in such Prospectus Supplement, along with any
applicable modifications of or additions to the general terms of the Debt
Securities as described herein and in the Indenture. Accordingly, for a
description of the terms of any series of Debt Securities, reference must be
made to both the Prospectus Supplement relating thereto and the description of
the Debt Securities set forth in this Prospectus.
General
The Indenture does not limit the amount of Debt Securities that can be
issued thereunder and provides that the Debt Securities may be issued from time
to time in one or more series pursuant to the terms of one or more Securities
Resolutions or supplemental indentures creating such series. As of the date of
this Prospectus, there were no Debt Securities outstanding under the Indenture.
The ranking of a series of Debt Securities with respect to all indebtedness of
the Company will be established by the Securities Resolution or supplemental
indenture creating such series. Although the Indenture provides for the possible
issuance of Debt Securities in other forms or currencies, the only Debt
Securities covered by this Prospectus will be Debt Securities denominated in
U.S. dollars in registered form without coupons.
Terms
Reference is made to the Prospectus Supplement for the following terms, if
applicable, of the Debt Securities offered thereby: (1) the designation,
aggregate principal amount, currency or composite currency and denominations;
(2) the price at which such Debt Securities will be issued and, if an index
formula or other method is used, the method for determining amounts of principal
or interest; (3) the maturity date and other dates, if any, on which principal
will be payable; (4) the interest rate or rates, if any, or method of
calculating the interest rate or rates; (5) the date or dates from which
interest will accrue and on which interest will be payable, and the record dates
for the payment of interest; (6) the manner of paying principal and interest;
(7) the place or places where principal and interest will be payable; (8) the
terms of any mandatory or optional redemption by the Company including any
sinking fund; (9) the terms of any conversion or exchange right; (10) the terms
of any redemption at the option of Holders; (11) any tax indemnity provisions;
(12) if the Debt Securities provide that payments of principal or interest may
be made in a currency other than that in which Debt Securities are denominated,
the manner for determining such payments; (13) the portion of principal payable
upon acceleration of a Discounted Debt Security (as defined below); (14) whether
and upon what terms Debt Securities may be defeased; (15) whether any events of
default or covenants in addition to or in lieu of those set forth in the
Indenture apply; (16) provisions for electronic issuance of Debt Securities or
for Debt Securities in uncertificated form; (17) the ranking of the Debt
Securities; and (18) any other terms not inconsistent with the provisions of the
Indenture, including any covenants or other terms that may be required or
advisable under United States or other applicable laws or regulations, or
advisable in connection with the marketing of the Debt Securities. (Section
2.01)
Debt Securities of any series may be issued as registered Debt Securities,
bearer Debt Securities or uncertificated Debt Securities, and in such
denominations as specified in the terms of the series. (Section 2.01)
In connection with its original issuance, no bearer Debt Security will be
offered, sold or delivered to any location in the United States, and a bearer
Debt Security in definitive form may be delivered in connection with its
original issuance only upon presentation of a certificate in a form prescribed
by the Company to comply with United States laws and regulations. (Section 2.04)
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Registration of transfer of registered Debt Securities may be requested
upon surrender thereof at any agency of the Company maintained for that purpose
and upon fulfillment of all other requirements of the agent. (Sections 2.03 and
2.07)
Securities may be issued under the Indenture as Discounted Debt Securities
to be offered and sold at a substantial discount from the principal amount
thereof. Special United States federal income tax and other considerations
applicable thereto will be described in the Prospectus Supplement relating to
such Discounted Debt Securities. "Discounted Debt Security" means a Security
where the amount of principal due upon acceleration is less than the stated
principal amount. (Sections 1.01 and 2.10)
Certain Covenants
Any restrictive covenants which may apply to a particular series of Debt
Securities will be described in the Prospectus Supplement relating thereto.
Ranking of Debt Securities
Unless stated otherwise in a Prospectus Supplement, the Debt Securities
will be unsecured and will rank equally and ratably with other unsecured and
unsubordinated debt of the Company. The Debt Securities will not be secured by
any properties or assets and will represent unsecured debt of the Company. The
Indenture does not limit the ability of any of the Company's subsidiaries to
issue debt, and the Debt Securities will be effectively subordinated to all
existing and future indebtedness and other liabilities and commitments of the
Company's subsidiaries.
Successor Obligor
The Indenture provides that, unless otherwise specified in the Securities
Resolution establishing a series of Debt Securities, the Company shall not
consolidate with or merge into, or transfer all or substantially all of its
assets to, any person in any transaction in which the Company is not the
survivor, unless: (1) the person is organized under the laws of the United
States or a State thereof or is organized under the laws of a foreign
jurisdiction and consents to the jurisdiction of the courts of the United States
or a State thereof; (2) the person assumes by supplemental indenture all the
obligations of the Company under the Indenture, the Debt Securities and any
coupons; (3) all required approvals of any regulatory body having jurisdiction
over the transaction shall have been obtained; and (4) immediately after the
transaction no Default (as defined below) exists. The successor shall be
substituted for the Company, and thereafter all obligations of the Company under
the Indenture, the Debt Securities and any coupons shall terminate. (Section
5.01)
Exchange of Debt Securities
Registered Debt Securities may be exchanged for an equal aggregate
principal amount of registered Debt Securities of the same series and date of
maturity in such authorized denominations as may be requested upon surrender of
the registered Debt Securities at an agency of the Company maintained for such
purpose and upon fulfillment of all other requirements of such agent. (Section
2.07)
Default and Remedies
Unless the Securities Resolution establishing the series otherwise provides
(in which event the Prospectus Supplement will so state), an "Event of Default"
with respect to a series of Debt Securities will occur if:
(1) the Company defaults in any payment of interest on any Debt Securities
of such series when the same becomes due and payable and the Default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal and premium, if
any, of any Debt Securities of the series when the same becomes due and payable
at maturity or upon redemption, acceleration or otherwise;
(3) the Company defaults in the payment or satisfaction of any sinking
fund obligation with respect to any Debt Securities of a series as required by
the Securities Resolution establishing such series;
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(4) the Company defaults in the performance of any of its other agreements
applicable to the series and the Default continues for 60 days after
the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian for it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 60 days; or
(7) there occurs any other Event of Default provided for in such series.
(Section 6.01)
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
(Section 6.01)
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default. A Default under subparagraph (4) above is not an
Event of Default until the Trustee or the Holders of at least 25% in principal
amount of the series notify the Company of the Default and the Company does not
cure the Default within the time specified after receipt of the notice. (Section
6.01) If an Event of Default occurs and is continuing on a series, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the series by notice to the Company and the Trustee, may declare the principal
of and accrued interest on all the Debt Securities of the series to be due and
payable immediately. Discounted Debt Securities may provide that the amount of
principal due upon acceleration is less than the stated principal amount. The
Holders of a majority in principal amount of the series, by notice to the
Trustee, may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default on the series have been cured or waived except nonpayment of principal
or interest that has become due solely because of the acceleration. (Section
6.02) If an Event of Default occurs and is continuing on a series, the Trustee
may pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the Trustee and Holders of the series.
(Section 6.03)
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Debt Securities of the series. (Section 7.01) Subject to
certain limitations, Holders of a majority in principal amount of the Debt
Securities of the series may direct the Trustee in its exercise of any trust or
power with respect to such series. (Section 6.05) Except in the case of Default
in payment on a series, the Trustee may withhold from Holders of such series
notice of any continuing Default if it determines that withholding the notice is
in the interest of Holders of the series. (Section 7.04) The Company is required
to furnish the Trustee annually a brief certificate as to the Company's
compliance with all conditions and covenants under the Indenture. (Section 4.04)
The Indenture does not have a cross-default provision. Thus, a default by
the Company on any other debt, including any other series of Debt Securities,
would not constitute an Event of Default. A Securities Resolution may provide
for a cross-default provision, in which case the Prospectus Supplement will
describe the terms thereof.
-8-
Amendments and Waivers
The Indenture and the Debt Securities or any coupons of the series may be
amended, and any default may be waived as follows: Unless the Securities
Resolution otherwise provides (in which event the Prospectus Supplement will so
state), the Company and the Trustee may amend the Debt Securities, the Indenture
and any coupons with the written consent of the Holders of a majority in
principal amount of the Debt Securities of all series affected voting as one
class. (Section 10.02) Unless the Securities Resolution otherwise provides (in
which event the Prospectus Supplement will so state), a Default on a particular
series may be waived with the consent of the Holders of a majority in principal
amount of the Debt Securities of the series. (Section 6.04) However, without the
consent of each Debt Securityholder affected, no amendment or waiver may (1)
reduce the amount of Debt Securities whose Holders must consent to an amendment
or waiver, (2) reduce the interest on or change the time for payment of interest
on any Debt Security, (3) change the fixed maturity of any Debt Security, (4)
reduce the principal of any non-Discounted Debt Security or reduce the amount of
the principal of any Discounted Debt Security that would be due on acceleration
thereof, (5) change the currency in which the principal or interest on a Debt
Security is payable, (6) make any change that materially adversely affects the
right to convert or exchange any Debt Security, or (7) waive any Default in
payment of interest on or principal of a Debt Security. (Sections 6.04 and
10.02) Without the consent of any Debt Securityholder, the Company and the
Trustee may amend the Indenture, the Debt Securities or any coupons to cure any
ambiguity, omission, defect, or inconsistency; to provide for assumption of
Company obligations to Debt Securityholders in the event of a merger or
consolidation requiring such assumption; to provide that specific provisions of
the Indenture shall not apply to a series of Debt Securities not previously
issued; to create a series and establish its terms; to provide for a separate
Trustee for one or more series; or to make any change that does not materially
adversely affect the rights of any Debt Securityholder. (Section 10.01)
Legal Defeasance and Covenant Defeasance
Debt Securities of a series may be defeased in accordance with their terms
and, unless the Securities Resolution establishing the terms of the series
otherwise provides, as set forth in the Indenture and described briefly below.
The Company at any time may terminate as to a series all of its obligations
(except for certain obligations, including obligations with respect to the
defeasance trust and obligations to register the transfer or exchange of a
Security, to replace destroyed, lost or stolen Debt Securities and coupons, and
to maintain paying agencies in respect of the Debt Securities) with respect to
the Debt Securities of the series and any related coupons and the Indenture
("legal defeasance"). The Company at any time may terminate as to a series its
obligations, if any, with respect to the Debt Securities and coupons of the
series under any restrictive covenants which may be applicable to a particular
series ("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants which may be
applicable to a particular series. (Section 8.01)
To exercise either defeasance option as to a series, the Company must (i)
irrevocably deposit in trust (the "defeasance trust") with the Trustee or
another trustee money or U.S. Government Obligations, (ii) deliver a certificate
from a nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due on the deposited
U.S. Government Obligations, without reinvestment, plus any deposited money
without investment will provide cash at such times and in such amounts as will
be sufficient to pay the principal and interest when due on all Debt Securities
of such series to maturity or redemption, as the case may be, and (iii) comply
with certain other conditions. In particular, the Company must obtain an opinion
of tax counsel that the defeasance will not result in recognition of any gain or
loss to Holders for federal income tax purposes. "U.S. Government Obligations"
means direct obligations of the United States or an agency or instrumentality of
the United States, the payment of which is unconditionally guaranteed by the
United States, which, in either case, have the full faith and credit of the
United States of America pledged for payment and which are not callable at the
issuer's option, or certificates representing an ownership interest in such
obligations. (Section 8.02)
-9-
Regarding the Trustee
The First National Bank of Chicago will act as Trustee and Registrar for
Debt Securities issued under the Indenture and, unless otherwise indicated in a
Prospectus Supplement, the Trustee will also act as Transfer Agent and Paying
Agent with respect to the Debt Securities. (Section 2.03) The Company may remove
the Trustee with or without cause if the Company so notifies the Trustee three
months in advance and if no Default occurs during the three-month period.
(Section 7.07) The Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
affiliates, and may otherwise deal with the Company or its affiliates, as if it
were not Trustee.
DESCRIPTION OF CAPITAL STOCK
(The following summary does not purport to be a complete description of the
applicable provisions of the Company's Restated Articles of Incorporation (the
"Articles") and By-Laws, as amended, copies of which have been or will be filed
with the Commission, or of applicable statutory or other law, and is qualified
in its entirety by reference thereto.)
The authorized capital stock of the Company as of February 27, 1998
consisted of 80,000,000 shares of Class A Common Stock, $.20 par value ("Class A
Common"), of which 27,836,656 shares were issued and outstanding; 7,500,000
shares of Class B Common Stock, $.20 par value ("Class B Common"), none of which
were issued and outstanding; and 800,000 shares of Cumulative Preferred Stock,
$1.00 par value ("Preferred Stock"), none of which have been issued. Class A
Common and Class B Common are collectively referred to herein as "Common Stock."
Preferred Stock
The Preferred Stock may be issued in one or more series providing for such
dividend rates, voting, liquidation, redemption, and conversion rights, and such
other terms and conditions as the Board of Directors may determine, without
further approval by holders of Common Stock. If any shares of Class B Common
were outstanding, any voting rights conferred on holders of Preferred Stock
would be limited, with respect to the election of directors, to the power to
vote together with holders of Class A Common in electing a "maximum minority" of
the Board of Directors, as described under "Common Stock" below.
If the Company issues any shares of Preferred Stock, the Company would be
permitted to pay dividends or make other distributions upon the Common Stock
(except for distributions payable in shares of Common Stock) only after paying
or setting apart funds for payment of current dividends and any accrued but
unpaid dividends upon the outstanding Preferred Stock, at the rate or rates
designated for each series of outstanding Preferred Stock, and making provision
for any mandatory sinking fund payments. In the event of voluntary or
involuntary liquidation of the Company, the holders of any outstanding Preferred
Stock would be entitled to receive all accrued dividends on the Preferred Stock
and the liquidation amount specified for each series of Preferred Stock before
any amount may be distributed to holders of the Common Stock.
Common Stock
The rights and preferences of shares of Class A and Class B Common are
identical, except as to voting power with respect to the election of directors
and conversion rights.
On all matters other than the election of directors, the holders of Class A
and Class B Common possess equal voting power of one vote per share, voting as a
single class of stock (unless otherwise required by the Wisconsin Business
Corporation Law--the "WBCL"). In the election of the Board of Directors, the
holders of Class A Common, voting together as a single class with the holders of
any Preferred Stock which has voting power, are entitled to elect a "maximum
minority" of the number of directors to be elected. As a result of the "maximum
minority" provision, the holders of the Class B Common, voting as a separate
class, are entitled to elect the balance of the directors, constituting a
"minimum majority" of the number of directors to be elected. If an even number
of directors is to be elected, the holders of Class B Common will be entitled to
elect two more directors than the holders of Class A Common and any Preferred
Stock having voting power; if the number of directors to be elected is an odd
number, the holders of Class B Common will be entitled to elect one more
director than the holders of Class A Common and any Preferred Stock
-10-
having voting power. In the event there are no shares of Class B Common
outstanding, holders of Class A Common, together with holders of any Preferred
Stock having voting power, shall elect all of the directors to be elected. A
director, once elected and duly qualified, may be removed only by the requisite
affirmative vote of the holders of that class of stock by which such director
was elected.
Holders of both classes of Common Stock are equally entitled to such
dividends as the Company's Board of Directors may declare out of funds legally
available therefor. If the Company were to issue any of its authorized Preferred
Stock, no dividends could be paid or set apart for payment on shares of Common
Stock, unless paid in Common Stock, until dividends on all of the issued and
outstanding shares of Preferred Stock had been paid or set apart for payment and
provision had been made for any mandatory sinking fund payments. Certain
covenants contained in the Company's debt agreements, or in the provisions of
the Articles for the benefit of any Preferred Stock that may be hereafter
issued, from time to time could have the direct or indirect effect of limiting
the payment of dividends or other distributions on (including redemptions and
purchases of) the Company's capital stock. Stock dividends on Class A Common may
be paid only in shares of Class A Common and stock dividends on Class B Common
may be paid only in shares of Class B Common.
The Articles contain provisions which provided for the conversion of Class
B Common into shares of Class A Common on a share-for-share basis at the option
of the holder, and for the automatic conversion of all outstanding shares of
Class B Common to Class A Common on a share-for-share basis when the number of
outstanding shares of Class B Common was reduced below a certain threshold. All
of the shares of Class B Common that had been outstanding were converted into
Class A Common pursuant to these conversion provisions. Holders of Class A
Common do not have any conversion rights.
In the event of dissolution or liquidation of the Company, the holders of
both classes of Common Stock are entitled to share ratably all assets of the
Company remaining after payment of the Company's liabilities and satisfaction of
the rights of any series of Preferred Stock which may be outstanding. There are
no redemption or sinking fund provisions with respect to the Common Stock.
When the Company has received the consideration for which the Board of
Directors authorized the issuance of shares, the shares issued for that
consideration are fully paid and nonassessable. Shareholders are subject to
personal liability under Section 180.0622(2)(b) of the WBCL, as judicially
interpreted, for debts owing to employees of the Company for services performed
for the Company, but not exceeding six months' service in any one case.
The Class A Common is listed on the NYSE. Firstar Trust Company, Milwaukee,
Wisconsin, acts as the transfer agent for the Class A Common.
General
The Articles provide that the affirmative vote of two-thirds of all shares
entitled to vote thereon is required in order to constitute shareholder approval
of a merger, consolidation, or liquidation of the Company, sale or other
disposition of all or substantially all of its assets, amendment of the Articles
or the By-Laws, or removal of a director.
Directors of the Company are currently elected to serve one-year terms. The
Articles provide that the By-Laws (which may be amended by the Board of
Directors or by the shareholders) may provide for the division of the Board of
Directors into two or three classes, serving staggered two or three-year terms.
Holders of capital stock of the Company do not have preemptive or other
subscription rights to purchase or subscribe for unissued stock or other
securities of the Company.
Certain Statutory Provisions
Under Section 180.1150(2) of the WBCL, the voting power of shares of a
"resident domestic corporation," such as the Company (as long as it continues to
meet the statutory definition), which are held by any person (including two or
more persons acting in concert) in excess of 20% of the voting power in the
election of directors shall be limited (in voting on any matter) to 10% of the
full voting power of such excess shares, unless full voting rights have been
restored at a special meeting of the shareholders called for that purpose.
Shares held or acquired under certain circumstances
-11-
are excluded from the application of Section 180.1150(2), including (among
others) shares acquired directly from the Company, shares acquired before
April 22, 1986, and shares acquired in a merger or share exchange to which the
Company is a party.
Sections 180.1130 to 180.1134 of the WBCL provide generally that, in
addition to the vote otherwise required by law or the articles of incorporation
of a "resident domestic corporation," such as the Company (as long as it
continues to meet the statutory definition), certain business combinations not
meeting certain fair price standards specified in the statute must be approved
by the affirmative vote of at least (a) 80% of the votes entitled to be cast by
the outstanding voting shares of the corporation and (b) two-thirds of the votes
entitled to be cast by the holders of voting shares other than voting shares
beneficially owned by a "significant shareholder" or an affiliate or associate
thereof who is a party to the transaction. The term "business combination" is
defined to include, subject to certain exceptions, a merger or share exchange of
the resident domestic corporation (or any subsidiary thereof) with, or the sale
or other disposition of all or substantially all of the property and assets of
the resident domestic corporation to, any significant shareholder or affiliate
thereof. "Significant shareholder" is defined generally to mean a person that is
the beneficial owner of 10% or more of the voting power of the outstanding
voting shares of the resident domestic corporation. The statute also restricts
the repurchase of shares and the sale of corporate assets by a resident domestic
corporation in response to a take-over offer.
Sections 180.1140 to 180.1144 of the WBCL prohibit certain "business
combinations" between a "resident domestic corporation," such as the Company (as
long as it continues to meet the statutory definition), and a person
beneficially owning 10% or more of the voting power of the outstanding voting
stock of such corporation (an "interested stockholder") within three years after
the date such person became a 10% beneficial owner, unless the business
combination or the acquisition of such stock has been approved before the stock
acquisition date by the corporation's board of directors. Business combinations
after the three-year period following the stock acquisition date are permitted
only if (i) the board of directors approved the acquisition of the stock prior
to the acquisition date, (ii) the business combination is approved by a majority
of the outstanding voting stock not beneficially owned by the interested
stockholder, or (iii) the consideration to be received by shareholders meets
certain fair price requirements of the statute with respect to form and amount.
Under the WBCL, as amended in 1997, a "resident domestic corporation" is
defined to mean a Wisconsin corporation that has a class of voting stock that is
registered or traded on a national securities exchange or that is registered
under Section 12(g) of the Exchange Act and that, as of the relevant date,
satisfies any of the following: (i) its principal offices are located in
Wisconsin; (ii) it has significant business operations located in Wisconsin;
(iii) more than 10% of the holders of record of its shares are residents of
Wisconsin; or (iv) more than 10% of its shares are held of record by residents
of Wisconsin. The Company is a "resident domestic corporation" for purposes of
the above described provisions. A Wisconsin corporation that is otherwise
subject to certain of such statutes may preclude their applicability by an
election to that effect in its articles of incorporation. The Company's Articles
do not contain any such election.
These provisions of the WBCL, the ability to issue additional shares of
Common Stock and Preferred Stock without further shareholder approval (except as
required under NYSE corporate governance standards), and certain other
provisions of the Company's Articles (discussed above) could have the effect,
among others, of discouraging take-over proposals for the Company, delaying or
preventing a change in control of the Company, or impeding a business
combination between the Company and a major shareholder of the Company.
BOOK-ENTRY
The Depository Trust Company ("DTC") may act as securities depository for
the Securities, in which case the applicable Prospectus Supplement will so
provide. The Securities will be issued only as fully registered securities
registered in the name of Cede & Co. (DTC's partnership nominee). One or more
fully registered global certificates will be issued for the Securities
representing the aggregate principal amount of the Debt Securities or the number
of shares of Common Stock offered by the applicable Prospectus Supplement and
will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered
-12-
pursuant to the provisions of Section 17A of the 1934 Act, as amended. DTC holds
securities that its participants (the "Direct Participants") deposit with DTC.
DTC also facilitates the settlement among Direct Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Direct Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is owned
by a number of its Direct Participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly (the "Indirect Participants," and together with the Direct
Participants, the "Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of the Securities within the DTC system must be made by or
through Direct Participants which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
(a "Beneficial Owner") will in turn be recorded on the Direct and Indirect
Participants' respective records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the Direct or Indirect Participant
through which the Beneficial Owner entered into the transaction. Transfers of
ownership interest in the Securities will be effected by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interest in
Securities except in the event that use of the book-entry system for the
Securities is discontinued.
The deposit of the Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other direct communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Securities of an issue are being redeemed, DTC's practice will determine by lot
the amount of the interest of each Direct Participant in such series to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the
Securities. Under its usual procedures, DTC mails an omnibus proxy (an "Omnibus
Proxy") to the Participants as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest on the Debt Securities and
dividends on Common Stock, if applicable, will be paid to DTC. DTC's practice is
to credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street-name," and
will be the responsibility of such Participant and not of DTC, the underwriters,
or the Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal, premium, if any, and interest on
the Debt Securities and dividends on Common Stock, if applicable, to DTC is the
responsibility of the Company or the Trustee. Disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice to the
Company. Under such circumstances and in the event that a successor securities
depository is not obtained, certificates for the Securities are required to be
printed and delivered. In addition, the
-13-
Company may decide to discontinue use of the system of book-entry transfers
through DTC (or any successor securities depository). In that event,
certificates for the Securities will be printed and delivered.
The Company will not have any responsibility or obligation to Participants
or to the persons for whom they act as nominees with respect to the accuracy of
the records of DTC, its nominees or any Direct or Indirect Participant with
respect to any ownership interest in the Securities, or with respect to payments
or providing of notice to the Direct Participants, the Indirect Participants or
the Beneficial Owners.
So long as Cede & Co. is the registered owner of the Securities, as nominee
of DTC, references herein to holders of the Securities shall mean Cede & Co. or
DTC and shall not mean the Beneficial Owners of the Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from DTC. None of the Company, the Trustees or the
underwriters take any responsibility for the accuracy or completeness thereof.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters or dealers, and
also may sell Securities directly to other purchasers or through agents. Each
Prospectus Supplement will describe the method of distribution of the offered
Securities.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions received by them from the Company and any profit on the resale of
Securities by them may be deemed to be underwriting discounts and commissions,
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation received from the Company will be described, in the
Prospectus Supplement.
Underwriters and agents who participate in the distribution of Securities
may be entitled under agreements which may be entered into by the Company to
indemnification by the Company against, or contribution with respect to, certain
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase offered Securities from the
Company pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions, and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the offered Securities shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which such purchaser is subject. The underwriters
and such other agents will not have any responsibility in respect of the
validity of performance of such contracts.
If so indicated in the applicable Prospectus Supplement, the Company will
grant the underwriters an option to purchase additional shares of Common Stock
solely to cover over-allotments, if any, in connection with a firm commitment
underwriting of Common Stock. The option may be exercised in whole or in part at
any time within 30 days after the date of such Prospectus Supplement. To the
extent such option is exercised, the underwriters will be severally committed,
subject to certain conditions, to purchase the additional shares of Common Stock
in proportion to their respective commitments for the initial shares of Common
Stock.
-14-
In connection with the offering of the Securities, underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Securities. Specifically, the underwriters may over-allot in connection with the
offerings of the Securities, creating a syndicate short position. In addition,
underwriters may bid for, and purchase, Securities in the open market to cover
syndicate shorts or to stabilize the price of the Securities, as the case may
be. Finally, the underwriting syndicate may reclaim selling concessions allowed
for distributing the Securities in the offering of the Securities, as the case
may be, if the syndicate repurchases previously distributed Securities, as the
case may be, in syndicate covering transactions, syndicate transactions, or
otherwise. Any of these activities may stabilize or maintain the market prices
of the Securities above independent market levels. The underwriters are not
required to engage in any of these activities, and may end any of them at any
time.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities are not proposed to be listed on a securities exchange, and any
underwriters will not be obligated to make a market in the Debt Securities. The
Company cannot predict the activity or liquidity of any trading in the Debt
Securities or give any assurance that a market for the Debt Securities will
develop. The Common Stock offered hereby will be listed on the NYSE.
CERTAIN LEGAL MATTERS
The validity of the Securities to be sold pursuant to this Prospectus will
be passed upon for the Company by Quarles & Brady, counsel to the Company.
Anthony W. Asmuth, III, the Corporate Secretary of the Company, is a partner in
Quarles & Brady. As of the date of this Prospectus, Mr. Asmuth owned 38,420
shares of the Company's Common Stock and served as trustee or co-trustee with
sole or shared voting and dispositive powers over trusts that held an aggregate
of 279,252 shares of Common Stock. Certain legal matters in connection with the
Securities will be passed upon for the underwriters by Cahill Gordon & Reindel
(a partnership including a professional corporation), New York, New York.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended August 31, 1997 and the consolidated
financial statements of Versa Technologies, Inc. incorporated by reference from
the Company's report on Form 8-K dated October 3, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
Future audited financial statements incorporated in this Prospectus by
reference to future filings under the Exchange Act, as provided under
"Incorporation Of Certain Documents By Reference" above, will be so incorporated
in reliance on the related report or reports of the firm of independent
accountants auditing such financial statements, given on such authority of such
firm, if and to the extent such filings include the consent of such firm to the
incorporation of such report or reports herein. Coopers & Lybrand L.L.P. has
been engaged as the Company's independent public accountants for the fiscal year
ending August 31, 1998.
-15-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the Securities covered by this Registration Statement are as follows:
SEC registration fee (actual)..................................... $ 88,500
Trustee's fee and expenses........................................ 15,000
Printing and engraving expenses................................... 90,000
Legal fees and expenses........................................... 125,000
Accounting fees and expenses...................................... 50,000
Rating agency fees................................................ 100,000
Miscellaneous..................................................... 10,000
--------
Total.......................................................... $478,500
========
Item 15. 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.
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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 16. Exhibits.
See Exhibit Index following the Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 17. 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.
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(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.
(h) Reference is made to the indemnification provisions described in Item
15 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.
(i) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
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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-3 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 March 6, 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/ L. DENNIS KOZLOWSKI Director
- ------------------------
L. Dennis Kozlowski
/s/ JOHN J. McDONOUGH Director
- ------------------------
John J. McDonough
*Each of the above signatures is affixed as of March 6, 1998.
APPLIED POWER INC
(the "Registrant")
(Commission File No. 1-11288)
EXHIBIT INDEX
TO
FORM S-3 REGISTRATION STATEMENT
The following exhibits are filed with or incorporated by reference in this
Registration Statement:
Exhibit Description Incorporated Herein Filed
By Reference To Herewith
1.1 Form of proposed Purchase Agreement for
Debt Securities*
1.2 Form of proposed Purchase Agreement for
Shares of Common Stock*
3.1 Restated Articles of Incorporation Exhibit 4.1 to the
Registrant's Registration
Statement on Form S-8
(File No. 333-46469)
3.2 Amended and Restated By-Laws (effective Exhibit 3.2 to the
as of January 8, 1997) Registrant's Form 10-K
for fiscal year ended
August 31, 1997 ("1997
10-K")
4.1 Restated Articles of Incorporation See Exhibit 3.1 above
4.2 Agreement for Purchase and Sale, dated Exhibit 19.2(a)-(g) to the
August 29, 1990, between Minnesota Registrant's Form 10-Q
Mining and Manufacturing Company and for quarter ended
Applied Power Inc., and seven related May 31, 1991
Leases, each dated April 29, 1991, between
Bernard Garland and Sheldon Garland,
d/b/a Garland Enterprises, as Landlord, and
Applied Power Inc., as Tenant
4.3 Credit Agreement, dated as of October 3, Exhibit (b)(2) filed with
1997 among Applied Power Inc., Bank of Amendment No. 3 to the
America National Trust and Savings Registrant's Tender Offer
Association, as agent, and the other Statement on Schedule
financial institutions party hereto 14D-1 dated October 6,
1997 (File No. 5-13342)
4.4 Multi-currency Credit Agreement, dated as Exhibit 4.6 to 1997 10-K
of October 22, 1997 between Applied
Power Inc. and Applied Power Finance,
S.A., as borrowers, various financial
institutions, as lenders, Bank of America
National Trust and Savings Association, as
agent, and BA Robertson Stephens, as
arranger
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Exhibit Description Incorporated Herein Filed
By Reference To Herewith
- ------------------------------------------------------------------------------------------------------------
4.5 Receivables Purchase Agreement dated as Exhibit 4.1 to the
of November 20, 1997 among Applied Registrant's Quarterly
Power Credit Corporation as Seller, Report on Form 10-Q for
Applied Power Inc. individually and as quarter ended
Servicer and Barton Capital Corporation as November 30, 1997
Purchaser and Societe Generale as Agent
4.6 Form of Indenture for Debt Securities X
5 Opinion of Quarles & Brady X
12 Statement of Computation of Ratio of X
Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP X
23.2 Consent of Quarles & Brady Contained in Exhibit 5
24 Power of Attorney On Signatures page
25 Statement of Eligibility of Trustee on Form X
T-1
- -------------
*To be filed by amendment or under cover of Form 8-K and incorporated
herein by reference.
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