<PAGE>
Registration No. 333-__________
As filed with the Securities and Exchange Commission on February 1, 2000
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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APOGEE ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-0919654
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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7900 Xerxes Avenue South
Suite 1800
Minneapolis, Minnesota 55431
(Address, including zip code,
of registrant's principal executive offices)
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Apogee Enterprises, Inc.
Tax Relief Investment Plan
(Full title of the plan)
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Patricia A. Beithon, Esq.
Secretary and General Counsel
Apogee Enterprises, Inc.
7900 Xerxes Avenue South
Minneapolis, Minnesota 55431
(612) 835-1874
(Name, address and telephone number,
including area code, of agent for service of process)
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Copy to:
Robert A. Rosenbaum, Esq.
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-6323
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered (1) share (2) price (2) registration fee
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, par value 500,000
$.33-1/3 per share shares $4.97 $2,485,000 $656.04
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Apogee Enterprises, Inc.
Tax Relief Investment Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) and Rule 457(c), based upon the average of the
high and low prices of the registrants Common Stock on the Nasdaq National
Market on January 31, 2000.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed with the Securities and
Exchange Commission (the "Commission") by Apogee Enterprises, Inc. (the
"Company"), are incorporated by reference in this Registration Statement, as of
their respective dates:
(a) Annual Report on Form 10-K for the year ended February 27,
1999.
(b) Quarterly Reports on Form 10-Q for the quarters ended May 29,
1999, August 28, 1999 and November 27, 1999.
(c) The Company's Current Reports on Form 8-K dated April 22,
1999, April 23, 1999 and May 27, 1999 and the Company's
Amended Current Report on Form 8-K/A dated June 8, 1999.
(d) The description of the Company's Common Stock contained in any
registration statement or report filed by the Company under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed by the Company
for the purpose of updating such description.
All documents filed by the Company or by the Apogee Enterprises, Inc.
Tax Relief Investment Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Names Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is subject to Minnesota Statutes, Chapter 302A. Section
302A.521 provides that a corporation shall indemnify any person made or
threatened to be made a party to a proceeding by reason of the former or present
official capacity (as defined) of such person against judgments, penalties,
fines (including, without limitation, excise taxes assessed against such person
with respect to an employee benefit plan), settlements and reasonable expenses,
including attorneys' fees and disbursements, incurred by such person in
connection with the proceeding, if, with respect to the acts or omissions of
such persons complained of in the proceeding, such person (1) has not been
indemnified therefor by another organization or employee benefit plan; (2) acted
in good faith; (3) received no improper personal benefit and Section 302A.255
(with respect to director conflicts of interest), if applicable, has been
satisfied; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) reasonably believed that the conduct
was in the best interests of the corporation in the case of acts or omissions in
such person's official capacity for the corporation, or reasonably believed that
the conduct was not opposed to the best interests of the corporation in the case
of acts or omissions in such person's official capacity for other affiliated
organizations.
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The Company's Restated Bylaws provide that the Company shall indemnify
such persons, for such liabilities and expenses, in such manner, under such
circumstances, and to such extent as required or permitted by Section 302A.521,
as now enacted or hereafter amended.
The Company also maintains an insurance policy or policies to assist in
funding indemnification of directors and officers of the Company for certain
liabilities.
Item 7. Exemption from Registration Claimed.
No securities are to be reoffered or resold pursuant to this
Registration Statement.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 Restated Articles of Incorporation (incorporated by reference
to Exhibit 3A to the Company's Annual Report on Form 10-K for
year ended February 27, 1998).
4.2 Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A dated October 19, 1990).
4.3 Amendment No. 1 to Rights Agreement, dated June 28, 1995, to
the Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A12G/A dated July 27, 1995).
4.4 Amendment No. 2 to Rights Agreement, dated February 22, 1999,
to the Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A12G/A dated February 22, 1999).
4.5 Amendment No. 3 to Rights Agreement, dated December 7, 1999 to
the Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A12/GA dated December 10, 1999).
5.1 Opinion of Dorsey & Whitney LLP.
5.2 Determination Letter from the Internal Revenue Service with
respect to qualification of the Apogee Enterprises, Inc. Tax
Relief Investment Plan under Section 401 of the Internal
Revenue Code of 1986, as amended.
23.1 Consent of KPMG LLP.
23.2 Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1 to
this Registration Statement).
24.1 Power of Attorney.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(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" table 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) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or other controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Minneapolis, State of Minnesota, on February 1, 2000.
APOGEE ENTERPRISES, INC.
By /s/ Russell Huffer
-------------------------------------
Russell Huffer
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 1, 2000.
Signature Title
--------- -----
/s/ Russell Huffer Chairman of the Board of Directors, Chief
- --------------------------------- Executive Officer, President and Director
Russell Huffer (principal executive officer)
/s/ Robert G. Barbieri Vice President Finance and Chief Financial
- --------------------------------- Officer (principal financial and
Robert G. Barbieri accounting officer)
/s/ Bernard P. Aldrich Director
- ---------------------------------
Bernard P. Aldrich
/s/ Harry A. Hammerly Director
- ---------------------------------
Harry A. Hammerly
/s/ Laurence J. Niederhofer Director
- ---------------------------------
Laurence J. Niederhofer
/s/ James L. Martineau Director
- ---------------------------------
James L. Martineau
/s/ Donald W. Goldfus Director
- ---------------------------------
Donald W. Goldfus
/s/ Barbara B. Grogan Director
- ---------------------------------
Barbara B. Grogan
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/s/ Stephen C. Mitchell Director
- ---------------------------------
Stephen C. Mitchell
/s/ J. Patrick Horner Director
- ---------------------------------
J. Patrick Horner
/s/ Michael E. Shannon Director
- ---------------------------------
Michael E. Shannon
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Minneapolis, State of
Minnesota, on February 1, 2000.
APOGEE ENTERPRISES, INC. TAX RELIEF
INVESTMENT PLAN
By: APOGEE ENTERPRISES, INC.,
the Plan Administrator
By: /s/ Russell Huffer
-------------------------------------
Russell Huffer
Chief Executive Officer and President
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<PAGE>
EXHIBIT INDEX TO
FORM S-8
Apogee Enterprises, Inc.
Exhibit
Number Description
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4.1 Restated Articles of Incorporation (incorporated by reference
to Exhibit 3A to the Company's Annual Report on Form 10-K for
year ended February 27, 1998).
4.2 Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A dated October 19, 1990).
4.3 Amendment No. 1 to Rights Agreement, dated June 28, 1995, to
the Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A12G/A dated July 27, 1995).
4.4 Amendment No. 2 to Rights Agreement, dated February 22, 1999,
to the Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A12G/A dated February 22, 1999).
4.5 Amendment No. 3 to Rights Agreement, dated December 7, 1999 to
the Rights Agreement between the Company and American Stock
Transfer Co. dated October 19, 1990 (incorporated by reference
to the Company's Form 8-A12/GA dated December 10, 1999).
5.1 Opinion of Dorsey & Whitney LLP.
5.2 Determination Letter from the Internal Revenue Service with
respect to qualification of the Apogee Enterprises, Inc. Tax
Relief Investment Plan under Section 401 of the Internal
Revenue Code of 1986, as amended.
23.1 Consent of KPMG LLP.
23.2 Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1 to
this Registration Statement).
24.1 Power of Attorney.
<PAGE>
Exhibit 5.1
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[Letterhead of Dorsey & Whitney LLP]
February 1, 2000
Apogee Enterprises, Inc.
7900 Xerxes Avenue South
Suite 1800
Minneapolis, MN 55431
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Apogee Enterprises, Inc., a Minnesota
corporation (the "Company"), in connection with the proposed registration by the
Company pursuant to a Registration Statement on Form S-8 of 500,000 shares of
Common Stock, par value $.33-1/3 per share (the "Shares"), to be offered under
the Apogee Enterprises, Inc. Tax Relief Investment Plan (the "Plan").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. As to questions of fact material to our opinions, we
have relied upon certificates and representations of officers of the Company,
public officials and others.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
above-described Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
RAR
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Exhibit 23.1
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INDEPENDENT AUDITOR'S CONSENT
We consent to the use of our report incorporated by reference herein.
/s/ KPMG LLP
Minneapolis, Minnesota
February 1, 2000
<PAGE>
Exhibit 24.1
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of Russell Huffer, Robert G.
Barbieri and Patricia A. Beithon, with full power to each act without the other,
his or her true and lawful attorney-in-fact and agent, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign a Registration Statement on Form
S-8, and any and all amendments (including post-effective amendments) thereto,
relating to the issuance of 500,000 shares of Common Stock of Apogee
Enterprises, Inc. pursuant to the Apogee Enterprises, Inc. Tax Relief Investment
Plan, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact and
agent, or his or her substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on this 31st
day of January, 2000, by the following persons:
Signature Title
--------- -----
/s/ Russell Huffer Chairman of the Board of Directors, Chief
- --------------------------------- Executive Officer, President and Director
Russell Huffer
/s/ Robert G. Barbieri Vice President Finance and Chief Financial
- --------------------------------- Officer
Robert G. Barbieri
/s/ Bernard P. Aldrich Director
- ---------------------------------
Bernard P. Aldrich
/s/ Harry A. Hammerly Director
- ---------------------------------
Harry A. Hammerly
/s/ Laurence J. Niederhofer Director
- ---------------------------------
Laurence J. Niederhofer
/s/ James L. Martineau Director
- ---------------------------------
James L. Martineau
/s/ Donald W. Goldfus Director
- ---------------------------------
Donald W. Goldfus
<PAGE>
/s/ Barbara B. Grogan Director
- ---------------------------------
Barbara B. Grogan
/s/ Stephen C. Mitchell Director
- ---------------------------------
Stephen C. Mitchell
/s/ J. Patrick Horner Director
- ---------------------------------
J. Patrick Horner
/s/ Michael E. Shannon Director
- ---------------------------------
Michael E. Shannon
