Registration No. 333-___
As filed with the Securities and Exchange Commission on January 15, 2003
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACTUANT CORPORATION
(Exact name of registrant as specified in its charter)
WISCONSIN 39-0168610
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
6100 North Baker Road
Milwaukee, Wisconsin 53209
(Address of Principal Executive Offices)
ACTUANT CORPORATION
2002 STOCK PLAN
(Full title of the plan)
Andrew G. Lampereur Copy to:
Vice President and Chief Financial Officer Helen R. Friedli, P.C.
Actuant Corporation McDermott, Will & Emery
6100 North Baker Road 227 West Monroe Street
Milwaukee, Wisconsin 53209 Chicago, Illinois 60606
(Name and address of agent for service)
(414) 352-4160
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of Securities Amount to be maximum offering aggregate offering Amount of
to be Registered registered (1) price per share (2) price (2) registration fee
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Class A Common
Stock, par value
$0.20 per share 500,000 shares $47.95 $23,975,000 $2,206
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the
"Securities Act"), this Registration Statement also relates to such
indeterminate number of additional shares which may be issued if the
anti-dilution and adjustment provisions of the plan become operative.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon $47.95 per share, which is the average
of the high and low sales prices of the Class A Common Stock reported
on the New York Stock Exchange Composite Tape on January 10, 2003.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed in this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended August 31, 2002.
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended November 30, 2002.
(c) The description of the Registrant's Class A Common Stock
is contained in Registrant's Current Report on Form 8-K dated August
12, 1998, which updates and supersedes the description of the Class A
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 Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents"); provided, however,
that the documents enumerated above or subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year
during which the offering made by this Registration Statement is in effect prior
to the filing with the Securities and Exchange Commission of the Registrant's
Annual Report on Form 10-K covering such year shall not be Incorporated
Documents or be incorporated by reference in this Registration Statement or be a
part hereof from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered hereunder will be passed upon
for the Registrant by McDermott, Will & Emery, the Registrant's legal counsel.
The Registrant's Secretary, Helen R. Friedli, is a partner of McDermott, Will &
Emery.
Item 6. Indemnification of Officers and Directors.
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 that his or her conduct was
lawful or no reasonable cause to believe that 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 the
proceedings to which they are parties by reason of being or having been
directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
Item 9. Undertakings.
The 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 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.
(2) That, for the purpose of determining any liability under
the Securities Act , 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.
(4) That, for the purposes of determining any liability
under the Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act (and where applicable each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act)
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.
(5) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6 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 Securities 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
Securities Act and will be governed by the final adjudication of such issue.
* * *
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
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 Milwaukee, State of Wisconsin, on January 13, 2003.
ACTUANT CORPORATION
By: /s/ Andrew G. Lampereur
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Andrew G. Lampereur
Vice President and Chief Financial Officer
(Principal Financial Officer of the Registrant)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, Robert C. Arzbaecher and Andrew G.
Lampereur, and each of them, his true and lawful attorneys-in-fact and agents,
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 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 may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 13, 2003.
Signature Title
/s/ Robert C. Arzbaecher President, Chief Executive Officer, Chairman of the
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Robert C. Arzbaecher Board and Director
(Principal Executive Officer of the Registrant)
/s/ Andrew G. Lampereur Vice President and Chief Financial Officer
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Andrew G. Lampereur (Principal Financial Officer of the Registrant)
/s/ Timothy J. Teske Corporate Controller
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Timothy J. Teske (Principal Accounting Officer)
/s/ Gustav H.P. Boel Director
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Gustav H.P. Boel
/s/ Bruce S. Chelberg Director
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Bruce S. Chelberg
/s/ H. Richard Crowther Director
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H. Richard Crowther
/s/ William K. Hall Director
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William K. Hall
/s/ Kathleen J. Hempel Director
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Kathleen J. Hempel
/s/ William P. Sovey Director
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William P. Sovey
ACTUANT CORPORATION
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Exhibit Number Description
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5.1 Opinion (including consent) of McDermott, Will & Emery as
to the legality of the securities to be issued.
23.1 Consent of PricewaterhouseCoopers LLP.
99.1 Actuant Corporation 2002 Stock Plan, as amended.