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Registration No.
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As filed with the Securities and Exchange Commission on October 28, 1997
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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W. H. BRADY CO.
(Exact name of registrant as specified in its charter)
WISCONSIN 39-0178960
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6555 West Good Hope Road
P.O. Box 571
Milwaukee, Wisconsin 53201-0571
(Address of Principal Executive Offices) (ZIP Code)
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1997 OMNIBUS INCENTIVE STOCK PLAN AND
1997 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full title of the plans)
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THOMAS E. SCHERER Copy to:
Vice President and Assistant Secretary CONRAD G. GOODKIND, ESQ.
W. H. Brady Co. Quarles & Brady
6555 West Good Hope Road 411 East Wisconsin Avenue
P.O. Box 571 Milwaukee, Wisconsin 53202
Milwaukee, Wisconsin 53201-0571
(Name and address of agent for service)
(414) 358-6600
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE(2) FEE
- ------------------------------- ---------------- -------------- ----------------- ------------
<S> <C> <C> <C> <C>
Class A Nonvoting Common Stock,
par value $.01 per share 2,125,000 shares (2)(3) $ 62,765,156 $ 19,020
</TABLE>
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(1) The 1997 Omnibus Incentive Stock Plan provides for the issuance of up to
2,000,000 shares of Class A Nonvoting Common Stock, par value $.01 per
share ("Class A Common Stock"), and up to 125,000 shares of Class A Common
Stock under the 1997 Nonqualified Stock Option Plan for Non-Employee
Directors (collectively the "Plans"). The Plans provide for possible
adjustment of the number, price and kind of shares covered by options and
other stock incentive awards granted or to be granted, and of the number
and kind of shares which may be awarded as restricted stock, in the event
of certain capital or other changes affecting the Registrant's Class A
Common Stock. This Registration Statement therefore covers, in addition
to the above stated 2,125,000 shares, an indeterminate number of shares
that may become subject to the Plans by means of any such adjustment.
(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
15,000 shares underlying options on May 13, 1997 at $23.875 per share,
(ii) the aggregate exercise price for the 213,750 shares underlying
options granted on October 3, 1997 at $31.375 per share, (iii) the
aggregate exercise price for the 500,000 shares underlying options
granted on May 13, 1997 at $23.875 per share, (iv) 125,000 shares of
restricted Class A stock at $29.75 and (v) $31.50 per share for the
remaining 1,271,250 shares, which is the average of the high and low
sales prices of the Registrant's Class A Common Stock on the Nasdaq/NMS
on October 27, 1997, as reported in the Midwest Edition of the Wall
Street Journal.
(3) In the case of nonqualified stock options, the actual offering price
shall be not less than 100% of the Fair Market Value of Registrant's Class
A Common Stock on the date on which the nonqualified stock option is
granted.
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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 W. H. Brady Co. (the "Registrant")
(Commission File No. 0-12730) 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) Annual Report on Form 10-K for the fiscal year ended July 31,
1996 and Amendment No. 1 thereto (on Form 10-K/A) dated October 29,
1996.
(b) Quarterly Reports on Form 10-Q for the quarterly periods ended
October 31, 1996, January 31, 1997 and April 30, 1997.
(c) That portion of the Registrant's Registration Statement on Form
8-A that describes the Registrant's Class A Nonvoting Common Stock
in Item 1 thereof, which incorporates the description from the
description of Registrant's Capital Stock contained in the
Registrant's Registration Statement on Form S-1 (Registration
Statement No. 2-91287), effective June 25, 1984, as updated by the
description contained in Registrant's Form 10-Q for the quarter
ended October 31, 1995, and including any future 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 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Chapter 180 of the Wisconsin Statutes includes provisions for
indemnification by a corporation of a director or officer against certain
liabilities and expenses incurred by him or her in any proceeding (whether
threatened, pending or completed, and whether brought by the corporation or any
other person) to which he or she was a party because of being a director or
officer. In general, under these provisions (1) a corporation is required to
indemnify a director or officer, to the extent he or she has been successful on
the merits or
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otherwise in the defense of any such proceeding, for all reasonable expenses
incurred in the proceeding, and (2) in other cases, the corporation is required
to indemnify a director or officer against liabilities (including, among other
things, judgments, penalties, fines and reasonable expenses) incurred in any
such proceeding unless liability was incurred because he or she breached or
failed to perform a duty to the corporation and the breach or failure
constitutes any of the following: (a) a willful failure to deal fairly with
the corporation or its shareholders in connection with a matter in which he or
she has a material conflict of interest, (b) a violation of criminal law,
unless he or she had reasonable cause to believe his or her conduct was lawful
or no reasonable cause to believe his or her conduct was unlawful, (c) a
transaction from which he or she derived an improper personal profit, or (d)
willful misconduct. The provisions specify that the termination of a
proceeding by judgment, order, settlement or conviction, or upon a plea of no
contest or an equivalent plea, does not, by itself, create a presumption that
indemnification is not required. Also, the provisions permit a corporation to
pay or reimburse reasonable expenses as incurred if the director or officer
affirms his or her good faith belief that he or she has not breached or failed
to perform his or her duties to the corporation and undertakes to make
repayment to the extent it is ultimately determined that indemnification is not
required. With specified exceptions, these provisions do not preclude
additional indemnification. Chapter 180 specifically 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
generally thereunder, 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.
Chapter 180 of the Wisconsin Statutes also 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 referred to above.
The Bylaws of the Registrant provide generally for mandatory
indemnification of directors and officers of the Registrant to the fullest
extent permitted by law.
Officers and directors of the Registrant may be covered by insurance
policies purchased by the Registrant, under which they are insured (subject to
exceptions and limitations specified in the policies) against expenses and
liabilities arising out of actions, suits or proceedings to which they are
parties by reason of being or having been such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Shares of the Registrant's Common Stock were issued to four Executive
Officers of Registrant, pursuant to Section 4(2) and Regulation D under the
Securities Act of 1933, as amended.
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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(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 a
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) do not apply
if 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) 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 provisions referred to in Item 6, 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
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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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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 Milwaukee, State of Wisconsin, on October 27, 1997.
W. H. BRADY CO.
(Registrant)
By: /s/ Frank M. Jaehnert
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Frank M. Jaehnert
Vice President and Chief Financial Officer
(Principal Accounting Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Katherine M. Hudson and Peter J. Lettenberger,
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.
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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/ K.M. Hudson President and Director (Principal Executive Officer)
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K. M. Hudson
/s/ P.J. Lettenberger Director and Secretary
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P. J. Lettenberger
/s/ R.A. Bemis Director
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R. A. Bemis
</TABLE>
S-1
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Director
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F. W. Harris
/s/ R.C. Buchanan Director
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R. C. Buchanan
Director
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R. D. Peirce
Director
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G. E. Nei
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* Each of these signatures is affixed as of October 27, 1997.
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<PAGE> 9
W. H. BRADY CO.
(THE "REGISTRANT")
(COMMISSION FILE NO. 0-12730)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
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<S> <C> <C> <C>
4.1 Restated Articles of Exhibit 4.1 to
Incorporation of the Registrant Registrant's
Registration
Statement No.
333-04155 on Form
S-3
4.2 Bylaws of the Registrant Registrant's Annual
Report on Form 10-K
for the fiscal year
ended July 31, 1989
5 Opinion of Counsel X
23.1 Consent of Deloitte & Touche LLP X
23.2 Consent of Counsel Contained in
Opinion filed as
Exhibit 5
24 Powers of Attorney Signatures Page to
this Registration
Statement
99.1 1997 Omnibus Incentive Stock Plan Exhibit 10.12 to Form
10-Q for quarter
ended April 30, 1997
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
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<S> <C> <C> <C>
99.2 1997 Nonqualified Stock Option Exhibit 10.13 to Form
Plan for Non-Employee Directors 10-Q for quarter
ended April 30, 1997
</TABLE>
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<PAGE> 1
EXHIBIT (5)
October 27, 1997
W. H. Brady Co.
6555 West Good Hope Road
P.O. Box 571
Milwaukee, Wisconsin 53201-0571
Re: W.H. Brady Co. 1997 Omnibus Incentive Stock Plan and W.H. Brady
Co. 1997 Nonqualified Stock Option Plan for Non-Employee Directors
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration
Statement of W. H. Brady Co. (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 issuance by the Company of up to 2,000,000
shares of Class A Nonvoting Common Stock, par value $.01 per share, of the
Company pursuant to the Company's 1997 Omnibus Incentive Stock Plan and the
proposed issuance by the Company of up to 125,000 shares of Class A Nonvoting
Common Stock, par value $.01 per share, of the Company pursuant to the
Company's 1997 Nonqualified Stock Option Plan for Non-Employee Directors
(collectively, the "Plans"). The total 2,125,000 shares of Class A Nonvoting
Common Stock, par value $.01 per share, that may be issued under the Plans are
hereafter collectively referred to as the "Shares."
We have examined: (i) the Registration Statement; (ii) the Company's
Restated Articles of Incorporation and Bylaws, as amended to date; (iii) the
Plans; (iv) the corporate proceedings relating to the adoption and approval of
the Plans and the authorization for the issuance of the Shares; and (v) such
other documents and records and such matters of law as I have deemed necessary
in order to render this opinion.
On the basis of the foregoing, we advise you that, in my opinion:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Wisconsin.
2. The Shares, when issued as and for the consideration
contemplated by 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
<PAGE> 2
W. H. Brady Co.
October 27, 1997
Page 2
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).
One of the Registrant's directors and its Secretary, Peter Lettenberger,
is a partner of Quarles & Brady, which serves as general counsel to the
Registrant.
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
EI-2
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
W.H. Brady Co. on Form S-8 of our reports dated September 13, 1996, appearing
in and incorporated by reference in the Annual Report on Form 10-K of W.H.
Brady Co. for the year ended July 31, 1996.
Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Milwaukee, Wisconsin
October 23, 1997
