As filed with the Securities and
Exchange Commission on July 22, 1999 Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COLUMBUS MCKINNON CORPORATION
(Exact name of Registrant as specified in its charter)
NEW YORK 16-0547600
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
140 JOHN JAMES AUDUBON PARKWAY, AMHERST, NEW YORK 14228-1197,
(716) 689-5400
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
ROBERT L. MONTGOMERY, JR.
140 JOHN JAMES AUDUBON PARKWAY
AMHERST, NEW YORK 14228-1197
(716) 689-5400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
ROBERT J. OLIVIERI, ESQ.
LIPPES, SILVERSTEIN, MATHIAS & WEXLER LLP
700 GUARANTY BUILDING, 28 CHURCH STREET
BUFFALO, NEW YORK 14202-3950
TELEPHONE: (716) 853-5100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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 being 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, please check the following box and list
the Securities Act registration statement number of the earlier 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 number of the earlier 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
TITLE OF EACH
CLASS OF BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SECURITY OFFERING PRICE FEE
- ------------- ------------ ---------------- ---------------- ------------
Common Stock,
par value $.01 844,515 $24.66(1) $20,825,739.90(1) $5,790
(1) Estimated solely for the purpose of computing the amount of
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended, based on the average of the high and low prices reported of the
Registrant's Common Stock on the NASDAQ Stock Market on July 19, 1999.
<PAGE>
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE ARE
NOT ALLOWED TO SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS (Subject to Completion) Dated July _____, 1999
COLUMBUS MCKINNON CORPORATION
844,515 SHARES OF COMMON STOCK
These shares may be offered and sold from time to time by the security holders
of the Company identified in this Prospectus. See "Selling Stockholders". The
selling security holders acquired all of the shares in connection with a merger
transaction among Columbus McKinnon Corporation, GL of Delaware, Inc., G.L.
International Inc., Larco Industrial Services Ltd. and the selling security
holders pursuant to an Agreement and Plan of Merger dated as of February 16,
1999. The selling security holders will receive all of the proceeds from the
sale of the shares and will pay all underwriting discounts and selling
commissions, if any, applicable to the sale of the shares. We will pay the
expenses of registration of the sale of the shares.
On July 19, 1999, Columbus McKinnon Corporation had 14,741,112 shares of its
Common Stock issued and outstanding. Our Common Stock trades on the NASDAQ Stock
Market under the symbol "CMCO". On July 19, 1999, the closing price for the
Common Stock on the NASDAQ Stock Market was $24 7/16 per share.
Beginning on page 4, we have listed several "RISK FACTORS" which you should
consider. You should read the entire prospectus carefully before you make your
investment decision.
The Securities and Exchange Commission and state regulatory authorities have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this Prospectus is July ____, 1999
<PAGE>
TABLE OF CONTENTS
PAGE
----
Where You Can Find More Information......................... 3
Documents Incorporated by Reference......................... 3
Forward-Looking Information................................. 4
About the Company........................................... 4
Risk Factors................................................ 4
Use of Proceeds............................................. 6
Selling Stockholders........................................ 6
Plan of Distribution........................................ 6
Legal Matters............................................... 7
Experts..................................................... 7
2
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You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. The selling security holders are offering to sell,
and seeking offers to buy, shares of Columbus McKinnon Corporation Common Stock
only in jurisdictions where offers and sales are permitted. The information
contained in this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of the
shares.
In this prospectus, the "Company," the "Registrant," "Columbus McKinnon
Corporation," "we," "us," and "our" refer to Columbus McKinnon Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and other
documents with the Securities and Exchange Commission (the "SEC"). You may read
and copy any document we file at the SEC's public reference room at Judiciary
Plaza Building, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You
should call 1-800-SEC-0330 for more information on the public reference room.
The SEC maintains an internet site at http://www.sec.gov where certain
information regarding issuers (including Columbus McKinnon Corporation) may be
found.
This prospectus is part of a registration statement that we filed with the SEC
(Registration No. ______). The registration statement contains more information
than this prospectus regarding Columbus McKinnon Corporation and its Common
Stock, including certain exhibits and schedules. You can get a copy of the
registration statement from the SEC at the address listed above or from its
internet site.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate" into this prospectus information we file with
the SEC in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information may include documents filed after the date of this
prospectus which update and supersede the information you read in this
prospectus. We incorporate by reference the documents listed below, except to
the extent information in those documents is different from the information
contained in this prospectus, and all future documents filed with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until
we terminate the offering of these shares.
SEC Filing
(FILE NO.) PERIOD/FILING DATE
--------- ------------------
Annual Report on Form 10-K Year ended March 31, 1999
Current Report on Form 8-K Filed on May 18, 1999
Current Report on Form 8-K Filed on May 26, 1999
Registration Statement on Form 8-A Filed on January 24, 1996 and
describing the common stock, February 22, 1996, respectively
as amended by Amendment
No. 1 on Form 8-A/A
You may request a copy of these documents, at no cost, by writing to:
Columbus McKinnon Corporation
140 John James Audubon Parkway
Amherst, New York 14228-1197
Attention: Lois H. Demler, Corporate Secretary
Telephone: (716) 689-5400
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FORWARD-LOOKING INFORMATION
Statements made in this prospectus or in the documents incorporated by reference
herein that are not statements of historical fact are forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act"), and Section 21E of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). A number of risks and uncertainties, including
those discussed under the caption "Risk Factors" below and the documents
incorporated by reference herein could affect such forward-looking statements
and could cause actual results to differ materially from the statements made.
ABOUT THE COMPANY
The Company is a broad-line designer, manufacturer and supplier of sophisticated
material handling products and integrated material handling solutions that are
widely distributed to industrial and consumer markets worldwide. The Company's
material handling products are sold, domestically and internationally,
principally to third party distributors in commercial and consumer distribution
channels and, to a lesser extent, directly to manufacturers and other end-users.
The Company's integrated material handling solutions businesses primarily deal
with end-users. For the year ended March 31, 1999, the Company generated net
sales and income from operations of approximately $735.4 million and
approximately $85.1 million, respectively. Comprehensive information on Columbus
McKinnon is available on our Web site at http:/www.cmworks.com.
RISK FACTORS
You should consider carefully the following risk factors, along with the other
information contained or incorporated by reference in this prospectus, in
deciding whether to invest in our securities. These factors, among others, may
cause actual results, events or performance to differ materially from those
expressed in any forward-looking statements we make in this prospectus.
WE FACE SIGNIFICANT COMPETITION
The markets in which we compete are highly competitive. We compete with a number
of different manufacturers, both domestically and abroad, with respect to each
of our products and services. Some of our competitors have greater financial and
other resources than we do. Our ability to compete depends on factors both
within and outside our control, including:
- - the timing and success of our newly developed products
- - the timing and success of newly developed products by our competitors
- - product availability, performance and price
- - product brand recognition
- - distribution and customer support
These factors could possibly limit our ability to compete successfully.
WE ARE SUBJECT TO GENERAL ECONOMIC RISKS
Our business is affected by the state of both the U.S. and worldwide economies
in general, and by the varying cyclicality of the industries in which our
products are used. Any future downturn in the U.S. and/or worldwide economy
could have an adverse effect on our business, financial condition and results of
operations.
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OUR INABILITY TO COMPLETE OR INTEGRATE FUTURE ACQUISITIONS EFFECTIVELY COULD
AFFECT OUR FUTURE GROWTH
Historically, we have grown through a combination of internal growth and
acquisitions. Although we intend to pursue the acquisition of additional
businesses, we can't be certain that we will be able to locate or acquire other
suitable acquisition candidates on acceptable terms or that any business we may
acquire in the future will be effectively and profitably operated and integrated
into the Company. In addition, the acquisition, operation and integration of an
acquired business may involve a number of other risks, including an increase in
our indebtedness, the diversion of our management's attention and the retention
of and training of key personnel. We also intend to enhance our international
presence through strategic acquisitions and alliances. International expansion
may involve additional risks including those described in "--Our International
Operations Subject Us To Additional Risks."
OUR INTERNATIONAL OPERATIONS SUBJECT US TO ADDITIONAL RISKS
We have operations and assets located outside of the United States, primarily in
Canada, Mexico, Germany, Denmark, France, the United Kingdom and China. In
addition, we import a portion of our hoist product line from China, and sell our
products to distributors located in approximately 50 countries. International
operations are subject to a number of special risks, including currency exchange
rate fluctuations, trade barriers, exchange controls, risk of governmental
expropriation, political risks and risks of increases in taxes. Also, some
foreign jurisdictions have laws limiting the right and ability of entities
organized or operating therein to pay dividends or remit earnings to affiliated
companies unless specified conditions are met.
VOLATILITY OF RAW MATERIAL PRICES COULD AFFECT OUR PROFITABILITY
The principal raw material used by us in our chain and forging operations is
steel. The steel industry as a whole is cyclical, and steel prices can be
volatile due to numerous factors beyond our control. This volatility can
significantly affect our raw material costs. Our ability to pass any steel price
increases on to our customers will be determined by competitive conditions.
WORK STOPPAGES COULD AFFECT OUR OPERATIONS
At March 31, 1999, we had approximately 4,350 employees. Of these employees,
approximately 1,580 are represented under 12 separate collective bargaining
agreements which expire at various times between September 1999 and April 2003.
A collective bargaining agreement covering approximately 105 employees at our
Duff-Norton division facility expires on September 26, 1999. We can not be
certain that negotiations to extend such agreement will be successfully
concluded without a work stoppage. During the past five years, the only
interruption or curtailment of our business due to labor disputes was a five-day
work stoppage at that same Duff-Norton division facility in Charlotte, North
Carolina in fiscal 1997, prior to its acquisition by the Company. We can't be
certain that we will not experience further significant work stoppages in the
future or that our relations with our employees will continue to be good.
WE ARE SUBJECT TO VARIOUS ENVIRONMENTAL LAWS AND REGULATIONS
Like many manufacturing companies, we are subject to various federal, state and
local environmental laws, including, but not limited to, those governing air
emissions, water discharges, and the storage, handling, disposal and remediation
of petroleum and hazardous substances. We have in the past and will likely in
the future incur expenditures in order to ensure compliance with such
environmental laws. Due to the possibility of unanticipated factual or
regulatory developments, the amount and timing of future environmental
expenditures could vary substantially from those currently anticipated.
Moreover, certain of our facilities have been in operation for many years and,
over such time, we and other predecessor operators of such facilities have
generated and disposed of wastes which are or may be considered hazardous.
Accordingly, although we have undertaken considerable efforts to comply with
applicable environmental laws, it is possible that environmental requirements or
facts not currently known will require unanticipated efforts and expenditures
which cannot be currently quantified.
5
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LOSS OF KEY PERSONNEL COULD IMPAIR OUR BUSINESS
Our success is dependent upon the management and leadership skills of Timothy T.
Tevens, the Company's President and Chief Executive Officer, Robert L.
Montgomery, Jr., the Company's Executive Vice President, and other members of
our senior management team. We do not have employment agreements with any of our
management employees. The loss of any of these individuals or an inability to
attract and retain additional personnel could adversely affect our business,
financial condition and results of operations.
YEAR 2000 RISKS COULD DISRUPT OUR OPERATIONS
We have implemented a Year 2000 date conversion program to ensure that our
computer systems and applications will function properly beyond 1999. We believe
that we have allocated adequate resources for this purpose and expect our Year
2000 date conversion program to be successfully completed on a timely basis.
However, we cannot be certain that this will be the case. We do not expect to
incur significant expenditures to address this issue. The ability of third
parties with whom we transact business to adequately address their Year 2000
issues is outside of our control. The failure of such third parties to
adequately address their respective Year 2000 issues could have an adverse
effect on our business, financial condition and results of operations.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
Selling Stockholders.
SELLING STOCKHOLDERS
The following table sets forth certain information regarding beneficial
ownership of the Company's Common Stock by the Selling Stockholders as of June
30, 1999 and as adjusted to reflect the sale by Selling Stockholders of shares
offered by this Prospectus.
Common Stock Common Stock
Beneficially Owned Beneficially Owned
PRIOR TO OFFERING AFTER OFFERING
Common Stock
HOLDER NUMBER PERCENT TO BE SOLD NUMBER PERCENT
------ ------ ------- ---------- ------ -------
GL Partners, L.P. 415,314 2.82 % 415,314 -0- -0-
Andrew Everett 115,588 * 115,588 -0- -0-
Larry Di Stefano 264,783 1.80% 264,783 -0- -0-
Dominic Di Stefano 19,532 * 19,532 -0- -0-
Stephen Di Stefano 19,532 * 19,532 -0- -0-
Cesare Cagnin 9,766 * 9,766 -0- -0-
------- ---------
844,515 844,515
- --------------------------
* less than 1%
PLAN OF DISTRIBUTION
The Company is registering the shares on behalf of the Selling Stockholders. As
used herein, "Selling Stockholders" includes donees and pledgees selling shares
received from a Selling Stockholder after the date of this Prospectus. All or a
portion of the shares of Common Stock offered hereby by the Selling Stockholders
may be delivered and/or sold in transactions from time to time on the
over-the-counter market at prices prevailing at the time, at prices related to
6
<PAGE>
such prevailing prices or at negotiated prices and/or may also be used to cover
any short positions previously established. The Selling Stockholders may effect
such transactions by selling to or through one or more broker-dealers, and such
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Stockholders. The Selling
Stockholders and any broker-dealers that participate in the distribution may
under certain circumstances be deemed to be "underwriters" within the meaning of
the Securities Act, and any commissions received by such broker-dealers and any
profits realized on the resale of shares by them may be deemed to be
underwriting discounts and commissions under the Securities Act. The Selling
Stockholders may agree to indemnify such broker-dealers against certain
liabilities, including liabilities under the Securities Act. In addition, the
Company has agreed to indemnify the Selling Stockholders with respect to the
shares offered hereby against certain liabilities, including, without
limitation, certain liabilities under the Securities Act, and each Selling
Stockholder, severally and not jointly, has agreed to indemnify the Company
against certain liabilities, including, without limitation, certain liabilities
under the Securities Act.
Any broker-dealer participating in such transactions as agent may receive
commissions from the Selling Stockholders (and, if they act as agent for the
purchaser of such shares, from such purchaser). Broker-dealers may agree with
the Selling Stockholders to sell a specified number of shares at a stipulated
price per share, and, to the extent such a broker-dealer is unable to do so
acting as agent for the Selling Stockholders, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
the Selling Stockholders. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) in the over-the-counter market, in negotiated transactions or otherwise
at market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale of shares may not simultaneously
engage in market making activities with respect to the Common Stock of the
Company for a period of two business days prior to the commencement of such
distribution. In addition and without limiting the foregoing, the Selling
Stockholders will be subject to applicable provisions of the Exchange Act, and
the rules and regulations thereunder, including, without limitation, Regulation
M, which provisions may limit the timing of purchases and sales of shares of the
Company's Common Stock by the Selling Stockholders.
Each Selling Stockholder will pay all commissions, transfer taxes, and other
expenses associated with the sale of securities by such Selling Stockholder. The
shares offered hereby are being registered pursuant to contractual obligations
of the Company, and the Company has paid the expenses of the preparation of this
Prospectus. The Company has not made any underwriting arrangements with respect
to the sale of the shares offered hereby.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the Company by
Lippes, Silverstein, Mathias & Wexler LLP, Buffalo, New York, counsel to the
Company in connection with the offering.
EXPERTS
The consolidated financial statements of Columbus McKinnon Corporation appearing
in our Annual Report on Form 10-K at March 31, 1999 and 1998 and for each of
the three years ended March 31, 1999 have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon and incorporated by
reference herein which, as to the year ended March 31, 1998, is based in part on
the report of Deloitte & Touche LLP, independent auditors. The consolidated
financial statements referred to above are incorporated by reference in reliance
upon such reports, given on the authority of such firms as experts in
accounting and auditing.
7
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the sale
and distribution of the securities being registered. All of the amounts shown
are estimates except the Securities and Exchange Commission registration fee.
SECURITIES AND EXCHANGE COMMISSION
Registration Fee................................... $ 5,790
Legal fees and expenses............................ 5,000
Accounting fees and expenses....................... 5,000
NASDAQ Listing Fee................................. 16,890
Miscellaneous...................................... 320
-------
TOTAL:.................................... $33,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation provides that a director will not be personally
liable for damages to the Company or its shareholders for breach of duty as a
director, except to the extent that such exemption or limitation is not
permitted under the New York Business Corporation Law (the "NYBCL"). The NYBCL
does not permit indemnification for liability arising from (i) acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law; (ii) any transaction from which the director derived financial profit or
other advantage to which he was not legally entitled; (iii) payment of a
dividend or approval a stock repurchase in violation of NYBCL Section 510
(which, among other things, requires that dividends be paid only out of earned
surplus and prohibits dividend payments when a corporation is insolvent or would
thereby be made insolvent) or NYBCL Section 513 (which, among other things,
prohibits a corporation from purchasing or redeeming its shares out of surplus
if the corporation is insolvent or would thereby be made insolvent and places
certain restrictions on the purchase price payable by a corporation in
purchasing or redeeming its shares); (iv) distribution of assets to shareholders
after dissolution without provision for all known liabilities; or (v) extension
of any loan to directors in violation of NYBCL Section 714 (which requires any
loss from a corporation to a director to be authorized by vote of the
shareholders).
The Certificate of Incorporation also provides that each person, and his or her
heirs, executors, or administrators, who was or is a party or is threatened to
be made a party to, or is involved in any threatened or pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, will be indemnified and held harmless by the Company to the
fullest extent permitted by the NYBCL. The Certificate further provides that the
right to indemnification includes the right to be paid by the Company for
expenses incurred in connection with any such proceeding before its final
disposition to the fullest extent permitted by the NYBCL and the right to
indemnification conferred thereunder is a contract right.
The Certificate of Incorporation further provides that the Company may, by
action of the Board of Directors, provide indemnification to such of the
employees and agents of the Company and such other persons serving at the
request of the Company as employees or agents of another corporation,
partnership, joint venture, trust or other enterprise to such extent and to such
effect as is permitted by the NYBCL and the Board of Directors.
Under the Certificate of Incorporation, (i) the rights and authority described
above are not exclusive of any other right that any person otherwise may have or
acquire and (ii) no amendment, modification or repeal of the Certificate of
Incorporation or Bylaws will eliminate or reduce the effect of the provisions in
the Certificate of Incorporation limiting liability or indemnifying certain
persons or adversely affect any right or protection then existing thereunder in
respect to any acts or omissions occurring before such amendments, modification,
repeal or adoption.
II-1
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Sections 721, 722 and 726 of the NYBCL provide that a corporation may indemnify
any person, including officers and directors who are, or are threatened to be
made, parties to any action or proceeding, except a derivative action, whether
civil or criminal, by reason of their being officers or directors or serving at
the request of the corporation as a director or officer of any other corporation
or any partnership, joint venture, trust, employee benefit plan or other
enterprise, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees; provided that the officer or director acted
in good faith, for a purpose that such officer or director reasonably believed
to be in (or in case of service for any other corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise, not opposed to)
the best interests of the corporation. In the case of criminal actions or
proceedings, indemnification is allowed if the officer or director had no
reasonable cause to believe that his or her conduct was unlawful. An officer or
director who is successful in defense of such civil or criminal action or
proceeding is entitled to indemnification.
A corporation may indemnify any person made, or threatened to be made, a party
to a derivative action by reason of the fact that such person is or was a
director or officer of the corporation or was serving at the request of the
corporation as a director or officer of any corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise, against amounts
paid in settlement and reasonable expenses, including attorneys' fees, provided
that such director or officer acted in good faith, for a purpose which he
reasonably believed to be in (or in the case of service for another corporation
or any partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to) the best interests of the corporation, except that
no indemnification is permitted in respect to a threatened action or a pending
action which is settled or otherwise disposed of or in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation, except to the extent that a court may otherwise determine.
A person who has been successful in the defense of a civil or criminal action or
proceeding of the character described above is entitled to indemnification to
the extent described above. Otherwise, absent court approval, indemnification in
the specific case must be authorized either (i) by the board of directors acting
by a quorum consisting of directors who are not parties to the action; or (ii)
by the board upon the opinion of independent legal counsel that the
indemnification is proper under the circumstances; or (iii) by the shareholders.
ITEM 16. EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
*5 Opinion of Lippes, Silverstein, Mathias & Wexler LLP
10 Agreement and Plan of Merger dated as of February 16, 1999 by
and among the Registrant, GL Delaware, Inc., G.L.
International Inc., Larco Industrial Services, Ltd., the
holders of all outstanding capital stock of G.L. International
Inc. and the holders of Non-Voting Exchangeable Shares of
Larco Industrial Services, Ltd. (incorporated by refence to
Exhibit 10.37 to the Company's Annual Report on Form 10-K for
the fiscal year ended March 31, 1999).
*23.1 Consent of Lippes, Silverstein, Mathias & Wexler LLP (filed
as part of Exhibit 5)
*23.2 Consent of Ernst & Young LLP, Independent Auditors
*23.3 Consent of Deloitte & Touche LLP, Independent Auditors
- --------------------------
* filed herewith
II-2
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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,
(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) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or
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. 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.
II-3
<PAGE>
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 Buffalo, New York, on this 22nd day of July, 1999.
COLUMBUS MCKINNON CORPORATION
BY: /S/ TIMOTHY T. TEVENS
--------------------------
Timothy T. Tevens
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Timothy T. Tevens and Robert L. Montgomery, Jr.,
or either of them, as her or his attorney in fact, to sign any amendments to
this Registration Statement (including post-effective amendments), and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorney-in-fact, or his substitute or substitutes, may 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
dates indicated.
/s/ TIMOTHY T. TEVENS President, Chief Executive July 22, 1999
------------------------- Officer and Director
Timothy T. Tevens (Principal Executive Officer)
/s/ ROBERT L. MONTGOMERY, JR. Executive Vice President, Chief July 22, 1999
------------------------- Financial Officer and Director
Robert L. Montgomery, Jr. (Principal Financial and Accounting Officer)
/s/ HERBERT P. LADDS, JR. Chairman of the Board July 22, 1999
------------------------- of Directors
Herbert P. Ladds, Jr.
/s/ EDWARD W. DUFFY Director July 22, 1999
-------------------------
Edward W. Duffy
/s/ RANDOLPH A. MARKS Director July 22, 1999
-------------------------
Randolph A. Marks
/s/ L. DAVID BLACK Director July 22, 1999
-------------------------
L. David Black
/s/ CARLOS PASCUAL Director July 22, 1999
-------------------------
Carlos Pascual
/s/ RICHARD H. FLEMING Director July 22, 1999
-------------------------
Richard H. Fleming
II-4
<PAGE>
COLUMBUS MCKINNON CORPORATION
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
5 Opinion of Lippes, Silverstein, Mathias & Wexler LLP
10 Agreement and Plan of Merger dated as of February 16, 1999 by
and among the Registrant, GL Delaware, Inc., G.L.
International Inc., Larco Industrial Services, Ltd., the
holders of all outstanding capital stock of G.L. International
Inc. and the holders of Non-Voting Exchangeable Shares of
Larco Industrial Services, Ltd. (incorporated by refence to
Exhibit 10.37 to the Company's Annual Report on Form 10-K for
the fiscal year ended March 31, 1999).
23.1 Consent of Lippes, Silverstein, Mathias & Wexler LLP (filed
as part of Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Deloitte & Touche LLP, Independent Auditors
II-5
EXHIBIT 5
July 22, 1999
Columbus McKinnon Corporation
140 John James Audubon Parkway,
Amherst, New York 14228-1197
Ladies and Gentlemen:
We have acted as counsel to Columbus McKinnon Corporation, a New York
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") which the
Company proposes to file with the Securities and Exchange Commission on July 22,
1999 for the purpose of registering under the Securities Act of 1933, as amended
(the "Act"), 844,515 shares (the "Shares") of the Company's Common Stock, $.01
par value, pursuant to the Registration Agreement made as of March 1, 1999 (the
"Registration Agreement") among the Company and certain of the Company's
shareholders set forth therein.
As such counsel, we have examined copies of the Certificate of Incorporation and
By-Laws of the Company, each as amended to the date hereof, the Registration
Statement, the Registration Agreement and originals or copies of such other
corporate minutes, records, agreements and other instruments of the Company,
certificates of public officials and other documents and have made such
examinations of law, as we have deemed necessary to form the basis for the
opinion hereinafter expressed. In our examination of such materials, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
copies submitted to us. As to various questions of fact material to such
opinion, we have relied, to the extent we deemed appropriate, upon
representations, statements and certificates of officers and representatives of
the Company and others. We have further assumed that when the Shares are sold,
proper consideration therefor will have been paid and appropriate certificates
evidencing the Shares will have been properly executed. Attorneys involved in
the preparation of this opinion are admitted to practice law in the State of New
York and we do not purport to be experts on, or to express any opinion herein
concerning, any law other than the laws of the State of New York, the federal
laws of the United States of America and the Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that when issued
the Shares have been duly authorized, and when issued under the circumstances
contemplated in the Registration Statement, will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the caption
"Legal Matters" in the Prospectus which forms a part of the Registration
Statement. In giving such consent, we do not admit hereby that we come within
the category of persons whose consent is required under Section 7 of the Act or
the Rules and Regulations of the Commission thereunder.
Very truly yours,
LIPPES, SILVERSTEIN, MATHIAS & WEXLER LLP
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 no. 333-00000) and related Prospectus of
Columbus McKinnon Corporation for the registration of 844,515 shares of its
common stock and to the incorporation by reference therein of our report dated
May 17, 1999, with respect to the consolidated financial statements and schedule
of Columbus McKinnon Corporation included in its Annual Report (Form 10-K) for
the year ended March 31, 1999, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Buffalo, New York
July 22, 1999
EXHIBIT 23.3
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Columbus McKinnon Corporation on Form S-3, of our report dated August 24, 1998
with respect to the consolidated financial statements of GL International, Inc.
and subsidiaries appearing in the Annual Report of Columbus McKinnon Corporation
on Form 10-K for the year ended March 31, 1999 and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Tulsa, Oklahoma
July 22, 1999
