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As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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APW LTD.
(Exact name of Registrant as specified in its charter)
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BERMUDA 04-2576375
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Clarendon House, Church Street
P.O. Box 666
Hamilton HM CX, Bermuda
N22 W23685 Ridgeview Parkway West
Waukesha, WI 53188-1013
(262) 523-7600
(Address, including ZIP Code, and telephone number,
including area code, of Registrant's principal executive offices)
Joseph T. Lower
APW Ltd.
N22 W23685 Ridgeview Parkway West
Waukesha, WI 53188-1013
(262) 523-7737
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
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Copies to:
Anthony W. Asmuth III, Esq. Geoffrey E. Liebmann, Esq.
Quarles & Brady LLP Cahill Gordon & Reindel
411 East Wisconsin Avenue 80 Pine Street
Milwaukee, WI 53202 New York, NY 10005
(414) 277-5000 (212) 701-3000
Approximate date of commencement of proposed sale of the securities to the
public: At such time or from time to time after the effective date of this
Registration Statement as determined in light of market conditions and other
factors.
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 to be 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, check the following box and
list the Securities Act registration statement number of the earlier effective
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 statement number of the earlier effective 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
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Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered per unit offering price fee
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Debt securities (1), Common
Stock, par value $.01 per share
(with attached Preferred Stock
Purchase Rights)(2)............. (3) (3) $500,000,000(4) $132,000(5)
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(1) Subject to note (4) below, there are being registered hereunder an
indeterminate principal amount of unsecured debt securities, including
convertible debt securities, as may be sold, from time to time, by the
Registrant. If any debt securities are issued at an original issue
discount, then the offering price shall be in such greater principal
amount as shall result in an aggregate initial offering price not to
exceed $500,000,000, less the dollar amount of any securities previously
issued hereunder.
(2) Subject to note (4) below, there are being registered hereunder an
indeterminate number of shares of Common Stock (with attached Preferred
Stock Purchase Rights) as may be sold (including shares which may be
issued upon conversion of any convertible debt securities offered
hereunder), from time to time, by the Registrant.
(3) Not applicable pursuant to the Note following the Calculation of
Registration Fee Table and General Instruction II.D. to Form S-3, which
provide that only the maximum aggregate offering price for all classes of
securities to be registered need be specified.
(4) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$500,000,000. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
(5) Calculated pursuant to Rule 457(o) at the statutory rate of .000264 of the
maximum aggregate offering price.
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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 which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+Information contained herein is subject to completion or amendment. A +
+registration statement relating to these securities has been filed with the +
+Securities and Exchange Commission. These securities may not be sold nor may +
+offers to buy be accepted prior to the time the registration statement +
+becomes effective. This prospectus shall not constitute an offer to sell or +
+the solicitation of an offer to buy nor shall there be any sale of these +
+securities in any State in which such offer, solicitation or sale would be +
+unlawful prior to registration or qualification under the securities laws of +
+any such State. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
SUBJECT TO COMPLETION, DATED , 2000
$500,000,000
APW LTD.
N22 W23685 Ridgeview Parkway West
Waukesha, WI 53188-1013
(262) 523-7600
DEBT SECURITIES
COMMON STOCK (with attached Preferred Stock Purchase Rights)
We may, from time to time, offer:
. unsecured debt securities, which may include convertible debt securities
and may consist of debentures, notes and/or other evidences of unsecured
indebtedness in one or more series;
. common stock, par value $.01 per share (with attached preferred stock
purchase rights); or
. any combination of the foregoing, at an aggregate initial offering price
not to exceed $500,000,000, at prices and on terms to be determined at or
prior to the time of sale in light of market conditions at the time of
sale.
When we offer securities, we will provide you with a prospectus supplement
describing the terms of the specific issue of securities, including the
offering price of the securities. The prospectus supplement may also add,
update or change information contained in this prospectus. You should read this
prospectus and any supplements carefully before you invest.
APW Ltd. common stock is listed on the New York Stock Exchange under the
symbol "APW." On September 28, 2000, the last reported price of the common
stock was $49 3/8 per share.
We urge you to read this prospectus and the accompanying prospectus
supplement carefully before you make your investment decision. You should
carefully consider the "Risk Factors" beginning on page 2.
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The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities or determined if this prospectus
is truthful and complete. Any representation to the contrary is a criminal
offense.
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The date of this prospectus is , 2000.
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TABLE OF CONTENTS
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Page
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ABOUT THIS PROSPECTUS...................................................... 1
THE COMPANY................................................................ 1
FORWARD-LOOKING STATEMENTS AND CAUTIONARY FACTORS.......................... 2
RISK FACTORS............................................................... 2
WHERE YOU CAN FIND MORE INFORMATION........................................ 7
USE OF PROCEEDS............................................................ 8
RATIO OF EARNINGS TO FIXED CHARGES......................................... 9
DESCRIPTION OF DEBT SECURITIES............................................. 9
DESCRIPTION OF APW LTD. CAPITAL STOCK...................................... 14
SHAREHOLDER RIGHTS UNDER BERMUDA LAW....................................... 17
BOOK-ENTRY................................................................. 20
PLAN OF DISTRIBUTION....................................................... 22
LEGAL MATTERS.............................................................. 23
EXPERTS.................................................................... 23
SIGNATURES................................................................. S-1
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No person has been authorized to give any information or to make any
representation not contained or included and incorporated by reference in this
prospectus. If given or made, such information or representation must not be
relied upon as having been authorized by us or any underwriter, dealer or
agent. APW Ltd. does not imply or represent by delivering this prospectus that
APW Ltd., or its business, is unchanged after the date of the prospectus or
that the information herein is correct as of any time after its date.
The information in this prospectus or any supplement may not contain all of
the information that may be important to you. You should read the entire
prospectus and any supplement, as well as the documents included and
incorporated by reference in the prospectus or any supplement, before making
an investment decision.
We have received the consent of the Bermuda Monetary Authority for the
issue and transfer of the securities being offered pursuant to this offering
to and among persons not resident in Bermuda for exchange control purposes,
subject to certain restrictions and conditions. The Bermuda Monetary Authority
accepts no responsibility for the financial soundness of any proposal or for
the correctness of any of the statements made or opinions expressed herein.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission utilizing a "shelf"
registration process. Using this process, we may, from time to time, offer any
combination of securities described in this prospectus in one or more
offerings with a total initial offering price of up to $500,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
and any pricing supplement that will contain specific information about the
terms of that particular offering. The prospectus supplement may also add,
update or change information contained in this prospectus. To obtain
additional information that may be important to you, you should read the
exhibits. You should read both this prospectus and any applicable prospectus
supplement together with additional information described below under the
heading "Where You Can Find More Information."
When used herein, the terms "APW Ltd.," "we," "our," "us" and the "Company"
refer to APW Ltd. and its subsidiaries and other entities.
THE COMPANY
APW Ltd. is a leading global provider of electronics manufacturing services
("EMS"), focused on the rapidly growing integrated electronic enclosure
systems market. We provide a comprehensive portfolio of electronic products,
including enclosures (technical housing and external structure and often the
skeleton of the product), power supplies, thermal management systems,
backplanes (large complex circuit panels used mostly in telecommunication
equipment) and cabling, either as individual subassemblies or as integrated
custom systems. In addition, we provide a wide range of integrated services to
our customers, including product design, supply chain management,
manufacturing, assembly, testing and drop-ship services. These offerings
provide our customers with accelerated time-to-market and decreased time-to-
volume production, while reducing their production costs and allowing them to
focus on the design and marketing of their products. We believe our emphasis
on technical innovation and vertically integrated engineering and
manufacturing expertise, coupled with our unique total solution approach,
which can be delivered on a worldwide basis, differentiates us in the
marketplace.
Operating in over 40 locations throughout North America, Europe and Asia,
we provide our solutions and services to original equipment manufacturers
("OEMs"), primarily in the communications (datacom and telecom), computing
(enterprise hardware--large servers, large data storage, networking) and
Internet (application service providers and Internet service providers)
markets. We believe that our size, global reach, product breadth, depth of
engineering experience, scope of services, and demonstrated expertise uniquely
position us to win large manufacturing contracts from leading global OEMs in
our target markets. Our customers include industry leaders such as Applied
Materials, Cisco, Compaq, EMC, Ericsson, Fujitsu, Hewlett-Packard, IBM,
Lucent, Marconi, Motorola, NCR, Nokia, Nortel Networks and Sun Microsystems.
We believe that these customers will provide us with substantial growth
opportunities due to their significant organic growth and their desire to
migrate from a fragmented regional supply base to an integrated global supply
capability, such as we offer. As OEMs gain confidence in our capabilities as
an integrated, global supplier, we believe that we will continue to see
increasing levels of product integration outsourcing.
We have grown through a combination of internal growth and acquisitions,
establishing a leading market position and global presence in less than three
years. We were established as a stand-alone public company through a spin-off
from Applied Power Inc. (currently doing business as Actuant Corporation) in
July 2000. We are a company organized under the laws of Bermuda. Our principal
executive offices are located at N22 W23685 Ridgeview Parkway West, Waukesha,
WI 53188-1013 and our telephone number is (262) 523-7600.
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FORWARD-LOOKING STATEMENTS AND CAUTIONARY FACTORS
This prospectus and any supplement (including the documents incorporated by
reference herein or in any supplement) may contain statements that constitute
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Prospective investors are cautioned that any
such forward-looking statements are not guarantees of future performance and
involve known and unknown risks, uncertainties and other factors that may
cause actual results, performance or achievements to differ materially from
future results, performance or achievements expressed or implied in the
forward-looking statements. The words "anticipate," "believe," "estimate,"
"expect," "project," "objective" and similar expressions are intended to
identify forward-looking statements. In addition to the assumptions and other
factors referred to specifically in connection with such statements, factors
that could cause our actual results to differ materially from those
contemplated in the forward-looking statements include factors described under
the caption "Risk Factors" or similar cautionary captions in the documents
incorporated herein by reference.
RISK FACTORS
Any investment in the securities we are offering involves significant risk.
You should consider carefully the following information about these risks,
together with the other information contained or incorporated by reference in
this prospectus or any supplement, before you decide to buy our securities.
The factors we describe below could cause our business, operating results and
financial condition to suffer and the market price of our securities to
decline. You may obtain the information incorporated by reference herein
without charge by following the instructions in the "Where You Can Find More
Information" section of this prospectus.
Increased competition may result in decreased demand or lower prices for our
products and services.
The EMS industry is highly competitive. We compete against numerous U.S.
and foreign EMS providers. In addition, current and prospective customers
continually evaluate the merits of manufacturing products internally. The
trend towards consolidation in the EMS industry results in a continually
changing competitive landscape. The consolidation trend in the industry also
results in larger and more geographically diverse competitors that have
significant combined resources with which to compete against us. Some of our
competitors have substantially greater managerial, manufacturing, financial,
systems, sales and marketing resources than we do. These potential competitors
may:
. benefit from greater name recognition, critical mass and geographic and
market presence;
. take greater advantage of acquisition opportunities;
. position themselves better to compete on price for their products;
. respond more quickly to new or emerging technologies;
. adapt more quickly to changes in customer requirements; and
. devote greater resources to the development, promotion and sale of their
products.
We may be operating at a cost disadvantage compared to manufacturers who
have greater direct buying power from component suppliers, distributors and
raw material suppliers or who have lower cost structures than we do. As a
result, some of our competitors may be able to obtain business from our
customers. Some of our manufacturing processes are not subject to significant
proprietary protection, and companies with greater resources or a greater
market presence may enter our market or increase their competition with us.
Increased competition could result in price reductions, reduced sales, margin
pressure or loss of market share.
Our management resources may not successfully implement the infrastructure and
systems necessary to support our rapid growth.
We have been dedicating significant managerial and other resources to
establish the infrastructure and systems necessary for us to meet the
requirements we foresee regarding future growth. While we believe that we
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have sufficient management resources, we cannot assure you that this will be
the case or that we will successfully implement our operating and growth
initiatives. Failure to implement these initiatives successfully could have a
material adverse effect on our business, results of operations and financial
condition.
Additionally, the fact that we have grown rapidly and significantly poses
substantial risks. For example, from fiscal 1997 to fiscal 2000, we saw an
increase in net sales of approximately 230% and an increase in employees of
approximately 161%. We have grown rapidly both by expanding our current
operations and by acquiring other businesses. APW Ltd. was built through the
integration of 17 acquisitions, which involved consolidation of facilities,
rationalization of product offerings and redeployment of management resources.
At times, this integration has resulted in temporary disruption of customer
relationships, production levels and managerial responsibilities. Our
continued growth will require our management to successfully address growth
issues, including:
. integration of new people and operations;
. expansion of physical capabilities and management responsibilities; and
. necessary technical, operational and administrative changes.
If we are unable to manage our growth effectively, it could have an adverse
effect on our operating results.
We are subject to changes in the number of customer orders we receive, which
could harm our operating results and cause our quarterly results to vary
significantly.
EMS providers must provide increasingly rapid product turnaround for their
customers. We generally do not obtain firm, long-term purchase commitments
from our customers and we continue to experience reduced lead-times in
customer orders. Customers may cancel, reduce or delay their orders. Order
cancellations, reductions or delays by a significant customer or by a group of
customers could harm our operating results. Furthermore, our customers and
potential customers could decide to manufacture in house the products we
offer. To be successful, we must excel in terms of service, product quality
and price not only compared to our direct competitors but also compared to our
customers' internal manufacturing capabilities.
On occasion, customers may require rapid increases in production, which can
stress our resources and reduce operating margins. Although we have increased
our manufacturing capacity and plan further increases, we may not have
sufficient capacity at any given time to meet all of our customers' demands
concurrently. In addition, because many of our costs and operating expenses
are relatively fixed, a reduction in customer demand can harm our gross
margins and operating results.
In addition, we make significant decisions, including determinations
regarding the level of business we will seek and accept, production schedules,
component procurement commitments, personnel needs and other resource
requirements based on our estimates of customer requirements. The short-term
nature of our customers' commitments and the possibility of rapid changes in
demand for their products impair our ability to estimate our future customer
requirements accurately. As a consequence of the above factors, many of which
are beyond our control, our quarterly results may vary significantly.
We depend on certain key personnel, and the loss of key personnel may harm our
business.
Our future success depends in large part on the continued service of our
key technical and management personnel and our ability to continue to attract
and retain qualified employees. The competition for these individuals is
intense, and the loss of key employees, generally none of whom is subject to
an employment agreement for a specified term, may have a material adverse
effect on us.
We may not be able to obtain necessary raw materials or components on a timely
basis or at all.
We rely on a limited number of suppliers for many components used in the
assembly process. In many cases, we do not have any long-term supply
agreements. Shortages of materials and components have occurred from
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time to time and will likely occur in the future. Raw materials or component
shortages could interrupt manufacturing, disrupt schedules and production or
result in shipping delays or increased prices, any of which could adversely
affect our ability to manufacture products for our customers on a timely basis
or at acceptable cost. Moreover, the consolidation trend in our suppliers'
industry results in changes in supply relationships and in the price,
availability and quality of components and raw materials. Due to our
utilization of certain just-in-time inventory techniques, the timely
availability of many components is dependent on our ability to both develop
accurate forecasts of customer requirements and manage the materials supply
chain. If we fail to do either, our operating results will suffer.
If we fail to establish new production facilities successfully, we may be
unable to implement our growth plan and our operating results could suffer.
We intend to grow our business by establishing additional production
facilities. We will face numerous risks in establishing, equipping and
commencing operations in any new facilities that we establish. These risks
include:
. the failure to identify and acquire or lease suitable properties;
. the potential for construction delays and overruns;
. the cost and unavailability of necessary equipment;
. the failure to hire, train and manage manufacturing personnel; and
. the potential for production delays, unfavorable manufacturing yields and
delayed delivery schedules.
We may fail to complete future acquisitions successfully and may not integrate
acquired businesses successfully, which could adversely affect our operating
results.
We have pursued a strategy that has included growth through both
acquisitions and internal growth. We cannot provide assurance that we will be
able to complete future acquisitions successfully. If we are unable to acquire
additional businesses, our growth could be inhibited. Similarly, we cannot
provide assurance that we will be able to integrate successfully the
operations and management of our recent acquisitions or future acquisitions.
Acquisitions of companies and assets involve significant risks that could have
a material adverse effect on us. These risks include:
Operating risks, such as the:
. inability to integrate successfully our acquired operations, businesses
and personnel;
. inability to realize anticipated synergies, economies of scale or other
value;
. difficulty in scaling up production and coordinating management of
operations at new sites;
. strain on our personnel, systems and resources;
. possible modification or termination of customer arrangements, including
cancellation of anticipated programs; and
. loss of key employees of acquired businesses.
Financial risks, such as the:
. unforeseen liabilities of the acquired businesses;
. incurrence of additional debt;
. dilutive effect of the issuance of additional equity securities;
. incurrence of write-offs or write-downs of acquired assets;
. amortization of goodwill or other intangible assets; and
. inability to achieve expected operating margins.
Our industry concentration may expose us to cyclical fluctuations.
Our business is highly focused in the communications and computing
industries, with approximately 60% of net sales for the year ended August 31,
2000 coming from businesses within those industries. We believe that
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serving these high-growth industries and responding to their changing needs
represent the best use of our resources, so it is unlikely that our customer
base will broaden significantly beyond these industries in the near term.
These industry segments are subject to rapid technological change and product
obsolescence. To the extent these industries experience weakened demand, our
revenues and profitability could suffer.
Because a significant portion of our sales comes from a small number of
customers, if we lose any of these customers our sales and operating results
could decline significantly.
Sales to our ten largest customers have represented a significant portion
of our net sales in recent periods. Our ten largest customers accounted for
approximately 39% of our net sales for fiscal 2000. The identities of our
principal customers have varied from year to year, and our principal customers
may not continue to purchase services from us at current levels, if at all.
Significant reductions in sales to any of these customers or the loss of major
customers could seriously harm our business. If we are not able to timely
replace expired, canceled or reduced customer contracts with new business, our
revenues will decrease.
Our international operations expose us to increased risks.
Approximately 41% of our net sales for fiscal 2000 were attributable to our
subsidiaries outside North America. Because we have broader geographic
coverage than many of our competitors, we have greater exposure to political
and economic risks. Along with the risks associated with rapid growth
discussed above, international operations pose special, additional risks,
including:
. economic or political instability;
. transportation delays or interruptions and other problems associated with
less-developed infrastructures in many countries;
. foreign exchange rate fluctuations;
. incompatibility with or inefficiencies from different systems and
equipment;
. difficulties in staffing and managing foreign personnel; and
. cultural differences.
As we continue to expand our international presence, these risks may
increase. In addition, changes in policies by the U.S. government or foreign
governments could negatively affect our operating results due to changes in
duties, tariffs, taxes or limitations on currency or fund transfers.
The price of our common stock may be volatile due to its limited trading
history and volatility in related stocks.
Our common stock has only traded publicly since July 2000. The price of our
common stock may fluctuate significantly in response to a number of events and
factors relating to our company, our competitors and the market for our
services, many of which are beyond our control, such as:
.the depth and liquidity of the market for our stock;
.quarterly variations in our operating results;
.investor perceptions of us and our business;
.developments generally affecting the EMS industry and the electronics
enclosure systems market;
.changes in financial estimates and recommendations by securities analysts;
and
.general economic and industry conditions.
In addition, the stock market in general, and the market prices for
technology companies in particular, have experienced extreme volatility that
often has been unrelated to the operating performance of these companies.
These broad market and industry fluctuations may adversely affect the market
price of our stock, regardless of our operating performance.
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We may not be able to obtain additional capital on terms satisfactory to us.
We may not be able to obtain additional capital when we want or need it, or
capital may not be available on satisfactory terms. If we issue additional
securities, it may be dilutive to your ownership interest. Furthermore, any
additional financing and capital may include terms and conditions that could
adversely affect our business, such as restrictive financial or operating
covenants.
The extent of tax benefits available to us by virtue of our status as a
Bermuda company is uncertain.
We believe that a significant portion of the income derived from our non-
U.S. operations will not be subject to tax, either by Bermuda, which currently
does not have a corporate income tax, or by the United States or other
countries in which we conduct other activities or in which our customers are
located. We will be subject to a 2.5% income tax in Barbados on certain
income. We base these beliefs on:
. the anticipated nature and conduct of our business, which may change; and
. our understanding of our position under the tax laws of the various
countries in which we have assets or conduct activities, which position
is subject to review and possible challenge by taxing authorities and to
possible changes in law, which may have retroactive effects.
We cannot predict the amount of tax to which we may become subject and
cannot be certain that any of these factors would not have a material adverse
effect on our business, financial condition and results of operations. Our
shareholders might also become subject to special tax rules applicable to
foreign companies.
Currency exchange rate fluctuations may lead to decreases in our financial
results.
To the extent that we incur costs in one currency and make our sales in
another our profit margins may be affected by changes in the exchange rates
between the two currencies, primarily as a result of currency translation.
Most of our sales have historically been made in U.S. dollars and in European
currencies. We generally try to match the currencies of our sales with those
of our expenses. Volatility in currency exchange rates may generate losses
which could have a material adverse effect on our financial condition or
results of operations.
We have certain indemnification obligations to Applied Power Inc., and may not
be able to collect on indemnification rights from Applied Power Inc.
APW Ltd. is a company spun-off by Applied Power Inc. to its shareholders in
July 2000. Under the terms of the agreements giving rise to the spin-off, APW
Ltd. and Applied Power Inc. each agreed to indemnify the other (and certain
related parties) from and after the distribution with respect to certain
indebtedness, liabilities and obligations. These indemnification obligations
could be significant. The availability of these indemnities will depend upon
the future financial strength of each of the companies. We cannot determine
whether we will have substantial indemnification obligations to Applied Power
Inc. after the distribution. We also cannot provide assurance that, if Applied
Power Inc. incurs substantial indemnification obligations to us, Applied Power
Inc. will have the ability to satisfy those obligations.
We also agreed to indemnify Applied Power Inc. against certain tax
liabilities arising from the reorganization leading up to the spin-off. The
reorganization, including the merger and continuation of APW Ltd. as a Bermuda
company, involve taxable transactions. Based on estimates prepared by
PricewaterhouseCoopers LLP of the fair market value of the affected assets,
APW Ltd. believes the federal and state income tax cost resulting from these
transactions to be approximately $40 million. Under a tax sharing agreement we
entered into with Applied Power Inc., APW Ltd. will be responsible for federal
and state income taxes resulting from the reorganization transactions. As a
result, we will bear the risk of any audit adjustments by the IRS or other
taxing authorities challenging the reporting of the reorganization
transactions, including the valuations of the affected assets.
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Provisions of our charter documents and aspects of Bermuda law could be
disadvantageous to shareholders.
Our charter documents and bye-laws contain anti-takeover provisions that
could have the effect of delaying or preventing changes in control that a
shareholder may consider favorable. These provisions include:
. provisions under our Rights Agreement;
. provisions establishing a classified board of directors with three-year
staggered terms and removal only for cause;
. provisions allowing our board of directors the ability to issue shares of
preferred stock and to determine the price and other terms, including
preferences and voting rights, of those shares without shareholder
approval; and
. provisions establishing supermajority voting requirements to approve
extraordinary transactions or to amend our charter documents, including
the requirement of board of director approval to amend our bye-laws.
Other provisions in our charter documents or aspects of Bermuda law that
could be disadvantageous to shareholders include:
. shareholders may not be able to obtain jurisdiction over us outside
Bermuda, so some remedies, such as class action lawsuits under United
States federal law, might not be available to our shareholders; and
. the right to bring a derivative action in the name of a company for a
wrong to the company committed by present or former directors of the
company is generally more limited under Bermuda law than under U.S. law.
Environmental laws and regulations may result in additional costs.
We have been identified by environmental regulators as a potentially
responsible party regarding remediation of several multi-party waste sites and
are subject to other environmental requirements. Liability as a responsible
party is strict and under certain circumstances the party could be held liable
for all clean-up costs at a contaminated site. We believe that we are at most
a minor participant in multi-party sites, and that any environmental liability
which we may incur for known matters and environmental compliance will not
have a material effect on our financial position. Nevertheless, we cannot
guarantee that our costs relating to such matters will not be greater than we
currently expect or that additional remediation and compliance obligations
that require us to make material expenditures will not arise.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You can read and copy
any materials we file with the Securities and Exchange Commission at its
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549 and at
its regional offices located at Seven World Trade Center, New York, New York
10048 and at 500 West Madison Street, Chicago, Illinois 60661. You can obtain
information about the operations of the Securities and Exchange Commission
Public Reference Room by calling the Securities and Exchange Commission at 1-
800-SEC-0330. The Securities and Exchange Commission also maintains a Web site
that contains information we file with the Securities and Exchange Commission,
which you can access on the Internet at www.sec.gov. Our common stock is
listed on the New York Stock Exchange under the symbol "APW," and you can
obtain information about us at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
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This prospectus is part of a registration statement we have filed with the
Securities and Exchange Commission relating to the securities. As permitted by
Securities and Exchange Commission rules, this prospectus does not contain all
of the information we have included in the registration statement and the
accompanying exhibits we filed with the Securities and Exchange Commission.
You may refer to the registration statement and the exhibits for more
information about us and the securities. The registration statement and the
exhibits are available at the Securities and Exchange Commission's Public
Reference Room or on its Web site.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information we incorporate by reference is an important part of this
prospectus, and later information that we file with the Securities and
Exchange Commission will automatically update and supersede some of the
information in this prospectus, prospectus supplement or included and
incorporated by reference. We incorporate by reference the documents listed
below, and any future filings we make with the Securities and Exchange
Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 until we sell all the securities. The documents we incorporate by
reference are:
. our report on Form 10-Q for the quarterly period ended May 31, 2000;
. the financial information and the description of our common stock
contained in our Form 10 registration statement dated May 1, 2000 (as
amended on June 20, 2000 and July 11, 2000), filed with the Securities
and Exchange Commission; and
. the description of our preferred stock purchase rights contained in our
Form 8-A registration statement filed with the Securities and Exchange
Commission.
You may request a copy of these filings, other than an exhibit to the
filings unless we have specifically incorporated that exhibit by reference
into the filing, at no cost, by writing or telephoning us at the following
address:
Ms. Susan Hrobar
APW Ltd.
N22 W23685 Ridgeview Parkway West
Waukesha, WI 53188
(262) 523-7600
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement.
We are only offering these securities in states where the offer is permitted.
You should not assume that the information in this prospectus or any
supplement is accurate as of any date other than the date on the front of
those documents.
USE OF PROCEEDS
Except as otherwise described in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities for one or more
of the following purposes:
. to repay, in part, existing indebtedness (and, in general, to reduce our
financial leverage);
. to finance capital expenditures and capacity expansion;
. to finance, in part, the cost of further acquisitions; and
. for general corporate purposes.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the years ended August 31, 1995, 1996, 1997, 1998 and 1999, and the nine
months ended May 31, 2000.
<TABLE>
<CAPTION>
Years Ended August 31,
------------------------- Nine Months Ended
1995 1996 1997 1998 1999 May 31, 2000
----- ---- ---- ---- ---- -----------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.......... 30.0x 9.0x 5.8x 2.8x 1.5x 1.7x
</TABLE>
--------
For purposes of computing the ratio of earnings to fixed charges, earnings
consist of income before income taxes, cumulative effect of change in
accounting methods, discontinued operations, extraordinary items, and fixed
charges. Fixed charges consist of interest on indebtedness, amortization of
debt expenses and one-third of rent expense which is deemed representative of
an interest factor.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities in one or more series under an Indenture (the
"Indenture") between us and Bank One Trust Company, N.A., as Trustee. The
Indenture will be subject to, and governed by, the Trust Indenture Act of
1939, as amended.
The following summary of certain provisions of the Indenture does not
purport to be complete and is qualified in its entirety by express reference
to the Indenture. Capitalized terms used in this section without definition
have the meanings given such terms in the Indenture.
Furthermore, the particular terms of the debt securities offered by a
prospectus supplement will be described in that supplement, along with any
applicable modifications of or additions to the general terms of the debt
securities as described herein and in the Indenture, and will be pursuant to
the Securities Resolution or the indenture supplement authorizing such series.
Accordingly, for a description of the terms of any series of debt securities,
reference must be made to both the description of the debt securities in this
prospectus and the prospectus supplement. The indenture has been filed as an
exhibit to the registration statement, and any Securities Resolution
authorizing a series will be filed with the SEC in connection with such
offering.
General
The Indenture does not limit the amount of debt securities that can be
issued or our ability or that of our subsidiaries to incur, assure or
guarantee debt. Also, the Indenture does not restrict our ability or that of
our subsidiaries to create or permit liens. It provides that the debt
securities may be issued from time to time in one or more series pursuant to
the terms of one or more securities resolutions or supplemental indentures
creating the series. Although the indenture provides for the possible issuance
of debt securities in other forms or currencies, the only debt securities
offered hereunder will be debt securities denominated in U.S. dollars in
registered form without coupons unless otherwise indicated in the applicable
prospectus supplement.
As of the date of this prospectus, there were no debt securities
outstanding under the Indenture. The ranking of a series of debt securities
with respect to all our indebtedness will be established by the Securities
Resolution or supplemental indenture creating the series.
Terms
Reference is made to the prospectus supplement for the following terms, if
applicable, of the debt securities offered thereby:
. the designation, aggregate principal amount, currency or composite
currency in which principal or interest may be paid and denominations;
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. the price at which such debt securities will be issued and, if an index
formula or other method is used, the method for determining amounts of
principal or interest;
. the maturity date and other dates, if any, on which principal will be
payable;
. the interest rate or rates, if any, or method of calculating the interest
rate or rates;
. the date or dates from which interest will accrue and on which interest
will be payable, and the record dates for the payment of interest;
. the manner of paying principal and interest;
. the place or places where principal and interest will be payable;
. the terms of any mandatory or optional redemption by us including any
sinking fund;
. the terms of any conversion or exchange right;
. the terms of any redemption at the option of holders;
. any tax indemnity provisions;
. if the debt securities provide that payments of principal or interest may
be made in a currency other than that in which debt securities are
denominated, the manner for determining such payments;
. the portion of principal payable upon acceleration of a discounted debt
security (as defined below);
. whether and upon what terms debt securities may be defeased;
. whether any events of default or covenants in addition to or in lieu of
those set forth in the Indenture apply;
. provisions for electronic issuance of debt securities or for debt
securities in uncertificated form;
. the ranking of the debt securities; and
. any other terms not inconsistent with the provisions of the Indenture,
including any covenants or other terms that may be required or advisable.
We may issue debt securities as registered debt securities, bearer debt
securities or uncertificated debt securities, and in such denominations as
specified in the terms of the series.
In connection with its original issuance, no bearer debt security will be
offered, sold or delivered to any location in the United States, and a bearer
debt security in definitive form may be delivered in connection with its
original issuance only upon presentation of a certificate in a form prescribed
by us to comply with United States laws and regulations.
Registration of transfer of registered debt securities may be requested
upon surrender thereof at any office or agency we maintain for that purpose
and upon fulfillment of all other requirements of the agent.
Securities may be issued under the Indenture as discounted debt securities
to be offered and sold at a substantial discount from the principal amount
thereof. Special United States federal income tax and other considerations
applicable thereto will be described in the prospectus supplement relating to
any discounted debt securities. "Discounted debt security" means a security
where the amount of principal due upon acceleration is less than the stated
principal amount payable at maturity.
Covenants
Any covenants that may apply to a particular series of debt securities will
be described in the prospectus supplement relating thereto.
Ranking of Debt Securities
Unless stated otherwise in a prospectus supplement, the debt securities
will be unsecured and will rank equally and ratably with our other unsecured
and unsubordinated debt. The debt securities will not be secured by
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our properties or assets and will represent unsecured debt. The Indenture does
not limit the ability of any of our subsidiaries to issue, assume or guarantee
debt, and the debt securities will be effectively subordinated to all existing
and future indebtedness and other liabilities and commitments of our
subsidiaries.
Successor Obligor
The Indenture provides that, unless otherwise specified in the Securities
Resolution establishing a series of debt securities, we shall not consolidate
with or merge into, or transfer all or substantially all of our assets to, any
person in any transaction in which we are not the survivor, unless:
. the person is organized under the laws of the United States or a State
thereof or is organized under the laws of a foreign jurisdiction and
consents to the jurisdiction of the courts of the United States or a
State thereof;
. the person assumes by supplemental indenture all of our obligations under
the Indenture, the debt securities and any coupons;
. all required approvals of any regulatory body having jurisdiction over
the transaction shall have been obtained; and
. immediately after the transaction no default (as defined below) exists.
The successor shall be substituted for us, and thereafter all of our
obligations under the Indenture, the debt securities and any coupons shall
terminate.
Exchange of Debt Securities
Registered debt securities may be exchanged for an equal aggregate
principal amount of registered debt securities of the same series and date of
maturity in such authorized denominations as may be requested upon surrender
of the registered debt securities at an office or agency we maintain for that
purpose and upon fulfillment of all other requirements of our agent.
Default and Remedies
Unless the Securities Resolution establishing the series otherwise provides
(in which event the prospectus supplement will so state), an "event of
default" with respect to a series of debt securities will occur if:
. we default in any payment of interest on any debt securities of that
series when the same becomes due and payable and the default continues
for a period of 30 days;
. we default in the payment of the principal and premium, if any, of any
debt securities of the series when the same becomes due and payable at
maturity or upon redemption, acceleration or otherwise;
. we default in the payment or satisfaction of any sinking fund obligation
with respect to any debt securities of that series as required by the
Securities Resolution establishing that series;
. we default in the performance of any of our other agreements applicable
to the series and the default continues for 60 days after the notice
specified below;
. pursuant to or within the meaning of any Bankruptcy Law (as defined
below), we:
(A)commence a voluntary case;
(B)consent to the entry of an order for relief against us in an
involuntary case;
(C)consent to the appointment of a Custodian for us or for all or
substantially all of our property;
(D)make a general assignment for the benefit of our creditors;
. a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A)is for relief against us in an involuntary case;
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(B)appoints a Custodian for us or for all or substantially all of our
property;
(C)orders our liquidation, and the order or decree remains unstayed and
in effect for 60 days; or
. there occurs any other event of default provided for in such series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
would be, an event of default. A default is not an event of default until the
Trustee or the holders of at least 25% in principal amount of the series
notify us of the default and we do not cure the default within the time
specified after receipt of the notice. If an event of default occurs and is
continuing on a series, the Trustee by notice to us, or the holders of at
least 25% in principal amount of the series, may declare the principal of and
accrued interest on all the debt securities of the series to be due and
payable immediately. Discounted debt securities may provide that the amount of
principal due upon acceleration is less than the stated principal amount. The
holders of a majority in principal amount of the series, by notice to the
Trustee, may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing events of
default on the series have been cured or waived except nonpayment of principal
or interest that has become due solely because of the acceleration. If an
event of default occurs and is continuing on a series, the Trustee may pursue
any available remedy to collect principal or interest then due on the series,
to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the Trustee and holders of the series.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the debt securities of the series. Subject to certain
limitations, holders of a majority in principal amount of the debt securities
of the series may direct the Trustee in its exercise of any trust or power
with respect to such series. Except in the case of default in payment on a
series, the Trustee may withhold from holders of that series notice of any
continuing default if it determines that withholding the notice is in the
interest of holders of the series. We are required to furnish the Trustee
annually a brief certificate as to our compliance with all conditions and
covenants under the Indenture.
The Indenture does not have a cross-default provision. Thus, a default by
us on any other debt, including any other series of debt securities, would not
constitute an event of default. A Securities Resolution may provide for a
cross-default provision, in which case the prospectus supplement will describe
the terms of that provision.
Amendments and Waivers
The Indenture and the debt securities or any coupons of the series may be
amended, and any default may be waived as follows: Unless the Securities
Resolution otherwise provides (in which event the prospectus supplement will
so state), we and the Trustee may amend the debt securities, the Indenture and
any coupons with the written consent of the holders of a majority in principal
amount of the debt securities of all series affected voting as one class.
Unless the Securities Resolution otherwise provides (in which event the
prospectus supplement will so state), a default on a particular series may be
waived with the consent of the holders of a majority in principal amount of
the debt securities of the series. However, without the consent of each debt
security holder affected, no amendment or waiver may:
. reduce the amount of debt securities whose holders must consent to an
amendment or waiver;
. reduce the interest on or change the time for payment of interest on any
debt security;
. change the fixed maturity of any debt security;
. reduce the principal of any non-discounted debt security or reduce the
amount of the principal of any discounted debt security that would be due
on acceleration thereof;
. change the currency in which the principal of or interest on a debt
security is payable;
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. make any change that materially adversely affects the right to convert or
exchange any debt security; or
. waive any default in payment of interest on or principal of a debt
security.
Without the consent of any debt security holder, we and the Trustee may
amend the Indenture, the debt securities or any coupons to:
. cure any ambiguity, omission, defect, or inconsistency;
. provide for assumption of our obligations to debt security holders in the
event of a merger or consolidation requiring such assumption;
. provide that specific provisions of the Indenture shall not apply to a
series of debt securities not previously issued;
. create a series and establish its terms;
. provide for a separate Trustee for one or more series; or
. make any change that does not materially adversely affect the rights of
any debt security holder.
Legal Defeasance and Covenant Defeasance
Debt securities of a series may be defeased in accordance with their terms
and, unless the Securities Resolution establishing the terms of the series
otherwise provides, as set forth in the Indenture and described briefly below.
We, at any time, may terminate as to a series all of our obligations (except
certain obligations, including obligations with respect to the defeasance
trust and obligations to register the transfer or exchange of a Security, to
replace destroyed, lost or stolen debt securities and coupons, and to maintain
paying agencies in respect of the debt securities) with respect to the debt
securities of the series and any related coupons and the Indenture ("legal
defeasance"). We, at any time, may terminate as to a series our obligations,
if any, with respect to the debt securities and coupons of the series under
any restrictive covenants which may be applicable to a particular series
("covenant defeasance").
We may exercise our legal defeasance option notwithstanding our prior
exercise of our covenant defeasance option. If we exercise our legal
defeasance option, a series may not be accelerated because of an event of
default. If we exercise our covenant defeasance option, a series may not be
accelerated by reference to any restrictive covenants which may be applicable
to the particular series.
To exercise either defeasance option as to a series, we must:
. irrevocably deposit in trust (the "defeasance trust") with the Trustee or
another trustee money or U.S. government obligations;
. deliver a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal and
interest when due on the deposited U.S. government obligations, without
reinvestment, plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay the
principal and interest when due on all debt securities of the series to
maturity or redemption, as the case may be; and
. comply with other specified conditions; in particular, we must obtain an
opinion of tax counsel that the defeasance will not result in recognition
of any gain or loss to holders for federal income tax purposes.
"U.S. government obligations" means direct obligations of the United States
or an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed by the United States, which, in either case, have
the full faith and credit of the United States of America pledged for payment
and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
Regarding the Trustee
Bank One Trust Company, N.A. will act as Trustee and registrar for debt
securities issued under the Indenture and, unless otherwise indicated in a
prospectus supplement, the Trustee will also act as transfer agent
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and paying agent with respect to the debt securities. We may remove the
Trustee with or without cause if we so notify the Trustee three months in
advance and if we are not in default during the three-month period. The
Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for us or our affiliates, and may
otherwise deal with us or our affiliates, as if it were not Trustee.
DESCRIPTION OF APW LTD. CAPITAL STOCK
The following summary is a description of the material terms of our common
stock. Because this is a summary, it may not contain all of the information
that is important to you. It is subject in all respects to the applicable
provisions of Bermuda law and of our constituent documents.
Authorized Capital Stock
Under our memorandum of association, our authorized share capital is
$3,000,000, divided into:
. 250,000,000 shares of common stock, par value $0.01 per share; and
. 50,000,000 shares of preferred stock, par value $0.01 per share, of which
1,000,000 shares are designated as Series A Junior Participating
Preferred Stock in connection with our Rights Agreement.
Common Stock
As of September 28, 2000, we had 39,210,475 shares of common stock
outstanding held by 2,557 holders of record.
Voting Restrictions. Each share of our common stock generally is entitled
to one vote on all matters properly coming before the shareholders. However,
our bye-laws include provisions that limit the voting rights of certain
persons (defined to involve certain groups).
Pursuant to our bye-laws, the voting power of shares in the election of
directors held by a person in excess of 20% of such voting power is limited to
10% of the full voting power of the shares in excess of 20%, unless our
shareholders, by a two-thirds vote, approve full restoration of the voting
power of the shares at a shareholders meeting. This restriction does not apply
to shares acquired directly from us or in certain specified transactions.
Amendments to the voting reallocation and transfer restriction provisions
of our bye-laws require both the approval of our board of directors and
approval of shareholders holding at least 75% of the votes of all outstanding
shares of common stock.
These voting and transfer restrictions could make it difficult for any
person or group of persons acting in concert, other than some existing owners,
to acquire control of APW Ltd.
Distributions. Holders of common stock are treated equally with respect to
all distributions to our shareholders.
Preferred Stock
As noted above, we have authorized 50,000,000 shares of preferred stock,
par value $0.01 per share. Currently, we have no shares of preferred stock
issued and outstanding and the only preferred stock authorized to be issued is
in connection with the rights plan discussed below.
Our board of directors is authorized to:
. issue shares of preferred stock in one or more series;
. establish the number of shares in each series; and
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. fix the designations, powers, preferences and rights of each series and
the qualifications, limitations or restrictions of each series.
Each time that we issue a new series of preferred stock, we will file with
the SEC a definitive certificate of designations of the preferred stock. In
addition, we will specify the particular amount, price and other terms of that
new series. These terms will include:
. the designation of the title of the series;
. dividend rates;
. redemption provisions, if any;
. special or relative rights in the event of liquidation, dissolution,
distribution or winding up of APW Ltd.;
. sinking fund provisions, if any;
. whether the preferred stock will be convertible into our common stock or
any other of our securities or exchangeable for securities of any other
person;
. voting rights, if any; and
. any other preferences, privileges, powers, rights, qualifications,
limitations and restrictions, not inconsistent with our bye-laws.
The shares of any series of preferred stock will be, when issued, fully
paid and non-assessable. The holders of the preferred stock will not have
preemptive rights.
Ranking. Each new series of preferred stock will rank with respect to each
other series of our preferred stock as specified in the certificate of
designation relating to that new series of preferred stock.
Dividends. Holders of each new series of preferred stock will be entitled
to receive cash dividends or dividends in kind, if declared by our board of
directors out of funds legally available for dividends. For each series of
preferred stock, we will specify:
. the dividend rate;
. whether the dividend rate will be fixed or variable or both;
. the dates of distribution of the cash dividends; and
. whether the dividends on any series of preferred stock will be cumulative
or non-cumulative.
Conversion and Exchange of Preferred Stock. We will determine the terms and
other provisions, if any, on which shares of the new series of preferred stock
are convertible into shares of our common stock.
Redemption. We will determine for each new series of preferred stock:
. whether that new series will be redeemable at any time, in whole or in
part, at our option or at the option of the holder of the shares of
preferred stock;
. whether that new series will be subject to mandatory redemption under a
sinking fund or on other terms; and
. whether to have redemption prices.
Liquidation Preference. Upon our voluntary or involuntary liquidation,
dissolution or winding up, holders of each series of preferred stock will be
entitled to receive:
. distributions upon liquidation in the amount provided in the certificate
of designation of that series of preferred stock; plus
. any accrued and unpaid dividends.
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These payments will be made to holders of preferred stock out of our assets
available for distribution to shareholders before any distribution is made on
any securities ranking junior to the preferred stock regarding liquidation
rights.
After payment of the full amount of the liquidation preference to which
they are entitled, the holders of each series of preferred stock will not be
entitled to any further participation in any distribution of our assets.
Voting Rights. The holders of shares of any series of preferred stock will
have no voting rights except as indicated in the certificate of designation
relating to that series or as required by law.
Transfer Agent and Registrar. We will determine the transfer agent,
registrar, dividend disbursing agent and redemption agent for shares of each
new series of preferred stock.
Summary of Rights Plan
Our board of directors declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of common stock at its July 17,
2000 meeting. Each Right entitles the registered holder to purchase from APW
Ltd. one one-ten thousandth of a share of Series A Junior Participating
Preferred Stock, par value $1.00 per share (the "Preferred Shares"), of APW
Ltd. at a price to be determined (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between APW Ltd. and Firstar Bank, N.A., as
Rights Agent (the "Rights Agent").
Triggering Events. Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or associated persons
(subject to certain exceptions) (an "Acquiring Person") has acquired
beneficial ownership of 15% or more of the outstanding common stock or (ii) 10
business days (or such later date as may be determined by action of the board
of directors prior to such time as any Person becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of the outstanding
common stock (the earlier of such dates being called the "Rights Distribution
Date"), the Rights will be evidenced, with respect to any of the common stock
certificates outstanding as of the Record Date, by the common stock
certificates.
The Rights Agreement provides that, until the Rights Distribution Date, the
Rights will be transferred only with the common stock. Until the Rights
Distribution Date (or earlier redemption or expiration of the Rights), new
common share certificates issued after the Record Date, upon transfer or new
issuance of common stock, will contain a notation incorporating the Rights
Agreement by reference. Until the Rights Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for common stock, outstanding, even without such notation or a
copy of the Summary of Rights Plan being attached thereto, will also
constitute the transfer of the Rights associated with the common stock
represented by the certificate.
The Rights are not exercisable until the Rights Distribution Date. The
Rights expire on July 17, 2010 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by APW
Ltd., in each case, as described below.
Adjustment Provisions. The $225.00 Purchase Price payable, and the number
of Preferred Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent dilution (1)
in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (2) upon the grant to holders of
the Preferred Shares of certain rights or warrants to subscribe for or
purchase Preferred Shares at a price, or securities convertible into Preferred
Shares with a conversion price, less than the then current market price of the
Preferred Shares or (3) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends payable in
Preferred Shares) or of subscription rights or warrants (other than those
referred to above).
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With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% of
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-ten thousands of a Preferred
Share, which may, at the election of APW Ltd., be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a Shareholder of APW Ltd., including, without limitation, the right
to vote or to receive dividends.
Flip-Over Provision. In the event that (1) any person becomes an Acquiring
Person or (2) during any time that there is an Acquiring Person, there shall
be a reclassification of securities or a recapitalization or reorganization of
APW Ltd. or other transaction or series of transactions involving APW Ltd.
which has the effect of increasing by more than 1% the proportionate share of
the outstanding shares of any class of equity securities of APW Ltd. or any of
its subsidiaries beneficially owned by the Acquiring Person, proper provision
shall be made so that each holder of a Right, other than Rights beneficially
owned by the Acquiring Person (which will thereafter be void), will thereafter
have the right to receive upon exercise that number of shares of common stock
having a market value of two times the exercise price of the Right. In the
event that, after a person or a group has become an Acquiring Person, APW Ltd.
is acquired in a merger or other business combination transaction or 50% or
more of its consolidated assets or earning power are sold or transferred
(subject to certain exceptions), proper provision will be made so that each
holder of a Right will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of shares
of common stock of the acquiring company which at the time of the transaction
will have a market value of two times the exercise price of the Right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
common stock and prior to the acquisition by such person or group of 50% or
more of the outstanding common stock, the board of directors of APW Ltd. may
exchange the Rights (other than Rights owned by such person or group which
have become void), in whole or in part, at an exchange ratio of one common
share per Right (subject to adjustment).
Redemption Provisions. At any time prior to the acquisition by a person or
group of affiliated or associated persons of beneficial ownership of 15% or
more of the outstanding common stock, the board of directors of APW Ltd. may
redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(the "Redemption Price"). The redemption of the Rights may be made effective
at such time on such basis and with such conditions as the board of directors
in its sole discretion may establish. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
Amendment Provisions. The terms of the Rights may be amended by the board
of directors of APW Ltd. without the consent of the holders of the Rights,
including an amendment to lower certain thresholds described above to not less
than the greater of (1) the sum of .001% and the largest percentage of the
outstanding common stock then known to APW Ltd. to be beneficially owned by
any person or group of affiliated or associated persons, and (2) 10%. In
addition the board may modify the Expiration Date, except that from and after
such time as any person or group of affiliated or associated persons becomes
an Acquiring Person no such amendment may adversely affect the interests of
the holders of the Rights.
Transfer Agent
Our transfer agent for our common and preferred stock is Firstar Bank N.A.
SHAREHOLDER RIGHTS UNDER BERMUDA LAW
APW Ltd. is a company continued under the laws of Bermuda. The following is
a summary of some significant aspects of Bermuda law applicable to APW Ltd.
both through the Companies Act of 1981 (the statute
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that governs Bermuda companies) as well as the APW Ltd. memorandum of
association and bye-laws. This is not a complete summary; it is qualified by
the full text of the Companies Act 1981, our memorandum of association and our
bye-laws.
Bermuda law permits a company's board of directors to be divided into
classes with staggered terms of office. Our bye-laws provide for three classes
of directors with staggered terms, and mandate that we have not less than
three directors. Our bye-laws provide that shareholders holding not less than
one-tenth of the paid up share capital of APW Ltd. carrying the right to vote
at general meetings may convene a special general meeting to consider removal
of a director for cause. Notice of the meeting must be given to the director
not less than 90 days before the meeting, and the director is entitled to be
heard at the meeting. A director is removed if the motion receives the
affirmative vote of the holders of at least 75% of the votes cast at the
meeting. Any vacancy created by the removal of a director at a special meeting
may be filled at the meeting by the election of another director or, in the
absence of an election, by the board of directors.
Bermuda law requires that an annual general meeting be held once every
calendar year. A special general meeting of shareholders may be convened by a
majority of the directors or chairman at any time and must be convened upon
the request of shareholders holding not less than one-tenth of the paid up
share capital of APW Ltd. carrying the right to vote at general meetings.
Bermuda law permits action by written consent of shareholders, except for
the purpose of removing an auditor or director before the expiration of his or
her term of office. A written resolution must be signed by all shareholders
entitled to attend and vote at a meeting. In addition, our bye-laws provide
that, unless a greater percentage is required by the Companies Act 1981 or by
a specific bye-law provision, any matter proposed for consideration at any
general meeting requires the affirmative vote of a majority of votes that may
be cast by all shareholders to be approved.
Bermuda law permits an amalgamation between two or more Bermuda exempted
companies or between one or more Bermuda exempted companies and one or more
foreign corporations subject, unless the bye-laws otherwise provide, to
obtaining a majority vote of the shareholders of each company present and
voting in person or by proxy at a meeting called for that purpose at which the
quorum shall be two or more persons present in person and representing in
person or by proxy in excess of 50% of the issued shares. Short form
amalgamations are permitted between a holding company and one or more of its
wholly owned subsidiary companies or between two or more wholly owned
subsidiary companies of the same holding company subject to approval of the
amalgamation by a resolution of the directors of each amalgamating company.
Our bye-laws provide that a director may be a party to, or otherwise
interested in, any transaction or arrangement with us or in which we are
otherwise interested except that a director or director's firm, partner or
such company cannot act as auditor of APW Ltd. So long as the director
declares the nature of his or her interest in writing as required by the bye-
laws and the Companies Act 1981, he or she will not be accountable to us for
any benefit which he or she derives from a similar transaction or arrangement.
For the purposes of the bye-laws, a director is deemed to have an interest in
a transaction or arrangement with us if he or she is the holder of or is
beneficially interested in 5% or more of any class of stock of a company with
which we are proposing to enter into a transaction or arrangement.
Bermuda law does not contain any business combination or antitakeover
provisions, but our bye-laws contain provisions providing that voting rights
of a person (including two or more persons acting as a group) will be limited
to 10% of the full voting power in excess of 20% of the outstanding voting
power. A person holding 20% or more of the shares may request a meeting of the
shareholders to approve restoration of full voting power. Under our bye-laws,
a shareholder must own 20% of the shares to call for a shareholder meeting.
Bermuda law generally does not make class actions and derivative actions
available to shareholders under the laws of Bermuda. The Bermuda courts,
however, would ordinarily be expected to permit a shareholder to begin an
action in our name to remedy a wrong done to us:
. where the act complained of is alleged to be beyond the corporate power
of APW Ltd. or illegal or would result in a violation of APW Ltd.'s
memorandum of association or bye-laws;
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. where the act complained of is alleged to constitute a fraud against the
minority shareholders; or
. where an act requires approval by a greater percentage of our
shareholders than actually approved it.
Section 111 of the Companies Act also provides a statutory remedy which
allows a shareholder to seek redress of the court as long as he or she can
establish that the company's affairs are being conducted, or have been
conducted, in a manner oppressive or prejudicial to the interests of some of
the shareholders, including himself.
Bermuda law permits a dissenting shareholder of a company participating in
an amalgamation, other than an amalgamation between a company and its wholly
owned subsidiary or between two or more wholly owned subsidiaries of the same
holding company, in specified circumstances, to receive cash or other
consideration in the amount of the fair value of the shareholder's shares as
determined by a court, instead of the consideration he or she would otherwise
receive in the amalgamation.
Our bye-laws provide that the board of directors may from time to time
declare dividends or distributions out of contributed surplus to be paid to
the shareholders according to their rights and interests, including any
interim dividends that appear to the board of directors to be justified. The
board of directors must be satisfied on reasonable grounds that at the time
when the dividends are declared and at the time when the dividends are paid,
we are, and would after the payment be, able to pay our debts as they fall due
and that the realizable value of our assets would not be less than the
aggregate of our liabilities and our issued share capital and share premium
accounts.
Our bye-laws contain restrictions on voting shares if a holder owns more
than a specified percentage of the voting power. There is no provision for
cumulative voting.
Bermuda law does not require that preemptive rights be provided for in a
company's bye-laws. Preemptive rights may exist by contractual arrangement or
pursuant to the terms of issuance of the shares. Our bye-laws do not contain
any provision concerning preemptive rights, nor have we entered into any
agreement or arrangement granting preemptive rights.
Bermuda law requires that amendments to the memorandum of association or
bye-laws of a Bermuda company must be submitted to a general meeting of the
shareholders and will be effective only to the extent approved by the
shareholders at that meeting and, in respect of certain amendments to a
company's memorandum of association, by the Bermuda Minister of Finance. Our
bye-laws provide that the bye-laws may be amended by resolution of a majority
of not less than 75% of the votes cast.
Bermuda law provides the public with a right of inspection of a Bermuda
company's public documents at the office of the Registrar of Companies in
Bermuda and provides a Bermuda company's shareholders with a right of
inspection of the company's bye-laws, minutes of general shareholder meetings
and audited financial statements. The register of shareholders is also open to
inspection by shareholders free of charge and, upon payment of a small fee, by
any other person. A Bermuda company is required to maintain its share register
in Bermuda, but if it is a public company, it may establish a branch register
outside Bermuda. A Bermuda company is required to keep at its registered
office a register of its directors and officers which is open for inspection
by members of the public without charge. Bermuda law does not, however,
provide a general right for shareholders to inspect or obtain copies of any
other corporate records.
Our bye-laws provide that we will be entitled to repurchase our own shares
in accordance with the Companies Act 1981. Under the Companies Act, we may
repurchase shares provided: (1) the repurchase does not result in the issued
share capital of APW Ltd. being below the minimum specified in its memorandum
(or 1,200,000 shares in our case) and (2) we are solvent at the time of
purchase.
Under Bermuda statutory provisions applicable to us, subject to the prior
rights and preferences of any issued and outstanding shares of preferred
stock, dividends as may be determined by our board of directors may
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be declared and paid on our common stock from time to time out of any funds
legally available therefor. In the event of a liquidation, dissolution or
winding up, the holders of common stock are entitled to share equally and
ratably in the corporate assets, if any, remaining after the payment of all
debts and liabilities, subject to the prior rights of the holders of any
authorized series of preferred stock. We have no provision imposing personal
liability on shareholders who have paid their share subscriptions in full.
As of the date of this prospectus, there is no Bermuda income, corporation,
or profits tax, withholding tax, capital gains tax, capital transfer tax,
estate duty or inheritance tax payable by us or our shareholders, other than
shareholders ordinarily resident in Bermuda. We are not subject to stamp duty
on the issue, transfer or redemption of our shares.
We have applied for and have received from the Minister of Finance of
Bermuda under the Exempted Undertakings Tax Protection Act 1966 an assurance
that, in the event of there being enacted in Bermuda any legislation imposing
tax computed on profits or income, or computed on any capital assets, gain or
appreciation or any tax in the nature of estate duty or inheritance tax, such
tax shall not until March 28, 2016 be applicable to us or to any of our
operations, or to our shares, debentures or other obligations except in so far
as such tax applies to persons ordinarily resident in Bermuda and holding such
shares, debentures or other obligations or any land leased or let to us.
As an exempted company, we are liable to pay in Bermuda a registration fee
based upon our authorised share capital and the premium on our issued shares
at a rate not exceeding US$27,825 per annum.
BOOK-ENTRY
The Depository Trust Company ("DTC") may act as securities depository for
the securities, in which case the applicable prospectus supplement will so
provide. The securities will be issued only as fully registered securities
registered in the name of Cede & Co. (DTC's partnership nominee). One or more
fully registered global certificates will be issued for the securities
representing the aggregate principal amount of the debt securities or the
number of shares of common stock offered by the applicable prospectus
supplement and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the 1934 Act, as
amended. DTC holds securities that its participants (the "Direct
Participants") deposit with DTC. DTC also facilitates the settlement among
Direct Participants of securities transactions, such as transfers and pledges,
in deposited securities through electronic computerized book-entry changes in
Direct Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and
certain other organizations. DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to the DTC system is also available to others such as securities
brokers and dealers, banks, and trust companies that clear through or maintain
a custodial relationship with a Direct Participant, either directly or
indirectly (the "Indirect Participants," and together with the Direct
Participants, the "Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of the securities within the DTC system must be made by or
through Direct Participants which will receive a credit for the securities on
DTC's records. The ownership interest of each actual purchaser of each
security (a "beneficial owner") will in turn be recorded on the Direct and
Indirect Participants' respective records. Beneficial owners will not receive
written confirmation from DTC of their purchase, but beneficial owners are
expected to receive written confirmations providing details of the
transaction, as well as periodic
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statements of their holdings, from the Direct or Indirect Participant through
which the beneficial owner entered into the transaction. Transfers of
ownership interest in the securities will be effected by entries made on the
books of Participants acting on behalf of beneficial owners. Beneficial owners
will not receive certificates representing their ownership interest in
securities except in the event that use of the book-entry system for the
securities is discontinued.
The deposit of the securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge
of the actual beneficial owners of the securities; DTC's records reflect only
the identity of the Direct Participants to whose accounts such securities are
credited, which may or may not be the beneficial owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other direct communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to beneficial owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
securities of an issue are being redeemed, DTC's practice will determine by
lot the amount of the interest of each Direct Participant in such series to be
redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the
securities. Under its usual procedures, DTC mails an omnibus proxy (an
"omnibus proxy") to the Participants as soon as possible after the record
date. The omnibus proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the securities are credited on the
record date (identified in a listing attached to the omnibus proxy).
Principal, premium, if any, and interest on the debt securities and
dividends on common stock, if applicable, will be paid to DTC. DTC's practice
is to credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payment on such payment date.
Payments by Participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street-name," and
will be the responsibility of such Participant and not of DTC, the
underwriters, or APW Ltd., subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal, premium, if any,
and interest on the debt securities and dividends on common stock, if
applicable, to DTC is the responsibility of the Company or the Trustee.
Disbursement of such payments to Direct Participants is the responsibility of
DTC, and disbursement of such payments to the beneficial owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the securities at any time by giving us reasonable notice. Under
such circumstances and in the event that a successor securities depository is
not obtained, certificates for the securities are required to be printed and
delivered. In addition, we may decide to discontinue use of the system of
book-entry transfers through DTC (or any successor securities depository). In
that event, certificates for the securities will be printed and delivered.
We will not have any responsibility or obligation to Participants or to the
persons for whom they act as nominees with respect to the accuracy of the
records of DTC, its nominees or any Direct or Indirect Participant with
respect to any ownership interest in the securities, or with respect to
payments or providing of notice to the Direct Participants, the Indirect
Participants or the beneficial owners.
So long as Cede & Co. is the registered owner of the securities, as nominee
of DTC, references herein to holders of the securities shall mean Cede & Co.
or DTC and shall not mean the beneficial owners of the securities.
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The information in this section concerning DTC and DTC's book-entry system
has been obtained from DTC. None of APW Ltd., the Trustees or the underwriters
take any responsibility for the accuracy or completeness thereof.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus through
underwriters, agents or dealers or directly to purchasers.
The distribution of securities under this prospectus may occur from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
those prevailing market prices or at negotiated prices.
Underwriters
The relevant prospectus supplement will identify any agents or underwriters
and describe their compensation, including underwriting discount. The
prospectus supplement will also describe other terms of the offering,
including any discounts or concessions allowed or reallowed or paid to dealers
and any securities exchanges or automated quotation systems on which any
offered debt securities may be listed.
Agents and Direct Sales
If the applicable prospectus supplement indicates, we will authorize
dealers or our agents to solicit offers by various institutions to purchase
offered securities from us pursuant to contracts that provide for payment and
delivery on a future date. We must approve all institutions, but they may
include, among others:
. commercial and savings banks;
. insurance companies;
. pension funds;
. investment companies; and
. educational and charitable institutions.
The institutional purchaser's obligations will be subject only to the
condition that the purchase of the securities is permitted at the time of
delivery. The dealers and our agents will not be responsible for the validity
or performance of the contract.
General Information
Underwriters, dealers and agents participating in a sale of securities may
be deemed to be underwriters as defined in the Securities Act, and any
discounts and commissions received by them and any profit realized by them on
resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act. We may have agreements with the agents,
underwriters and dealers to indemnify them against various civil liabilities,
including liabilities under the Securities Act, or to contribute to payments
that the agents, underwriters or dealers may be required to make as a result
of those civil liabilities.
Our common stock is listed on the New York Stock Exchange under the symbol
"APW," however, unless we indicate differently in a prospectus supplement, we
will not list the debt securities on any securities exchange or seek to have
them included on the New York Stock Exchange or any other automated quotation
system. If we sell a security offered under this prospectus to an underwriter
for public offering and sale, the underwriter may make a market for that
security, but is not obligated to do so. Therefore, we cannot give any
assurances to you concerning the liquidity of any security offered under this
prospectus.
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In connection with an offering pursuant to this prospectus the underwriters
may engage in stabilizing transactions, over-allotment transactions, syndicate
covering transactions and penalty bids in accordance with Regulation M under
the Exchange Act.
Stabilizing transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum.
Over-allotment involves sales by the underwriters of securities in excess
of the number of securities the underwriters are obligated to purchase, which
creates a syndicate short position. The short position may be either a covered
short position or a naked short position. In a covered short position, the
number of securities over-allotted by the underwriters is not greater than the
number of securities that they may purchase in the over-allotment option. In a
naked short position, the number of securities involved is greater than the
number of securities in the over-allotment option. The underwriters may close
out any short position by either exercising their over-allotment option and/or
purchasing shares in the open market.
Syndicate covering transactions involve purchases of securities in the open
market after the distribution has been completed in order to cover syndicate
short position. In determining the source of securities to close out the short
position, the underwriters will consider among other things, the price of
securities available for purchase in the open market as compared to the price
at which they may purchase securities through the over-allotment option. If
the underwriters sell more securities than could be covered by the over-
allotment option, a naked short position, that position can only be closed out
by buying securities in the open market. A naked short position is more likely
to be created if the underwriters are concerned that there may be downward
pressure on the price of the securities in the open market after pricing that
could adversely affect investors who purchase in the offering. Penalty bids
permit the representatives to retain a selling concession from a syndicate
member when the securities originally sold by the syndicate member are
purchased in a stabilizing or syndicate covering transaction to cover
syndicate short positions.
These stabilizing transactions, syndicate covering transactions and penalty
bids may have the effect of raising or maintaining the market price of the
securities or preventing or retarding a decline in the market price of the
securities. As a result, the price of the securities may be higher than the
price that might otherwise exist in the open market. These transactions may be
effected on the New York Stock Exchange or otherwise and, if commenced, may be
discontinued at any time.
Agents and underwriters and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiary companies in
the ordinary course of business.
LEGAL MATTERS
The validity of the securities to be sold pursuant to this prospectus will
be passed upon for us by Conyers, Dill & Pearman, Bermuda and certain legal
matters in connection with the offering of the securities will be passed on
for us by Quarles & Brady LLP, Milwaukee, Wisconsin, counsel to the Company.
Underwriters or agents will be advised on issues relating to the offering by
Cahill Gordon & Reindel, New York, New York.
EXPERTS
Our consolidated financial statements and the related financial statement
schedules incorporated in this prospectus by reference from our Form 10 dated
May 1, 2000 (as amended on June 20, 2000 and July 11, 2000), have been so
incorporated in reliance on the reports of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the securities covered by this Registration Statement are as follows:
<TABLE>
<S> <C>
SEC registration fee (actual)................................... $132,000
Trustee's fee and expenses...................................... 15,000
Printing and engraving expenses................................. 90,000
Legal fees and expenses......................................... 175,000
Accounting fees and expenses.................................... 75,000
Rating agency fees.............................................. 100,000
Miscellaneous (including the New York Stock Exchange listing
fee)........................................................... 13,000
--------
Total....................................................... $600,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
The APW Ltd. bye-laws provide that each shareholder agrees to waive any
claim or right of action he or she may have, whether individually or by or in
the right of APW Ltd., against any director of APW Ltd. on account of any
action taken by any director, or the failure of any director to take any
action in the performance of his or her duties with or for APW Ltd.; provided,
however, that this waiver does not apply to any claims or rights of action
arising out of the fraud or dishonesty of a director.
The bye-laws of APW Ltd. provide for indemnification of APW Ltd.'s officers
and directors against all liabilities, loss, damage or expense incurred or
suffered by any officer or director in his or her role as an officer or
director of APW Ltd. to the maximum extent permitted by Bermuda law. However,
the indemnification does not extend to any matter which would render it void
pursuant to the Companies Act of 1981 as in effect from time to time in
Bermuda.
The Companies Act provides that a Bermuda company may indemnify its
officers and directors in respect of any loss arising or liability attaching
to them as a result of any negligence, default, breach of duty or breach of
trust of which they may be guilty. A company is also permitted to indemnify
any officer or director against any liability incurred by him or her in
defending any proceedings, whether civil or criminal, in which judgment is
given in favor of the director or officer, or in which he or she is acquitted,
or in connection with any application under relevant Bermuda legislation in
which relief from liability is granted to him or her by the court. However,
the Companies Act also states that any provision, whether contained in APW
Ltd.'s bye-laws or in a contract or arrangement between APW Ltd. and the
director, indemnifying a director against any liability which would attach to
him in respect of his or her fraud or dishonesty will be void.
The directors and officers of APW Ltd. also are covered by directors' and
officers' insurance policies maintained by APW Ltd.
Item 16. Exhibits.
See the Exhibit Index following the Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
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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. 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" able in the effective Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the 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
paragraphs is contained in periodic reports filed by the Registrant with the
Commission 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) Reference is made to the indemnification provisions described in Item
15 of this Registration Statement.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
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(i) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
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 Village of Pewaukee, State of Wisconsin, on September 28,
2000.
APW LTD.
(Registrant)
/s/ Joseph T. Lower
By: _________________________________
Joseph T. Lower
Vice President--Finance
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard G. Sim, Anthony W. Asmuth III and
Joseph T. Lower, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, and any other regulatory authority, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their substitutes, may lawfully 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 date indicated.*
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard G. Sim Chairman of the Board, President and
___________________________________________ Chief Executive Officer; Director
Richard G. Sim (Principal Executive Officer)
/s/ Richard D. Carroll Vice President--Finance and Acting Chief
___________________________________________ Financial Officer
Richard D. Carroll (Acting Principal Financial Officer)
/s/ Todd A. Adams Controller
___________________________________________ (Principal Accounting Officer)
Todd A. Adams
/s/ Peter Douglas Director
___________________________________________
Peter Douglas
/s/ L. Dennis Kozlowski Director
___________________________________________
L. Dennis Kozlowski
/s/ Jack L. Heckel Director
___________________________________________
Jack L. Heckel
</TABLE>
S-1
<PAGE>
<TABLE>
<S> <C>
/s/ John Ziemniak Director
___________________________________________
John Ziemniak
/s/ John J. McDonough Director
___________________________________________
John J. McDonough
/s/ Gerald T. McGoey Director
___________________________________________
Gerald T. McGoey
</TABLE>
--------
* Each of the above signatures is affixed as of September 28, 2000.
S-2
<PAGE>
APW LTD.
(the "Registrant")
(Commission File No. 1-15851)
EXHIBIT INDEX
TO
FORM S-3 REGISTRATION STATEMENT
The following exhibits are filed with or incorporated by reference in this
Registration Statement:
<TABLE>
<CAPTION>
Incorporated Herein Filed
Exhibit Description By Reference To Herewith
------- ----------- ------------------- --------
<C> <S> <C> <C>
Form of Underwriting
1 Agreement **
3.1 Memorandum of Continuance of Exhibit 3.1 to the Form 10
APW Ltd. Registration Statement
dated May 1, 2000, as amended
3.2 Form of bye-laws of APW Ltd. Exhibit 3.2 to the Form 10
Registration Statement
dated May 1, 2000, as amended
4.1 Rights Agreement , dated as Exhibit 99.1 to the Form 8-A
of July 17, 2000, between filed July 19, 2000
APW Ltd. and Firstar Bank,
N.A., as Rights Agent
4.2 Form of Rights Certificate Exhibit 99.3 to the Form 8-A
(attached as Exhibit B to filed July 19, 2000
the Rights Agreement)
4.3 Multicurrency Credit Exhibit 10.1 to Form 10-Q
Agreement dated as of for quarter ended May 31, 2000
July 31, 2000 among APW
Ltd., APW North America
Inc., APW Holdings Denmark
APS, various financial
institutions, Bank One as
Syndication Agent, The Chase
Manhattan Bank as
Documentation Agent and Bank
of America, National
Association, as
Administrative Agent,
arranged by Banc of America
Securities LLC
4.4 Form of Indenture for X
Securities
5.1 Opinion of Conyers Dill & X
Pearman as to securities
10.1 APW Ltd. 2000 Stock Exhibit 10.1 to the Form 10
Incentive Plan Registration Statement
dated May 1, 2000, as amended
10.2 Form of Contribution Exhibit 10.2 to the Form 10
Agreement, Plan and Registration Statement
Agreement Regarding dated May 1, 2000, as amended
Litigation, Claims and Other
Liabilities between API and
APW, dated as of July 21,
2000
10.3 Form of General Assignment, Exhibit 10.3 to the Form 10
Assumption and Agreement Registration Statement
Regarding Litigation, Claims dated May 1, 2000, as amended
and Other Liabilities
between API and APW, dated
as of July 21, 2000
10.4 Form of Transitional Exhibit 10.4 to the Form 10
Trademark Use and License Registration Statement
Agreement between API and dated May 1, 2000, as amended
APW, dated as of July 21,
2000
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
Incorporated Herein Filed
Exhibit Description By Reference To Herewith
------- ----------- ------------------- --------
<C> <S> <C> <C>
10.5 Form of Insurance Exhibit 10.5 to the Form 10
Matters Agreement Registration Statement
between API and APW, dated May 1, 2000, as amended
dated as of July 21,
2000
10.6 Form of Bill of Sale and Exhibit 10.6 to the Form 10
Assumption of Registration Statement
Liabilities between API dated May 1, 2000, as amended
and APW, dated as of
July 21, 2000
10.7 Form of Employee Exhibit 10.7 to the Form 10
Benefits and Registration Statement
Compensation Agreement dated May 1, 2000, as amended
between API and APW,
dated as of July 21,
2000
10.8 Form of Tax Sharing and Exhibit 10.8 to the Form 10
Indemnification Registration Statement
Agreement between API dated May 1, 2000, as amended
and APW, dated as of
July 21, 2000
10.9 Form of Interim Exhibit 10.9 to the Form 10
Administrative Services Registration Statement
Agreement between API dated May 1, 2000, as amended
and APW, dated as of
July 21, 2000
10.10 Form of Confidentiality Exhibit 10.10 to the Form 10
and Nondisclosure Registration Statement
Agreement between API dated May 1, 2000, as amended
and APW, dated as of
July 21, 2000
10.11 Form of Patent Exhibit 10.11 to the Form 10
Assignment between API Registration Statement
and Wright Line Inc. dated May 1, 2000, as amended
(n/k/a APW Ltd.), dated
as of July 21, 2000
10.12 APW Ltd. Outside Exhibit 10.12 to the Form 10
Directors' Stock Option Registration Statement
Plan dated May 1, 2000, as amended
12.1 Statement of Computation X
of Ratio of Earnings to
Fixed Charges
23.1 Consent of X
PricewaterhouseCoopers
LLP, APW's independent
accountants
24.1 Powers of Attorney (Included in
Signature Page)
25 Statement of Eligibility X
of Trustee on Form T-1
</TABLE>
--------
** To be filed subsequently.
E-2
