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Registration No. 333-_______
As filed with the Securities and Exchange Commission on January 20, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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BRADYGOLD PLAN
(Full title of the plan)
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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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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
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Class A Nonvoting Common Stock,
par value $.01 per share 200,000 shares (2) $6,025,000 $1,777
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(1) The BradyGold Plan (the "Plan") contemplates the purchase of up to
200,000 shares of Class A Nonvoting Common Stock, par value $.01 per
share ("Class A Common Stock"). The Plan provides for possible
adjustment of the number, price and kind of shares 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 200,000 shares, an indeterminate number of
shares that may become subject to the Plan by means of any such
adjustment.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon $30.125 per share for 200,000 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 January 16,
1998, as reported in the Midwest Edition of the Wall Street Journal.
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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,
1997 dated October 29, 1997.
(b) Quarterly Report on Form 10-Q for the three months ended
October 31, 1997, dated December 5, 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.
Pursuant to Instruction A.2. to Form S-8 and the Commission's
interpretations thereunder, the Item 3 requirement pertaining to incorporation
by reference in this Registration Statement of the Plan's most recent annual
report is not applicable.
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(b) above.
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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, Peter J. Lettenberger, is a partner of
Quarles & Brady which serves as counsel to the Registrant.
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 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.
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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:
(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 Registration Statement is on Form S-3, Form S- 8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with the Commission by
the Registrant 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.
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(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 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 January 19,
1998.
W. H. BRADY CO.
(Registrant)
By: /s/ Frank M. Jaehnert
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Frank M. Jaehnert
Vice President and Chief Financial
Officer (Principal Financial and
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.*
SIGNATURE TITLE
/s/ K. M. Hudson President and Director
- ------------------------------------------ (Principal Executive Officer)
K. M. Hudson
/s/ P. J. Lettenberger Director and Secretary
- -------------------------------------------
P. J. Lettenberger
/s/ R. A. Bemis Director
- ------------------------------------------
R. A. Bemis
S-1
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Director
- ------------------------------------------
F. W. Harris
/s/ R. C. Buchanan Director
- ------------------------------------------
R. C. Buchanan
/s/ R. D. Peirce Director
- ------------------------------------------
R. D. Peirce
Director
- ------------------------------------------
G. E. Nei
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* Each of these signatures is affixed as of January 19, 1998.
S-2
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W. H. BRADY CO.
(THE "REGISTRANT")
(COMMISSION FILE NO. 0-12730)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
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EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
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4.1 Restated Articles of Incorporation of Exhibit 4.1 to Registrant's
the Registrant 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
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EXHIBIT (5)
January 19, 1998
W. H. Brady Co.
6555 West Good Hope Road
P.O. Box 571
Milwaukee, Wisconsin 53201-0571
Re: W.H. Brady Co. BradyGold Plan
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 200,000
shares of Class A Nonvoting Common Stock, par value $.01 per share (the
"Shares") , of the Company pursuant to the Company's BradyGold Plan (the
"Plan").
We have examined: (i) the Registration Statement; (ii) the Company's
Restated Articles of Incorporation and Bylaws, as amended to date; (iii) the
Plan; (iv) the corporate proceedings relating to the adoption and approval of
the Plan 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 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).
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W. H. Brady Co.
January 19, 1998
Page 2
One of the Registrant's directors and its Secretary, Peter J.
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
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EXHIBIT 23.1
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 8, 1997, appearing
in and incorporated be reference in the Annual Report on Form 10-K of W. H.
Brady Co. for the year ended July 31, 1997.
Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Milwaukee, Wisconsin
January 16, 1998
