<PAGE>
Registration No. 333-__________
As filed with the Securities and Exchange Commission on February 17, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
APPLIED POWER INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
WISCONSIN 39-0168610
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13000 West Silver Spring Drive
Butler, Wisconsin 53007-1093
(Address of Principal Executive Offices) (Zip Code)
------------------
APPLIED POWER INC.
1996 STOCK OPTION PLAN
(Full title of the plan)
------------------
ROBERT C. ARZBAECHER Copy to:
Vice President and Chief Financial Officer ANTHONY W. ASMUTH III, ESQ.
Applied Power Inc. Quarles & Brady
13000 West Silver Spring Drive 411 East Wisconsin Avenue
Butler, Wisconsin 53007-1093 Milwaukee, Wisconsin 53202
</TABLE>
(Name and address of agent for service)
(414) 781-6600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
---------------- ---------- --------- -------------- ---
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.20 per share 3,000,000 shares (1) (2) $105,787,313(2) $31,208
=========================================================================================================
</TABLE>
(1) The Applied Power Inc. 1996 Stock Option Plan (the "Plan") provides for the
issuance of up to 3,000,000 shares of Class A common stock, par value $.20
per share ("Common Stock"). The Plan provides for possible adjustment of
the number, price and kind of shares covered by options granted or to be
granted, and of the number and kind of shares that may be awarded as
restricted stock, in the event of certain capital or other changes
affecting the Common Stock. Pursuant to Rule 416(a) under the Securities
Act of 1933, this Registration Statement covers, in addition to the above
3,000,000 shares, an indeterminate number of shares that may become subject
to the Plan by means of any such adjustment. All share amounts reflected
herein have been adjusted for the effect of the Registrant's two-for-one
stock split paid on February 3, 1998 to shareholders of record on January
22, 1998.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing the
registration fee, based upon (i) the aggregate exercise price for the 6,000
shares underlying options granted on May 8, 1997 at $22.375 per share, (ii)
the aggregate exercise price for the 6,000 shares underlying options
granted on May 19, 1997 at $21.875 per share, (iii) the aggregate exercise
price for the 12,000 shares underlying options granted on August 4, 1997 at
$26.125 per share, (iv) the aggregate exercise price for the 219,600 shares
underlying options granted on November 4, 1997 at $31.625 per share, (v)
the aggregate exercise price for the 16,800 shares underlying options
granted on January 8, 1998 at $34.50 per share, and (vi) as to the
remaining 2,739,600 shares available under the Plan, $35.65625 per share,
which is the average of the high and low sales prices of the Common Stock
reported on the New York Stock Exchange on February 12, 1998. In the case
of options, the actual offering price will be determined in accordance with
the terms of the Plan; provided, however, that in no event shall it be less
than 100% of the Fair Market Value of the Common Stock at the time of grant
unless, with respect to nonqualified stock options only, the grantee pays
to the Company at the time of grant cash in an amount at least equal to the
difference between the exercise price and the Fair Market Value of the
Common Stock. All share amounts and exercise prices reflected herein have
been adjusted for the effect of the Registrant's two-for-one stock split
paid on February 3, 1998 to shareholders of record on January 22, 1998.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or
given to Plan participants as specified by Rule 428(b)(1) under the Securities
Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed by Applied Power Inc. (the "Registrant")
(Commission File No. 1-11288) with the Securities and Exchange Commission (the
"Commission") pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
August 31, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended November 30, 1997;
(c) The Registrant's Current Report on Form 8-K dated October 3, 1997 and
the Registrant's Amendment to Current Report on Form 8-K/A filed
December 17, 1997;
(d) The Registrant's Current Report on Form 8-K dated November 4, 1997;
and
(e) The Registrant's Current Report on Form 8-K dated January 28, 1991,
including specifically the description of the Common Stock in Item 5
thereof filed for the purpose of updating the description of the
Common Stock contained in the Company's registration statement filed
with respect thereto under the 1934 Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
Item 4. Description of Securities.
Not applicable. See Item 3(e) above.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of Common Stock registered hereunder will be
passed on for the Registrant by Quarles & Brady, the Registrant's legal counsel.
The Registrant's Secretary, Anthony W. Asmuth III, is a partner of Quarles &
Brady which serves as counsel to the Registrant.
-1-
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Registrant is incorporated under the Wisconsin Business Corporation Law
("WBCL"). Under Section 180.0851(1) of the WBCL, the Registrant is required to
indemnify a director or officer, to the extent such person is successful on the
merits or otherwise in the defense of a proceeding, for all reasonable expenses
incurred in the proceeding if such person was a party because he or she was a
director or officer of the Registrant. In all other cases, the Registrant is
required by Section 180.0851(2) of the WBCL to indemnify a director or officer
against liability incurred in a proceeding to which such person was a party
because he or she was an officer or director of the Registrant, unless it is
determined that he or she breached or failed to perform a duty owed to the
Registrant and the breach or failure to perform constitutes: (i) a willful
failure to deal fairly with the Registrant or its shareholders in connection
with a matter in which the director or officer has a material conflict of
interest; (ii) a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or no reasonable cause
to believe his or her conduct was unlawful; (iii) a transaction from which the
director or officer derived an improper personal profit; or (iv) willful
misconduct. Section 180.0858(1) of the WBCL provides that, subject to certain
limitations, the mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that a director or
officer may have under the Registrant's articles of incorporation, bylaws, a
written agreement or a resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of the
State of Wisconsin to require or permit indemnification, allowance of expenses
and insurance to the extent required or permitted under Sections 180.0850 to
180.0858 of the WBCL for any liability incurred in connection with a proceeding
involving a federal or state statute, rule or regulation regulating the offer,
sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of the Registrant against
whom claims are asserted with respect to the declaration of an improper dividend
or other distribution to shareholders to which they assented are entitled to
contribution from other directors who assented to such distribution and from
shareholders who knowingly accepted the improper distribution, as provided
therein.
Article VIII of the Registrant's Bylaws contains provisions that generally
parallel the indemnification provisions of the WBCL and cover certain procedural
matters not dealt with in the WBCL. Directors and officers of the Registrant
are also covered by directors' and officers' liability insurance under which
they are insured (subject to certain exceptions and limitations specified in the
policy) against expenses and liabilities arising out of proceedings to which
they are parties by reason of being or having been directors or officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index following the Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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<PAGE>
(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" table in the
effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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
6 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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<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Butler, State of Wisconsin, on February 17, 1998.
APPLIED POWER INC.
(Registrant)
By: /s/ ROBERT C. ARZBAECHER
------------------------
Robert C. Arzbaecher
Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard G. Sim and Robert C. Arzbaecher, 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.*
SIGNATURE TITLE
/s/ RICHARD G. SIM Chairman of the Board, President and
- ------------------------ Chief Executive Officer; Director
Richard G. Sim
/s/ ROBERT C. ARZBAECHER Vice President and Chief Financial Officer
- ------------------------ (Principal Financial Officer)
Robert C. Arzbaecher
/s/ RICHARD D. CARROLL Treasurer, Controller and
- ------------------------ Principal Accounting Officer
Richard D. Carroll
/s/ H. RICHARD CROWTHER Director
- ------------------------
H. Richard Crowther
/s/ JACK L. HECKEL Director
- ------------------------
Jack L. Heckel
/s/ RICHARD A. KASHNOW Director
- ------------------------
Richard A. Kashnow
- ------------------------ Director
L. Dennis Kozlowski
- ------------------------ Director
John J. McDonough
______________________
*Each of the above signatures is affixed as of February 17, 1998.
-4-
<PAGE>
APPLIED POWER INC.
(the "Registrant")
(Commission File No. 1-11288)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Incorporated Herein Filed
Number Description by Reference To Herewith
- ------ ----------- --------------- --------
<C> <S> <C> <C>
4.1 Amended and Restated Articles of X
Incorporation of the Registrant (dated
as of February 13, 1998)
4.2 Amended and Restated Bylaws of the Exhibit 3.2 to the Registrant's Form 10-K
Registrant (effective as of January 8, for the fiscal year ended August 31, 1997
1997)
5 Opinion of Counsel X
23.1 Consent of Independent Accountants X
23.2 Consent of Counsel Contained in
Opinion filed as
Exhibit 5
24 Power of Attorney Contained in
Signatures page to
this Registration
Statement
99 Applied Power Inc. 1996 Stock Option Annex A to the Registrant's Proxy
Plan Statement dated November 19, 1996 for the
1997 Annual Meeting of Shareholders
</TABLE>
EI-1
<PAGE>
Exhibit 4.1
-----------
APPLIED POWER INC.
ARTICLES OF RESTATEMENT
The undersigned officers of APPLIED POWER INC. (the "Company"), a Wisconsin
corporation with its registered office in Milwaukee County, Wisconsin, hereby
certify that:
1. The Board of Directors of the Company has adopted the Restated
Articles of Incorporation (the "Restated Articles") in the form
attached hereto as Exhibit A in accordance with Wis. Stat. (S)
180.1007.
2. The Restated Articles do not contain an amendment to the articles of
incorporation of the Company requiring shareholder approval.
3. The Restated Articles supersede the original articles of
incorporation, any restated articles of incorporation previously
adopted and all amendments to the original and any restated articles
of incorporation of the Company.
Executed and seal affixed this 13th day of February, 1998.
(Corporate Seal) /s/ Richard G. Sim
-------------------------------
Richard G. Sim, President
/s/ Anthony W. Asmuth III
-------------------------------
Anthony W. Asmuth III, Secretary
This document was drafted by, and the
returned copy should be mailed to:
Kathryn M. Coates
Quarles & Brady
411 E. Wisconsin Avenue
Milwaukee, WI 53202
(414) 277-5000
<PAGE>
Exhibit A
RESTATED ARTICLES OF INCORPORATION
OF
APPLIED POWER INC.
These Restated Articles of Incorporation supersede and take the place of
the heretofore existing Amended and Restated Articles of Incorporation and any
amendments thereto.
ARTICLE I.
Name
The name of the Corporation is APPLIED POWER INC.
ARTICLE II.
Purposes
The purposes for which this Corporation is organized are to engage in any
lawful activity within the purposes for which corporations may be organized
under the Wisconsin Business Corporation Law.
ARTICLE III.
Capital Stock
3.1 Number of Shares and Classes. The aggregate number of shares which
the Corporation shall have authority to issue is as follows:
(a) Class A Common Stock. 80,000,000 shares of Class A Common Stock,
having a par value of $.20 per share.
(b) Class B Common Stock. 7,500,000 shares of Class B Common Stock,
having a par value of $.20 per share.
(c) Cumulative Preferred Stock. 800,000 shares of Cumulative
Preferred Stock, having a par value of $1.00 per share.
3.2 Relative Rights of Class A and Class B Common Stock. The relative
rights and preferences of shares of Class A Common Stock and Class B Common
Stock are as follows:
(a) Voting. On all matters other than the election of the Board of
Directors, the holders of Class A Common Stock and Class B Common Stock (no
class voting as a separate class unless otherwise required by the Wisconsin
Business Corporation Law) shall possess full and equal voting power of one
vote per share. On the election of the Board of Directors, and except as
otherwise provided below, the holders of the Class A Common Stock, together
with the holders of Cumulative Preferred Stock of all series having voting
power (no class voting as a separate class) shall elect a maximum minority
of the number of directors to be elected and the holders of the Class B
Common Stock shall elect a minimum majority of the number of directors to
be elected. Although the maximum minority of the number of directors to be
elected by the holders of the Class A Common Stock, together with the
holders of the Cumulative Preferred Stock having voting power, shall at no
time be less than one, the determination of the maximum minority of the
number of directors shall at all times be made without regard to fractions,
the holders of Class B Common Stock to elect a minimum majority of one if
an odd number directors are to be elected or two if an even number of
directors are to be elected. In the event that there are no shares of
Class
A-1
<PAGE>
B Common Stock outstanding, the holders of Class A Common Stock,
together with the holders of Cumulative Preferred Stock of all series
having voting power (no class voting as a separate class), 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.
(b) Stock Dividends. Stock dividends on Class A Common Stock shall be
paid only in Class A Common Stock and stock dividends on Class B Common
Stock shall be paid only in Class B Common Stock.
(c) Conversion of Class B Common Stock:
(i) Optional Conversion. Any holder of shares of Class B Common
Stock may convert any or all such shares into shares of Class A Common
Stock on a share-for-share basis, at any time or from time to time, by
surrender to the Corporation of the certificate(s) representing such
shares of Class B Common Stock to be converted by the holder and by
giving written notice to the Corporation of the holder's election to
convert in the form prescribed by the Corporation. The Corporation
shall, as soon as practicable after receipt of such written notice and
the proper surrender to the Corporation of the certificate(s)
representing the shares of Class B Common Stock to be so converted,
issue and deliver to, or in accordance with the instructions of, the
holder certificates for the number of shares of Class A Common Stock
to which the holder shall be entitled and for the number, if any, of
shares of Class B Common Stock represented by the certificate(s)
surrendered which are not being so converted. Such conversion shall
be deemed to have been effective immediately prior to the close of
business on the date on which the Corporation shall have received both
such written notice and the properly surrendered certificate(s) for
shares of Class B Common Stock to be converted (the "Conversion
Date"), and at such time the rights of the holder as to the converted
shares shall cease and the person or persons entitled to receive the
shares of Class A Common Stock issuable upon the conversion shall be
deemed to be, and shall be treated for all purposes as, the record
holder or holders of such Class A Common Stock on the Conversion Date.
(ii) Automatic Conversion. When the number of outstanding shares
of Class B Common Stock is reduced to less than 500,000 (which number
shall be appropriately adjusted to reflect capital adjustments
resulting from a stock split, stock dividend, reverse stock split,
recapitalization, reorganization, merger, consolidation, combination
or exchange of shares, and the like), all of the then outstanding
shares of Class B Common Stock shall be deemed without further action
on the part of any person (including, without limitation, the
Corporation and its shareholders) to be immediately and automatically
converted into shares of Class A Common Stock on a share-for-share
basis, and stock certificates formerly representing outstanding shares
of Class B Common Stock shall thereupon and thereafter be deemed to
represent a like number of shares of Class A Common Stock possessing
all the rights and privileges incident thereto.
(d) Other. Except as set forth in subsections (a), (b) and (c),
each share of Class A Common Stock and Class B Common Stock shall be
equal in every respect and entitled to the same rights and privileges,
and shall be treated in the same manner with respect to any stock
splits or stock dividends; such shares are collectively referred to
herein as "Common Stock".
3.3 Directors' Authority to Establish Series of Cumulative Preferred
Stock. The Board of Directors is authorized to divide the Cumulative Preferred
Stock into series and to fix and determine the relative rights and preferences
of each series. Each series shall be so designated by the Board of Directors as
to distinguish the shares thereof from the shares of all other series. All
shares of Cumulative Preferred Stock shall be identical except as to the
following relative rights and preferences, as to which the Board of Directors
may establish variations between different series not inconsistent with the
provisions of these Articles:
(a) The rate of dividend;
A-2
<PAGE>
(b) The price at and the terms and conditions on which shares may be
redeemed;
(c) The amount payable upon shares in the event of voluntary or
involuntary liquidation;
(d) Sinking fund provisions for the redemption or purchase of shares;
(e) The terms and conditions on which shares may be converted into
Common Stock, if the shares of any series are issued with the privilege of
conversion;
(f) Voting rights, if any, subject to the provisions of Section 3.2
hereof.
3.4 Dividends and Distributions. The holders of Cumulative Preferred
Stock of all series shall be entitled to receive dividends at such rates upon
such conditions and at such times as shall be stated in the resolution or
resolutions of the Board of Directors providing for the issuance thereof. All
dividends on Cumulative Preferred Stock shall be without priority as between
series, shall be paid out of net earnings or any surplus properly applicable to
the payment of dividends, and shall be paid or set apart before any dividends or
other distributions shall be paid or set apart for Common Stock; provided,
however, that dividends may be declared and paid on Common Stock in Common Stock
prior to dividends on the Cumulative Preferred Stock being paid or set apart.
Any dividends paid upon the Cumulative Preferred Stock in an amount less than
full cumulative dividends accrued and in arrears upon all Cumulative Preferred
Stock outstanding shall, if more than one series be outstanding, be distributed
among the different series in proportion to the aggregate amounts which would be
distributable to the Cumulative Preferred Stock of each series if full
cumulative dividends were declared and paid thereon. The dividends on the
Cumulative Preferred Stock shall be cumulative, so that if at any time the full
amount of dividends accrued and in arrears on the Cumulative Preferred Stock
shall not be paid, the deficiency shall be payable before any dividends or other
distributions shall be paid or set apart on Common Stock (other than a
distribution payable in shares of Common Stock), and before any sums shall be
paid or set apart for the redemption of less than all of the Cumulative
Preferred Stock then outstanding. Dividends on Cumulative Preferred Stock shall
accrue from date of issue. Whenever all dividends accrued and in arrears on
Cumulative Preferred Stock shall have been declared and shall have been paid or
set apart, the Board of Directors may declare dividends on Common Stock out of
the remaining net profits of the Corporation, or out of surplus applicable to
the payment of such dividends.
3.5 Liquidation Rights. In the event of the voluntary liquidation or
winding up of the Corporation, the holders of Cumulative Preferred Stock shall
be entitled to receive out of the assets of the Corporation in full the fixed
voluntary liquidation amount thereof, plus accrued dividends thereon, all as
provided in the resolution or resolutions providing for the issuance thereof,
before any amount shall be paid to the holders of Common Stock. In the event of
the involuntary liquidation of the Corporation, the holders of the Cumulative
Preferred Stock shall be entitled to receive out of the assets of the
Corporation in full the fixed involuntary liquidation amount thereof, plus
accrued dividends thereon, all as provided in the resolution or resolutions
providing for the issuance thereof, before any amount shall be paid to the
holders of Common Stock. If, upon the voluntary or involuntary liquidation or
winding up of the Corporation, the assets of the Corporation shall be
insufficient to pay the holders of all of the Cumulative Preferred Stock the
entire amounts to which they may be entitled, the assets of the Corporation
shall, if more than one series be outstanding, be distributed among the
different series in proportion to the aggregate amounts which would be
distributable to the Cumulative Preferred Stock of each series if sufficient
assets were available. The holders of Cumulative Preferred Stock shall not
otherwise be entitled to participate in any distribution of assets of the
Corporation, which shall be divided or distributed among the holders of Common
Stock. No consolidation or merger of the Corporation with or into another
corporation or corporations and no sale by the Corporation of all or
substantially all of its assets shall be deemed a liquidation or winding up of
the Corporation.
3.6 Voting Rights of Cumulative Preferred Stock. The holders of
Cumulative Preferred Stock shall have only such voting rights as shall be stated
in the resolution or resolutions of the Board of Directors providing for the
issuance thereof, except to the extent that such limitation may be inconsistent
with the provisions of the Wisconsin Business Corporation Law.
A-3
<PAGE>
3.7 Repurchase, etc. of Shares. The Corporation, acting through its Board
of Directors, shall have the right to purchase, take, receive, or otherwise
dispose of its own shares, to the fullest extent provided by law at the time of
any such transaction.
ARTICLE IV.
Pre-emptive Rights
No holder of any stock of the Corporation shall have any pre-emptive or
other subscription rights nor be entitled, as of right, to purchase or subscribe
for any part of the unissued stock of this Corporation or any additional stock
issued by reason of any increase of authorized capital stock of this Corporation
or other securities whether or not convertible into stock of the Corporation.
ARTICLE V.
Voting
The affirmative vote of two-thirds of all shares entitled to vote thereon
(and/or of each class which shall be entitled to vote thereon as a class) shall
be required in order to constitute shareholder approval or adoption of any of
the following:
(a) Merger or consolidation of the Corporation.
(b) Liquidation of the Corporation.
(c) Sale, lease, exchange or other disposition of all or
substantially all assets of the Corporation.
(d) Amendment of the Articles of Incorporation or the By-laws.
(e) Removal of any director of the Corporation.
ARTICLE VI.
Registered Office and Agent
The address of the registered office of the Corporation is c/o Quarles &
Brady, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, and the name of
the registered agent at such office is Anthony W. Asmuth III.
ARTICLE VII.
Directors
The number of directors constituting the Board of Directors shall be such
number, not less than three (3), as shall be fixed from time to time by the By-
laws of the Corporation, subject to the provisions of this Article VII. The By-
laws may provide for the division of the Board of Directors into two or three
classes of directors and for the terms and manner of election thereof not
inconsistent with the applicable provisions of the Wisconsin Business
Corporation Law. In the event of such classification and provided that shares
of Class B Common Stock are then outstanding, each class of directors so created
shall contain as nearly as possible an equal number of directors elected by the
holders of Class A Common Stock and Cumulative Preferred Stock having voting
power, as a group, and shall also contain as nearly as possible an equal number
of directors elected by the holders of Class B Common Stock. In the event there
should be two classes of directors specified by the By-laws, then from the next
succeeding annual meeting of shareholders and for so long as there are two
classes of directors the total number of directors shall not be less than five
(5). In the event there should be three classes of directors
A-4
<PAGE>
specified by the By-laws, then from the next succeeding annual meeting of
shareholders and for so long as there are three classes of directors the total
number of directors shall not be less than seven (7). Each director shall serve
for the term for which such director was elected, regardless of any subsequent
change in the By-laws relating to the length of directors' terms.
ARTICLE VIII.
Amendments
These Articles may be amended in the manner authorized by law at the time
of amendment, provided that the provisions of Article V hereof have been
satisfied.
A-5
<PAGE>
Exhibit 5
February 17, 1998
Applied Power Inc.
13000 West Silver Spring Drive
Butler, Wisconsin 53007-1093
Re: Applied Power Inc. 1996 Stock Option Plan
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration Statement
of Applied Power Inc. (the "Company") on Form S-8 (the "Registration Statement")
to be filed under the Securities Act of 1933, as amended (the "Act"), with
respect to the proposed sale by the Company of up to 3,000,000 shares (as
adjusted to reflect the effect of the Company's two-for-one stock split paid on
February 3, 1998 to shareholders of record on January 22, 1998) of Class A
Common Stock, par value $.20 per share ("Shares"), of the Company pursuant to
the Applied Power Inc. 1996 Stock Option Plan (the "Plan").
We have examined: (i) the Registration Statement; (ii) the Company's
Amended and Restated Articles of Incorporation and Amended and Restated Bylaws,
each as amended to date; (iii) the Plan; (iv) the corporate proceedings relating
to the authorization for the issuance of the Shares; and (v) such other
documents and records and such matters of law as we have deemed necessary in
order to render this opinion.
On the basis of the foregoing, we advise you that, in our opinion:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Wisconsin.
2. The Shares to be sold from time to time pursuant to the Plan which are
original issuance shares, when issued and paid for as contemplated by
the Registration Statement and the Plan, will be validly issued, fully
paid and nonassessable by the Company, subject to the personal
liability which may be imposed on shareholders by Section
180.0622(2)(b) of the Wisconsin Business Corporation Law, as
judicially interpreted, for debts owing to employees for services
performed, but not exceeding six months service in any one case.
Although Section 180.0622(2)(b) provides that such personal liability
of shareholders shall be "to an amount equal to the par value of
shares owned by them respectively, and to the consideration for which
their shares without par value was issued," the Wisconsin Supreme
Court, by a split decision without a written opinion, has affirmed a
judgment holding shareholders of a corporation liable under the
substantially identical predecessor statute in effect prior to January
1, 1991 (Section 180.40(6)) for unpaid employee wages to an amount
equal to the consideration for which their par value shares were
issued rather than the shares' lower stated par value. Local 257 of
Hotel and Restaurant Employees and Bartenders International Union v.
Wilson Street East Dinner Playhouse, Inc., 126 Wis. 2d 284, 375 N.W.2d
664 (1985) (affirming the 1983 decision of the Circuit Court for Dane
County, Wisconsin, in Case No. 82-CV-0023).
The Company's Secretary, Anthony W. Asmuth III, is a partner of Quarles &
Brady, which serves as counsel to the Registrant.
<PAGE>
Applied Power Inc.
February 17, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving consent, we do not admit that we are
"experts" within the meaning of Section 11 of the Act, or that we come within
the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ QUARLES & BRADY
Quarles & Brady
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Applied Power Inc. on Form S-8 of our report dated September 25, 1997, appearing
in the Annual Report on Form 10-K of Applied Power Inc. for the year ended
August 31, 1997. We also consent to the incorporation by reference in this
Registration Statement of our report dated May 9, 1997 relating to Versa
Technologies, Inc. appearing in the Current Report on Form 8-K of Applied Power
Inc. dated October 3, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Milwaukee, Wisconsin
February 12, 1998
