As filed with the Securities and Exchange Commission on September 20, 1999.
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
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
1991 STOCK OPTION PLAN
(Full title of the Plan)
----------------------------
Rolf Engh
Senior Vice President and Secretary
The Valspar Corporation
1101 Third Street South
Minneapolis, MN 55415
(612)332-7371
(Name, address, including zip code and telephone number of agent for service)
Copy to:
Martin R. Rosenbaum
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402
(612)371-3278
--------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
Tiitle of Proposed Maximum Proposed Maximum Aggregate Amount of
Securities to Amount to be Offering Price Offering Registration
be Registered Registered Per Share (1) Price (1) Fee
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 6,000,000 shares (2) $ 35.1875 $ 70,375,000.00 $ 19,564.25
($.50 par value)
- ------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) and based upon the average of the high and low prices of
the Company's Common Stock on September 14, 1999 as reported on the New York
Stock Exchange.
(2) 2,000,000 shares were registered on Form S-8 (No. 33-39258), filed March 4,
1991 (adjusted to reflect an additional 500,000 shares and 1,000,000 shares
deemed registered pursuant to Rule 416 as a result of two-for-one stock splits
effective in March 1992 and March 1997, respectively), an additional 1,000,000
shares were registered on Form S-8 (File No. 333-29979), filed with the
Commission on June 25, 1997, and an additional 1,000,000 shares were registered
on Form S-8 (File No. 333-46865), filed with the Commission on February 25,
1998. An additional 2,000,000 shares are being registered with this filing, and
the fee is paid only with respect to the additional 2,000,000 shares.
----------------------------------------------------------------------
INCORPORATION OF CONTENTS OF REGISTRATION STATEMENTS
BY REFERENCE
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 500,000 shares initially authorized for issuance under the
Company's 1991 Stock Option Plan (the "1991 Plan") and 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. A Registration Statement on Form S-8 (File No. 333-29979) was
filed with the Commission on June 25, 1997, to register an additional 1,000,000
shares. A Registration Statement on Form S-8 (File No. 333-46865) was filed with
the Commission on February 25, 1998 to register an additional 1,000,000 shares
under the 1991 Plan. Pursuant to Rule 429 and General Instruction E of Form S-8,
this Registration Statement is being filed to register an additional 2,000,000
shares authorized under the 1991 Plan. 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 the Note 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.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference herein:
(a) The Annual Report of the Company on Form 10-K for the fiscal year
ended October 30, 1998.
(b) The Definitive Proxy Statement dated January 22, 1999 for the
Annual Meeting of Stockholders held on February 24, 1999.
(c) The Quarterly Reports of the Company filed on Form 10-Q for the
period ended January 29, 1999, April 30, 1999 and July 30, 1999.
(d) 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 of 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,
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 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, 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 the 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.
<PAGE>
Section 145 of the Delaware General Corporation Law provides the
following:
(a) 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, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action 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 of 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
-------
4.1 The Valspar Corporation 1991 Stock Option Plan, as amended
December 11, 1996 and December 16, 1998 (incorporated by
reference to Exhibit 10(d) to the Registrant's Form 10-K for
the year ended October 30, 1998, filed with the Commission on
January 22, 1999).
5.1 Opinion and Consent of Lindquist & Vennum P.L.L.P. as to the
legality of the securities being registered
23.1 Consent of Lindquist & Vennum (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
<PAGE>
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;
(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 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 (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) 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 September 17,
1999.
THE VALSPAR CORPORATION
By: /s/ Rolf Engh
----------------------------
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 might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his 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 below.
Signature Title Date
- --------- ----- ----
/s/ Richard M. Rompala Chairman of the Board, President September 17, 1999
- ------------------------ and Chief Executive Officer
Richard M. Rompala (Principal Executive Officer)
/s/ Paul C. Reyelts Senior Vice President, Finance September 17, 1999
- ------------------------ and Chief Financial Officer
Paul C. Reyelts (Principal Financial Officer)
/s/ Kathleen P. Pepski Vice President and Controller September 17, 1999
- ------------------------ (Principal Accounting Officer)
Kathleen P. Pepski
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Susan S. Boren Director September 17, 1999
- -------------------------
Susan S. Boren
Director ____________, 1999
- -------------------------
Jeffrey H. Curler
Director ____________, 1999
- -------------------------
Charles W. Gaillard
/s/ Thomas R. McBurney Director September 17, 1999
- -------------------------
Thomas R. McBurney
/s/ Kendrick B. Melrose Director September 17, 1999
- -------------------------
Kendrick B. Melrose
Director ____________, 1999
- -------------------------
Gregory R. Palen
Director ____________, 1999
- -------------------------
Lawrence Perlman
Director ____________, 1999
- -------------------------
Edward B. Pollak
/s/ Michael P. Sullivan Director September 17, 1999
- -------------------------
Michael P. Sullivan
/s/ C. Angus Wurtele Director September 17, 1999
- -------------------------
C. Angus Wurtele
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
5.1 Opinion and Consent of Lindquist & Vennum P.L.L.P.
as to the legality of the securities being registered
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, independent auditors
EXHIBIT 5.1
September 17, 1999
The Valspar Corporation
1101 Third Street South
Minneapolis, Minnesota 55415
Re: Opinion of Counsel as to Legality of 2,000,000 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 2,000,000 shares of Common Stock, $.50 par
value, of The Valspar Corporation (the "Company") offered pursuant to The
Valspar Corporation 1991 Stock Option Plan (the "Plan"). These shares are in
addition to the initial 2,000,000 shares (as adjusted to reflect an additional
500,000 shares and 1,000,000 shares deemed registered pursuant to Rule 416 as a
result of two-for-one stock splits effected in March 1992 and March 1997,
respectively), offered pursuant to the Plan and registered on a previous
Registration Statement on Form S-8 (File No. 33-39258), filed with the
Commission on March 4, 1991; an additional 1,000,000 shares offered pursuant to
the Plan and registered on a Registration Statement on Form S-8 (File No.
333-29979), filed with the Commission on June 25, 1997; and an additional
1,000,000 shares offered pursuant to the Plan and registered on a Registration
Statement on Form S-8 (File No. 333-46865), filed with the Commission on
February 25, 1998.
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 2,000,000 shares of Common Stock to be offered by
the Company under the 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 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to The Valspar Corporation 1991 Stock Option Plan (the
"Registration Statement") of our reports dated November 16, 1998, with respect
to the consolidated financial statements of The Valspar Corporation incorporated
by reference in its Annual Report (the "Annual Report") for the year ended
October 30, 1998 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
September 15, 1999
