Registration No. 333-___
As filed with the Securities and Exchange Commission on May 24, 2002
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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 or organization) Identification No.)
6100 North Baker Road
Milwaukee, Wisconsin 53209
(Address of Principal Executive Offices) (Zip Code)
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ACTUANT CORPORATION
OUTSIDE DIRECTORS' DEFERRED
COMPENSATION PLAN
(Full title of the plan)
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ANDREW G. LAMPEREUR Copy to:
Vice President and Chief Financial Officer WALTER J. SKIPPER, ESQ.
Actuant Corporation Quarles & Brady LLP
6100 North Baker Road 411 East Wisconsin Avenue
Milwaukee, Wisconsin 53209 Milwaukee, Wisconsin 53202
(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
maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of Securities to be registered registered (1) per share (2) offering price (2) registration fee
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Class A Common Stock, par value $.20 per 100,000 $39.125 3,912,500 $360
share
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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 of Class A Common Stock of
the Registrant as may be issuable as a result of stock splits, stock
dividends or similar transactions, as described in the Plan.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon $39.125 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 May 22, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Actuant
Corporation (the "Registrant") (Commission File No. 1-11288) with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") and are incorporated herein by reference:
. The Registrant's Annual Report on Form 10-K for the fiscal year
ended August 31, 2001.
. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended November 30, 2001 and February 28, 2002.
. The Registrant's Current Reports on Form 8-K dated February 7, 2002
and May 23, 2002.
. The Registrant's Current Report on Form 8-K dated August 12, 1998,
including specifically the description of the Common Stock in Item
5 thereof, which updates and supersedes the description of the
Common Stock contained in the Registrant's Registration Statement
on Form 8-A filed on August 11, 1987, as previously updated by the
Registrant's Current Report on Form 8-K dated January 28, 1991; and
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from their
respective dates of filing.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
Item 4. Description of Securities.
Not applicable. See filings listed in Item 3 above.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered hereunder will be passed upon
for the Registrant by Quarles & Brady LLP, the Registrant's legal counsel. The
Registrant's Secretary, Anthony W. Asmuth III, is a partner of Quarles & Brady
LLP and owns shares in the Registrant.
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 180.0851(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 the Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index following Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end
of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Reference is made to the indemnification provisions described in Item
6 of this Registration Statement.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a 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.
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 May 23, 2002.
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, Andrew G. Lampereur and
Anthony W. Asmuth III, 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 and on the date indicated.*
Signature Title
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/s/ Robert C. Arzbaecher Chairman, President, Chief Executive Officer, and
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Robert C. Arzbaecher Director
(Principal Executive Officer of the Registrant)
/s/ Andrew G. Lampereur Vice President and Chief Financial Officer
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Andrew G. Lampereur
/s/ Timothy J. Teske Corporate Controller
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Timothy J. Teske
/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
*Each of these signatures is affixed as of May 23, 2002.
ACTUANT CORPORATION
(the "Registrant")
(Commission File No. 1-11288)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Exhibit Incorporated Herein Filed
Number Description By Reference To Herewith
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4.1 Restated Articles of Incorporation of Exhibit 4.9 to the Registrant's Form 10-Q
the Registrant (dated as of January 9, Quarterly Report for the quarter ended
2001) February 28, 2001
4.2 Amended and Restated Bylaws of the Exhibit 3.4 to the Registrant's Form 10-Q
Registrant (effective as of May 4, 2001) Quarterly Report for the quarter ended
May 31, 2001
5.1 Opinion of Quarles & Brady LLP as to X
the legality of the securities to be
issued
23.1 Consent of PricewaterhouseCoopers LLP X
23.2 Consent of Quarles & Brady LLP Contained in
opinion filed
as Exhibit 5.1
24.1 Powers of Attorney Signatures
page to this
Registration
Statement
99.1 Actuant Corporation Outside Directors' X
Deferred Compensation Plan