As filed with the Securities and Exchange Commission on June 30, 1998.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the Securities Act
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APOGEE ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-0919654
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
7900 Xerxes Avenue South, Suite 1800
Minneapolis, Minnesota 55431
(612) 835-1874
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Amended and Restated 1987 Apogee Enterprises, Inc. Partnership Plan
(Full title of plan)
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Martha L. Richards, Esq.
General Counsel
Apogee Enterprises, Inc.
7900 Xerxes Avenue South, Suite 1800
Minneapolis, Minnesota 55431
(612) 835-1874
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Robert A. Rosenbaum, Esq.
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-5681
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Approximate date of commencement of proposed sale to the public: from time
to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of each class Proposed Maximum Proposed Maximum
of Securities to be Amount to be Offering Price Aggregate Offering Amount of
registered registered (1) per Unit (2) Price (2) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock
($.33-1/3 par value) 1,000,000 $14.5625 $14,562,500.00 $4,296.00
======================================================================================================================
(1) The number of shares being registered represents the number of additional
shares of Common Stock that may be issued pursuant to the Amended and
Restated 1987 Apogee Enterprises, Inc. Partnership Plan, as amended (the
"Plan"), in addition to 2,200,000 shares previously registered under the
Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the high and low
prices for the Common Stock as reported by the Nasdaq National Market on
June 23, 1998.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Apogee Enterprises, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission"),
are incorporated by reference in this Registration Statement, as of their
respective dates:
(1) the Annual Report on Form 10-K for the year ended February 28,
1998; and
(2) the description of the Company's Common Stock contained in the
Company's Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
amendment or report filed to update such description filed subsequent to
the date of this Prospectus and prior to the termination of the offering of
the Common Stock offered hereby.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Common Stock shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
dates of filing of such documents. Any statement contained herein or in a
document all or part of which is incorporated or deemed to be incorporated by
reference herein 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 subsequently filed document which also is or is deemed to be incorporated
by reference herein 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 6. Indemnification of Directors and Officers.
The Company is subject to Minnesota Statutes, Chapter 302A. Section
302A.521 provides that a corporation shall indemnify any person made or
threatened to be made a party to a proceeding by reason of the former or present
official capacity (as defined) of such person against judgments, penalties,
fines (including, without limitation, excise taxes assessed against such person
with respect to an employee benefit plan), settlements and reasonable expenses,
including attorneys' fees and disbursements, incurred by such person in
connection with the proceeding, if, with respect to the acts or omissions of
such person complained of in the proceedings, such person (1) has not been
indemnified therefor by another organization or employee benefit plan; (2) acted
in good faith; (3) received no improper personal benefit and Section 302A.255
(with respect to director conflicts of interest), if applicable, has been
satisfied; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) reasonably believed that the conduct
was in the best interests of the corporation in the case of acts or omissions in
such person's official capacity for the corporation, or reasonable believed that
the conduct was not opposed to the best interests of the corporation in the case
of acts or omissions in such person's official capacity for other affiliated
organizations. The Company's Restated Bylaws provide that the Company shall
indemnify such persons, for such liabilities and expenses, in such manner, under
such circumstances, and to such extent as required or permitted by Section
302A.521, as now enacted or hereafter amended.
The Company also maintains an insurance policy or policies to assist in
funding indemnification of directors and officers for certain liabilities.
Item 8. Exhibits.
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5.1 Opinion of Dorsey & Whitney LLP concerning legality.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5 above).
24.1 Power of Attorney.
Item 9. Undertakings.
A. Post-Effective Amendments.
The undersigned issuer hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993, as amended (the "Securities Act");
(b) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or 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; and
(c) 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 subparagraphs (a) and (b) above 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 subparagraphs is contained
in periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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 that remain unsold at the
termination of the offering.
-3-
B. Subsequent Documents Incorporated by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange 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.
C. Claims for Indemnification.
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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the 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 other 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.
-4-
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on this 30th day of
June, 1998.
Apogee Enterprises, Inc.
By: /s/ Russell Huffer
-------------------------------------
Russell Huffer
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Donald W. Goldfus Chairman of the Board of Directors June 30, 1998
- ----------------------------------
Donald W. Goldfus
/s/ Russell Huffer Chief Executive Officer, President and June 30, 1998
- ---------------------------------- Director
Russell Huffer
/s/ Robert G. Barbieri Vice President and Chief Financial June 30, 1998
- ---------------------------------- Officer
Robert G. Barbieri
/s/ James L. Martineau Executive Vice President and Director June 30, 1998
- ----------------------------------
James L. Martineau
/s/ Jerome B. Cohen Director June 30, 1998
- ----------------------------------
Jerome B. Cohen
/s/ Barbara B. Grogan Director June 30, 1998
- ----------------------------------
Barbara B. Grogan
/s/ Harry A. Hammerly Director June 30, 1998
- ----------------------------------
Harry A. Hammerly
/s/ Stephen C. Mitchell Director June 30, 1998
- ----------------------------------
Stephen C. Mitchell
/s/ Laurence J. Niederhofer Director June 30, 1998
- ----------------------------------
Laurence J. Niederhofer
/s/ D. Eugene Nugent Director June 30, 1998
- ----------------------------------
D. Eugene Nugent
/s/ Michael E. Shannon Director June 30, 1998
- ----------------------------------
Michael E. Shannon
-5-
EXHIBIT INDEX
Exhibit
Number Exhibit
- ------- -------
5.1 Opinion of Dorsey & Whitney LLP concerning legality.
23.1 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney.
Exhibit 5.1
[Dorsey & Whitney LLP Letterhead]
June 30, 1998
Apogee Enterprises, Inc.
7900 Xerxes Avenue South
Suite 1800
Minneapolis, MN 55431
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Apogee Enterprises, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 relating to the sale by the Company from time to time of up to 1,000,000
additional shares of Common Stock, $.33-1/3 par value, of the Company (the
"Shares"), initially issuable upon the grant of awards pursuant to the Company's
Amended and Restated 1987 Apogee Enterprises, Inc. Partnership Plan (the
"Plan").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of the opinion set
forth below.
In rendering our opinion set forth below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all signatures
and the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan under which such Shares are issued, will be validly
issued, fully paid and nonassessable.
Our opinion expressed above is limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ DORSEY & WHITNEY LLP
RAR
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Apogee Enterprises, Inc.:
We consent to the use of our report dated April 8, 1998, except as to Note
6 for which the date is May 22, 1998, relating to the consolidated balance
sheets of Apogee Enterprises, Inc. and subsidiaries as of February 28, 1998 and
March 1, 1997, and the related consolidated results of operations, statements of
shareholders' equity and statements of cash flows for each of the years in the
three-year period ended February 28, 1998, which report is included in the
annual report on Form 10-K of Apogee Enterprises, Inc.
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
June 30, 1998
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below
hereby constitutes and appoints each of Russell Huffer, Robert G. Barbieri and
Martha L. Richards, with full power to each to act without the other, his or her
true and lawful attorney-in-fact and agent with full power of substitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to sign the Registration Statement on Form S-8 of Apogee Enterprises, Inc. (the
"Company") relating to the registration of an additional 1,000,000 shares of
Company Common Stock that may be issued from time to time pursuant to the
Company's Amended and Restated 1987 Apogee Enterprises, Inc. Partnership Plan,
and any or all amendments or post-effective amendments thereto, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and file the same with such state
commissions and other agencies as necessary, granting unto each such
attorney-in-fact and agent 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 or she might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact and
agent, or his or her substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on this 30th day
of June, 1998, by the following persons:
/s/ Robert G. Barbieri /s/ James L. Martineau
- ---------------------------------- ----------------------------------
Robert G. Barbieri James L. Martineau
/s/ Jerome B. Cohen /s/ Stephen C. Mitchell
- ---------------------------------- ----------------------------------
Jerome B. Cohen Stephen C. Mitchell
/s/ Donald W. Goldfus /s/ Laurence J. Niederhofer
- ---------------------------------- ----------------------------------
Donald W. Goldfus Laurence J. Niederhofer
/s/ Barbara B. Grogan /s/ D. Eugene Nugent
- ---------------------------------- ----------------------------------
Barbara B. Grogan D. Eugene Nugent
/s/ Harry A. Hammerly /s/ Michael E. Shannon
- ---------------------------------- ----------------------------------
Harry A. Hammerly Michael E. Shannon
/s/ Russell Huffer
- ----------------------------------
Russell Huffer
