As filed with the Securities and Exchange Commission on February 25, 1998.
Registration No. 333-_____________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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THE VALSPAR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-2443580
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1101 THIRD STREET SOUTH
MINNEAPOLIS, MINNESOTA 55415
(Address of Principal Executive Offices and zip code)
----------------------------
THE VALSPAR CORPORATION
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
AND
THE VALSPAR PROFIT SHARING RETIREMENT PLAN
AND
THE VALSPAR CORPORATION 1991 STOCK OPTION PLAN
(Full title of the Plans)
----------------------------
Rolf Engh
Vice President-International and Secretary
The Valspar Corporation
1101 Third Street South
Minneapolis, Minnesota 55415
(612) 332-7371
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Martin R. Rosenbaum
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, Minnesota 55402
(612) 371-3278
----------------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 5,450,0000 shares (2) $33.375 $75,093,750.00(3) $22,152.66(3)
$.50 par value
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high
and low prices of the Company's Common Stock on February 20, 1998 as
reported on the New York Stock Exchange.
(2) Includes 250,000 shares offered pursuant to the Stock Option Plan for
Non-Employee Directors (the "Directors Plan"), 1,200,000 shares offered
pursuant to the Valspar Profit Sharing Retirement Plan (the "Profit
Sharing Plan") and 4,000,000 shares offered pursuant to the 1991 Stock
Option Plan (the "1991 Plan").
(3) Registration fees are being paid with respect to an aggregate 2,250,000
shares (Aggregate Offering Price of $75,093,750.00), consisting of
250,000 shares under the Directors Plan, 1,000,000 shares under the
Profit Sharing Plan and 1,000,000 shares under the 1991 Plan.
Registration fees were previously paid with respect to 200,000 shares
under the Profit Sharing Plan: 100,000 shares were registered in August
1992 on Form S-8 (File No. 33-51222), and an additional 100,000 shares
were deemed registered pursuant to Rule 416 as a result of a
two-for-one stock split effective in March 1997. Registration fees were
also previously paid with respect to 3,000,000 shares under the 1991
Plan: 500,000 shares were registered in March 1991 on Form S-8 (File
No. 33-39258), an additional 500,000 shares and 1,000,000 shares were
deemed registered pursuant to Rule 416 as a result of two-for-one stock
splits effective in March 1992 and March 1997, respectively, and an
additional 1,000,000 shares were registered in June 1997 on Form S-8
(File No. 333-29979). The present Form S-8 clarifies that a February
1997 amendment to the 1991 Plan covered an aggregate 2,000,000 shares,
as adjusted to reflect the March 1997 stock split.
INCORPORATION OF CONTENTS OF REGISTRATION STATEMENTS
BY REFERENCE
A Registration Statement on Form S-8 (File No. 33-51222) was filed with
the Securities and Exchange Commission on August 24, 1992 covering the
registration of 200,000 shares (adjusted to reflect a two-for-one stock split in
March 1997) initially authorized for issuance under the Profit Sharing Plan. A
Registration Statement on Form S-8 (File No.33-39258) was filed with the
Securities and Exchange Commission on March 4, 1991 covering the registration of
2,000,000 shares (adjusted to reflect two-for-one stock splits in March 1992 and
March 1997) initially authorized for issuance under
<PAGE>
the 1991 Plan. A Registration Statement on Form S-8 (File No 333-29979) was
filed with the Securities and Exchange Commission on June 25, 1997 covering the
registration of an additional 1,000,000 shares authorized under the 1991 Plan.
Pursuant to Rule 429 and General Instruction E of Form S-8, this Registration
Statement should also be considered a post-effective amendment to the prior
registration statements. The contents of the prior registration statements are
incorporated herein by reference.
PART I
Pursuant to Part I of Form S-8, the information required by Items 1 and
2 of Form S-8 is not filed as a part of this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference:
(a) The Annual Report of the Company on Form 10-K for the fiscal
year ended October 31, 1997.
(b) The Definitive Proxy Statement dated January 23, 1998 for the
Annual Meeting of Shareholders to be held on February 25,
1998.
(c) The description of the Company's capital stock as set forth in
the Company's Form S-2 Registration Statement (File No.
2-82000), declared effective March 9, 1983.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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 such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under provisions of the By-Laws of the Registrant, directors and
officers will be indemnified for any and all judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys fees, in connection with
threatened, pending or completed actions, suits or proceedings, whether civil,
or criminal, administrative or investigative (other than an action arising by or
in the right of the Registrant), if such director or officer has been wholly
successful on the merits or otherwise, or is found to have acted
<PAGE>
in good faith and in a manner he or she reasonably believes to be in or not
opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. In addition, directors and officers will be indemnified
for reasonable expenses in connection with threatened, pending or completed
actions or suits by or in the right of Registrant if such director or officer
has been wholly successful on the merits or otherwise, or is found to have acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Registrant, except in the case of certain
findings by a court that such person is liable for negligence or misconduct in
his or her duty to the Registrant unless such court or the Delaware Court of
Chancery also finds that such person is nevertheless fairly and reasonably
entitled to indemnity. The Registrant's Certificate of Incorporation also
eliminates the liability of directors of the Registrant for monetary damages to
the fullest extent permissible under Delaware law.
Section 145 of the Delaware General Corporation Law provides the
following:
(a) A corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action arising by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense which the Court of Chancery or
such other court shall deem proper.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
4(a) The Valspar Corporation 1991 Stock Option Plan (incorporated
by reference to Exhibit 10(e) to the Registrant's Form 10-K
for the year ended October 25, 1996)
4(b) The Valspar Corporation Stock Option Plan For Non-Employee
Directors (incorporated by reference to Exhibit 10(i) to the
Registrant's Form 10-K for the year ended October 31, 1997)
5(a) Opinion and consent of Lindquist & Vennum P.L.L.P.
23(a) Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit
5(a))
23(b) Consent of Ernst & Young LLP, independent auditors of The
Valspar Corporation
23(c) Consent of Deloitte & Touche LLP, independent auditors of The
Valspar Profit Sharing Retirement Plan
24 Power of Attorney (included on signature page)
The Registrant will submit or has submitted the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has made
or will make all changes required by the IRS in order to qualify the Plan.
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, represents 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;
<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
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 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 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) 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 connected 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.
<PAGE>
SIGNATURES
The Registrant. 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-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 February 24,
1998.
THE VALSPAR CORPORATION
By /s/ Rolf Engh 2/24/98
------------------------------
Rolf Engh, Secretary
POWER OF ATTORNEY
The undersigned officers and directors of The Valspar Corporation
hereby constitute and appoint Richard M. Rompala and Rolf Engh, or either of
them, with power to act one without the other, our true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for us and in our stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and all documents relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable 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 said attorney-in-fact and agent, or his or her substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Richard M. Rompala President, Chief Executive February 25, 1998
- ----------------------------- Officer and Director
Richard M. Rompala (Principal Executive Officer)
/s/ Paul C. Reyelts Vice President, Finance February 25, 1998
- ----------------------------- (Principal Financial Officer)
Paul C. Reyelts
/s/ Kathleen P. Pepski Vice President and Controller February 25, 1998
- ----------------------------- (Principal Accounting Officer)
Kathleen P. Pepski
/s/ C. Angus Wurtele Chairman of the Board February 25, 1998
- -----------------------------
C. Angus Wurtele
/s/ Susan S. Boren Director February 25, 1998
- -----------------------------
Susan S. Boren
<PAGE>
/s/ Jeffery H. Curler Director February 25, 1998
- -----------------------------
Jeffrey H. Curler
/s/ Thomas R. McBurney Director February 25,1998
- -----------------------------
Thomas R. McBurney
/s/ Kendrick B. Melrose Director February 25, 1998
- -----------------------------
Kendrick B. Melrose
/s/ Gregory R. Palen Director February 25, 1998
- -----------------------------
Gregory R. Palen
/s/ Lawrence Perlman Director February 25, 1998
- -----------------------------
Lawrence Perlman
Director February 25, 1998
- -----------------------------
Edward B. Pollak
/s/ Michael P. Sullivan Director February 25, 1998
- -----------------------------
Michael P. Sullivan
</TABLE>
The Plan. Pursuant to the Securities Act of 1933, trustees (or other
persons who administer the employee benefit plan) have 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 February 25,
1998.
THE VALSPAR PROFIT SHARING
RETIREMENT PLAN
By Norwest Bank Minnesota, N.A.,
Trustee
By /s/ Todd D. Noetzelman
----------------------------------
Its Assistant Vice President
----------------------------------
EXHIBIT 5(a)
February 25, 1998
The Valspar Corporation
1101 Third Street South
Minneapolis, MN 55415
RE: OPINION OF COUNSEL AS TO LEGALITY OF 2,250,000 SHARES OF
COMMON STOCK TO BE REGISTERED UNDER THE SECURITIES ACT OF 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 2,250,000 shares of Common Stock, $.50 par
value per share, of The Valspar Corporation (the "Company") offered pursuant to
The Valspar Corporation Stock Option Plan for Non-Employee Directors (the
"Directors Plan"), The Valspar Profit Sharing Retirement Plan (the "Profit
Sharing Plan") and The Valspar Corporation 1991 Stock Option Plan (the "1991
Plan"). These shares are in addition to the 200,000 shares (adjusted for a
two-for-one stock split effective March 1997) offered pursuant to the Profit
Sharing Plan on a previous Registration Statement on Form S-8 (File No.
33-51222) and the 3,000,000 shares (adjusted for two-for-one stock splits
effective March 1992 and March 1997) offered pursuant to the 1991 Plan and
registered on previous Registration Statements on Form S-8 (File No.'s 33-39258
and 333-29979).
As counsel for the Company, we advise you that it is our opinion, based
on our familiarity with the affairs of the Company and upon our examination of
pertinent documents, that the 2,250,000 shares of Common Stock to be offered by
the Company under the 1991 Plan, the Directors Plan, and the Profit Sharing Plan
will when paid for and issued, be validly issued and lawfully outstanding, fully
paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
with respect to said shares of Common Stock under the Securities Act of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
/s/ Lindquist & Vennum P.L.L.P.
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
The Valspar Corporation on Form S-8 pertaining to The Valspar Corporation Stock
Option Plan for Non-Employee Directors, The Valspar Profit Sharing Retirement
Plan and The Valspar Corporation 1991 Stock Option Plan of our reports dated
November 19, 1997, with respect to the consolidated financial statements of The
Valspar Corporation incorporated by reference in its Annual Report (Form 10-K)
for the year ended October 31, 1997 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
/s/ Ernst & Young LLP
Minneapolis, Minnesota
February 23, 1998
EXHIBIT 23(c)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
The Valspar Corporation on Form S-8 pertaining to The Valspar Corporation Stock
Option Plan for Non-Employee Directors, The Valspar Profit Sharing Retirement
Plan and The Valspar Corporation 1991 Stock Option Plan of our reports dated
January 6, 1998, with respect to the financial statements of The Valspar Profit
Sharing Retirement Plan included as Exhibit 99(c) to its Annual Report (Form
10-K) for the year ended October 31, 1997, filed with the Securities and
Exchange Commission.
DELOITTE & TOUCHE LLP
/s/ Deloitte & Touche LLP
Minneapolis, Minnesota
February 23, 1998
