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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT*
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 12, 1998
APPLIED POWER INC.
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(Exact name of registrant as specified in its charter)
Wisconsin 1-11288 39-0168610
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(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
13000 West Silver Spring Drive
Butler, Wisconsin 53007
Mailing address: P.O. Box 325, Milwaukee, Wisconsin 53201
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(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code: (414) 781-6600
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(Former name or former address, if changed since last report)
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* This report updates and supersedes the description of the Registrant's Class A
Common Stock in the Registrant's Registration Statement on Form 8-A filed on
August 11, 1987, as previously updated by the Registrant's Current Report on
Form 8-K dated January 28, 1991.
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Item 5. Other Events.
Updated Description of Capital Stock:
The following "Description of Capital Stock" is filed for the purpose of
updating and superseding the description of the Class A Common Stock of Applied
Power Inc. (the "Company") contained in the Company's Registration Statement on
Form 8-A filed on August 11, 1987 to register the Class A Common Stock under
Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as previously updated by the Registrant's Current Report on Form 8-K
dated January 28, 1991:
DESCRIPTION OF CAPITAL STOCK
(The following summary does not purport to be a complete description of the
applicable provisions of the Company's Restated Articles of Incorporation (the
"Articles") and Amended and Restated Bylaws (the "Bylaws"), copies of which have
been filed with the Securities and Exchange Commission, or of applicable
statutory or other law, and is qualified in its entirety by reference thereto.)
The authorized capital stock of the Company as of June 30, 1998, consisted
of 80,000,000 shares of Class A Common Stock, $.20 par value ("Class A Common"),
of which 27,937,056 shares were issued and outstanding; 7,500,000 shares of
Class B Common Stock, $.20 par value ("Class B Common"), none of which were
issued and outstanding; and 800,000 shares of Cumulative Preferred Stock, $1.00
par value ("Preferred Stock"), none of which have been issued. Class A Common
and Class B Common are collectively referred to herein as "Common Stock."
Preferred Stock
The Preferred Stock may be issued in one or more series providing for such
dividend rates, voting, liquidation, redemption, and conversion rights, and such
other terms and conditions as the Board of Directors may determine, without
further approval by holders of Common Stock. If any shares of Class B Common
were outstanding, any voting rights conferred on holders of Preferred Stock
would be limited, with respect to the election of directors, to the power to
vote together with holders of Class A Common in electing a "maximum minority" of
the Board of Directors, as described under "Common Stock" below.
If the Company issues any shares of Preferred Stock, the Company would be
permitted to pay dividends or make other distributions upon the Common Stock
(except for distributions payable in shares of Common Stock) only after paying
or setting apart funds for payment of current dividends and any accrued but
unpaid dividends upon the outstanding Preferred Stock, at the rate or rates
designated for each series of outstanding Preferred Stock, and making provision
for any mandatory sinking fund payments. In the event of voluntary or
involuntary liquidation of the Company, the holders of any outstanding Preferred
Stock would be entitled to receive all accrued dividends on the Preferred Stock
and the liquidation amount specified for each series of Preferred Stock before
any amount may be distributed to holders of the Common Stock.
Common Stock
The rights and preferences of shares of Class A and Class B Common are
identical, except as to voting power with respect to the election of directors
and conversion rights.
On all matters other than the election of directors, the holders of Class A
and Class B Common possess equal voting power of one vote per share, voting as a
single class of stock (unless otherwise required by the Wisconsin Business
Corporation Law--the "WBCL"). In the election of the Board of Directors, the
holders of Class A Common, voting together as a single class with the holders of
any Preferred Stock which has voting power, are entitled to elect a "maximum
minority" of the number of directors to be elected. As a result of the "maximum
minority" provision, the holders of the Class B Common, voting as a separate
class, are entitled to elect the balance of the directors, constituting a
"minimum majority" of the number of directors to be elected. If an even number
of directors is to be elected, the
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holders of Class B Common will be entitled to elect two more directors than the
holders of Class A Common and any Preferred Stock having voting power; if the
number of directors to be elected is an odd number, the holders of Class B
Common will be entitled to elect one more director than the holders of Class A
Common and any Preferred Stock having voting power. In the event there are no
shares of Class B Common outstanding, holders of Class A Common, together with
holders of any Preferred Stock having voting power, shall elect all of the
directors to be elected. A director, once elected and duly qualified, may be
removed only by the requisite affirmative vote of the holders of that class of
stock by which such director was elected.
Holders of both classes of Common Stock are equally entitled to such
dividends as the Company's Board of Directors may declare out of funds legally
available therefor. If the Company were to issue any of its authorized Preferred
Stock, no dividends could be paid or set apart for payment on shares of Common
Stock, unless paid in Common Stock, until dividends on all of the issued and
outstanding shares of Preferred Stock had been paid or set apart for payment and
provision had been made for any mandatory sinking fund payments. Certain
covenants contained in the Company's debt agreements, or in the provisions of
the Articles for the benefit of any Preferred Stock that may be hereafter
issued, from time to time could have the direct or indirect effect of limiting
the payment of dividends or other distributions on (including redemptions and
purchases of) the Company's capital stock. Stock dividends on Class A Common may
be paid only in shares of Class A Common and stock dividends on Class B Common
may be paid only in shares of Class B Common.
The Articles contain provisions which provided for the conversion of Class
B Common into shares of Class A Common on a share-for-share basis at the option
of the holder, and for the automatic conversion of all outstanding shares of
Class B Common to Class A Common on a share-for-share basis when the number of
outstanding shares of Class B Common was reduced below a certain threshold. All
of the shares of Class B Common that had been outstanding were converted into
Class A Common pursuant to these conversion provisions. Holders of Class A
Common do not have any conversion rights.
In the event of dissolution or liquidation of the Company, the holders of
both classes of Common Stock are entitled to share ratably all assets of the
Company remaining after payment of the Company's liabilities and satisfaction of
the rights of any series of Preferred Stock which may be outstanding. There are
no redemption or sinking fund provisions with respect to the Common Stock.
When the Company has received the consideration for which the Board of
Directors authorized the issuance of shares, the shares issued for that
consideration are fully paid and nonassessable. Shareholders are subject to
personal liability under Section 180.0622(2)(b) of the WBCL, as judicially
interpreted, for debts owing to employees of the Company for services performed
for the Company, but not exceeding six months' service in any one case.
The Class A Common is listed on the New York Stock Exchange (the "NYSE").
Firstar Trust Company, Milwaukee, Wisconsin, acts as the transfer agent for the
Class A Common.
General
The Articles provide that the affirmative vote of two-thirds of all shares
entitled to vote thereon is required in order to constitute shareholder approval
of a merger, consolidation, or liquidation of the Company, sale or other
disposition of all or substantially all of its assets, amendment of the Articles
or the Bylaws, or removal of a director.
Directors of the Company are currently elected to serve one-year terms. The
Articles provide that the Bylaws (which may be amended by the Board of Directors
or by the shareholders) may provide for the division of the Board of Directors
into two or three classes, serving staggered two or three-year terms.
Holders of capital stock of the Company do not have preemptive or other
subscription rights to purchase or subscribe for unissued stock or other
securities of the Company.
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Certain Statutory Provisions
Under Section 180.1150(2) of the WBCL, the voting power of shares of a
"resident domestic corporation," such as the Company (as long as it continues to
meet the statutory definition), which are held by any person (including two or
more persons acting in concert) in excess of 20% of the voting power in the
election of directors shall be limited (in voting on any matter) to 10% of the
full voting power of such excess shares, unless full voting rights have been
restored at a special meeting of the shareholders called for that purpose.
Shares held or acquired under certain circumstances are excluded from the
application of Section 180.1150(2), including (among others) shares acquired
directly from the Company, shares acquired before April 22, 1986, and shares
acquired in a merger or share exchange to which the Company is a party.
Sections 180.1130 to 180.1134 of the WBCL provide generally that, in
addition to the vote otherwise required by law or the articles of incorporation
of a "resident domestic corporation," such as the Company (as long as it
continues to meet the statutory definition), certain business combinations not
meeting certain fair price standards specified in the statute must be approved
by the affirmative vote of at least (a) 80% of the votes entitled to be cast by
the outstanding voting shares of the corporation and (b) two-thirds of the votes
entitled to be cast by the holders of voting shares other than voting shares
beneficially owned by a "significant shareholder" or an affiliate or associate
thereof who is a party to the transaction. The term "business combination" is
defined to include, subject to certain exceptions, a merger or share exchange of
the resident domestic corporation (or any subsidiary thereof) with, or the sale
or other disposition of all or substantially all of the property and assets of
the resident domestic corporation to, any significant shareholder or affiliate
thereof. "Significant shareholder" is defined generally to mean a person that is
the beneficial owner of 10% or more of the voting power of the outstanding
voting shares of the resident domestic corporation. The statute also restricts
the repurchase of shares and the sale of corporate assets by a resident domestic
corporation in response to a take-over offer.
Sections 180.1140 to 180.1144 of the WBCL prohibit certain "business
combinations" between a "resident domestic corporation," such as the Company (as
long as it continues to meet the statutory definition), and a person
beneficially owning 10% or more of the voting power of the outstanding voting
stock of such corporation (an "interested stockholder") within three years after
the date such person became a 10% beneficial owner, unless the business
combination or the acquisition of such stock has been approved before the stock
acquisition date by the corporation's board of directors. Business combinations
after the three-year period following the stock acquisition date are permitted
only if (i) the board of directors approved the acquisition of the stock prior
to the acquisition date, (ii) the business combination is approved by a majority
of the outstanding voting stock not beneficially owned by the interested
stockholder, or (iii) the consideration to be received by shareholders meets
certain fair price requirements of the statute with respect to form and amount.
Under the WBCL, as amended in 1997, a "resident domestic corporation" is
defined to mean a Wisconsin corporation that has a class of voting stock that is
registered or traded on a national securities exchange or that is registered
under Section 12(g) of the Exchange Act and that, as of the relevant date,
satisfies any of the following: (i) its principal offices are located in
Wisconsin; (ii) it has significant business operations located in Wisconsin;
(iii) more than 10% of the holders of record of its shares are residents of
Wisconsin; or (iv) more than 10% of its shares are held of record by residents
of Wisconsin. The Company is a "resident domestic corporation" for purposes of
the above described provisions. A Wisconsin corporation that is otherwise
subject to certain of such statutes may preclude their applicability by an
election to that effect in its articles of incorporation. The Company's Articles
do not contain any such election.
These provisions of the WBCL, the ability to issue additional shares of
Common Stock and Preferred Stock without further shareholder approval (except as
required under NYSE corporate governance standards), and certain other
provisions of the Company's Articles (discussed above) could have the effect,
among others, of discouraging take-over proposals for the Company, delaying or
preventing a change in control of the Company, or impeding a business
combination between the Company and a major shareholder of the Company.
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Item 7. Financial Statements and Exhibits.
(c) Exhibits:
See Exhibit Index following the Signature page of this report,
which is incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
APPLIED POWER INC.
Date: August 12, 1998 By: /s/ Robert C. Arzbaecher
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Robert C. Arzbaecher
Vice President and
Chief Financial Officer
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APPLIED POWER INC.
(the "Registrant")
(Commission File No. 1-11288)
EXHIBIT INDEX
to
FORM 8-K CURRENT REPORT
Dated August 12, 1998
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<CAPTION>
Incorporated
Exhibit Herein By Filed
Number Description Reference To Herewith
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3.1 Restated Articles of Exhibit 4.1 to the
Incorporation of the Registrant's Registration
Registrant (dated as of Statement on Form S-8
February 13, 1998) (File No. 333-46469)
3.2 Amended and Restated Exhibit 3.2 to the Registrant's
Bylaws of the Registrant Form 10-K for the fiscal year
(effective as of ended August 31, 1997
January 8, 1997)
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