As filed with the Securities and Exchange Commission on February 27, 2004
Registration No. 333-111836
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACTUANT CORPORATION
(Exact name of Registrant as specified in its charter)
WISCONSIN 36-0168610
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6100 NORTH BAKER ROAD
MILWAUKEE, WI 53209
TELEPHONE: (414) 352-4160
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive
offices)
ANDREW G. LAMPEREUR
CHIEF FINANCIAL OFFICER
6100 NORTH BAKER ROAD
MILWAUKEE, WI 53209
TELEPHONE: (414) 352-4160
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Helen R. Friedli, P.C.
McDermott, Will & Emery
227 West Monroe Street
Chicago, IL 60606
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME FOLLOWING THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |-|
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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PLEASE CONFIRM ADDRESSES AND COMPLETE
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TABLE OF GUARANTORS
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NAME STATE OR OTHER
JURISDICTION OF
INCORPORATION OR I.R.S. EMPLOYER
ORGANIZATION IDENTIFICATION NUMBER ADDRESS
--------------------------- -------------------------- ---------------------- -------------------------------
Applied Power Investments Nevada 36-3673537 3993 Howard Hughes Pkwy
II, Inc.................... #100
Las Vegas, NV 89109
Engineered Solutions L.P... Indiana 31-1757546 1217 East 7th Street
Mishawaka, IN 46545
GB Tools and Supplies, Wisconsin 39-0964876 6100 North Baker Rd.
Inc........................ Glendale, WI 53209
Versa Technologies, Inc.... Delaware 39-1143618 5877 S. Pennsylvania Ave.
Cudahy, WI 53110
and
6100 North Baker Rd.
Glendale, WI 53209
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SUBJECT TO COMPLETION DATED FEBRUARY 27, 2004
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE
IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAW OF ANY SUCH STATE.
$150,000,000
ACTUANT CORPORATION
2% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2023, RELATED GUARANTEES AND
THE COMMON STOCK ISSUABLE UPON CONVERSION OF THE DEBENTURES
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THE DEBENTURES
o We issued $150,000,000 aggregate principal amount of our 2% Convertible
Senior Subordinated Debenture due 2023 in a private placement on November
10, 2003. This prospectus will be used by selling securityholders to offer
and resell debentures and the common stock issuable upon conversion of the
debentures. We will not receive any proceeds from those resales.
o Interest on the debentures accrues from November 10, 2003, payable
semi-annually in arrears on May 15 and November 15 of each year, beginning
May 15, 2004. The debentures mature on November 15, 2023 although we may
redeem all or part of the debentures at our option on or after November 20,
2010 as more fully described in this prospectus.
o Beginning with the six-month interest period commencing November 15, 2010,
we will pay contingent interest during a six-month interest period if the
trading price of a debenture is above a specified level as described in
this prospectus. The debentures will be treated as contingent payment debt
instruments that are subject to certain United States federal income tax
rules.
o The debentures are jointly and severally guaranteed on an unsecured senior
subordinated basis by certain of our existing domestic subsidiaries and may
be guaranteed by certain future subsidiaries.
o You may require us to repurchase all or any portion of your debentures on
November 15, 2010, November 15, 2013 and November 15, 2018 or at any time
prior to maturity upon the occurrence of a designated event (as defined
herein), as more fully described in this prospectus.
o Holders may convert the debentures into shares of our common stock at a
conversion rate of 25.0563 shares of our common stock per $1,000 principal
amount of the debentures (representing a conversion price of approximately
$39.91 per share), subject to adjustment, prior to the close of business on
the last business day prior to the final maturity date under certain
circumstances as described in this prospectus.
o The debentures are our unsecured senior subordinated obligations and the
payment of the principal of and interest, including contingent interest, if
any, and liquidated damages, if any, on the debentures are subordinated in
right of payment to the prior payment in full of our existing and future
senior indebtedness, including our obligations under our senior credit
facility. The debentures rank equally in right of payment with our existing
and future senior subordinated indebtedness and rank senior in right of
payment to any of our future subordinated indebtedness. The debentures also
rank junior in right of payment to our secured indebtedness (including our
obligations under our senior credit facility) to the extent of the
underlying collateral.
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TRADING
o Our common stock is traded on the New York Stock Exchange under the symbol
"ATU." The last reported sale price for our common stock on the New York
Stock Exchange on February 26, 2004 was $40.41 per share.
o There is no public market for the debentures and we do not intend to apply
for listing of the debentures on any securities exchange or for quotation
of the debentures through any automated quotation system. The debentures
currently trade in the Private Offerings, Resales and Trading through
Automatic Linkages Market, commonly referred to as the PORTAL Market.
However, once debentures are sold under this prospectus, those debentures
will no longer trade on the PORTAL Market.
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INVESTING IN THE DEBENTURES AND OUR COMMON STOCK INVOLVES RISKS. SEE
"RISK FACTORS" BEGINNING ON PAGE [O].
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _______________, 2004.
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IMPORTANT NOTICE TO READERS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a "shelf" registration
process. Under this shelf registration process, the selling securityholders may,
from time to time, offer debentures or shares of our common stock owned by them.
Each time the selling securityholders offer debentures or common stock under
this prospectus, they will provide a copy of this prospectus and, if applicable,
a copy of a prospectus supplement. You should read both this prospectus and, if
applicable, any prospectus supplement together with the information incorporated
by reference in this prospectus and, if applicable, any supplement hereto. See
"Where You Can Find More Information" and "Incorporation of Certain Documents by
Reference" for more information.
We have not authorized anyone to provide you with information other
than the information contained herein or incorporated by reference as set forth
under "Incorporation of Certain Documents by Reference". Neither the debentures
nor any shares of common stock issuable upon conversion of the debentures are
being offered in any jurisdiction where the offer or sale is not permitted. The
information contained in this prospectus speaks only as of the date of this
prospectus and the information in the documents incorporated or deemed to be
incorporated by reference in this prospectus speaks only as of the respective
dates those documents were filed with the Securities and Exchange Commission
(the "SEC").
TABLE OF CONTENTS
IMPORTANT NOTICE TO READERS....................................................5
SUMMARY........................................................................7
RISK FACTORS..................................................................14
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS..........................27
MARKET DATA...................................................................27
USE OF PROCEEDS...............................................................28
DIVIDEND POLICY...............................................................28
COMMON STOCK PRICE RANGE......................................................28
RATIO OF EARNINGS TO FIXED CHARGES............................................28
DESCRIPTION OF THE DEBENTURES.................................................30
REGISTRATION RIGHTS...........................................................51
DESCRIPTION OF CAPITAL STOCK..................................................52
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS......................55
SELLING SECURITYHOLDERS.......................................................62
PLAN OF DISTRIBUTION..........................................................65
WHERE YOU CAN FIND MORE INFORMATION...........................................67
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................69
LEGAL MATTERS.................................................................69
EXPERTS.......................................................................69
Unless otherwise indicated or the context otherwise requires in this
prospectus:
o "Actuant," the "Company," "we," "us" and "our" refer to Actuant
Corporation and its subsidiaries;
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o all references to our "common stock" mean our Class A Common Stock,
$0.20 par value per share;
o all references to "SKUs" mean stock keeping units;
o all references to "fiscal year 2003," "fiscal year 2002" and "fiscal
year 2001" refer to our fiscal years ended August 31, 2003, 2002 and
2001, respectively;
o all references to the "November 2003 private placement" refer to our
sale of the debentures on November 10, 2003 to qualified institutional
investors pursuant to Rule 144A of the Securities Act of 1933, as
amended; and
o all references to the number of shares of our common stock and related
per share data have been restated to reflect the 2-for-1 stock split
that occurred by way of dividend on October 21, 2003.
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SUMMARY
This summary provides an overview of selected information and does not
contain all the information you should consider. You should read the entire
prospectus, including the section entitled "Risk Factors" and the documents
incorporated by reference in this prospectus, carefully before making an
investment decision.
We are a diversified global manufacturer and marketer of a broad range
of industrial products and systems, organized into two business segments, Tools
& Supplies and Engineered Solutions. Tools & Supplies sells branded, specialized
electrical and industrial tools and supplies to hydraulic and electrical
wholesale tool distributors, to catalog houses and through various retail
distribution channels. Engineered Solutions' primary expertise is in designing,
manufacturing and marketing customized motion control systems primarily for
automotive, recreational vehicle and truck original equipment manufacturers, or
OEMs, in diversified niche markets. We believe that our strength in these
product categories is the result of the combination of our brand recognition,
proprietary engineering and design competencies, a dedicated service philosophy,
and global manufacturing and distribution capabilities.
RECENT EVENTS
On February 19, 2004, we entered into a $250 million five-year senior
revolving credit facility (the "Revolver"). The Revolver replaced our then
existing senior secured credit facility which included an outstanding $30
million term loan and an undrawn $100 million revolving credit facility. The
Revolver is not secured by our assets, and provides for guaranties and stock
pledges by certain of our significant subsidiaries. Borrowings under the
Revolver are subject to a pricing grid, with initial borrowings priced at LIBOR
plus 150 basis points, compared to LIBOR plus 200 basis points under the former
facility.
The replacement of the senior credit facility will result in a non-cash
charge in the second quarter of fiscal 2004 of approximately $2.3 million, $1.5
million net of tax, or approximately $0.06 per diluted share, representing the
write-off of the remaining capitalized debt issuance costs associated with the
former facility.
OUR ADDRESS
Headquartered in Milwaukee, we are a Wisconsin corporation,
incorporated in 1910. Our principal executive offices are located at 6100 North
Baker Road, Milwaukee, Wisconsin 53209, and our telephone number at that
location is (414) 352-4160. Our website address is www.actuant.com. Until
January of 2001, we were named Applied Power Inc.
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THE OFFERING
Issuer Actuant Corporation, a Wisconsin
corporation.
Securities Offered $150,000,000 aggregate principal amount
of 2% Convertible Senior Subordinated
Debentures due 2023 and shares of our
common stock issuable upon conversion
of the debentures.
Maturity Date November 15, 2023, unless earlier
redeemed, repurchased or converted.
Interest 2% per annum of the principal amount,
accruing from November 10, 2003,
payable semi-annually in arrears on May
15 and November 15 of each year,
beginning May 15, 2004.
Contingent Interest Beginning with the six-month interest
period commencing November 15, 2010, we
will pay additional, contingent
interest during any six-month interest
period if the trading price of the
debentures for each of the five trading
days immediately preceding the first
day of the applicable six-month
interest period equals or exceeds 120%
of the principal amount of the
debentures. During any interest period
when contingent interest shall be
payable, the contingent interest
payable per $1,000 principal amount of
the debentures will equal 0.25% per
six-month interest period of the
average trading price of $1,000
principal amount of the debentures
during the five trading days
immediately preceding the first day of
the applicable six-month interest
period.
Guarantees The debentures are fully and
unconditionally guaranteed, jointly and
severally, on an unsecured senior
subordinated basis by certain of our
existing domestic subsidiaries and may
be guaranteed by certain future
subsidiaries. If one of our
subsidiaries which is not a subsidiary
guarantor of the debentures becomes a
guarantor of our 13% senior
subordinated notes, that subsidiary
will also be required to guarantee the
debentures on an unsecured senior
subordinated basis. A subsidiary
guarantor will be released from its
guarantee of the debentures if such
subsidiary guarantor ceases to be a
guarantor of our 13% senior
subordinated notes. All of the
guarantees will be released at such
time as we no longer have any of our
13% senior subordinated notes
outstanding. However, if we issue any
other senior subordinated debt or
subordinated debt and such senior
subordinated debt or subordinated debt
is guaranteed by one or more of our
subsidiaries, such subsidiaries will
also be required to guarantee the
debentures on an unsecured senior
subordinated basis. We refer to the
subsidiaries that guarantee the
debentures as the "subsidiary
guarantors."
Ranking The debentures are our unsecured senior
subordinated obligations and the
payment of the principal of and
interest, contingent interest, if any,
and liquidated damages, if any, on the
debentures is subordinated in right of
payment to the prior payment in full of
our existing and future "senior
indebtedness" (as defined in the
indenture pursuant to which the
debentures were issued and which
includes our obligations under our
senior credit facility). The debentures
also rank equally in right of payment
with our existing and future senior
subordinated indebtedness and senior in
right of payment to any of our future
subordinated indebtedness. The
debentures also rank junior in right of
payment to our secured indebtedness
(including our obligations under our
senior credit facility) to the extent
of the underlying collateral. At
November 30, 2003, our senior
indebtedness, excluding senior
indebtedness of our subsidiaries and
accrued interest, consisted of $35.0
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million of term loans and $4.8 million
of letters of credit. We are permitted
to borrow up to $250 million of
revolving credit loans under our new
senior credit facility entered into on
February 19, 2004, subject to
compliance with covenants and borrowing
conditions. The terms "senior
indebtedness" and "senior subordinated
indebtedness" are defined under the
heading "Description of
Debentures--Ranking."
The guarantee of the debentures by each
subsidiary guarantor is an unsecured
senior subordinated obligation of that
subsidiary guarantor, and the payment
of any and all amounts due under that
guarantee is subordinated in right of
payment to the prior payment in full of
all existing and future senior
indebtedness (including obligations
under guarantees of our senior credit
facility) of that subsidiary guarantor.
The guarantee of each subsidiary
guarantor ranks equally in right of
payment with all existing and future
senior subordinated indebtedness of
that subsidiary guarantor, including,
in the case of the initial subsidiary
guarantors, their guarantees of our 13%
senior subordinated notes, and senior
in right of payment to any future
subordinated indebtedness of that
subsidiary guarantor. The guarantee of
each subsidiary guarantor ranks junior
in right of payment to any secured
obligations (including its obligations
under its guarantee of our senior
credit facility) of that subsidiary
guarantor to the extent of the
underlying collateral. Although the
initial subsidiary guarantors had no
debt outstanding at November 30, 2003,
the initial subsidiary guarantors have
guaranteed all borrowings and amounts
payable by us under our senior credit
facility. Such guarantees rank senior
in right of payment to the guarantees
of the subsidiary guarantors under the
debentures. The initial subsidiary
guarantors have also guaranteed our 13%
senior subordinated notes, which
guarantees rank pari passu in right of
payment with their guarantees of the
debentures. At November 30, 2003, we
had approximately $35.0 million of term
loans outstanding under our old senior
credit facility, $4.8 million of
letters of credit outstanding and $60.8
million of our 13% senior subordinated
notes outstanding.
As of November 30, 2004, after taking
into account the reduction in the
number of guarantors due to the
replacement of our senior credit
facility with a new credit facility on
February 19, 2004, approximately 42% of
our consolidated assets were held by
subsidiaries that are not guarantors of
the debentures. Accordingly, the
debentures are effectively subordinated
to all existing and future liabilities
of these non-guarantor subsidiaries.
Conversion Holders may convert the debentures into
shares of our common stock at a
conversion rate of 25.0563 shares of
our common stock per $1,000 principal
amount of the debentures (representing
a conversion price of approximately
$39.91 per share), subject to
adjustment, prior to the close of
business on the last business day prior
to the final maturity date only under
the following circumstances:
o during any fiscal quarter
commencing after November 30,
2003, and only during such fiscal
quarter, if the closing sale price
of our common stock exceeds 120%
of the conversion price for at
least 20 trading days in the 30
consecutive trading day period
ending on the last trading day of
the preceding fiscal quarter; or
o during any period in which our
senior subordinated debt credit
rating is below B3 by Moody's
Investor Service, Inc. ("Moody's")
and below B- by Standard and
Poor's or during any period when
neither Moody's or Standard and
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Poor's rates our senior
subordinated debt. If only one
such rating agency rates our
senior subordinated debt and such
credit rating falls below the
level specified above, holders may
convert their debentures during
the period that the credit rating
is below such level. The
debentures will cease to be
convertible pursuant to this
bullet point during any period or
periods in which the credit
ratings or rating, as the case may
be, are at or above such levels;
or
o if a debenture has been called for
redemption and has not yet been
redeemed (in which case only the
debentures called for redemption
and not yet redeemed may be
converted), the holder may convert
that debenture prior to the close
of business on the last business
day prior to the redemption date;
or
o upon the occurrence of specified
transactions described under
"Description of
Debentures--Conversion of the
Debentures--Conversion Upon
Specified Transactions."
The conversion rate may be adjusted
under circumstances described under
"Description of Debentures--Conversion
of the Debentures--Conversion Rate
Adjustments", but will not be adjusted
for accrued interest or contingent
interest, if any, or liquidated
damages, if any.
Sinking Fund None.
Optional Redemption On or after November 20, 2010, we may
redeem for cash all or part of the
debentures at any time or from time to
time, upon at least 30 days' prior
notice, at a redemption price equal to
100% of the principal amount of the
debentures, plus accrued and unpaid
interest, contingent interest, if any,
and liquidated damages, if any, up to,
but excluding, the redemption date.
Repurchase at the Option of the Holder Holders may require us to repurchase
all or any portion of their debentures
for cash on November 15, 2010, November
15, 2013 and November 15, 2018, (each,
a "repurchase date") at a repurchase
price equal to 100% of the principal
amount of the debentures to be
repurchased, plus accrued and unpaid
interest, contingent interest, if any,
and liquidated damages, if any, up to,
but excluding, the repurchase date.
Additionally, if a designated event (as
described under "Description of
Debentures--Repurchase of Debentures at
a Holder's Option Upon a Designated
Event") occurs prior to maturity,
holders may require us to repurchase
all or part of their debentures for
cash at a repurchase price equal to
100% of their principal amount, plus
accrued and unpaid interest, contingent
interest, if any, and liquidated
damages, if any, up to, but excluding,
the repurchase date.
Events of Default If there is an event of default with
respect to the debentures, an amount
equal to 100% of the principal amount
of the debentures, plus accrued and
unpaid interest, contingent interest,
if any, and liquidated damages, if any,
may be declared immediately due and
payable. These amounts automatically
become due and payable in some
circumstances. The following are events
of default with respect to the
debentures:
o default in payment of any
principal of the debentures, when
the same becomes due and payable;
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o default for 30 days in any payment
of any interest, including
contingent interest, if any, and
liquidated damages, if any, due
and payable on the debentures;
o default in our obligations to
satisfy our conversion obligation
upon exercise of a holder's
conversion right if such default
is not cured as set forth in the
indenture;
o our indebtedness or indebtedness
of any subsidiary guarantor or any
of our significant subsidiaries
(as defined) is not paid after the
final maturity of such
indebtedness or is accelerated and
the total amount of such
indebtedness unpaid or accelerated
exceeds $7.5 million;
o failure by us to comply with our
obligations under "Description of
Debentures--Merger and Sale of
Assets";
o default in our performance of our
covenants described under
"Description of
Debentures--Repurchase of
Debentures at a Holder's Option
Upon a Designated Event" (other
than a failure to repurchase
debentures, which would constitute
an event of default under some of
the provisions described above);
o default in the performance by us
or any of the subsidiary
guarantors of any of our or their
other respective covenants in the
indenture, the debentures or
guarantees for 60 days after
written notice to us;
o any judgment or decree for the
payment of money in excess of $7.5
million is entered against us, any
subsidiary guarantor or any
significant subsidiary, remains
outstanding for a period of 60
days following entry of such
judgment and is not discharged,
bonded, waived or stayed within 30
days after written notice to us;
o a guarantee of any subsidiary
guarantor that is a significant
subsidiary ceases to be in full
force and effect or is declared to
be null and void and unenforceable
or is found to be invalid or a
subsidiary guarantor that is a
significant subsidiary denies its
liability under its guarantee,
provided, however, that an event
of default will also be deemed to
occur with respect to subsidiary
guarantors that are not
significant subsidiaries if the
guarantees of those subsidiary
guarantors cease to be in full
force and effect or are declared
to be null and void and
unenforceable or are found to be
invalid or those subsidiary
guarantors deny their liabilities
under their guarantees and if,
when aggregated, those
subsidiaries would meet the
definition of a significant
subsidiary; and
o certain events of bankruptcy,
insolvency and reorganization of
us, any subsidiary guarantor or
any of our significant
subsidiaries.
See "Description of Debentures--Events
of Default."
Use of Proceeds We will not receive any of the proceeds
from the sale by the selling
securityholders of the debentures or
shares of common stock issued upon
conversion of the debentures.
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Registration Rights Pursuant to a registration rights
agreement that we entered into in
connection with the November 2003
private placement, we have filed a
shelf registration statement under the
Securities Act of 1933 relating to the
resale of the debentures and the common
stock issuable upon conversion of the
debentures. This prospectus constitutes
a part of that registration statement.
We filed the shelf registration
statement solely to permit the resale
of debentures issued in the November
2003 private placement and shares of
common stock issued on conversion of
those debentures, and investors who
purchase debentures or shares of common
stock from selling securityholders in
this offering will not be entitled to
any registration rights under the
registration rights agreement. In
addition, under the registration rights
agreement, selling securityholders may
be required to discontinue the sale or
other disposition of debentures and
shares of common stock issued upon
conversion of the debentures pursuant
to the shelf registration statement and
to discontinue the use of this
prospectus under certain circumstances
specified in the registration rights
agreement.
United States Federal Income Tax Under the indenture governing the
Considerations debentures, we have agreed, and by
acceptance of a beneficial interest in
a debenture each holder of a debenture
is deemed to have agreed, to treat the
debentures as debt instruments subject
to the United States federal income tax
contingent payment debt regulations.
Under such regulations, even if we do
not pay any contingent interest on the
debentures, a beneficial owner of the
debentures who is a U.S. holder, as
defined below under "Material United
States Federal Income Tax
Considerations," will be required to
include interest, which we refer to as
tax original issue discount, at the
rate described below in its gross
income for United States federal income
tax purposes, regardless of whether
such owner uses the cash or accrual
method of tax accounting. This imputed
interest will accrue at a rate equal to
7.75% per year, computed on a
semiannual bond equivalent basis, which
represents the yield we would have been
required to pay on noncontingent,
nonconvertible, fixed-rate debt with
terms and conditions otherwise similar
to those of the debentures. The rate at
which this imputed interest will accrue
for United States federal income tax
purposes will exceed the stated
semiannual regular cash interest
payable on the debentures.
Each holder of the debentures will
recognize gain or loss on the sale,
exchange, repurchase by us at the
holder's option, conversion, redemption
or retirement of a debenture in an
amount equal to the difference between
the amount realized, including the fair
market value of any common stock
received upon conversion, and the
holder's adjusted tax basis in the
debentures. Any gain recognized by a
holder on the sale, exchange,
repurchase by us at the holder's
option, conversion, redemption or
retirement of a debenture generally
will be ordinary interest income; any
loss generally will be ordinary loss to
the extent of the interest previously
included in income, and thereafter,
capital loss. Holders should consult
their tax advisors as to the United
States federal, state, local or other
tax consequences of acquiring, owning
and disposing of the debentures. See
"Material United States Federal Income
Tax Considerations."
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Trading There is no public market for the
debentures and we do not intend to
apply for listing of the debentures on
any securities exchange or for
quotation of the debentures through any
automated quotation system. The
debentures currently trade in the
PORTAL Market. However, once debentures
are sold under this prospectus, those
debentures will no longer trade on the
PORTAL Market. There is a risk that a
trading market for the debentures will
not exist or that the trading market
for the debentures will not have
adequate liquidity.
Book Entry Form The debentures have been issued in
book-entry form and are represented by
a permanent global certificate
deposited with a custodian for and
registered in the name of a nominee of
The Depository Trust Company, commonly
known as DTC, in New York, New York.
Beneficial interests in the debentures
are shown on, and transfers will be
effected only through, records
maintained by DTC and its direct and
indirect participants, and any such
interests may not be exchanged for
certificated debentures, except in
limited circumstances.
NYSE Symbol for Common Stock "ATU"
-14-
RISK FACTORS
In addition to the other information contained in this prospectus and
the documents incorporated by reference herein, you should carefully consider
the following risks before deciding to invest in the debentures or any shares of
common stock issued upon conversion of the debentures. If any of the events
described below occurs, our business, financial condition or results of
operations could be materially harmed. In that case, the value of debentures
offered by this prospectus and the common stock issuable conversion of the
debentures could decline. We may encounter additional risks other than those
disclosed in this prospectus.
RISKS RELATED TO OUR BUSINESS
MARKET DEMAND FOR OUR PRODUCTS MAY SUFFER CYCLICAL DECLINES.
The level of market demand for our products depends on the general
economic condition of the markets in which we compete. A substantial portion of
our revenues is derived from customers in cyclical industries that typically are
adversely affected by downward economic cycles, which may result in lower demand
for our products in the affected business segment. For example, we derive
significant revenues from sales to original equipment manufacturers ("OEMs") in
the heavy-duty truck, recreational vehicle ("RV") and automotive industries and
from the construction industry. If consumer confidence declines considerably, it
could impact consumer discretionary spending on home, RV and automobile
purchases and remodeling projects, which would adversely impact our sales to
OEMs serving these consumer markets. Similarly, a terrorist attack or other
geopolitical activity such as the events of 9/11 could disrupt demand for our
customers' products which would in turn adversely affect demand for our
products.
WE MAY BE SUBJECT TO SUBSTANTIAL LIABILITIES AS A RESULT OF OUR SPIN-OFF OF APW
LTD. AND THE SUBSEQUENT BANKRUPTCY OF APW LTD.
If we incur substantial liabilities as a result of our spin-off of APW
Ltd. and the subsequent bankruptcy of APW Ltd., our debt could significantly
increase and our business would be seriously harmed. On July 31, 2000, we
effected the spin-off of APW Ltd., a Bermuda company organized to own and
operate our former Electronics Business. As a result of the bankruptcy of APW
and one of its subsidiaries, which was completed on July 31, 2003, APW was
released from its obligation to indemnify us for income tax matters relating to
the spin-off and periods prior to the spin-off and we are or may be subject to
substantial liabilities of APW. In particular, we remain liable for tax
obligations associated with the spin-off and related corporate restructuring
transactions as well as APW's and our potential tax obligations for periods
prior to the spin-off. The Internal Revenue Service has commenced an audit of
our tax return for fiscal 2000, which was the year in which the spin-off and
related corporate restructuring transactions occurred. If any audit adjustments
were to result in a tax liability, such liability would be payable by us and not
APW. The amount of such additional tax liabilities may be substantial and could
have a material adverse effect on our financial condition and results of
operations.
On August 6, 2002, we and APW entered into an agreement which provides,
among other things, that the right of offset asserted by us with respect to
approximately $23.8 million of funds (the "Offset Funds") which we held on
behalf of APW is an allowed secured claim which is unimpaired by the APW
bankruptcy proceeding; and, further, that we may retain possession of the Offset
Funds and may use such Offset Funds to, among other things, reimburse ourselves
for certain estimated costs of approximately $4.9 million and any tax
adjustments arising from our spin-off of APW. In the event that such costs and
adjustments exceed the Offset Funds, we will be responsible for any shortfall,
and such excess amount could result in a materially adverse impact upon our
financial position and results of operations. Pursuant to the agreement with
APW, we will be required to pay an estimated $18 to $19 million of the Offset
Funds to APW or other third parties as spin-off related contingencies are
resolved. We estimate that these payments will be made sometime during fiscal
2005 although we cannot predict the actual date these payments may in fact be
made. The Offset Funds have been recorded in "Other Long-term Liabilities" and
totalled $18.9 million as of November 30, 2003.
Prior to the spin-off, we, in the normal course of business, entered
into certain real estate and equipment leases or guaranteed such leases on
behalf of our subsidiaries, including those in our Electronics Business segment.
In conjunction with the spin-off, we assigned our rights in the leases used in
the Electronics Business segment to APW, but we were not released as a
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responsible party from all such leases by the lessors. As a result, we remain
contingently liable for such leases. The total minimum future lease payments for
such leases, assuming no offset for sub-leasing, were approximately $24.2
million at November 30, 2003. The future minimum lease payments for these leases
are as follows: $4.3 million in calendar 2004; $3.1 million in calendar 2005;
$2.4 million in calendar 2006; $2.4 million in calendar 2007; $2.5 million in
calendar 2008; and $9.1 million thereafter. The parties, which currently include
both subsidiaries of APW and certain former APW subsidiaries that have been
acquired by third parties, to these leases have not filed Chapter 11 cases and,
as such, none of those leases have been rejected in the bankruptcies noted
above. However, we remain contingently liable for those leases if these APW
subsidiaries or their successors are unable to fulfill their obligations
thereunder. A future breach of these leases by these APW subsidiaries or their
successors could require us to make these payments which could adversely affect
our financial position and results of operations.
For further information on our potential exposure with respect to the
spin-off, APW's tax liabilities and the operating leases described above, see
Notes 10 and 16 to the consolidated financial statements contained in our Annual
Report on Form 10-K/A for fiscal year 2003, which is incorporated by reference
in this prospectus.
AS OF NOVEMBER 30, 2003, WE HAD $253.9 MILLION IN TOTAL DEBT. BECAUSE OF THIS
SUBSTANTIAL DEBT, OPERATING FLEXIBILITY AND COMPETITIVE POSITION COULD BE
SERIOUSLY HARMED.
As a result of this offering, we will have increased our total debt. We
have a substantial amount of debt which will continue to require significant
interest and principal payments. Our level of debt and the limitations imposed
on us by our debt agreements could adversely affect our operating flexibility
and put us at a competitive disadvantage. Our substantial debt level may
adversely affect our future performance, because, among other things:
o we will have to use a portion of our cash flow for debt service rather
than for operations;
o we may not be able to obtain further debt financing and may have to pay
more for financing;
o we may not be able to take advantage of business opportunities;
o some of our indebtedness bears interest at variable interest rates,
making us vulnerable to increases in interest rates;
o the terms of our 13% senior subordinated notes and our senior credit
facility require that we apply certain excess cash flow, as defined, to
repay specified indebtedness in certain situations; and
o we will be more vulnerable to adverse economic conditions.
Although our debt agreements limit the amount of additional
indebtedness that we and our subsidiaries may incur, both we and our
subsidiaries nonetheless retain the ability to incur substantial additional
indebtedness, including senior indebtedness, and other obligations in the
future. As of November 30, 2003, we had approximately $253.9 million of total
debt and $4.8 million of letters of credit outstanding, and $98.0 million of
unused borrowing capacity under our old senior credit facility available to us,
subject to compliance with covenants and borrowing conditions. In addition, as
of November 30, 2003, we were a party to operating leases requiring future
minimum lease payments aggregating approximately $37.5 million, and were also
contingently liable with respect to leases assigned to APW in connection with
the spin-off requiring, as of November 30, 2003, aggregate future minimum lease
payments of approximately $24.2 million.
OUR ABILITY TO SERVICE OUR OBLIGATIONS UNDER THE DEBENTURES WOULD BE
HARMED IF WE FAIL TO COMPLY WITH THE FINANCIAL AND OTHER COVENANTS OF OUR DEBT
AGREEMENTS.
Our debt agreements also contain a number of significant financial and
other restrictive covenants. These covenants could adversely affect us by
limiting our financial and operating flexibility as well as our ability to plan
for and react to market conditions and to meet our capital needs. Our failure to
comply with these covenants could result in events of default which, if not
cured or waived, could result in our being required to repay that indebtedness
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before its due date, and we may not have the financial resources or be able to
arrange alternative financing to do so. As of November 30, 2003, and on February
19, 2004, which is the date that we replaced our then existing senior credit
facility with a new senior credit facility, we were in compliance with all of
our covenants under our debt agreements. Borrowings under our new senior credit
facility are secured by a pledge of stock by certain of our subsidiaries who
also act as guarantors. If borrowings under that credit facility were declared
or became due and payable immediately as the result of an event of default and
we were unable to repay or refinance those borrowings, the lenders could
foreclose on the pledged stock. In addition, our 13% senior subordinated notes
may be declared, or may automatically become, due and payable upon the
occurrence of specified events of default. Any event that requires us to repay
any of our debt before it is due could negatively impact our operating results
and our ability to pay amounts due on debentures.
OUR BUSINESS OPERATES IN HIGHLY COMPETITIVE MARKETS, SO WE MAY BE FORCED TO CUT
PRICES OR TO INCUR ADDITIONAL COSTS.
Our businesses generally face substantial competition in each of their
markets. Competition may force us to cut prices or to incur additional costs to
remain competitive. We compete on the basis of product design, quality,
availability, performance, customer service and price. Present or future
competitors may have greater financial, technical or other resources which could
put us at a disadvantage in the affected business or businesses.
OUR INTERNATIONAL OPERATIONS POSE CURRENCY AND OTHER RISKS.
Our international operations present special risks, primarily from
currency exchange rate fluctuations, exposure to local economic and political
conditions, export and import restrictions, controls on repatriation of cash and
exposure to local political conditions. In particular, our results of operations
have been significantly affected by adjustments relating to fluctuations in
foreign currency exchange rates. We have significant international operations.
For fiscal 2003, we derived approximately 49% of our net sales from the United
States, 43% from Europe, 5% from Asia, 2% from Canada, and 1% from South and
Latin America. To the extent that we expand our international presence these
risks may increase. Our European sales significantly increased in fiscal 2003
due to the acquisition of Kopp.
FUTURE ACQUISITIONS MAY CREATE TRANSITIONAL CHALLENGES.
Our business strategy includes growth through small, strategic
acquisitions, although we may from time to time consider larger acquisitions.
That strategy depends on the availability of suitable acquisition candidates at
reasonable prices and our ability to quickly resolve challenges associated with
integrating these acquired businesses into our existing business. These
challenges include integration of product lines, sales forces and manufacturing
facilities as well as decisions regarding divestitures, inventory write-offs and
other charges. These challenges also pose risks with respect to employee
turnover, disruption in product cycles and the loss of sales momentum. We cannot
be certain that we will find suitable acquisition candidates or that we will
consistently meet these challenges.
ENVIRONMENTAL LAWS AND REGULATIONS MAY RESULT IN ADDITIONAL COSTS.
We are subject to federal, state, local and foreign laws and
regulations governing public and worker health and safety and the indoor and
outdoor environment. Any violations of these laws by us could cause us to incur
unanticipated liabilities that could harm our operating results and business.
Pursuant to such laws, governmental authorities have required us to contribute
to the cost of investigating or remediating, or to investigate or remediate,
third party as well as currently or previously owned and operated sites. In
addition, we provided environmental indemnities in connection with the spin-off
of APW and the sale of certain businesses and product lines. Liability as an
owner or operator, or as an arranger for the treatment or disposal of hazardous
substances, can be joint and several and can be imposed without regard to fault.
There is a risk that our costs relating to these matters could be greater than
what we currently expect or exceed our insurance coverage, or additional
remediation and compliance obligations could arise which require us to make
material expenditures. In particular, more stringent environmental laws,
unanticipated remediation requirements or the discovery of previously unknown
conditions could harm our financial condition and operating results. We are also
required to comply with various environmental laws and maintain permits, some of
which are subject to discretionary renewal from time to time, for many of our
-17-
businesses, and our operations could be restricted if we are unable to renew
existing permits or to obtain any additional permits that we may require.
ANY LOSS OF KEY PERSONNEL AND THE INABILITY TO ATTRACT AND RETAIN QUALIFIED
EMPLOYEES COULD HAVE A MATERIAL ADVERSE IMPACT ON OUR OPERATIONS.
We are dependent on the continued services of key executives such as
Robert Arzbaecher, our Chief Executive Officer, and Andy Lampereur, our Chief
Financial Officer. We do not currently have employment agreements with these or
any other officers. The departure of key personnel without adequate replacement
could have a material adverse effect on us. Additionally, we need qualified
managers and skilled employees with technical and manufacturing industry
experience to operate our businesses successfully. From time to time there may
be shortages of skilled labor which may make it more difficult and expensive for
us to attract and retain qualified employees. If we are unable to attract and
retain qualified individuals or our costs to do so increase significantly, our
operations would be materially adversely affected.
WE COULD BE ADVERSELY AFFECTED IF THE SPIN-OFF OF APW OR THE RELATED CORPORATE
RESTRUCTURING TRANSACTIONS AND DEBT REALIGNMENT ARE NOT VALID UNDER FRAUDULENT
TRANSFER OR LEGAL DIVIDEND STATUTES.
In connection with the spin-off of APW, we undertook numerous corporate
restructuring transactions and realigned our debt. These transactions, along
with the spin-off, may be challenged under federal and state fraudulent
conveyance laws. Under these laws, if a court determines that one of the parties
to these transactions did not receive reasonably equivalent value or fair
consideration and, at the time, was insolvent, was rendered insolvent, had
unreasonably small capital or was unable to pay its debts as they come due, the
court could, among other things, reverse the spin-off or impose liability, which
could be substantial, on the parties. In addition, the spin-off, including the
related debt realignment and corporate restructuring transactions, was subject
to state corporate distribution statutes. If these statutes were violated, a
court could reverse the transactions. The resulting complications and costs of
any of these matters could have a material adverse effect on us, our financial
condition and results of operations.
WE MAY BE REQUIRED TO MAKE PAYMENTS IN RESPECT OF BUSINESSES THAT WE HAVE SOLD.
We have sold a number of businesses over the last several years. We
have typically agreed to indemnify the buyers in respect of certain matters
relating to the businesses that we have sold, and we may from time to time be
required to make payments to the buyers under those indemnities. To the extent
we are required to make any similar payments in the future, those payments could
be substantial and could adversely affect our results of operations.
IF OUR INTELLECTUAL PROPERTY PROTECTION IS INADEQUATE, OTHERS MAY BE ABLE TO USE
OUR TECHNOLOGIES AND TRADENAMES AND THEREBY REDUCE OUR ABILITY TO COMPETE, WHICH
COULD HAVE A MATERIAL ADVERSE EFFECT ON US, OUR FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
We regard much of the technology underlying our services and products
and the trademarks under which we market our products as proprietary. The steps
we take to protect our proprietary technology may be inadequate to prevent
misappropriation of our technology, or third parties may develop similar
technology independently. We rely on a combination of patents, trademark,
copyright and trade secret laws, employee and third-party non-disclosure
agreements and other contracts to establish and protect our technology and other
intellectual property rights. The agreements may be breached or terminated, and
we may not have adequate remedies for any breach, and existing trade secrets,
patent and copyright law afford us limited protection. Policing unauthorized use
of our intellectual property is difficult. A third party could copy or otherwise
obtain and use our products or technology without authorization.
Litigation may be necessary for us to defend against claims of
infringement, to protect our intellectual property rights and could result in
substantial cost to us, and diversion of our efforts. Further, we might not
prevail in such litigation which could harm our business.
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RISKS RELATED TO THE DEBENTURES, THE GUARANTEES AND THE COMMON STOCK
THE DEBENTURES ARE UNSECURED AND SUBORDINATED TO OUR SENIOR INDEBTEDNESS, AND
THE GUARANTEE OF EACH SUBSIDIARY GUARANTOR IS UNSECURED AND SUBORDINATED TO ITS
SENIOR INDEBTEDNESS.
The debentures and the guarantees provided by certain of our
subsidiaries are unsecured, which means that you will have no recourse to our
specific assets or to the specific assets of our subsidiaries if a default
occurs under the debentures and the indenture. In addition, the debentures are
our senior subordinated obligations, which means the debentures rank junior in
right of payment to all of our existing and future senior indebtedness, as
defined in the indenture relating to the debentures. Likewise, the guarantee of
each subsidiary guarantor is its senior subordinated obligation which means that
such guarantee ranks junior in right of payment to all of such subsidiary
guarantor's existing and future senior indebtedness. This means that, upon any
payment or distribution of our assets in a bankruptcy, insolvency or similar
proceeding, we will not be permitted to make any payments on the debentures
until all of our senior indebtedness has been paid in full. Likewise, upon any
payment or distribution of assets of any subsidiary guarantor in a bankruptcy,
insolvency or similar proceeding, that subsidiary guarantor will not be
permitted to make any payments in respect of its guarantee until all of its
senior indebtedness has been paid in full.
In addition, we will also be prohibited from making any payments on the
debentures if any of our designated senior indebtedness (as defined herein) is
not paid when due or has been declared due and payable because of a default, and
any subsidiary guarantor will be prohibited from making any payments under its
guarantee if any designated senior indebtedness of such subsidiary guarantor or
of us is not paid when due or has been declared due and payable because of a
default. In addition, in the event of certain other defaults in respect of our
designated senior indebtedness, we may be prohibited from making payments on the
debentures and, in the event of certain other defaults in respect of designated
senior indebtedness of any subsidiary guarantor or of us, such subsidiary
guarantor may be prohibited from making payments under its guarantee.
As of November 30, 2003, we had approximately $35.0 million of senior
indebtedness outstanding, excluding senior indebtedness of our subsidiaries and
accrued interest, all of which represented secured indebtedness. Although the
subsidiary guarantors had no debt outstanding at November 30, 2003, the
subsidiary guarantors have guaranteed all borrowings and amounts payable by us
under our senior credit facility. Such guarantees rank senior in right of
payment to the guarantees of the subsidiary guarantors under the debentures. As
of November 30, 2003, we had $35.0 million of term borrowings and $4.8 million
of letters of credit outstanding. Our new credit facility entered into on
February 19, 2004 provides for stock pledges by certain of our significant
subsidiaries. If we default on any payments required under our senior credit
facility, or if we fail to comply with other provisions governing these
obligations such as the maintenance of certain required financial ratios, the
senior lenders could declare all amounts outstanding, together with accrued and
unpaid interest, immediately due and payable. If we are unable to repay amounts
due, the lenders could proceed against the collateral securing the debt and we
then may not have enough assets left to pay you or other holders of our
subordinated debt. Although some of our debt agreements contain limitations on
our ability and the ability of our subsidiaries to incur additional
indebtedness, both we and our subsidiaries have the right to incur substantial
additional indebtedness, including senior indebtedness.
The debentures rank equally in right of payment to our 13% senior
subordinated notes. In addition, the initial subsidiary guarantors have also
guaranteed our 13% senior subordinated notes, and those guarantees rank equally
in right of payment with their guarantees of the debentures. As of November 30,
2003, we had $60.8 million of our 13% senior subordinated notes outstanding.
OUR ABILITY TO SERVICE OUR DEBT, INCLUDING DEBENTURES, DEPENDS UPON CASH
PROVIDED TO US BY OUR SUBSIDIARIES, AND THE DEBENTURES ARE EFFECTIVELY
SUBORDINATED TO THE LIABILITIES OF OUR SUBSIDIARIES WHO ARE NOT SUBSIDIARY
GUARANTORS UNDER THE DEBENTURES.
The debentures are guaranteed by certain of our domestic subsidiaries.
However, a substantial portion of our assets were held by subsidiaries that are
not guarantors of the debentures, which we refer to as the "non-guarantor
subsidiaries." At November 30, 2003, the non-guarantor subsidiaries held
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approximately 42% of our consolidated assets after taking into account the
reduction in the number of guarantors due the replacement of our senior credit
facility with a new senior credit facility on February 19, 2004. See Note 18 to
the consolidated financial statements contained in our Annual Report on Form
10-K/A for fiscal year 2003 which is incorporated by reference in this
prospectus.
We are a holding company and we derive a substantial portion of our
revenues from, and a substantial portion of our assets are held through, our
subsidiaries. As a result, our cash flow and our ability to service our debt,
including the debentures, depends on the results of operations of our
subsidiaries and upon the ability of our subsidiaries to provide us cash to pay
amounts due on our obligations, including the debentures. Our subsidiaries are
separate and distinct legal entities and the non-guarantor subsidiaries have no
obligation to make payments on the debentures or to make any funds available for
that purpose. In addition, dividends, loans, or other distributions from our
subsidiaries to us may be subject to contractual and other restrictions, are
dependent upon results of operations of our subsidiaries, and may be subject to
tax or other laws limiting our ability to repatriate funds from foreign
subsidiaries, and are subject to other business considerations.
Because of our holding company structure, the debentures are
effectively subordinated to all existing and future liabilities of our
non-guarantor subsidiaries. These liabilities may include indebtedness, trade
payables, guarantees, lease obligations and letter of credit obligations.
Therefore, our rights and the rights of our creditors, including the holders of
the debentures, to participate in the assets of any non-guarantor subsidiary
upon that subsidiary's liquidation or reorganization will be subject to the
prior claims of that subsidiary's creditors and of the holders of any
indebtedness or other obligations guaranteed by that subsidiary, except to the
extent that we may ourselves be a creditor with recognized claims against that
subsidiary. However, even if we are a creditor of one of our non-guarantor
subsidiaries, our claims would still be effectively subordinated to any security
interests in, or mortgages or other liens on, the assets of that subsidiary and
would be subordinate to any indebtedness of that subsidiary senior to that held
by us. As of November 30, 2003, after taking into account the reduction in the
number of guarantors due to the amendment to our senior credit facility on
February 19, 2004, our non-guarantor subsidiaries had approximately $97.3
million of liabilities outstanding which would effectively rank senior in right
of payment to the debentures. In addition, the non-guarantor subsidiaries and
certain of our other subsidiaries have jointly and severally, fully and
unconditionally guaranteed all borrowings and other amounts payable under our
senior credit facility, and those guarantees of the non-guarantor subsidiaries
would effectively rank senior to the debentures.
THE TERMS OF THE DEBENTURES DO NOT RESTRICT OUR ABILITY TO INCUR ADDITIONAL
DEBT, PAY DIVIDENDS, REPURCHASE OUR SECURITIES OR COMPLETE OTHER FINANCIAL
TRANSACTIONS.
The indenture governing the debentures does not contain any financial
or operating covenants or restrictions on the payments of dividends, the
incurrence of indebtedness or the issuance or repurchase of securities by us or
any of our subsidiaries. Although some of our other debt instruments impose
limitations on our incurrence of additional indebtedness, both we and our
subsidiaries retain the ability to incur substantial additional indebtedness and
other obligations, including additional senior indebtedness. If we or our
subsidiaries were to incur additional debt or liabilities, our ability to
service our indebtedness and pay our obligations on the debentures and our other
obligations and our subsidiary guarantors' ability to pay their obligations on
the guarantees, as the case may be, could be adversely affected. We anticipate
that from time to time, we and our subsidiaries will incur additional
indebtedness, including indebtedness that is senior to the debentures. In
addition, we are not restricted by the indenture from paying dividends or
issuing or repurchasing our securities and we anticipate that we will make
additional repurchases of our 13% senior subordinated notes from time to time as
market conditions permit and subject to compliance with restrictions in our
senior credit facility.
A higher level of indebtedness increases the risk that we may default
on our debt obligations. There is a risk that we may not be able to generate
sufficient cash flow to pay the interest or make other required payments on our
debt or that future working capital, borrowings or equity financing will be
available to pay or refinance such debt. In addition, although the indenture
governing the debentures permits holders to require us to repurchase the
debentures upon the occurrence of certain "designated events," as defined, the
definition of "designated event" does not cover all change of control events or
other business combination transactions that may adversely affect the value of
the debentures.
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WE MAY BE UNABLE TO REPURCHASE OR REPAY YOUR DEBENTURES.
At maturity, the entire outstanding principal amount of the debentures
will become due and payable by us. In addition, on specified dates in 2010, 2013
and 2018, or at any time prior to maturity if a designated event occurs, each
holder of debentures may require that we purchase all or a portion of that
holder's debentures at a repurchase price equal to 100% of the principal amount
of the debenture to be repurchased, plus accrued and unpaid interest, contingent
interest, if any, and liquidated damages, if any, to but excluding the
repurchase date. There is a risk that we may not have sufficient funds or be
able to arrange for financing to pay the principal amount at maturity or to
purchase the debentures under the circumstances described above. Our senior
credit facility prohibits the redemption or repurchase of the debentures prior
to their stated maturity. If we are required to repurchase or repay debentures
(whether at maturity, upon one of the repurchase dates referred to above, upon
the occurrence of a designated event or otherwise) while we are prohibited by
our senior credit facility or any other instrument or agreement from
repurchasing or repaying the debentures, we would have to seek the consent of
our lenders to purchase the debentures or to refinance this other debt. There is
a risk that we would not be able to obtain such a consent or to refinance that
other debt, in which case, we would be unable to purchase the debentures. In
that case, our failure to repay the debentures at maturity or to purchase any
tendered debentures would constitute an event of default under the indenture,
which would constitute a default under the terms of our senior credit facility
and could constitute an event of default under other debt instruments. In such
event, the holders of that other indebtedness generally would be able to declare
that indebtedness to be due and payable immediately and, in the case of secured
indebtedness, to realize upon the collateral. Moreover, if any of our senior
indebtedness were to be accelerated, holders of the debentures would not be
entitled to receive any payments until all of our senior indebtedness had been
paid in full.
The holders of our 13% senior subordinated notes are also entitled to
require us to repurchase those notes upon the occurrence of certain change of
control events, and certain change of control events constitute an event of
default under our senior credit facility. Some of these change of control events
are similar to events that would constitute a "designated event" with respect to
the debentures. Accordingly, if one or more of these change of control events or
designated events were to occur, there is a risk that we may not be able to
repurchase or repay any of debentures or the other indebtedness that becomes
due.
THE ABSENCE OF A PUBLIC MARKET FOR THE DEBENTURES COULD CAUSE PURCHASERS OF THE
DEBENTURES TO BE UNABLE TO RESELL THEM FOR AN EXTENDED PERIOD OF TIME.
There is no established trading market for the debentures. The
debentures are eligible for trading on the PORTAL Market. However, debentures
sold pursuant to this prospectus will not remain eligible for trading on the
PORTAL Market. We do not intend to apply for listing of the debentures on any
securities exchange or include the debentures in any automated quotation system.
A market for the debentures may not develop or, if one does develop, it may not
be maintained. If an active market for the debentures fails to develop or be
sustained, the value of the debentures could decline significantly. Whether or
not the value of the debentures declines depends on many factors, including
prevailing interest rates and the market for similar securities, the market
price for our common stock and our financial condition, financial performance
and future prospects.
FEDERAL AND STATE STATUTES MAY ALLOW COURTS TO VOID OR SUBORDINATE GUARANTEES
AND OTHER LAWS MAY LIMIT PAYMENTS UNDER THE GUARANTEES.
The debentures are guaranteed by certain of our existing domestic
subsidiaries and may be guaranteed by certain future subsidiaries. If a
bankruptcy case or lawsuit is initiated with respect to a subsidiary guarantor,
the debt represented by the guarantee entered into by that subsidiary guarantor
may be reviewed under federal bankruptcy law and comparable provisions of state
fraudulent transfer laws. Under these laws, a guarantee could be voided, or
claims in respect of a guarantee could be subordinated to other indebtedness,
guarantees and other liabilities of the subsidiary guarantor (which, depending
on the amount of such indebtedness and other obligations, could reduce the
subsidiary guarantor's liability on its guarantee of the debentures to zero),
if, among other things, such subsidiary guarantor at the time it incurred the
debt evidenced by the guarantee:
o received less than reasonably equivalent value or fair consideration
for entering into the guarantee;
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o was insolvent or rendered insolvent by reason of entering into the
guarantee;
o was engaged in a business or transaction for which the subsidiary
guarantor's remaining assets constituted unreasonably small capital; or
o intended to incur, or believed that it would incur, debts or contingent
liabilities beyond its ability to pay such debts or contingent
liabilities as they became due.
In addition, under these circumstances any payment by the subsidiary
guarantor pursuant to its guarantee could be voided and holders of the
debentures could be required to return those payments to the subsidiary
guarantor or to a fund for the benefit of the creditors of us or the subsidiary
guarantor.
The measures of insolvency for purposes of these fraudulent transfer
laws will vary depending upon the law applied in any proceeding to determine
whether a fraudulent transfer has occurred. Generally, however, a subsidiary
guarantor would be considered insolvent if:
o the sum of its debts, including contingent liabilities, was at the time
greater than the fair saleable value of all of its assets;
o if the present fair saleable value of its assets was at the time less
than the amount that would be required to pay its probable liability on
its existing debts, including contingent liabilities, as they become
absolute and mature; or
o it could not pay its debts as they become due.
We cannot predict with certainty what standard a court would apply to
evaluate the parties' intent or to determine whether the applicable subsidiary
guarantor was insolvent at the time of, or rendered insolvent upon consummation
of, the applicable transaction or that, regardless of the standard, a court
would not determine that the subsidiary guarantor was insolvent or rendered
insolvent as a result of that transaction. Accordingly, there is a risk that the
guarantees, or any payments made under the guarantees, will be deemed to violate
applicable bankruptcy, fraudulent transfer or similar laws. Each guarantee is
limited to an amount not to exceed the maximum amount that can be guaranteed by
the applicable subsidiary guarantor, after giving effect to all of its other
liabilities, including, without limitation, any guarantees under our senior
credit facility) without rendering the guarantee, as it relates to such
subsidiary guarantor, voidable under applicable laws relating to fraudulent
conveyance or fraudulent transfer or similar laws.
Other laws, including corporate distribution laws, limit or may limit
the amount that any subsidiary guarantor will be permitted to pay under its
guarantee of the debentures. Such limitations could restrict, perhaps
substantially, the amount that any subsidiary guarantor would be permitted to
pay under its guarantee, could prohibit that subsidiary guarantor from making
any payments under its guarantee or could possibly require that amounts paid by
any subsidiary guarantor under its guarantee of the debentures be returned.
THE MARKET PRICE FOR OUR COMMON STOCK MAY BE VOLATILE AND MAY AFFECT THE VALUE
OF THE DEBENTURES.
The market price of our common stock could fluctuate substantially in
the future in response to a number of factors, including those discussed below.
Fluctuations in the market price of our common stock could affect the value of
the debentures. This may result in greater volatility in the value of the
debentures than would be expected for nonconvertible debt securities we issue.
The market price of our common stock has in the past and is likely to continue
to fluctuate significantly. Some of the factors that may cause the price of our
common stock to fluctuate include:
o variations in our and our competitors' quarterly operating results;
o changes in securities analysts' estimates of our future performance;
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o changes in stock market analysts' estimates of our future performance
and the future performance of our competitors;
o announcements by us or our competitors of significant contracts,
acquisitions, strategic partnerships, joint ventures or capital
commitments;
o gains or losses of significant customers;
o additions or departure of key personnel;
o events affecting other companies that the market deems comparable to
us;
o general conditions in industries in which we operate;
o general conditions in the United States and abroad;
o the presence or absence of short selling of our common stock;
o future sales of our common stock or debt securities; and
o announcements by us or our competitors of technological improvements or
new products.
The stock markets in general have experienced substantial price and trading
fluctuations. These fluctuations have resulted in volatility in the market
prices of securities that often has been unrelated or disproportionate to
changes in operating performance. These broad market fluctuations may adversely
affect the trading price of the common stock or the value of the debentures.
THE MARKET PRICE OF OUR COMMON STOCK COULD BE AFFECTED BY THE SUBSTANTIAL NUMBER
OF SHARES THAT ARE ELIGIBLE FOR FUTURE SALE.
As of November 30, 2003, we had 23,572,250 shares of common stock
outstanding, excluding 2,181,702 shares issuable upon the exercise of
outstanding options granted under our existing stock option plans, and 695,534
additional shares reserved for issuance under existing stock option plans and
employee stock purchase plans. We cannot predict the effect, if any, that sales
of the debentures or future sales of shares of common stock, including common
stock issuable upon conversion of the debentures, or the availability of shares
of common stock for future sale, will have on the market price of common stock
prevailing from time to time.
Based on filings made with the SEC we are aware of three institutions
that each hold in excess of 5% of our outstanding common stock. We are not able
to predict whether or when any of these institutions will sell substantial
amounts of our common stock. Sales of our common stock by these institutions
could adversely affect prevailing market prices for our common stock.
CONVERSION OF THE DEBENTURES WILL DILUTE THE OWNERSHIP INTEREST OF EXISTING
STOCKHOLDERS.
The conversion of the debentures into shares of our common stock will
dilute the ownership interests of existing stockholders. Any sales in the public
market of the common stock issuable upon conversion of the debentures could
adversely affect prevailing market prices for our common stock. In addition, the
existence of the debentures may encourage short selling by market participants
due to this potential dilution or to facilitate trading strategies involving
debentures and common stock.
YOU SHOULD CONSIDER THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF OWNING
THE DEBENTURES.
Under the indenture, we have agreed, and by acceptance of a beneficial
interest in the debentures each beneficial owner of the debentures is deemed to
have agreed, among other things, for United States federal income tax purposes,
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to treat the debentures as indebtedness that is subject to the regulations
governing contingent payment debt instruments, and the discussion below assumes
that the debentures will be so treated. However, there is a risk that the
Internal Revenue Service could assert that the debentures should be treated
differently. Any such different treatment could affect the amount, timing and
character of income, gain or loss in respect of an investment in the debentures.
In general, beneficial owners of the debentures will be required to accrue
ordinary interest income, which we refer to as tax original issue discount, on
debentures, in advance of the receipt of the cash or other property attributable
to the debentures, regardless of whether such owner uses the cash or accrual
method of tax accounting. Beneficial owners will be required, in general, to
accrue tax original issue discount based on the rate at which we would have
issued a noncontingent, nonconvertible, fixed-rate debt instrument with terms
and conditions otherwise similar to those of the debentures, rather than at a
lower rate based on the stated semiannual regular cash interest payable on the
debentures. Accordingly, owners of the debentures will be required to include
interest in taxable income in each year in excess of the stated semiannual
regular cash interest payable on the debentures. Furthermore, upon a sale,
exchange, repurchase by us at the holder's option, conversion, redemption or
retirement of a debenture, owners of the debentures will recognize gain or loss
equal to the difference between the amount realized and their adjusted tax basis
in the debentures. In general, the amount realized will include, in the case of
a conversion, the fair market value of shares of our common stock received. Any
gain on a sale, exchange, repurchase by us at the holder's option, conversion,
redemption or retirement of a debenture will be treated as ordinary interest
income; any loss will be ordinary loss to the extent of the interest previously
included in income, and thereafter, capital loss. Owners of the debentures
should consult their tax advisors as to the United States federal, state, local
or other tax consequences of acquiring, owning and disposing of the debentures.
A summary of the United States federal income tax consequences of ownership of
the debentures is described in this prospectus under the heading "Material
United States Federal Income Tax Considerations."
THE CONDITIONAL CONVERSION FEATURE OF THE DEBENTURES COULD RESULT IN YOU
RECEIVING LESS THAN THE VALUE OF THE COMMON STOCK INTO WHICH A DEBENTURE IS
CONVERTIBLE.
The debentures are convertible into shares of our common stock only if
specified conditions are met. If the specific conditions for conversion are not
met, you will not be able to convert your debentures, and you may not be able to
receive the value of the common stock into which the debentures would otherwise
be convertible.
THE MARKET PRICE FOR THE DEBENTURES MAY BE AFFECTED BY THEIR RATING
The debentures have been assigned a rating by Standard & Poor's Rating
Group. If the rating assigned to the debentures was reduced or withdrawn in the
future, the market price of the debentures and our common stock could be
adversely affected. Also, a negative change in the rating of other debt that we
issue could adversely affect the trading value of the debentures.
SUBSIDIARY GUARANTORS MAY BE RELEASED FROM THE OBLIGATIONS UNDER THEIR
GUARANTEES
Upon the sale or other disposition of the capital stock or all or
substantially all the assets of a subsidiary guarantor, such that the subsidiary
guarantor is no longer our subsidiary, any such subsidiary guarantor will be
released and relieved from all its obligations under the indenture relating to
the debentures and its guarantee of debentures shall terminate. In addition, if
any subsidiary guarantor that is also a guarantor of our 13% senior subordinated
notes is released from its guarantee under the 13% senior subordinated notes,
such subsidiary guarantor will also be released and relieved of all of its
obligations under the indenture relating to the debentures and its guarantee of
the debentures will terminate. Upon the occurrence of any such events, the
holders of the debenture will no longer have the benefit of the terminated
guarantee.
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THE CONVERSION RATE OF THE DEBENTURES MAY NOT BE ADJUSTED FOR ALL DILUTIVE
EVENTS.
The conversion rate of the debentures is subject to adjustment for
certain events including, but not limited to, the issuance of dividends on our
common stock, the issuance of certain rights or warrants, subdivisions or
combinations of our common stock, certain distributions of assets, debt
securities, capital stock or cash to holders of our common stock and certain
issuer tender or exchange offers as described under "Description of
Debentures--Conversion of the Debentures--Conversion Rate Adjustment." The
conversion rate will not be adjusted for other events, such as an issuance of
common stock for cash that may adversely affect the value of the debentures or
the trading price of the common stock. In that regard, the anti-dilution
adjustments in the indenture will relate only to events affecting the common
stock, and therefore no adjustment to the conversion rate will be made for
events affecting any Class B common stock we may issue in the future, including
dividends or distributions on or repurchases of any such Class B common stock,
except to the limited extent set forth in clause (8) of the first paragraph
under "Description of Debentures--Conversion of the Debentures--Conversion Rate
Adjustments." There is a risk that an event that adversely affects the value of
the debentures would not result in an adjustment to the conversion rate, which
would adversely affect the value of the debentures.
WE DO NOT INTEND TO PAY CASH DIVIDENDS IN THE FORESEEABLE FUTURE.
We do not plan to declare or pay cash dividends in the foreseeable
future but instead intend to retain cash for working capital needs,
acquisitions, if any, and to reduce outstanding debt.
SOME PROVISIONS OF OUR CHARTER AND BYLAWS AND OF WISCONSIN LAW MAY PREVENT A
CHANGE IN CONTROL OR ADVERSELY AFFECT OUR SHAREHOLDERS.
Our articles of incorporation and bylaws may discourage, delay or
prevent a change of control that shareholders may consider favorable. Certain
provisions of our articles of incorporation and bylaws and of the Wisconsin
Business Corporation Law may discourage transactions that otherwise could
provide for payment of a premium over the prevailing market price of our common
stock and also may limit the price that investors are willing to pay in the
future for shares of our common stock and debentures.
For example, our articles of incorporation and bylaws:
o do not provide for cumulative voting in the election of directors,
which would otherwise allow holders of less than a majority of our
common stock to elect some directors;
o while currently not implemented, permit us to classify the board of
directors into two or three classes serving staggered two or three-year
terms, respectively, which may lengthen the time required to gain
control of our board of directors;
o require super-majority voting to effect amendments to provisions of our
articles of incorporation and bylaws or to approve or adopt a merger or
consolidation of us, or approve or adopt a sale or exchange of all or
substantially all of our assets;
o establish advance notice requirements for nominating candidates for
election to the board of directors or for proposing matters that can be
acted upon by shareholders at a shareholder meeting; and
o allow the board to issue shares of Class B common stock (which would
then have the right to elect a majority of the directors) and to issue
and determine terms of preferred stock.
In addition, certain sections of the Wisconsin Business Corporation Law
may discourage, delay or prevent a change in control by:
o limiting the voting power of certain shareholders exercising 20% or
more of our voting power,
o prohibiting us from engaging in a business combination with an
interested stockholder, or
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o requiring a super-majority vote for any business combination that does
not meet certain fair price standards.
See "Description of Capital Stock--Certain Statutory Provisions" in this
prospectus.
ANY ISSUANCE OF PREFERRED STOCK OR CLASS B COMMON STOCK COULD ADVERSELY AFFECT
THE HOLDERS OF OUR COMMON STOCK.
Our board of directors is authorized to issue shares of preferred stock
or Class B common stock without any action on the part of our shareholders. Our
board of directors also has the power, without shareholder approval, to set
specified terms of any series of preferred stock, including dividend rates,
votes per share and amounts payable in the event of our dissolution, liquidation
or winding up. Any preferred stock that we issue may have a preference over our
common stock with respect to the payment of dividends and upon our liquidation,
dissolution or winding up and the holders of the preferred stock would be
entitled to vote as a single class with the holders of our common stock in the
election of directors. As a result, our board of directors could issue preferred
stock with dividend, liquidation and voting rights and with other terms that
could adversely affect the interests of the holders of our common stock. If any
shares of Class B common stock are issued, the Class B common shareholders,
voting as a separate class, would be entitled to elect a majority of our board
of directors, while the holders of our common stock, voting as a single class
with the holders of any outstanding preferred stock, would be entitled to elect
a minority of our board of directors. As a result, the issuance of any Class B
common stock would adversely affect the voting rights of holders of our common
stock. We do not currently intend to issue any preferred stock or Class B common
stock.
PERSONS HOLDING OUR COMMON STOCK THAT ALSO PURCHASE THE DEBENTURES COULD HAVE
THE VOTING POWER OF THEIR SHARES OF COMMON STOCK ON ALL MATTERS SIGNIFICANTLY
REDUCED UNDER WISCONSIN ANTI-TAKEOVER STATUTES, IF THE PERSON HOLDS 20% OF THE
VOTING POWER IN THE ELECTION OF DIRECTORS.
Under Section 180.1150(2) of the Wisconsin Business Corporation Law, if
a person holds voting power of our company in excess of 20% of the voting power
in the election of directors, then that person's voting power 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 to that person at a special meeting
of the shareholders called for that purpose. A person's common stock holdings as
well as any shares issuable upon conversion of such person's convertible
securities or the exercise of such person's options or warrants are included in
calculating such person's voting power. Therefore, any shares issuable to a
holder of debentures upon conversion of the debentures will be included in
determining whether such holder holds more than 20% of our voting power. If a
holder of common stock holds more than 20% of our outstanding common stock,
after taking into account any shares of common stock that the holder would
receive upon conversion of the debentures that it acquires, then the holder's
voting power would be significantly reduced under Wisconsin anti-takeover
statutes. See "Description of Capital Stock--Certain Statutory Provisions."
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, including the documents incorporated and deemed to be
incorporated by reference herein, contain statements that constitute
forward-looking statements. Prospective investors are cautioned that any such
forward-looking statements are not guarantees of future performance and involve
known and unknown risks, uncertainties and other factors which may cause our
actual results, performance or achievements to differ materially from the future
results, performance or achievements expressed or implied in the forward-looking
statements. The words "may," "should," "could," "anticipate," "believe,"
"estimate," "expect," "project," "plan," "objective" and similar expressions are
intended to identify forward-looking statements. Additionally, any projections
or estimates of future revenues, earnings per share, tax rates, interest rates,
debt reductions or similar matters are forward-looking statements, and the
actual results of operations and financial conditions could differ, perhaps
substantially, from those expressed or implied in those forward-looking
statements. In addition to the assumptions and other factors referred to
specifically in connection with the forward-looking statements included in this
prospectus and the documents incorporated or deemed to be incorporated by
reference herein and the risk factors discussed in this prospectus under the
caption "Risk Factors," factors that may cause actual results or events to
differ materially from those contemplated by such forward-looking statements
include, without limitation, general economic conditions and market conditions
in the industrial production, truck, construction, automotive, and recreational
vehicle industries in North America and Europe and, to a lesser extent, Asia,
market acceptance of existing and new products, successful integration of
acquisitions, competitive pricing, foreign currency risks, interest rate risks,
potential tax liabilities (including potential substantial tax liabilities
relating to our spin-off of APW Ltd.), environmental matters, our ability to
access capital markets, our high debt level, unforeseen costs, the risk that we
may become subject to substantial liabilities if APW Ltd. were unable to meet
its lease obligations as they come due and other factors that may be referred to
in this prospectus and the documents incorporated and deemed to be incorporated
by reference in this prospectus.
All forward-looking statements attributable to us, or to persons acting
on our behalf, are expressly qualified in their entirety by this cautionary
statement.
In light of these risks and uncertainties, the forward-looking events
and circumstances discussed in this prospectus might not transpire.
MARKET DATA
The information in this prospectus and the documents incorporated by
reference in this prospectus concerning market positions of certain of our
products is based on our net sales for the fiscal year 2003 and management's
estimates of our competitors' respective dollar volumes of net sales for the
products, markets and geographic region or regions to which we refer. These
estimates were prepared in accordance with what we believe to be industry
practice and are based on our internal estimates, our knowledge of our relative
position and the relative position of our competitors in applicable markets,
and, in some limited cases, industry sources. In that regard, when we state that
our high-force hydraulic industrial tools, hydraulic cab-tilt systems for
heavy-duty cab-over-engine trucks and electro-hydraulic automotive convertible
top actuation systems hold a leading position in their respective markets, we
are referring to the global markets for those types of products; when we say
that our electrical tools and supplies sold through the retail do-it yourself
channel hold a leading position in their markets, we are referring to the German
and/or North American markets, as the case may be, for those type of products;
and when we say that our recreational vehicle slide-out, leveling, storage tray
and electric retractable step systems hold a leading position in their
respective markets, we are referring to the North American markets for those
types of products. Other market data included in this prospectus and the
documents incorporated by reference in this prospectus is estimated and is based
on independent industry publications or other publicly available information.
Although we believe that the information on which we have based these estimates
of our market position and this market data is generally reliable, the accuracy
and completeness of this information has not been independently verified. This
prospectus and the documents incorporated by reference in this prospectus
include sales data for businesses that we acquired prior to their dates of
acquisition. This sales data was provided to us by the sellers of those
businesses and has not been independently verified.
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This prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to the actual
documents for complete information. Copies of some of the documents referred to
herein have been filed or incorporated by reference as exhibits to the
registration statement of which this prospectus is a part and you may obtain
copies of those documents as described below under "Where You Can Find More
Information" and "Incorporation of Certain Documents by Reference."
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USE OF PROCEEDS
We will not receive any proceeds from the sale by any selling
securityholder of the debentures or the shares of common stock issuable upon
conversion of the debentures.
DIVIDEND POLICY
We have not paid any cash dividends since our fiscal year 2000, and we
do not anticipate paying any cash dividends on our common stock in the
foreseeable future. We currently intend to use available cash for working
capital needs, acquisitions, if any, and to reduce outstanding debt. Our senior
credit facility and our 13% senior subordinated notes currently restrict our
ability to pay cash dividends.
COMMON STOCK PRICE RANGE
Our common stock is quoted on the New York Stock Exchange under the
symbol "ATU." The following table sets forth the range of high and low sales
prices for our common stock on the New York Stock Exchange for the periods
indicated. The high and low sales prices for our common stock have been adjusted
to reflect the impact of a two-for-one stock split effected on October 21, 2003.
HIGH LOW
---- ---
FISCAL YEAR ENDED AUGUST 31, 2002
First quarter $ 15.63 $ 8.70
Second quarter 20.00 13.95
Third quarter 23.08 18.00
Fourth quarter 21.23 15.44
FISCAL YEAR ENDED AUGUST 31, 2003
First quarter $ 22.40 $ 16.55
Second quarter 24.57 16.78
Third quarter 21.64 16.25
Fourth quarter 26.82 20.75
FISCAL YEAR ENDING AUGUST 31, 2004
First quarter $ 33.42 $ 25.76
Second quarter (through February 26, 2004) $ 43.10 $ 27.95
On November 30, 2003, we had approximately 1,769 stockholders of record of our
common stock.
RATIO OF EARNINGS TO FIXED CHARGES
The following table presents the ratio of earnings to fixed charges for
Actuant Corporation and its consolidated subsidiaries for each of the periods
indicated. The information presented reflects all business units other than the
Electronics Business, which was distributed to shareholders in the spin-off
transaction on July 31, 2000 and is reported in discontinued operations in the
consolidated financial statements. The results of all businesses acquired or
divested during the time periods presented are included in the table from their
respective acquisition dates or up to their respective divestiture dates. As a
result, the data contained in the following table is not fully representative of
the group of business units that comprised our company as of November 30, 2003.
YEARS ENDED AUGUST 31, QUARTER ENDED
----------------------------------------------------------------- NOVEMBER 30,
1999 2000 2001 2002 2003 2003
----------- ----------- ----------- ---------- -------- ---------------
Ratio of earnings to fixed charges(1) 2.4x 1.6x 1.8x 1.7x 3.0x 1.2x
--------------------------------------
(1) The ratio of earnings to fixed charges is determined by dividing net earnings before interest expense, taxes
on income, amortization of debt expense, and a portion of rent expense deemed representative of the interest
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component by the sum of interest expense, capitalized interest, amortization of debt expense, and a portion
of rent expense deemed representative of the interest component.
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DESCRIPTION OF THE DEBENTURES
The debentures were issued under an indenture, dated as of November 10,
2003 between Actuant Corporation, as issuer, certain of our domestic
subsidiaries, as guarantors, and U.S. Bank National Association, as trustee. The
following description is a summary of some of the provisions of the debentures,
the guarantees and the indenture. It does not purport to be complete. This
summary is subject to and is qualified by reference to all the provisions of the
indenture, including the definitions of certain terms used in the indenture. We
urge holders of the debentures to read the indenture because it, and not this
description, defines the rights as a holder of the debentures.
As used in this "Description of Debentures" section, references to
"Actuant," "we," "our" or "us" refer solely to Actuant Corporation and not to
our subsidiaries, unless the context otherwise requires.
GENERAL
The debentures are limited to an aggregate principal amount of
$150,000,000. The debentures are issued only in denominations of $1,000 and
multiples of $1,000. We use the term debenture in this prospectus to refer to
each $1,000 principal amount of the debentures. The debentures are convertible
into common stock as described under "--Conversion of the Debentures." The
debentures mature on November 15, 2023, unless earlier converted, redeemed or
repurchased. The debentures are our unsecured senior subordinated obligations,
and the payment of the principal of and interest, contingent interest, if any,
and liquidated damages, if any, on the debentures are subordinated in right of
payment to the prior payment in full of our existing and future "senior
indebtedness" (as defined). The debentures rank equally in right of payment with
our existing and future senior subordinated indebtedness and rank senior in
right of payment to any of our future subordinated indebtedness. The debentures
also rank junior in right of payment to our secured indebtedness (including our
obligations under our senior credit facility) to the extent of the underlying
collateral. At November 30, 2003, our senior indebtedness, excluding senior
indebtedness of our subsidiaries and accrued interest, consisted of
approximately $35.0 million of term loans and approximately $2.0 million of
revolving credit loans and letters of credit. Under our new credit facility
entered into on February 19, 2004, we are permitted to borrow up to $250 million
of revolving credit loans , subject to compliance with covenants and borrowing
conditions.
The guarantee of the debentures by each subsidiary guarantor is an
unsecured senior subordinated obligation of that subsidiary guarantor, and the
payment of any and all amounts due under that guarantee is subordinated in right
of payment to the prior payment in full of all existing and future senior
indebtedness (including obligations under guarantees of our senior credit
facility) of that subsidiary guarantor. The guarantee of each subsidiary
guarantor ranks equally in right of payment with all existing and future senior
subordinated indebtedness of that subsidiary guarantor, including, in the case
of the initial subsidiary guarantors, their guarantees of our 13% senior
subordinated notes, and senior in right of payment to any future subordinated
indebtedness of that subsidiary guarantor. The guarantee of each subsidiary
guarantor ranks junior in right of payment to any secured obligations (including
its obligations under its guarantee of our senior credit facility) of that
subsidiary guarantor to the extent of the underlying collateral. Although the
subsidiary guarantors had no debt outstanding at November 30, 2003, the
subsidiary guarantors have guaranteed all borrowings and amounts payable by us
under both our old and new senior credit facility. Such guarantees rank senior
in right of payment to the guarantees of the subsidiary guarantors under the
debentures. The initial subsidiary guarantors have also guaranteed our 13%
senior subordinated notes, which guarantees rank pari passu in right of payment
with their guarantees of the debentures. At November 30, 2003, we had
outstanding approximately $37.0 million of borrowings and letters of credit
under our old senior credit facility and $60.8 million of our 13% senior
subordinated notes. The term "subsidiary guarantor" is defined under the heading
"Description of Debentures--Subsidiary Guarantees." The terms "senior
indebtedness" and "senior subordinated indebtedness" are defined under the
heading "Description of Debentures--Ranking."
A substantial portion of our assets is held by subsidiaries that are
not guarantors of the debentures. Accordingly, the debentures are effectively
subordinated to all existing and future liabilities of these non-guarantor
subsidiaries. See "Risk Factors--The debentures are unsecured and subordinated
to our senior indebtedness, and the guarantee of each subsidiary guarantor is
unsecured and subordinated to its senior indebtedness."
Neither we nor any of our subsidiaries are subject to any financial
covenants under the indenture.
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Holders are not afforded protection under the indenture in the event of
a highly leveraged transaction or a change in control of Actuant except to the
extent described below under "--Repurchase of Debentures at a Holder's Option
Upon a Designated Event."
Under the indenture governing the debentures, we have agreed, and by
acceptance of a beneficial interest in the debentures each beneficial owner of
the debentures is deemed to have agreed, among other things, for United States
federal income tax purposes, to treat the debentures as indebtedness that is
subject to the regulations governing contingent payment debt instruments and,
for purposes of those regulations, to treat the fair market value of any stock
received upon any conversion of the debentures as a contingent payment, and the
discussion herein assumes that such treatment is correct. However, the
characterization of instruments such as the debentures and the application of
such regulations is not entirely certain in several respects. See "Material
United States Federal Income Tax Considerations."
The debentures are debt instruments that are subject to the contingent
payment debt regulations. Therefore, the debentures were issued with original
issue discount for United States federal income tax purposes, which we refer to
as tax original issue discount. In general, beneficial owners of the debentures
are required to accrue interest income on the debentures for United States
federal income tax purposes in the manner described herein, regardless of
whether such owners use the cash or accrual method of tax accounting. Beneficial
owners are required, in general, to accrue interest each year, as tax original
issue discount, based on the rate at which we would have issued a noncontingent,
nonconvertible, fixed-rate debt instrument with terms and conditions otherwise
similar to those of the debentures, rather than at a lower rate based on the
accrual on the debentures for non-tax purposes (i.e., in excess of the stated
semiannual regular cash interest payments and any contingent interest payments)
actually received in that year. Accordingly, owners of the debentures generally
are required to include tax original issue discount as interest in taxable
income in each year in excess of the accruals on the debentures for non-tax
purposes. Furthermore, upon a sale, exchange, repurchase by us at the holder's
option, conversion, redemption or retirement of a debenture, holders will
recognize gain or loss equal to the difference between the amount realized and
their adjusted tax basis in the debenture. The amount realized will include the
fair market value of shares of our common stock received upon conversion. Any
gain recognized on a sale, exchange, repurchase by us at the holder's option,
conversion, redemption or retirement of a debenture will be treated as ordinary
interest income. Holders are expected to consult their own tax advisors as to
the United States federal, state, local or other tax consequences of acquiring,
owning and disposing of the debentures.
REGULAR INTEREST
The debentures bear interest at a rate of 2% per annum from November
10, 2003, or from the most recent date to which interest has been paid or duly
provided for. We will also pay contingent interest under certain circumstances
as described under "--Contingent Interest." We will pay interest, including
contingent interest, if any, semiannually in arrears on May 15 and November 15
of each year, beginning May 15, 2004 (each an "interest payment date"), to
holders of record at the close of business on the preceding May 1 and November 1
(each, a "record date"), respectively.
We maintain an office in the Borough of Manhattan, The City of New
York, where we will pay the principal and interest on the debentures and holders
may present the debentures for conversion, registration of transfer or exchange
for other denominations, which shall initially be an office or agency of the
trustee. We may pay interest by check mailed to a holder's address as it appears
in the debenture register, provided that holders with an aggregate principal
amount of debentures in excess of $10 million shall be paid, at their written
election, by wire transfer in immediately available funds. However, payments to
The Depository Trust Company, New York, New York, which we refer to as DTC, will
be made by wire transfer of immediately available funds to the account of DTC or
its nominee.
Interest is computed on the basis of a 360-day year comprised of twelve
30-day months. If any date for the payment of interest, contingent interest, if
any, or liquidated damages, if any, is not a business day, then the applicable
payment will be made on the next succeeding day that is a business day and
without any interest or other payment in respect of the delay. If any redemption
date, repurchase date or maturity date is not a business day, then the payment
of principal and accrued interest, if any, contingent interest, if any, and
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liquidated damages, if any, will be made on the next succeeding day that is a
business day and without any interest or other payment in respect of the delay.
CONVERSION OF THE DEBENTURES
Subject to the conditions and during the periods described below,
holders may convert any of their debentures, in whole or in part, into shares of
our common stock prior to the close of business on the last business day prior
to the final maturity date of the debentures initially at a conversion rate of
25.0563 shares of common stock per $1,000 principal amount of debentures,
subject to adjustment as described below, which represents an initial conversion
price of approximately $39.91 per share. A holder may convert debentures in
denominations of $1,000 principal amount and integral multiples of $1,000.
To convert debentures into common stock, a holder must do the
following:
o complete and deliver a conversion notice to the conversion agent;
o if the debenture is in certificated form, surrender the debenture to
the conversion agent, and furnish, if required, appropriate
endorsements and transfer documents; and
o if required, pay any amounts due, including funds equal to accrued
interest and contingent interest, if any, under the circumstances
described below, and taxes or duties, if any.
The date a holder complies with these requirements is the conversion
date under the indenture. If a holder's interest is a beneficial interest in a
global debenture, to convert such holder must comply with the first and third
requirements listed above and comply with the depositary's procedures for
converting a beneficial interest in a global debenture. A certificate, or a
book-entry transfer through DTC, for the number of full shares of our common
stock into which any debentures are converted, together with a cash payment for
any fractional shares, will be delivered through the conversion agent as soon as
practicable, but no later than the fifth business day, following the conversion
date.
Upon conversion, a holder will not receive any cash payment of
interest, including contingent interest, if any. We will not issue fractional
common shares upon conversion of the debentures. Instead, we will pay cash in
lieu of fractional shares based on the closing sale price of the common stock on
the trading day prior to the conversion date. Our delivery to the holder of the
full number of shares of our common stock into which a debenture is convertible,
together with any cash payment for such holder's fractional shares, will be
deemed to satisfy our obligation to pay the principal amount of the debenture
and the accrued but unpaid cash interest, including contingent interest, if any,
and accrued tax original issue discount through the conversion date. Thus, the
accrued but unpaid interest, including contingent interest, if any, and accrued
tax original issue discount through the conversion date will be deemed to be
paid in full rather than cancelled, extinguished or forfeited. For a discussion
of the tax treatment to you of receiving our common stock upon conversion, see
"Material United States Federal Income Tax Considerations."
Notwithstanding the preceding paragraph, if debentures are converted
after a record date but on or prior to the next interest payment date, holders
of such debentures at the close of business on the record date will receive the
interest, including contingent interest, if any, payable on such debentures on
the corresponding interest payment date notwithstanding the conversion. Such
debentures, upon surrender for conversion, must be accompanied by funds equal to
the amount of interest, including contingent interest, if any, which will be
payable on the debentures so converted; provided that no such payment need be
made (1) if we have called the debentures being converted for redemption on a
redemption date that is after that record date but on or prior to the next
interest payment date, (2) if we have specified a repurchase date following a
designated event that is after that record date but on or prior to the next
interest payment date or (3) to the extent of any overdue interest or overdue
contingent interest, if any, at the time of conversion with respect to such
debenture.
Holders may surrender their debentures for conversion into shares of
our common stock in only the following circumstances:
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Conversion Upon Satisfaction of Sale Price Condition
A holder may surrender any of its debentures for conversion into our
common stock prior to the close of business on the last business day prior to
the maturity date during any fiscal quarter (but only during such fiscal
quarter) commencing after November 30, 2003 if the closing sale price of our
common stock exceeds 120% of the then effective conversion price for at least 20
trading days in the 30 consecutive trading days ending on the last trading day
of the preceding fiscal quarter.
The "closing sale price" of our common stock on any date means the
closing per share sale price (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average closing bid and the average closing ask prices) on such
date as reported in composite transactions for the principal United States
securities exchange on which our common stock is traded or, if our common stock
is not listed on a United States national or regional securities exchange, as
reported by the Nasdaq National Market, or if our common stock is not quoted on
the Nasdaq National Market, by the National Quotation Bureau Incorporated. In
the absence of such a quotation, we will determine the closing sale price on the
basis we consider appropriate. The "conversion price" as of any day will equal
$1,000 divided by the conversion rate.
Conversion Upon Notice of Redemption
If we call debentures for redemption, holders may convert the
debentures or portions thereof called for redemption (and only the debentures or
portions thereof called for redemption) until the close of business on the
business day immediately preceding the redemption date, after which time the
holders' right to convert such debentures will expire unless we default in the
payment of the redemption price. If a holder has already delivered a repurchase
notice or a designated event repurchase notice with respect to a debenture
called for redemption, however, the holder may not surrender that debenture for
conversion until the holder has withdrawn the notice in accordance with the
indenture.
Conversion Upon Credit Ratings Event
Holder may convert debentures during any period in which our senior
subordinated debt credit rating is below B3 by Moody's and below B- by Standard
and Poor's or during any period when neither Moody's or Standard and Poor's
rates our senior subordinated debt. If only one such rating agency rates our
senior subordinated debt and such credit rating falls below the applicable level
specified above, holders may convert their debentures during the period such
debt rating is below such level. The debentures will cease to be convertible
pursuant to this paragraph during any period or periods in which the credit
ratings or rating, as the case may be, are above such levels.
Conversion Upon Specified Transactions
If we elect to:
o distribute to all holders of our common stock certain rights or
warrants to purchase our common stock for a period expiring within 45
days of the record date for such distribution at a price less than the
closing sale price of our common stock on the trading day immediately
preceding the declaration date for such distribution; or
o distribute to all holders of our common stock, assets, debt securities
or rights to purchase our securities, which distribution has a per
share value exceeding 15% of the closing sale price of our common stock
on the trading day preceding the declaration date for such
distribution;
we must notify the holders of debentures at least 20 days prior to the
ex-dividend date for such distribution. Once we have given such notice, holders
may surrender their debentures for conversion at any time until the earlier of
the close of business on the business day prior to the ex-dividend date or any
announcement by us that such distribution will not take place, even if the
debentures are not otherwise convertible at such time. No holder may exercise
this right to convert if the holder otherwise will participate in the
distribution without conversion. The ex-dividend date is the first date upon
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which a sale of the common stock does not automatically transfer the right to
receive the relevant distribution from the seller of the common stock to its
buyer.
In addition, if we are a party to a consolidation, merger, binding
share exchange or sale of all or substantially all of our assets, in each case
pursuant to which our common stock would be converted into cash, securities or
other property, a holder may surrender debentures for conversion at any time
from and after the date that is 15 days prior to the date announced by us as the
anticipated effective date of the transaction until and including the date that
is 15 days after the actual date of such transaction (or, if such merger,
consolidation or share exchange also constitutes a designated event, until the
corresponding designated event repurchase date). If we are a party to a
consolidation, merger, binding share exchange or sale of all or substantially
all of our assets, in each case pursuant to which our common stock is converted
into cash, securities, or other property, then at the effective time of the
transaction, the right to convert a debenture into our common stock will be
changed into a right to convert it into the kind and amount of cash, securities
and other property that a holder would have received if the holder had converted
its debentures immediately prior to the transaction. If the transaction also
constitutes a designated event, a holder can require us to repurchase all or a
portion of their debentures as described under "--Repurchase of Debentures at a
Holder's Option Upon a Designated Event."
Conversion Rate Adjustments
The conversion rate is subject to adjustment, without duplication, upon
the occurrence of any of the following events:
(1) the issuance of common stock as a dividend or distribution to
all holders of our common stock;
(2) the issuance to all holders of common stock of rights,
warrants or options to purchase our common stock for a period
expiring within 45 days of the record date for such
distribution at a price less than the average of the closing
sale price for the 10 trading days preceding the declaration
date for such distribution; provided that the conversion price
will be readjusted to the extent that such rights, warrants or
options are not exercised;
(3) subdivisions, splits or combinations of our common stock;
(4) any cash distributions or dividends to all holders of our
common stock;
(5) distributions to all holders of our common stock of shares of
our capital stock, evidences of indebtedness, property or
assets, including securities, but excluding dividends or
distributions covered by clauses (1), (2) or (4) above;
In the event that we distribute capital stock of, or
similar equity interests in, a subsidiary or other business
unit of ours, then the conversion rate will be adjusted based
on the market value of the securities so distributed relative
to the market value of our common stock, in each case based on
the average closing sales prices of those securities (where
such closing prices are available) for the 10 trading days
commencing on and including the fifth trading day after the
date on which "ex-dividend trading" commences for such
distribution on the New York Stock Exchange or such other
principal national or regional exchange or market on which the
securities are then listed or quoted, or in the absence of
such a quotation, a closing sale price determined by us on the
basis we consider appropriate;
(6) the successful completion of a tender or exchange offer (the
"subject offer") by us for our common stock that involves an
aggregate consideration that, together with any cash and the
fair market value, as of the expiration of the applicable
tender or exchange offer (other than consideration payable in
respect of any odd-lot tender offer), of consideration paid by
us in respect of any other tender or exchange offer or offers
for shares of common stock concluded within the preceding 12
months, exceeds 1.0% of the average of: (a) the closing sale
price of the common stock on each of the ten trading days
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immediately prior to the expiration of the subject offer
multiplied by (b) the number of shares of common stock
outstanding on such trading day;
(7) someone other than us makes a payment in respect of a tender
offer or exchange offer in which, as of the closing date of
the offer, our board of directors is not recommending
rejection of the offer. The adjustment referred to in this
clause will only be made if:
o the tender offer or exchange offer is for an amount that
increases the offeror's ownership of common stock to more
than 50% of the total shares of common stock outstanding;
and
o the cash and value of any other consideration included in
the payment per share of common stock exceeds the closing
sale price per share of common stock on the trading day
next succeeding the last date on which tenders or
exchanges may be made pursuant to the tender or exchange
offer;
however, the adjustment referred to in this clause will
generally not be made if as of the closing of the offer, the
offering documents disclose a plan or an intention to cause us
to engage in a consolidation or merger or a sale of all or
substantially all of our assets; and
(8) successful completion of an exchange offer of our Class B
common stock, if any, into shares of our common stock
concluded within the preceding 12 months that exceeds 1.0% of
the average of (a) the closing sale price of the common stock
on each of the ten trading days immediately prior to
expiration of the exchange offer multiplied by (b) the number
of shares of common stock outstanding on such trading day.
The conversion rate adjustments described in this section do not apply to
dividends or other distributions to holders of our Class B common stock, if any,
except as provided in clause (8) above. No shares of Class B common stock are
currently outstanding.
To the extent that we have a rights plan in effect upon conversion of the
debentures into common stock, holders will receive, in addition to the common
stock, the rights under the rights plan unless the rights have separated from
the common stock at the time of conversion, in which case the conversion rate
will be adjusted as if we distributed to all holders of our common stock, shares
of our capital stock, evidences of indebtedness or assets as described in clause
(5) above, subject to readjustment in the event of the expiration, termination
or redemption of such rights.
In the event of:
o any reclassification of our common stock;
o a consolidation, merger or combination involving us; or
o a sale or conveyance to another person or entity of all or
substantially all of our property and assets;
in which holders of our common stock would be entitled to receive stock, other
securities, other property, assets or cash for their common stock, upon
conversion of the debentures a holder will be entitled to receive the same type
of consideration that they would have been entitled to receive if such holder
had converted the debentures into our common stock immediately prior to any of
these events.
Holders may in certain situations be deemed to have received a
distribution subject to U.S. federal income tax as a dividend in the event of
any taxable distribution to holders of common stock or in certain other
situations requiring a conversion rate adjustment. See "Certain U.S. Federal
Income Tax Considerations."
We may, from time to time, increase the conversion rate if our board of
directors has made a determination that this increase would be in our best
interests. Any such determination by our board will be conclusive. In addition,
we may increase the conversion rate if our board of directors deems it advisable
to avoid or diminish any income tax to holders of common stock resulting from
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any stock or rights distribution. See "Certain U.S. Federal Income Tax
Considerations."
We will not be required to make an adjustment in the conversion rate
unless the adjustment would require a change of at least 1% in the conversion
rate. However, we will carry forward any adjustments that are less than 1% of
the conversion rate. Except as described above in this section, we will not
adjust the conversion rate for any issuance of our common stock or convertible
or exchangeable securities or rights to purchase our common stock or convertible
or exchangeable securities.
CONTINGENT INTEREST
Beginning with the six-month interest period commencing November 15,
2010, we will pay contingent interest to the holders of debentures during any
six-month interest period if the trading price, as defined below, of the
debentures for each of the five trading days immediately preceding the first day
of the applicable six-month interest period equals or exceeds 120% of the
principal amount of the debentures.
During any period when contingent interest shall be payable, the
contingent interest payable per $1,000 principal amount of the debentures will
equal 0.25% per six-month interest period of the average trading price of $1,000
principal amount of the debentures during the five trading days immediately
preceding the first day of the applicable six-month interest period. We will
make contingent interest payments in the same manner as regular interest
payments.
The "trading price" of the debentures on any date of determination
means the average of the secondary market bid quotations per $1,000 principal
amount of the debentures obtained by the trustee for $10,000,000 principal
amount of the debentures at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers we select, provided that if three such bids cannot reasonably be
obtained by the trustee, but two such bids are obtained, then the average of the
two bids shall be used, and if only one such bid can reasonably be obtained by
the trustee, this one bid shall be used.
We will notify the holders upon determination that they will be
entitled to receive contingent interest during a six-month interest period.
OPTIONAL REDEMPTION BY ACTUANT
Prior to November 20, 2010, the debentures are not redeemable. On or
after November 20, 2010, we may redeem the debentures in whole or from time to
time in part at a redemption price equal to 100% of the principal amount of the
debentures being redeemed, plus accrued and unpaid interest, including
contingent interest, if any, and liquidated damages, if any, up to, but
excluding, the redemption date, unless the redemption date falls after a record
date and on or prior to the corresponding interest payment date, in which case
we will pay the full amount of accrued and unpaid interest payment to the
interest payment date, including contingent interest, if any, and liquidated
damages, if any, on such interest payment date to the holder of record at the
close of business on the corresponding record date. We are required to give
notice of redemption by mail to holders not more than 60 but not less than 30
days prior to the redemption date.
If less than all of the outstanding debentures are to be redeemed, the
trustee will select the debentures to be redeemed in principal amounts of $1,000
or multiples of $1,000 by lot, pro rata or by another method the trustee
considers fair and appropriate. If a portion of a holder's debentures is
selected for partial redemption and such holder converts a portion of their
debentures, the converted portion will be deemed to the extent practicable to be
of the portion selected for redemption.
We may not redeem the debentures if we have failed to pay any interest
or contingent interest, if any, on the debentures and such failure to pay is
continuing.
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REPURCHASE AT OPTION OF THE HOLDER
Holders have the right to require us to repurchase the debentures on
November 15, 2010, November 15, 2013 and November 15, 2018 for cash. We will be
required to repurchase any outstanding debenture for which a holder delivers a
written repurchase notice to the paying agent. The paying agent will initially
be the trustee. This notice must be delivered during the period beginning at any
time from the opening of business on the date that is 20 business days prior to
the relevant repurchase date until the close of business on the last business
day prior to the repurchase date. A holder may withdraw its repurchase notice at
any time prior to the close of business on the last business day prior to the
repurchase date. If a repurchase notice is given and withdrawn during that
period, we will not be obligated to repurchase the debentures listed in the
notice. Our repurchase obligation will be subject to certain additional
conditions.
The repurchase price payable for a debenture is equal to 100% of the
principal amount of the debentures to be repurchased plus accrued and unpaid
interest, including contingent interest, if any, and liquidated damages, if any,
up to, but excluding, the repurchase date. The portion of the repurchase price
representing accrued and unpaid interest, any contingent interest and liquidated
damages will be paid on the repurchase date to the holders of record at the
close of business on the preceding record date.
We must give notice of an upcoming repurchase date to all debenture
holders not less than 20 business days prior to the repurchase date at their
addresses shown in the register of the registrar. We will also give notice to
beneficial owners as required by applicable law. This notice will state, among
other things, the repurchase price and the procedures that holders must follow
to require us to repurchase their debentures.
The repurchase notice from the holder must state:
o if certificated debentures have been issued, the debenture certificate
numbers (or, if the debentures are not certificated, the repurchase
notice must comply with appropriate DTC procedures);
o the portion of the principal amount of the debentures to be
repurchased, which must be in $1,000 multiples; and
o that the debentures are to be repurchased by us pursuant to the
applicable provisions of the indenture.
Holders may withdraw any written repurchase notice by delivering a
written notice of withdrawal to the paying agent prior to the close of business
on the last business day prior to the repurchase date. The withdrawal notice
must state:
o the principal amount of the withdrawn debentures;
o if certificated debentures have been issued, the certificate numbers of
the withdrawn debentures (or, if the debentures are not certificated,
the withdrawal notice must comply with appropriate DTC procedures); and
o the principal amount, if any, which remains subject to the repurchase
notice.
Payment of the repurchase price for a debenture for which a repurchase
notice has been delivered and not withdrawn is conditioned upon book-entry
transfer or delivery of the debenture, together with necessary endorsements, to
the paying agent at its corporate trust office in the Borough of Manhattan, The
City of New York, or any other office of the paying agent, at any time after
delivery of the repurchase notice. Payment of the repurchase price for the
debenture will be made promptly following the later of the repurchase date and
the time of book-entry transfer or delivery of the debenture. If the paying
agent holds money sufficient to pay the repurchase price of the debenture on the
business day following the repurchase date, then, on and after such date:
o the debenture will cease to be outstanding;
o interest will cease to accrue; and
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o all other rights of the holder will terminate, other than the right to
receive the repurchase price upon delivery of the debenture.
This will be the case whether or not book-entry transfer of the
debenture has been made or the debenture has been delivered to the paying agent.
No debentures may be repurchased by us at the option of holders on November 15,
2010, November 15, 2013 or November 15, 2018 if the principal amount of the
debentures has been accelerated, and such acceleration has not been rescinded on
or prior to such date.
Pursuant to the indenture, we will:
o comply with the provisions of Rule 13e-4 and Rule 14e-1, if applicable,
under the Exchange Act;
o file a Schedule TO or any successor or similar schedule if required
under the Exchange Act; and
o otherwise comply with all federal and state securities laws in
connection with any offer by us to repurchase the debentures.
We may be unable to repurchase the debentures if holders elect to
require us to repurchase the debentures pursuant to this provision. If holders
elect to require us to repurchase the debentures, we may not have enough funds
to pay the repurchase price for all tendered debentures. Our senior credit
agreement contains, and other agreements relating to our indebtedness may
contain, provisions prohibiting repurchase of the debentures. If holders elect
to require us to repurchase the debentures at a time when we are prohibited from
repurchasing debentures, we could seek the consent of our lenders to repurchase
the debentures or attempt to refinance this debt. If we do not obtain consent,
we would not be permitted to repurchase the debentures. Our failure to
repurchase tendered debentures would constitute an event of default under the
indenture, which might constitute a default under the terms of our other
indebtedness. See "Risk Factors--We may be unable to repurchase or repay your
debentures."
REPURCHASE OF DEBENTURES AT A HOLDER'S OPTION UPON A DESIGNATED EVENT
A holder will have the right to require us to repurchase for cash all
or any part of the debentures after the occurrence of a designated event at a
repurchase price equal to 100% of the principal amount plus accrued and unpaid
interest, including contingent interest, and liquidated damages, if any, up to,
but excluding, the repurchase date. Debentures submitted for repurchase must be
$1,000 or an integral multiple thereof.
On or before the 20th day after the occurrence of a designated event,
we will provide to all holders of the debentures and the trustee and paying
agent a notice of the occurrence of the designated event and of the resulting
repurchase right. Such notice shall state, among other things, the procedures
that holders must follow to require us to repurchase the debentures, the date of
the designated event and the date we will repurchase the debentures for which we
receive a notice from the holders thereof, as described below, which date shall
not be later than 35 business days after the date of our notice of the
occurrence of the relevant designated event subject to extension to comply with
applicable law (the "designated event repurchase date").
Simultaneously with providing such notice, we will publish a notice
containing this information in a newspaper of general circulation in The City of
New York, or publish the information on our website or through such other public
medium as we may use at that time.
To exercise the repurchase right, a holder must deliver, on or before
the 30th business day after the date of our notice of a designated event,
subject to extension to comply with applicable law, the debentures to be
repurchased, duly endorsed for transfer, together with a written repurchase
notice and the form entitled "Form of Designated Event Repurchase Notice" on the
reverse side of the debentures duly completed, to the paying agent. The
repurchase notice must state:
o if certificated debentures have been issued, the debenture certificate
numbers (or, if the debentures are not certificated, the repurchase
notice must comply with appropriate DTC procedures);
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o the portion of the principal amount of the debentures to be
repurchased, which must be in $1,000 multiples; and
o that the debentures are to be repurchased by us pursuant to the
applicable provisions of the indenture.
Holders may withdraw any written repurchase notice by delivering a
written notice of withdrawal to the paying agent prior to the close of business
on the last business day prior to the designated event repurchase date. The
withdrawal notice must state:
o the principal amount of the withdrawn debentures;
o if certificated debentures have been issued, the certificate numbers of
the withdrawn debentures (or, if the debentures are not certificated,
the withdrawal notice must comply with appropriate DTC procedures); and
o the principal amount, if any, which remains subject to the repurchase
notice.
Payment of the repurchase price for a debenture for which a repurchase
notice has been delivered and not withdrawn is conditioned upon book-entry
transfer or delivery of the debenture, together with necessary endorsements, to
the paying agent at its corporate trust office in the Borough of Manhattan, The
City of New York, or any other office of the paying agent, at any time after
delivery of the repurchase notice. Payment of the designated event repurchase
price for the debenture will be made promptly following the later of the
designated event repurchase date and the time of book-entry transfer or delivery
of the debenture. If the paying agent holds money sufficient to pay the
designated event repurchase price of the debenture on the business day following
the designated event repurchase date, then, on and after such date:
o the debenture will cease to be outstanding;
o interest will cease to accrue; and
o all other rights of the holder will terminate, other than the right to
receive the designated event repurchase price upon delivery of the
debenture.
This will be the case whether or not book-entry transfer of the
debenture has been made or the debenture has been delivered to the paying agent.
Pursuant to the indenture, we will:
o comply with the provisions of Rule 13e-4 and Rule 14e-1, if applicable,
under the Exchange Act;
o file a Schedule TO or any successor or similar schedule if required
under the Exchange Act; and
o otherwise comply with all federal and state securities laws in
connection with any offer by us to repurchase the debentures.
A "designated event" will be deemed to have occurred if any of the
following occurs:
o any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) other than us, our subsidiaries or our or
their employee benefit plans becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 of the Exchange Act, except that a person
shall be deemed to have beneficial ownership of all shares that such
person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly,
of more than 50% of the total voting power of our outstanding voting
stock (for the purpose of this bullet point a person shall be deemed to
beneficially own the voting stock of a corporation that is beneficially
owned by another corporation (a "parent corporation") if such person
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beneficially owns at least 50% of the aggregate voting power of all
classes of voting stock of such parent corporation);
o during any period of two consecutive years, individuals who at the
beginning of such period constituted our board of directors (together
with any new directors whose election to such board or whose nomination
for election by our stockholders, was approved by a vote of at least
66?% of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of such board of directors then in office;
o we consolidate with or merge with or into any person or convey,
transfer, sell, or otherwise dispose of or lease all or substantially
all of our assets to any person, or any corporation consolidates with
or merges into or with us, in any such event pursuant to a transaction
in which any of our outstanding common stock or other voting stock is
changed into or exchanged for cash, securities or other property, other
than any such transaction where none of our outstanding common stock or
other voting stock is changed or exchanged at all (except to the extent
necessary to reflect a change in our jurisdiction of incorporation), or
where (A) all of our outstanding common stock and other voting stock is
changed into or exchanged for (x) voting stock of the surviving
corporation which is not "disqualified equity interests" or (y) cash,
securities and other property (other than equity interests of the
surviving corporation) and (B) no "person" or "group" owns immediately
after such transaction, directly or indirectly, more than 50% of the
total voting power of the outstanding voting stock of the surviving
corporation, other than any "person" or "group" who owned more than 50%
of the total voting power of our outstanding voting stock immediately
prior to such transaction;
o we are liquidated or dissolved or adopt a plan of liquidation or
dissolution other than in a transaction which complies with the
provisions described under "--Merger and Sale of Assets"; or
o our common stock ceases to be listed on the New York Stock Exchange or
another established national securities exchange or automated
over-the-counter trading market in the United States.
However, a designated event will not be deemed to have occurred if
either:
(1) the closing sale price of our common stock for any five
trading days within:
o the period of ten consecutive trading days immediately after the later
of the designated event or the public announcement of the designated
event, in the case of a designated event resulting solely from a
designated event under the first bullet point above; or
o the period of ten consecutive trading days immediately preceding the
designated event, in the case of a designated event under the second,
third and fourth bullet points above;
is at least equal to 105% of the quotient where the numerator is $1,000
and the denominator is the conversion rate in effect on each of those
five trading days; or
(2) in the case of a merger or consolidation, at least 95% of the
consideration, excluding cash payments for fractional shares,
in the merger or consolidation constituting the designated
event, consists of common stock traded on a United States
national securities exchange or quoted on the Nasdaq National
Market system (or which will be so traded or quoted when
issued or exchanged in connection with such designated event)
and as a result of such transaction or transactions the
debentures become convertible solely into such common stock.
For purposes of this designated event definition, "voting stock" means
stock of the class or classes pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation or other entity
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
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The definition of designated event includes a phrase relating to the
conveyance, transfer, sale, lease or other disposition of "all or substantially
all" of our assets. There is no precise, established definition of the phrase
"substantially all" under New York law, which governs the indenture and
debentures, or under the laws of Wisconsin, our state of incorporation.
Accordingly, a holder's ability to require us to repurchase its debentures as a
result of a conveyance, transfer, sale, lease or other disposition of less than
all of our assets may be uncertain.
This designated event repurchase feature may make more difficult or
discourage a takeover of us and the removal of incumbent management. However, we
are not aware of any specific effort to accumulate shares of our capital stock
with the intent to obtain control of us by means of a merger, tender offer,
solicitation or otherwise. In addition, the designated event repurchase feature
is not part of a plan by management to adopt a series of anti-takeover
provisions.
We could, in the future, enter into certain transactions, including
recapitalizations, that would not constitute a designated event but would
increase the amount of debt outstanding or otherwise adversely affect a holder.
Neither we nor our subsidiaries are prohibited from incurring debt under the
indenture. The incurrence of significant amounts of additional debt could
adversely affect our ability to service our debt, including the debentures.
We may be unable to repurchase the debentures if holders elect to
require us to repurchase the debentures pursuant to this provision. If holders
elect to require us to repurchase the debentures, we may not have enough funds
to pay the designated event repurchase price for all tendered the debentures.
Our senior credit agreement contains, and other agreements relating to our
indebtedness may contain, provisions prohibiting repurchase of the debentures.
If holders elect to require us to repurchase the debentures at a time when we
are prohibited from repurchasing debentures, we could seek the consent of our
lenders to repurchase the debentures or attempt to refinance this debt. If we do
not obtain consent, we would not be permitted to repurchase the debentures. Our
failure to repurchase tendered debentures would constitute an event of default
under the indenture, which might constitute a default under the terms of our
other indebtedness. See "Risk Factors--We may be unable to repurchase or repay
your debentures."
MERGER AND SALE OF ASSETS
The indenture provides that we may not consolidate with or merge with
or into any other person or sell, convey, transfer or lease our properties and
assets as an entirety or substantially as an entirety to another person, unless
among other items:
o we are the surviving person, or the resulting, surviving or transferee
person, if other than us, is organized and existing under the laws of
the United States, any state thereof or the District of Columbia;
o the successor person assumes, by supplemental indenture satisfactory in
form and substance to the trustee, all of our obligations under the
debentures, the registration rights agreement and the indenture;
o after giving effect to such transaction, there is no event of default,
and no event which, after notice or passage of time or both, would
become an event of default; and
o we have delivered to the trustee an officers' certificate and an
opinion of counsel each stating that such consolidation, merger, sale,
conveyance, transfer or lease complies with these requirements.
When such a person assumes our obligations in such circumstances,
subject to certain exceptions, we shall be discharged from all obligations under
the debentures, the registration rights agreement and the indenture.
The indenture does not limit or restrict the ability of any subsidiary
guarantor to consolidate with or merge with or into any person or sell, convey,
transfer or lease its property or assets.
EVENTS OF DEFAULT; NOTICE AND WAIVER
The following will be "events of default" under the indenture:
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o default in payment of any principal of the debentures when the same
becomes due and payable, whether at maturity, upon redemption,
repurchase or following a designated event or otherwise;
o default for 30 days in payment of any interest, including contingent
interest, if any, when due and payable on the debentures;
o default in our obligations to satisfy our conversion obligation upon
exercise of a holder's conversion right, unless such default is cured
within ten days after written notice of default is given to us by the
trustee or the holder of such debenture;
o our indebtedness or indebtedness of any subsidiary guarantor or any of
our significant subsidiaries, as defined (other than indebtedness that
is owed to us or any of our subsidiaries) is not paid within any
applicable grace period after the final maturity of such indebtedness
or is accelerated by the holders thereof due to a default under the
terms therein and the total amount of such indebtedness unpaid or
accelerated exceeds $7.5 million (or its equivalent in any other
currency or currencies);
o failure by us to comply with our obligations under "--Merger and Sale
of Assets;"
o default in our performance of our covenants described under
"--Repurchase of Debentures at a Holder's Option Upon a Designated
Event" (other than a failure to repurchase debentures, which would
constitute an event of default under some of the other provisions
described above);
o default in our or any subsidiary guarantor's performance of any other
covenants or agreements contained in the indenture or the debentures or
guarantees for 60 days after written notice to us by the trustee or by
the holders of at least 25% in aggregate principal amount of the
debentures then outstanding;
o any judgment or decree for the payment of money in excess of $7.5
million (excluding judgments to the extent covered by insurance by one
or more reputable insurers and as to which such insurers have
acknowledged coverage for) is entered against us, any subsidiary
guarantor or any significant subsidiary, remains outstanding for a
period of 60 days following entry of such judgment and is not
discharged, bonded, waived or stayed within 30 days after written
notice;
o a guarantee of a significant subsidiary ceases to be in full force and
effect (other than in accordance with the terms of the indenture) or is
declared to be null and void and unenforceable or the guarantee of a
significant subsidiary is found to be invalid or a subsidiary guarantor
that is a significant subsidiary denies its liability under its
guarantee (other than by reason of release of the subsidiary guarantor
in accordance with the terms of the indenture), provided, however, that
an event of default will also be deemed to occur with respect to
subsidiary guarantors that are not significant subsidiaries
("insignificant subsidiaries") if the guarantees of such insignificant
subsidiaries cease to be in full force and effect (other than in
accordance with the terms of the indenture) or are declared null and
void and unenforceable or the guarantees of such insignificant
subsidiaries are found to be invalid or such insignificant subsidiaries
deny their liability under their guarantees (other than by reason of
release of the subsidiary guarantors in accordance with the terms of
the indenture), if when aggregated and taken as a whole, those
insignificant subsidiaries providing guarantees on the debentures would
meet the definition of a significant subsidiary; and
o certain events of bankruptcy, insolvency and reorganization of us, any
subsidiary guarantor or any of our significant subsidiaries.
The term "significant subsidiary" means any of our subsidiaries that is
a "significant subsidiary," as defined in Rule 1-02(w) of Regulation S-X.
We will deliver to the trustee, written notice of any event of default
under the fourth or seventh bullet above within 30 days of its occurrence. In
addition, we will give written notice to the trustee within 30 days of any event
which with the giving of notice or the lapse of time would become an event of
default under the ninth bullet above.
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The trustee may withhold notice to the holders of the debentures of any
default, except defaults in payment of principal, interest, including contingent
interest, if any, or liquidated damages, if any, on the debentures. However, the
trustee must consider it to be in the interest of the holders of the debentures
to withhold this notice.
If an event of default (other than an event of default due to certain
events of bankruptcy, insolvency or reorganization of us) occurs and continues,
the trustee or the holders of at least 25% in principal amount of the
outstanding debentures may declare the principal of and accrued and unpaid
interest, contingent interest, if any, and liquidated damages, if any, on the
outstanding debentures to be immediately due and payable. In case an event of
default due to events of bankruptcy, insolvency or reorganization involving us
occurs and continues, the principal of and accrued and unpaid interest,
contingent interest, if any, and liquidated damages, if any, on the debentures
will automatically become due and payable. However, if we cure all defaults,
except the nonpayment of principal, interest, contingent interest, if any, and
liquidated damages, if any, that became due as a result of the acceleration, and
meet certain other conditions, with certain exceptions, this declaration may be
cancelled by the holders of a majority of the principal amount of outstanding
debentures.
Payments of principal of and interest, including contingent interest,
if any, or liquidated damages, if any, on the debentures that are not made when
due will accrue interest from the required payment date at the annual rate of 1%
above the then applicable interest rate for the debentures.
The holders of a majority of outstanding debentures will have the right
to direct the time, method and place of any proceedings for any remedy available
to the trustee, subject to limitations specified in the indenture.
No holder of the debentures may pursue any remedy under the indenture,
except in the case of a default in the payment of principal of, or interest,
including contingent interest, if any, or liquidated damages, if any, on the
debentures, or for a failure to convert debentures, unless:
o the holder has given the trustee written notice of an event of default;
o the holders of at least 25% in principal amount of outstanding
debentures make a written request, and offer reasonable indemnity, to
the trustee to pursue the remedy;
o the trustee does not receive an inconsistent direction from the holders
of a majority in principal amount of the debentures within 60 days
after receipt of the request and offer of indemnity; and
o the trustee fails to comply with the request within 60 days after
receipt of the request and offer of indemnity.
We will deliver to the trustee, within 120 days after the end of each
fiscal year, an officers' certificate as to such officers' knowledge of our and
each guarantor's compliance with all conditions and covenants on its part
contained in the indenture and stating whether or not the signer knows of any
default or event of default.
MODIFICATION AND WAIVER
The consent of the holders of a majority in principal amount of the
outstanding debentures is required to modify or amend the indenture. However, a
modification or amendment requires the consent of the holder of each outstanding
debenture if it would:
o extend the fixed maturity of any debenture;
o reduce the rate or extend the time for payment of interest or
contingent interest, if any, or liquidated damages, if any, of any
debenture;
o reduce the principal amount or premium of any debenture;
o reduce any amount payable upon redemption or repurchase of any
debenture;
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o adversely change our obligation to redeem any debentures on a
redemption date;
o adversely change our obligation to repurchase any debenture at the
option of the holder;
o adversely change our obligation to repurchase any debenture upon a
designated event;
o impair the right of a holder to institute suit for payment on any
debenture;
o change the currency in which any debenture is payable;
o impair the right of a holder to convert any debenture or reduce the
number of shares of common stock or any other property receivable upon
conversion;
o affect the ranking of the debentures or the guarantees or change the
definition of senior indebtedness;
o release any subsidiary guarantor that is a significant subsidiary from
any of its obligations under its guarantee or the indenture other than
in accordance with the terms of the indenture;
o reduce the quorum or voting requirements under the indenture; or
o subject to specified exceptions, modify certain of the provisions of
the indenture relating to modification or waiver of provisions of the
indenture.
We may amend or supplement the indenture or waive any provision of it
without the consent of any holders of debentures in some circumstances,
including:
o to cure any ambiguity, omission, defect or inconsistency;
o to provide for the assumption of our obligations under the indenture by
a successor upon any merger, consolidation or asset transfer permitted
under the indenture;
o to comply with any requirement to effect or maintain the qualification
of the indenture under the Trust Indenture Act of 1939;
o to add covenants that would benefit the holders of debentures or to
surrender any rights we have under the indenture;
o to add events of default with respect to the debentures; or
o to make any change that does not adversely affect any outstanding
debentures in any material respect.
The holders of a majority in principal amount of the outstanding
debentures generally may waive any existing or past default or event of default.
Those holders may not, however, waive any default or event of default in any
payment on any debenture or compliance with a provision that cannot be amended
or supplemented without the consent of each holder affected.
PROHIBITION OF INCURRENCE OF SENIOR SUBORDINATED DEBT
Neither we nor any subsidiary guarantor will incur or suffer to exist
indebtedness that is senior in right of payment to the debentures or such
subsidiary guarantor's guarantee and subordinate in right of payment to any of
our other indebtedness or the indebtedness of such subsidiary guarantor, as the
case may be.
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SUBSIDIARY GUARANTEES
Our obligations pursuant to the debentures, including the repurchase
obligation at the option of the holders or resulting from a designated event,
are fully and unconditionally guaranteed, jointly and severally, on an unsecured
senior subordinated basis, by the subsidiary guarantors. The subsidiary
guarantors have agreed to pay, in addition to the amounts stated above, any and
all out-of-pocket expenses (including reasonable counsel fees and expenses)
incurred by the trustee and the holders in enforcing any rights under the
guarantees with respect to the subsidiary guarantors. Each guarantor is
wholly-owned by Actuant Corporation.
Each guarantee is limited to an amount not to exceed the maximum amount
that can be guaranteed by the applicable subsidiary guarantor, after giving
effect to all of its other liabilities, contingent or otherwise (including,
without limitation, any guarantees under the senior credit facility or the 13%
senior subordinated notes), without rendering its guarantee voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws. If any guarantee were to be rendered voidable, it could be
subordinated by a court to all other indebtedness (including guarantees and
other contingent liabilities) of the relevant subsidiary guarantor, and,
depending on the amount of such indebtedness, the subsidiary guarantor's
liability on its guarantee could be reduced to zero. See "Risk Factors--Federal
and state statutes may allow courts to void or subordinate guarantees and other
laws may limit payments under the guarantees."
Upon the sale or other disposition (including by way of consolidation
or merger) of the capital stock of a subsidiary guarantor so that it no longer
constitutes a subsidiary and so long as all guarantees by such subsidiary
guarantor of any of our other senior subordinated or subordinated indebtedness
are terminated, such subsidiary guarantor will be released and relieved from all
its obligations under the indenture and its guarantee of the debentures shall
terminate. In addition, if the lenders under the 13% senior subordinated notes
release the guarantee of any guarantor under the 13% senior subordinated notes
that is also a subsidiary guarantor, such subsidiary guarantor will be
automatically released and relieved of all of its obligations under the
indenture and its guarantee of the debentures will terminate; provided, however,
if at any time after such release such subsidiary guarantor again becomes a
guarantor under the 13% senior subordinates notes, we shall cause such
subsidiary guarantor to unconditionally guarantee, pursuant to a supplemental
indenture executed and delivered to the trustee and in the form satisfactory to
the trustee (together with an officers' certificate and an opinion of counsel
each stating that such supplemental indenture complies with the indenture), on a
senior subordinated basis, all of our obligations under the debentures and the
indenture to the same extent as it guarantees our obligations under the 13%
senior subordinated notes.
"Subsidiary guarantors" means (1) each of our subsidiaries providing
guarantees under our 13% senior subordinated notes on the date of the indenture
and (2) any subsidiary of ours that provides a guarantee pursuant to the
covenant described under "--Future Guarantors" or otherwise in the future
executes a supplemental indenture in which such subsidiary unconditionally
guarantees on a senior subordinated basis our obligations under the debentures
and the indenture; provided that any person constituting a subsidiary guarantor
as described above shall cease to constitute a subsidiary guarantor when its
respective subsidiary guarantee is released in accordance with the terms of the
indenture.
FUTURE GUARANTORS
If any of our subsidiaries provides (i) a guarantee of the 13% senior
subordinated notes or (ii) if we issue senior subordinated debt or subordinated
debt and such senior subordinated debt or subordinated debt is guaranteed by any
of our subsidiaries, then such subsidiary will (1) by a supplemental indenture
executed and delivered to the trustee, in form satisfactory to the trustee,
unconditionally guarantee on a senior subordinated basis all of our obligations
under the debentures and the indenture; and (2) deliver to the trustee an
officers' certificate and an opinion of counsel each stating that such
supplemental indenture complies with the indenture. Thereafter, such subsidiary
shall be a subsidiary guarantor for all purposes of the indenture. Without
limitation to the foregoing and anything in the indenture notwithstanding, each
of our subsidiaries which at any time guarantees the 13% senior subordinated
notes shall, so long as it remains a guarantor of the 13% senior subordinated
notes, also guarantee the debentures on a senior subordinated basis pursuant to
the indenture and a guarantee.
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RANKING
The indebtedness evidenced by the debentures and the subsidiary
guarantees constitutes senior subordinated obligations of us and the subsidiary
guarantors, respectively. The payment of the principal of and interest,
contingent interest, if any, and liquidated damages, if any, on the debentures
and the payments under each guarantee will be subordinate in right of payment to
the prior payment in full in cash of all of our senior indebtedness and all
senior indebtedness of the applicable subsidiary guarantor, respectively,
including obligations under the senior credit facility.
See "--General" above for information on the amount of our senior
indebtedness and the senior indebtedness of our subsidiary guarantors as of a
recent date.
The obligations of a subsidiary guarantor under its subsidiary
guarantee are subordinate in right of payment to the prior payment in full in
cash of all senior indebtedness of such subsidiary guarantor, including its
guarantee of obligations under the senior credit facility. Except as noted, the
terms of the subordination provisions described herein with respect to our
obligations under the debentures apply in a similar fashion to each subsidiary
guarantor and the obligations of such subsidiary guarantor under its guarantee.
Only our senior indebtedness ranks senior in right of payment to the
debentures pursuant to the provisions of the indenture, and only senior
indebtedness of a subsidiary guarantor ranks senior in right of payment to the
guarantee of that subsidiary guarantor pursuant to the provisions of the
indenture. The debentures and the guarantee of any subsidiary guarantor in all
respects have the same rank in right of payment as all our other senior
subordinated indebtedness and all other senior subordinated indebtedness of that
subsidiary guarantor, respectively, and rank senior in right of payment to any
of our future subordinated indebtedness and any future subordinated indebtedness
of that subsidiary guarantor, respectively.
We are not permitted to pay principal of, or interest or contingent
interest, if any, or liquidated damages, if any, on the debentures and may not
repurchase, redeem or otherwise retire any debentures (collectively, "pay the
debentures") if:
o any of our designated senior indebtedness, as defined below, is not
paid in cash when due; or
o any other default on our designated senior indebtedness occurs and the
maturity of such designated senior indebtedness is accelerated in
accordance with its terms;
unless, in either case, the default has been cured or waived and any such
acceleration has been rescinded or such designated senior indebtedness has been
paid in full in cash. Regardless of the foregoing, we are permitted to pay the
debentures if we and the trustee receive written notice approving such payment
from representatives of the designated senior indebtedness.
During the continuance of any default (other than a default described
in the bullet points in the preceding paragraph with respect to any of our
designated senior indebtedness pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or after the expiration of any applicable
grace periods, we are not permitted to make a payment on the debentures for a
period (a "payment blockage period") commencing upon the receipt by the trustee
(with a copy to us) of written notice (a "blockage notice") of such default from
the representative of the holders of such designated senior indebtedness
specifying an election to effect a payment blockage period and ending 179 days
thereafter. The payment blockage period will end earlier if such payment
blockage period is terminated:
o by written notice to the trustee and to us from the person or persons
who gave such blockage notice;
o because the default giving rise to such blockage notice is cured,
waived or no longer continuing; or
o because such designated senior indebtedness has been discharged or paid
in full in cash.
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Notwithstanding the provisions described above, unless the holders of such
designated senior indebtedness or the representative of such holders have
accelerated the maturity of such designated senior indebtedness, we are
permitted to resume paying the debentures after the end of such payment blockage
period. The debentures shall not be subject to more than one payment blockage
period in any consecutive 360-day period irrespective of the number of defaults
with respect to our designated senior indebtedness during such period and no
default that existed upon the commencement of a payment blockage period with
respect to our designated senior indebtedness initiating such payment blockage
(whether or not such default is on the same issue of designated senior
indebtedness) shall be made the basis for the commencement of any other payment
blockage period by the representatives of the holders of such designated senior
indebtedness, unless such default has been cured or waived for a period of not
less than 90 consecutive days subsequent to the commencement of such initial
payment blockage period.
Each subsidiary guarantor and its guarantee are subject to payment
blockage provisions substantially similar to those described in the preceding
two paragraphs, except that such subsidiary guarantor will be prohibited from
making payments under its guarantee by payment defaults under, acceleration of
or other defaults permitting acceleration under either designated senior
indebtedness of such subsidiary guarantor or our designated senior indebtedness.
Upon any payment or distribution of our assets or assets of any
subsidiary guarantor upon a total or partial liquidation or dissolution of us or
such subsidiary guarantor or in a bankruptcy, insolvency, receivership or
reorganization or similar proceeding relating either to us or such subsidiary
guarantor:
o the holders of our senior indebtedness or the senior indebtedness of
such subsidiary guarantor, as the case may be, will be entitled to
receive payment in full in cash of such senior indebtedness before the
holders of the debentures are entitled to receive any payment from us
or pursuant to the guarantee of such subsidiary guarantor, as the case
may be;
o until our senior indebtedness or the senior indebtedness of such
subsidiary guarantor is paid in full in cash, any payment or
distribution to which holders of the debentures would be entitled but
for the subordination provisions of the indenture will be made to
holders of such senior indebtedness as their interests may appear; and
o if a distribution is made to holders of the debentures that, due to the
subordination provisions, should not have been made to them, such
holders of the debentures are required to hold it in trust for the
holders of senior indebtedness and pay it over to them as their
interests may appear.
If payment or distribution of the debentures is accelerated because of
an event of default, we or the trustee shall promptly notify the holders of
designated senior indebtedness or the representative of such holders of the
acceleration.
No provision contained in the indenture or the debentures will affect
our obligation, which is absolute and unconditional, to pay the debentures when
due. The subordination provisions of the indenture will not prevent the
occurrence of any default or event of default under the indenture.
By reason of the subordination provisions contained in the indenture,
in the event of a bankruptcy, liquidation, insolvency or similar proceeding, our
creditors or creditors of a subsidiary guarantor who are holders of our senior
indebtedness or senior indebtedness of a subsidiary guarantor, as the case may
be, may recover more, ratably, than the holders of the debentures, and our
creditors or creditors of a subsidiary guarantor who are not holders of senior
indebtedness may recover less, ratably, than holders of senior indebtedness and
may recover more, ratably, than the holders of the debentures.
"Credit facility" means our senior credit facility (including all
documents entered into by us and any of our subsidiaries in connection
therewith), dated as of May 22, 2002, among us, and the agents and lenders named
therein, and any other bank credit agreement or similar facility entered into in
the future by us or any subsidiary guarantor, as any of the same, in whole or in
part, may be amended, renewed, extended, increased, substituted, refinanced,
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restructured or replaced (including, without limitation, any successive
renewals, extensions, increases, substitutions, refinancings, restructurings,
replacements, supplements or other modifications of the foregoing).
"Designated senior indebtedness" means (1) the indebtedness under the
Credit Facility and (2) any other of our senior indebtedness which, at the date
of determination, has an aggregate principal amount outstanding of, or under
which, at the date of determination, the holders thereof are committed to lend
up to, at least $25 million and is specifically designated by us in the
instrument evidencing or governing such senior indebtedness as designated senior
indebtedness for purposes of the indenture.
"indebtedness" shall have the meaning set forth in the indenture.
"Senior indebtedness" of a person means
(1) indebtedness of such person, whether outstanding on the date
of the indenture or thereafter incurred;
(2) accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for
reorganization relating to such person to the extent
post-filing interest is allowed in such proceeding) in respect
of (A) indebtedness of such person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such person is
responsible or liable unless, in the case of (1) and (2), in
the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such
obligations are subordinate in right of payment to the
debentures; and
(3) indebtedness under the Credit Facility,
provided, however, that senior indebtedness shall not include
(1) any obligation of such person to any subsidiary,
(2) any liability for Federal, state, local or other taxes owed or
owing by such person,
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including
guarantees thereof or instruments evidencing such
liabilities), or
(4) any indebtedness of such person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in
any respect to any other indebtedness or other obligation of
such person.
"Senior subordinated indebtedness" means (i) with respect to us, the
debentures, our 13% senior subordinated notes and any other indebtedness of ours
that specifically provides that such indebtedness is to have the same rank as
the debentures in right of payment and is not subordinated by its terms in right
of payment to any indebtedness or other obligation of ours which is not senior
indebtedness and (ii) with respect to any subsidiary guarantor, its guarantee of
the debentures, its guarantee of our 13% senior subordinated notes and any other
indebtedness of such subsidiary guarantor that specifically provides that such
indebtedness is to have the same rank as such subsidiary's guarantee of the
debentures in right of payment and is not subordinated by its term in right or
payment to any indebtedness or other obligation of such subsidiary guarantor
which is not senior indebtedness.
"Subsidiary" means, in respect of any person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of capital stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (1) such person,
(2) such person and one or more subsidiaries of such person, or (3) one or more
subsidiaries of such person.
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FORM, DENOMINATION AND REGISTRATION
The debentures are issued:
o in fully registered form;
o without interest coupons; and
o in denominations of $1,000 principal amount and integral multiples of
$1,000.
Global Debenture, Book-Entry Form
Debentures are evidenced by one or more global debentures. We have
deposited the global debenture with DTC and registered the global debenture in
the name of Cede & Co. as DTC's nominee. Except as set forth below, a global
debenture may be transferred, in whole or in part, only to another nominee of
DTC or to a successor of DTC or its nominee.
Beneficial interests in a global debenture may be held through
organizations that are participants in DTC (called "participants"). Transfers
between participants will be effected in the ordinary way in accordance with DTC
rules and will be settled in clearing house funds. The laws of some states
require that certain persons take physical delivery of securities in definitive
form. As a result, the ability to transfer beneficial interests in the global
debenture to such persons may be limited.
Beneficial interests in a global debenture held by DTC may be held only
through participants, or certain banks, brokers, dealers, trust companies and
other parties that clear through or maintain a custodial relationship with a
participant, either directly or indirectly (called "indirect participants"). So
long as Cede & Co., as the nominee of DTC, is the registered owner of a global
debenture, Cede & Co. for all purposes will be considered the sole holder of
such global debenture. Except as provided below, owners of beneficial interests
in a global debenture will:
o not be entitled to have certificates registered in their names;
o not receive physical delivery of certificates in definitive registered
form; and
o not be considered holders of the global debenture.
We will pay principal of and interest, including contingent interest,
if any, on and the redemption price and the repurchase price of a global
debenture to Cede & Co., as the registered owner of the global debenture, by
wire transfer of immediately available funds on each interest payment date or
the redemption or repurchase date or maturity date, as the case may be. Neither
we, the trustee nor any paying agent will be responsible or liable:
o for the records relating to, or payments made on account of, beneficial
ownership interests in a global debenture; or
o for maintaining, supervising or reviewing any records relating to the
beneficial ownership interests.
Neither we, the trustee, registrar, paying agent nor conversion agent
have any responsibility for the performance by DTC or its participants or
indirect participants of their respective obligations under the rules and
procedures governing their operations. DTC has advised us that it will take any
action permitted to be taken by a holder of debentures, including the
presentation of debentures for conversion, only at the direction of one or more
participants to whose account with DTC interests in the global debenture are
credited, and only in respect of the principal amount of the debentures
represented by the global debenture as to which the participant or participants
has or have given such direction.
DTC has advised us that it is:
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o a limited purpose trust company organized under the laws of the State
of New York, and a member of the Federal Reserve System;
o a "clearing corporation" within the meaning of the Uniform Commercial
Code; and
o a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
DTC was created to hold securities for its participants and to
facilitate the clearance and settlement of securities transactions between
participants through electronic book-entry changes to the accounts of its
participants. Participants include securities brokers, dealers, banks, trust
companies and clearing corporations and other organizations. Some of the
participants or their representatives, together with other entities, own DTC.
Indirect access to the DTC system is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
DTC has agreed to the foregoing procedures to facilitate transfers of
interests in a global debenture among participants. However, DTC is under no
obligation to perform or continue to perform these procedures, and may
discontinue these procedures at any time.
We will issue debentures in definitive certificate form only if:
o DTC notifies us that it is unwilling or unable to continue as
depositary or DTC ceases to be a clearing agency registered under the
Securities and Exchange Act of 1934, as amended, and a successor
depositary is not appointed by us within 90 days;
o an event of default shall have occurred and the maturity of the
debentures shall have been accelerated in accordance with the terms of
debentures and any holder shall have requested in writing the issuance
of definitive certificated debentures; or
o we have determined in our sole discretion that debentures shall no
longer be represented by global debentures.
RULE 144A INFORMATION REQUEST
We will furnish to the holders or beneficial holders of the debentures
or the common stock issued on conversion of the debentures and prospective
purchasers, upon their request, the information, if any, required under Rule
144A(d)(4) under the Securities Act until such time as such securities are no
longer "restricted securities" within the meaning of Rule 144 under the
Securities Act, assuming these securities have not been owned by an affiliate of
ours.
INFORMATION CONCERNING THE TRUSTEE
We have appointed U.S. Bank, National Association, the trustee under
the indenture, as paying agent, conversion agent and debenture registrar for the
debentures. The trustee is also a lender under the senior credit facility.
The trustee or its affiliates may also provide other services to us in
the ordinary course of their business. The indenture contains certain
limitations on the rights of the trustee, if it or any of its affiliates is then
our creditor, to obtain payment of claims in certain cases or to realize on
certain property received on any claim as security or otherwise. The trustee and
its affiliates will be permitted to engage in other transactions with us.
However, if the trustee or any affiliate continues to have any conflicting
interest and a default occurs with respect to the debentures, the trustee must
eliminate such conflict or resign.
The indenture does not require that the trustee expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties under the indenture or in the exercise of any of its rights or powers
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unless the trustee shall have received adequate indemnity in its opinion against
potential costs and liabilities relating to its performance.
GOVERNING LAW
The debentures and the indenture shall be governed by, and construed in
accordance with, the laws of the State of New York.
REGISTRATION RIGHTS
On November 10, 2003, we and the subsidiary guarantors entered into a
registration rights agreement with the initial purchasers of the debentures
pursuant to which we agreed to file a shelf registration statement with the SEC
covering resales of the registrable securities within 90 days after November 10,
2003, the date on which the debentures were originally issued. We also agreed to
use our reasonable best efforts to cause the shelf registration statement to
become effective within 180 days after November 10, 2003 and to use our
reasonable best efforts to keep the shelf registration statement effective
until, in general, the date on which there are no longer any registrable
securities outstanding. Accordingly, we anticipate that our obligation to keep
the shelf registration statement effective will terminate no later than November
10, 2004, and may terminate earlier. No owner of registrable securities may use
this prospectus in connection with any resale or other transfer of those
registrable securities at any time after our obligation to keep the shelf
registration statement effective has terminated or during any period we have
suspended the use of this prospectus as described below.
When we use the term "registrable securities" in this section, we are
referring to the debentures, the guarantees and the common stock issuable upon
conversion of the debentures until the earlier of (i) the sale pursuant to Rule
144 under the Securities Act or the shelf registration statement of such
registrable securities, and (ii) the expiration of the holding period applicable
to such securities held by persons that are not affiliates of Actuant under Rule
144(k) under the Securities Act, and as a result of an event or circumstance
described in clauses (i) or (ii) above, the transfer restriction legends
required under the indenture are removed or removable in accordance with the
indenture.
We may suspend the use of this prospectus included in the shelf
registration statement under certain circumstances relating to pending corporate
developments, public filings with the SEC and similar events. Any suspension
period shall not:
o exceed 30 days in any three-month period; or
o an aggregate of 90 days for all periods in any 12-month period.
Notwithstanding the foregoing, we will be permitted to suspend the use
of the prospectus for up to 60 days in any three-month period under certain
circumstances, relating to possible acquisitions, financings and other similar
transactions. Although the registration rights agreement requires that we pay
predetermined liquidated damages to holders of registrable securities (or under
certain circumstances issue additional shares of common stock in lieu of
liquidated damages) if we default in certain of our obligations under that
agreement, those obligations with respect to any registrable security cease at
the time such security ceases to be a registrable security. Accordingly, because
any debenture or share of common stock purchased by an investor in this offering
will cease to be a registrable security upon such purchase, the purchasers of
debentures and shares of common stock in the offering made hereby will not be
entitled to receive any liquidated damages (or additional shares of common stock
in lieu of liquidated damages) or otherwise be entitled to any rights under the
registration rights agreement. Notwithstanding the foregoing, if we become
obligated to pay liquidated damages (or issue common stock in lieu of liquidated
damages) with respect to any registrable security which thereafter ceases to be
a registrable security, that obligation shall survive until it is satisfied.
The foregoing summary of certain provisions of the registration rights
agreement does not purport to be complete and is subject to all of the
provisions of the registration rights agreement. Because the foregoing is only a
summary, it does not contain all the information that you may find useful. For
further information you should read the registration rights agreement. The
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registration rights agreement is incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part and you may obtain a
copy of that agreement as described below under "Where You Can Find More
Information" and "Incorporation of Certain Documents by Reference."
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock as of November 30, 2003, consisted of
32,000,000 shares of Class A Common Stock, $0.20 par value per share, or common
stock, of which 23,572,250 shares were issued and outstanding; 1,500,000 shares
of Class B common stock, $.20 par value per share, none of which were issued and
outstanding; and 160,000 shares of Cumulative Preferred Stock, $1.00 par value
per share, or Preferred Stock, none of which have been issued. The following is
a summary of selected provisions of our articles of incorporation, our bylaws
and of the Wisconsin Business Corporation Law, or WBCL. This summary is not
complete and is subject to our articles of incorporation and bylaws, copies of
which may be obtained by contacting us at the address or telephone number
appearing under "Where You Can Find More Information," and to the WBCL.
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 our Board of Directors may determine, subject
to the limitations described below, without further approval by holders of our
common stock. If any shares of Class B common stock are 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 common
stock in electing a "maximum minority" of the Board of Directors, as described
under "--Common Stock; Class B Common Stock" below.
If we issue any shares of Preferred Stock, we would be permitted to pay
dividends or make other distributions upon the common stock or Class B common
stock (except for distributions payable in shares of common stock or Class B
common stock) only after paying or setting apart funds for payment of accrued
but unpaid dividends upon the outstanding Preferred Stock, at the rate or rates
designated for each series of outstanding Preferred Stock. Dividends on the
Preferred Stock are cumulative, so that if at any time the full amount of all
dividends accrued on the Preferred Stock is not paid, the deficiency must be
paid before any dividends or other distributions are paid or set apart on the
common stock or the Class B common stock, other than dividends or distributions
paid in common stock or Class B common stock, respectively. Each series of
Preferred Stock will have such designation, preferences and relative rights as
shall be stated in the resolution or resolutions providing for the designation
and issue of such series adopted by our Board of Directors. In the event of
voluntary or involuntary liquidation, 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 or Class B common
stock .
Under the articles of incorporation, all shares of 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 other provisions in the articles of incorporation:
(a) the dividend rate; (b) the price at and 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 or Class B common stock, if the shares of any series
are issued with the privilege of conversion; and (f) voting rights, if any,
subject to the provisions regarding voting rights summarized herein.
The holders of Preferred Stock will have no preemptive rights. Under
the articles of incorporation, each series of Preferred Stock will, with respect
to dividend rights and rights on liquidation, rank prior in right of payment to
the common stock and the Class B common stock and on a parity in right of
payment with each other series of Preferred Stock.
COMMON STOCK; CLASS B COMMON STOCK
The rights and preferences of shares of common stock and Class B common
stock are identical, except as to voting power with respect to the election of
directors and except that the Class B common stock is entitled to conversion
rights as described below. No shares of Class B common stock are outstanding.
All previously outstanding shares of Class B common stock were converted into
shares of common stock over a decade ago.
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On all matters other than the election of directors, the holders of
common stock and Class B common stock possess equal voting power of one vote per
share and vote together as a single class (unless otherwise required by the
WBCL). In the election of the Board of Directors, the holders of common stock,
voting together as a single class with the holders of any outstanding 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 this "maximum minority"
provision, the holders of the Class B common stock, 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 holders of Class B common stock will be entitled
to elect two more directors than the holders of common stock 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 stock will be entitled to elect one more
director than the holders of common stock and any Preferred Stock having voting
power. In the event there are no shares of Class B common stock outstanding,
holders of common stock, voting together as a single class with holders of any
outstanding 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 common stock and Class B common stock are ratably entitled
to such dividends as our Board of Directors may declare out of funds legally
available therefor, except as described below in the case of stock dividends. If
we were to issue any of our authorized Preferred Stock, no dividends could be
paid or set apart for payment on shares of common stock or Class B common stock,
unless paid in common stock or Class B common stock, respectively, until full
cumulative dividends accrued on all of the issued and outstanding shares of
Preferred Stock had been paid or set apart for payment. Certain covenants
contained in our debt agreements limit, and provisions of our articles of
incorporation for the benefit of any Preferred Stock that may be issued from
time to time could have the direct or indirect effect of limiting, the payment
of dividends or other distributions on (and purchases of) our common stock and
Class B common stock. Stock dividends on common stock may be paid only in shares
of common stock and stock dividends on Class B common stock may be paid only in
shares of Class B common stock.
In the event that we issue any shares of Class B common stock, any
holder of shares of Class B common stock may convert any or all of those shares
into common stock on a share-for-share basis. If we issue any Class B common
stock and the number of outstanding shares of Class B common stock is reduced to
less than 1,000,000 adjusted to reflect any stock splits, stock dividends or
similar transactions, all of the outstanding shares of Class B common stock will
be automatically converted into common stock on a share-for-share basis. Holders
of common stock do not have any conversion rights. In the event of our
dissolution or liquidation, the holders of both common stock and Class B common
stock are entitled to share ratably in all of our assets remaining after payment
of our 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 or the Class B common stock.
The common stock is listed on the New York Stock Exchange. LaSalle
Bank, N.A., Chicago, Illinois, serves as the transfer agent for the common
stock.
GENERAL
The articles of incorporation provide that 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) is required in order to constitute
shareholder approval or adoption of a merger, consolidation, or liquidation of
us, sale, lease or exchange or other disposition of all or substantially all of
our assets, amendment of the articles of incorporation or the bylaws, or removal
of a director.
Our directors are currently elected to serve one-year terms. The
articles of incorporation 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 of directors and for the terms and
manner of election not inconsistent with the applicable provisions of the WBCL.
If that occurs and any shares of Class B common stock are outstanding, each
class of directors will contain as nearly as possible an equal number of
directors elected by the holders of common stock and any outstanding Preferred
Stock, voting as a single class, and will also contain as nearly as possible an
equal number of directors elected by holders of Class B common stock, subject to
the right of the Class B common stock to elect the minimum majority of the
directors as described above.
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Shareholders are subject to personal liability under Section
180.0622(2)(b) of the WBCL, as judicially interpreted, for debts owing to our
employees for services performed for us, but not exceeding six months' service
in any one case. This means that, if we do not pay salaries or other amounts
owed to our employees, holders of our common stock, including any shares issued
upon conversion of the debentures, may be personally liable for those amounts.
Holders of our capital stock do not have preemptive or other
subscription rights to purchase or subscribe for our unissued stock or other
securities issued by us.
CERTAIN STATUTORY PROVISIONS
Under Section 180.1150(2) of the WBCL, the voting power of shares of a
"resident domestic corporation," such as us (as long as we continue to meet the
statutory definition as set forth in Section 180.1130(10m) of the WBCL), which
are held by any person (including two or more persons acting in concert),
including shares issuable upon conversion of convertible securities or upon
exercise of options or warrants, 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 the shares in excess of 20%, 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 us, shares acquired before April 22, 1986, and shares acquired in
a merger or share exchange to which we are 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 us (as long as we continue to meet
the statutory definition as set forth in Section 180.1130(10m) of the WBCL),
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, voting together as a single voting group 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, voting together as a single
voting group. 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, lease or exchange 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, directly or indirectly, 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 us (as long as
we continue to meet the statutory definition as set forth in Section 180.1140(9)
of the WBCL), 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 purchase 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:
o the board of directors approved the acquisition of the stock prior to
the acquisition date;
o the business combination is approved by a majority of the outstanding
voting stock not beneficially owned by the interested shareholder; or
o the consideration to be received by shareholders meets certain fair
price requirements of the statute with respect to form and amount.
Under Sections 180.1140(9) and 180.1143 of the WBCL, a "resident
domestic corporation" means a Wisconsin corporation that has a class of voting
stock that is registered or traded on a national securities exchange or that is
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registered under Section 12(g) of the Securities Exchange Act and that, as of
the relevant date, satisfies any of the following:
o its principal offices are located in Wisconsin;
o it has significant business operations located in Wisconsin;
o more than 10% of the holders of record of its shares are residents of
Wisconsin; or
o more than 10% of its shares are held of record by residents of
Wisconsin.
We are currently 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. Our articles of incorporation do not
contain any such election.
These provisions of the WBCL, the ability to issue additional shares of
common stock, Class B common stock and Preferred Stock without further
shareholder approval (except as required under New York Stock Exchange corporate
governance standards), and certain other provisions of our articles of
incorporation (discussed above) could have the effect, among others, of
discouraging take-over proposals for us, delaying or preventing a change in
control of us, or impeding a business combination between us and a major
shareholder.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following is a summary of certain United States federal income tax
consequences of the purchase, ownership, conversion, or other disposition of the
debentures, and of the common stock received upon conversion of the debentures.
This summary is based upon laws, regulations, rulings and decisions now in
effect, all of which are subject to change (including retroactive changes) or
possible differing interpretations. The discussion below deals only with
debentures held as capital assets and does not purport to deal with persons in
special tax situations, such as financial institutions, insurance companies,
regulated investment companies, dealers in securities or currencies, tax-exempt
entities, persons holding the debentures in a tax-deferred or tax-advantaged
account, persons subject to the alternative minimum tax, or persons holding the
debentures as a hedge against currency risks, as a position in a "straddle" or
as part of a "hedging" or "conversion" transaction for tax purposes.
We do not address all of the tax consequences that may be relevant to
an investor in the debentures. In particular, we do not address:
o the United States federal income tax consequences to shareholders in,
or partners or beneficiaries of, an entity that is a holder of the
debentures;
o the United States federal estate, gift or alternative minimum tax
consequences of the purchase, ownership or disposition of the
debentures;
o U.S. holders (as defined below) who hold the debentures whose
functional currency is not the United States dollar; or
o any state, local or foreign tax consequences of the purchase, ownership
or disposition of the debentures.
Persons considering the purchase of the debentures should consult their
own tax advisors concerning the application of the United States federal income
tax laws to their particular situations as well as any consequences of the
purchase, ownership and disposition of the debentures, and common stock received
upon conversion of the debentures arising under the laws of any other taxing
jurisdiction.
A U.S. holder is a beneficial owner of the debentures who or which is:
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o a citizen or individual resident of the United States, as defined in
Section 7701(b) of the Internal Revenue Code of 1986, as amended (which
we refer to as the Code);
o a corporation or partnership, including any entity treated as a
corporation or partnership for United States federal income tax
purposes, created or organized in or under the laws of the United
States, any state thereof or the District of Columbia unless, in the
case of a partnership, Treasury regulations are enacted that provide
otherwise;
o an estate if its income is subject to United States federal income
taxation regardless of its source; or
o a trust if (1) a United States court can exercise primary supervision
over its administration, and (2) one or more United States persons have
the authority to control all of its substantial decisions.
Notwithstanding the preceding sentence, certain trusts in existence on
August 20, 1996, and treated as U.S. persons prior to such date, may also be
treated as U.S. holders. A Non-U.S. holder is a beneficial owner of the
debentures other than a U.S. holder.
No statutory or judicial authority directly addresses the treatment of
the debentures or instruments similar to the debentures for United States
federal income tax purposes. The Internal Revenue Service (the "IRS") has issued
a revenue ruling with respect to instruments similar to the debentures. To the
extent it addresses the issue, this ruling supports certain aspects of the
treatment described below. No ruling has been or is expected to be sought from
the IRS with respect to the United States federal income tax consequences of the
issues that are not addressed in the recently released revenue ruling. The IRS
would not be precluded from taking contrary positions. As a result, there is a
risk that the IRS may not agree with all of the tax characterizations and the
tax consequences described below.
WE URGE PROSPECTIVE INVESTORS TO CONSULT THEIR OWN TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE DEBENTURES AND OUR COMMON STOCK IN LIGHT OF THEIR OWN
PARTICULAR CIRCUMSTANCES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES
FEDERAL OR OTHER TAX LAWS.
CLASSIFICATION OF THE DEBENTURES
Pursuant to the terms of the indenture, each holder of debentures
agrees to treat the debentures, for United States federal income tax purposes,
as debt instruments that are subject to the special regulations governing
contingent payment debt instruments (which we refer to as the CPDI regulations)
and to be bound by our application of the CPDI regulations to the debentures,
including our determination of the rate at which interest will be deemed to
accrue on the debentures and the related "projected payment schedule" determined
by us. In addition, under the indenture, each holder is deemed to have agreed to
treat the fair market value of our common stock received by such holder upon
conversion of the debentures as a contingent payment and to accrue interest with
respect to the debentures as tax original issue discount for United States
federal income tax purposes according to the "noncontingent bond method" set
forth in Section 1.1275-4(b) of the Treasury regulations, using the comparable
yield (as defined below) compounded semiannually and the projected payment
schedule determined by us. The remainder of this discussion assumes the
debentures will be treated in accordance with the aforementioned agreements and
our determinations.
Notwithstanding the issuance of the revenue ruling discussed above, the
application of the CPDI regulations to instruments such as the debentures is
uncertain in several respects, and, as a result, there is a risk that the IRS or
a court may not agree with the treatment described herein. Any differing
treatment could affect the amount, timing and character of income, gain or loss
in respect of an investment in the debentures. In particular, a holder might be
required to accrue interest income at a higher or lower rate, might not
recognize income, gain or loss upon conversion of the debentures into shares of
our common stock, and might recognize capital gain or loss upon a taxable
disposition of the debentures. Holders should consult their tax advisors
concerning the tax treatment of holding the debentures.
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TREATMENT OF U.S. HOLDERS
Accrual of Interest on the Debentures
Pursuant to the CPDI regulations, a U.S. holder is required to accrue
interest income on the debentures, which we refer to as tax original issue
discount, in the amounts described below, regardless of whether the U.S. holder
uses the cash or accrual method of tax accounting. Accordingly, U.S. holders
will likely be required to include interest in taxable income in each year in
excess of the accruals on the debentures for non-tax purposes (i.e., in excess
of the stated semiannual regular cash interest payable on the debentures and any
contingent interest payments) actually received in that year.
The CPDI regulations provide that a U.S. holder must accrue an amount
of ordinary interest income, as tax original issue discount for United States
federal income tax purposes, for each accrual period prior to and including the
maturity date of the debentures that equals:
(1) the product of (i) the adjusted issue price (as defined below)
of the debentures as of the beginning of the accrual period
and (ii) the comparable yield (as defined below) of the
debentures, adjusted for the length of the accrual period;
(2) divided by the number of days in the accrual period; and
(3) multiplied by the number of days during the accrual period
that the U.S. holder held the debentures.
The debentures' issue price is the first price at which a substantial
amount of the debentures is sold to the public, excluding sales to bond houses,
brokers or similar persons or organizations acting in the capacity of
underwriters, placement agents or wholesalers. The adjusted issue price of a
debenture is its issue price increased by any interest income previously
accrued, determined without regard to any adjustments to interest accruals
described below, and decreased by the projected amount of any projected payments
(as defined below) previously made (including payments of stated semiannual
regular cash interest) with respect to the debentures.
Under the CPDI regulations, we are required to establish the
"comparable yield" for the debentures. The comparable yield for the debentures
is the annual yield we would have paid, as of the initial issue date, on a
noncontingent, nonconvertible, fixed-rate debt instrument with terms and
conditions otherwise similar to those of the debentures. We intend to take the
position that the comparable yield for the debentures is 7.75%, compounded
semiannually. The precise manner of calculating the comparable yield, however,
is not entirely clear. If the comparable yield were successfully challenged by
the IRS, the redetermined yield could be materially greater or less than the
comparable yield provided by us. Moreover, the projected payment schedule could
differ materially from the projected payment schedule provided by us.
The CPDI regulations require that we provide to U.S. holders, solely
for United States federal income tax purposes, a schedule of the projected
amounts of payments, which we refer to as projected payments, on the debentures.
This schedule must produce the comparable yield. The projected payment schedule
includes the stated semiannual regular cash interest payable on the debentures
at the rate of 2% per annum, estimates for certain contingent interest payments
and an estimate for a payment at maturity taking into account the conversion
feature. In this connection, the fair market value of any common stock (and
cash, if any) received by a holder upon conversion will be treated as a
contingent payment.
The comparable yield and the schedule of projected payments is set
forth in the indenture. U.S. holders may also obtain the projected payment
schedule by submitting a written request for such information to: Terry Braatz,
Treasurer, Actuant Corporation, 6100 North Baker Road, Milwaukee, Wisconsin
53209.
The comparable yield and the schedule of projected payments are not
determined for any purpose other than for the determination of a U.S. holder's
interest accruals and adjustments thereof in respect of the debentures for
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United States federal income tax purposes and do not constitute a projection or
representation regarding the actual amounts payable on the debentures.
Amounts treated as interest under the CPDI regulations are treated as
original issue discount for all purposes of the Code.
Adjustments to Interest Accruals on the Debentures
As noted above, the projected payment schedule includes amounts
attributable to the stated semiannual regular cash interest payable on the
debentures. Accordingly, the receipt of the stated semiannual regular cash
interest payments will not be separately taxable to U.S. holders. If, during any
taxable year, a U.S. holder receives actual payments with respect to the
debentures for that taxable year that in the aggregate exceed the total amount
of projected payments for that taxable year, the U.S. holder will incur a "net
positive adjustment" under the CPDI regulations equal to the amount of such
excess. The U.S. holder will treat a "net positive adjustment" as additional
interest income. For this purpose, the payments in a taxable year include the
fair market value of property received in that year, including the fair market
value of our common stock received upon conversion.
If a U.S. holder receives in a taxable year actual payments with
respect to the debentures for that taxable year that in the aggregate were less
than the amount of projected payments for that taxable year, the U.S. holder
will incur a "net negative adjustment" under the CPDI regulations equal to the
amount of such deficit. This adjustment will (a) first reduce the U.S. holder's
interest income on the debentures for that taxable year and (b) to the extent of
any excess after the application of (a), give rise to an ordinary loss to the
extent of the U.S. holder's interest income on the debentures during prior
taxable years, reduced to the extent such interest was offset by prior net
negative adjustments. A negative adjustment is not subject to the two percent
floor limitation imposed on miscellaneous itemized deductions under Section 67
of the Code. Any negative adjustment in excess of the amounts described in (a)
and (b) will be carried forward and treated as a negative adjustment in the
succeeding taxable year and will offset future interest income accruals in
respect of the debentures or will reduce the amount realized on the sale,
exchange, repurchase by us at the holder's option, conversion, redemption or
retirement of the debentures.
If a U.S. holder purchases debentures at a discount or premium to the
adjusted issue price, the discount will be treated as a positive adjustment and
the premium will be treated as a negative adjustment. The U.S. holder must
reasonably allocate the adjustment over the remaining term of the debentures by
reference to the accruals of tax original issue discount at the comparable yield
or to the projected payments. It may be reasonable to allocate the adjustment
over the remaining term of the debentures pro rata with the accruals of tax
original issue discount at the comparable yield. You should consult your tax
advisors regarding these allocations.
Sale, Exchange, Conversion, Repurchase, or Redemption
Generally, the sale or exchange of a debenture, the repurchase of a
debenture by us at the holder's option, or the redemption or retirement of a
debenture for cash, will result in taxable gain or loss to a U.S. holder. As
described above, our calculation of the comparable yield and the schedule of
projected payments for the debentures includes the receipt of common stock upon
conversion as a contingent payment with respect to the debentures. Accordingly,
we intend to treat the receipt of our common stock by a U.S. holder upon the
conversion of a debenture as a contingent payment under the CPDI Regulations.
Under this treatment, conversion also would result in taxable gain or loss to
the U.S. holder. As described above, holders are deemed to have agreed to be
bound by our determination of the comparable yield and the schedule of projected
payments.
The amount of gain or loss on a taxable sale, exchange, repurchase by
us at the holder's option, conversion, redemption or retirement of a debenture
would be equal to the difference between (a) the amount of cash plus the fair
market value of any other property received by the U.S. holder, including the
fair market value of any of our common stock received, and (b) the U.S. holder's
adjusted tax basis in the debenture. A U.S. holder's adjusted tax basis in a
debenture will generally be equal to the U.S. holder's original purchase price
for the debenture, increased by any interest income previously accrued by the
U.S. holder (determined without regard to any adjustments to interest accruals
described above, other than adjustments to reflect a discount or premium to the
adjusted issue price, if any), and decreased by the amount of any projected
payments that have been previously made in respect of the debentures to the U.S.
holder (without regard to the actual amount paid). Gain recognized upon a sale,
exchange, repurchase by us at the holder's option, conversion, redemption or
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retirement of a debenture will generally be treated as ordinary interest income;
any loss will be ordinary loss to the extent of interest previously included in
income, and thereafter, capital loss (which will be long-term if the debenture
is held for more than one year). The deductibility of net capital losses by
individuals and corporations is subject to limitations.
A U.S. holder's tax basis in our common stock received upon a
conversion of a debenture will equal the then current fair market value of such
common stock. The U.S. holder's holding period for the common stock received
will commence on the day immediately following the date of conversion.
Constructive Dividends
If at any time we were to make a distribution of property to our
stockholders that would be taxable to the stockholders as a dividend for United
States federal income tax purposes and, in accordance with the anti-dilution
provisions of the debentures, the conversion rate of the debentures were
increased, such increase might be deemed to be the payment of a taxable dividend
to holders of the debentures.
For example, an increase in the conversion rate in the event of
distributions of cash, our evidences of indebtedness or assets may result in
deemed dividend treatment to holders of the debentures, but generally an
increase in the event of stock dividends or the distribution of rights to
subscribe for common stock would not be so treated.
Liquidated Damages
We may be required to make payments of liquidated damages as described
above under "Registration Rights" to holders of registrable securities (as
defined above). However, as described above under "Registration Rights," any
debentures or shares of common stock issued upon conversion of the debentures
that are purchased by investors in the offering made by this prospectus will
thereupon cease to be registrable securities and accordingly, the purchasers of
those debentures and shares of common stock will not be entitled to liquidated
damages. We intend to take the position for United States federal income tax
purposes that any payments of liquidated damages should be taxable to U.S.
holders as additional ordinary income when received or accrued, in accordance
with their regular method of tax accounting. Our determination is binding on
holders of the debentures, unless they explicitly disclose that they are taking
a different position to the IRS on their tax returns for the year during which
they acquire the debenture. The IRS could take a contrary position from that
described above, which could affect the timing and character of U.S. holders'
income from the debentures with respect to the payments of liquidated damages.
If we become obligated to pay liquidated damages, U.S. holders should
consult their tax advisers concerning the appropriate tax treatment of the
payment of liquidated damages with respect to the debentures.
Dividends on Common Stock
If we make cash distributions on our common stock, the distributions
will generally be treated as dividends to a U.S. holder of our common stock to
the extent of our current or accumulated earnings and profits as determined
under United States federal income tax principles at the end of the tax year of
the distribution, then as a tax-free return of capital to the extent of the U.S.
holder's tax basis in the common stock, and thereafter as gain from the sale or
exchange of that stock. Under recently enacted tax legislation, eligible
dividends received in tax years beginning on or before December 31, 2008, will
be subject to tax to a non-corporate U.S. holder at the special reduced rate
generally applicable to long-term capital gains. A U.S. holder will be eligible
for this reduced rate only if the U.S. holder has held our common stock for more
than 60 days during the 120-day period beginning 60 days before the ex-dividend
date.
Disposition of Common Stock
Upon the sale or other disposition of our common stock received on
conversion of a debenture, a U.S. holder will generally recognize capital gain
or loss equal to the difference between (i) the amount of cash and the fair
market value of any property received upon the sale or exchange, and (ii) the
U.S. holder's tax basis in our common stock. That capital gain or loss will be
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long-term if the U.S. holder's holding period in respect of such stock is more
than one year. The deductibility of net capital losses by individuals and
corporations is subject to limitations.
TREATMENT OF NON-U.S. HOLDERS
The Debentures
All payments on the debentures made to a Non-U.S. holder will be exempt
from United States income or withholding tax provided that: (i) such Non-U.S.
holder does not own, actually, indirectly or constructively, 10% or more of the
total combined voting power of all classes of our stock entitled to vote, and is
not a controlled foreign corporation related, directly or indirectly, to us
through stock ownership; (ii) the statement requirement set forth in section
871(h) or section 881(c) of the Code has been fulfilled with respect to the
beneficial owner, as discussed below; (iii) such payments and gain are not
effectively connected with the conduct by such Non-U.S. holder of a trade or
business in the United States; (iv) our common stock continues to be actively
traded within the meaning of section 871(h)(4)(C)(v)(I) of the Code (which, for
these purposes and subject to certain exceptions, includes trading on the NYSE);
and (v) we are not a "United States real property holding corporation." We
believe that we are not and do not anticipate becoming a "United States real
property holding corporation." However, if a Non-U.S. holder were deemed to have
received a constructive dividend (see "--Constructive Dividends" above), the
Non-U.S. holder will generally be subject to United States federal withholding
tax at a 30% rate, subject to a reduction by an applicable treaty, on the
taxable amount of such dividend.
The statement requirement referred to in the preceding paragraph will
be fulfilled if the beneficial owner of a debenture certifies on IRS Form
W-8BEN, under penalties of perjury, that it is not a United States person and
provides its name and address or otherwise satisfies applicable documentation
requirements. A holder of a debenture which is not an individual or corporation
(or an entity treated as a corporation for United States federal income tax
purposes) holding the debentures on its own behalf may have substantially
increased reporting requirements. In particular, in the case of debentures held
by a foreign partnership (or certain foreign trusts), the partnership (or trust)
will be required to provide the certification from each of its partners (or
beneficiaries), and the partnership (or trust) will be required to provide
certain additional information.
The Common Stock
Dividends paid to a Non-U.S. holder of common stock will generally be
subject to withholding tax at a 30% rate subject to reduction (a) by an
applicable treaty if the Non-U.S. holder provides an IRS Form W-8BEN certifying
that it is entitled to such treaty benefits, or (b) upon receipt of an IRS Form
W-8ECI from a Non-U.S. holder claiming that the payments are effectively
connected with the conduct of a United States trade or business.
A Non-U.S. holder will generally not be subject to United States
federal income tax on gain realized on the sale or exchange of the common stock
received upon conversion of the debentures unless (a) the gain is effectively
connected with the conduct of a United States trade or business of the Non-U.S.
holder, (b) in the case of a Non-U.S. holder who is a non-resident alien
individual, the individual is present in the United States for 183 or more days
in the taxable year of the disposition and certain other requirements are met,
or (c) we will have been a United States real property holding corporation at
any time within the shorter of the five-year period preceding such sale or
exchange and the Non-U.S. holder's holding period in the common stock.
Income Effectively Connected with a United States Trade or Business
If a Non-U.S. holder of the debentures or our common stock is engaged
in a trade or business in the United States, and if interest on the debentures,
dividends on our common stock, or gain realized on the sale, exchange,
conversion or other disposition of the debentures or our common stock is
effectively connected with the conduct of such trade or business, the Non-U.S.
holder, although exempt from the withholding tax discussed in the preceding
paragraphs, will generally be subject to regular United States federal income
tax on such interest, dividends or gain in the same manner as if it were a U.S.
holder. Such a Non-U.S. holder would be required to provide to the withholding
agent a properly executed IRS Form W-8ECI in order to claim an exemption from
withholding tax. In addition, if such a Non-U.S. holder is a foreign
corporation, such holder may be subject to a branch profits tax equal to 30% (or
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such lower rate provided by an applicable treaty) of its effectively connected
earnings and profits for the taxable year, subject to certain adjustments.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
We will comply with applicable information reporting requirements with
respect to payments on the debentures and common stock. Payments of principal
and interest (including tax original issue discount and a payment in common
stock pursuant to a conversion of the debentures) on, and the proceeds of
dispositions of, the debentures and payments of dividends on, and the proceeds
of dispositions of, the common stock may be subject to information reporting and
United States federal backup withholding tax at the applicable statutory rate if
the U.S. holder thereof fails to supply an accurate taxpayer identification
number or otherwise fails to comply with applicable United States information
reporting or certification requirements. A Non-U.S. holder may be subject to
United States backup withholding tax on payments on, and the proceeds from a
sale or other disposition of, the debentures or common stock unless the Non-U.S.
holder complies with certification procedures to establish that it is not a
United States person. Any amounts so withheld will be allowed as a credit
against a holder's United States federal income tax liability and may entitle a
holder to a refund, provided the required information is timely furnished to the
IRS.
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SELLING SECURITYHOLDERS
The debentures offered hereby were originally issued by us in a
November 2003 private placement. Pursuant to a purchase agreement that we and
the initial purchasers entered into in connection with that offering, the
initial purchasers agreed to offer and sell the debentures only to persons they
reasonably believed to be "qualified institutional buyers" within the meaning of
Rule 144A under the Securities Act. The selling securityholders, which term
includes their transferees, pledgees, donees and successors, may from time to
time offer and sell pursuant to this prospectus any or all of the debentures and
common stock issued upon conversion of the debentures.
The following table sets forth information regarding the respective
principal amounts of debentures and numbers of shares of common stock
beneficially owned by the selling securityholders prior to this offering and
offered pursuant to this offering and the respective principal amounts and
numbers of shares of common stock offered by the selling securityholders
pursuant to this prospectus. This information, as well as the information
appearing in the footnotes (other than footnotes (1) and (26)) to the following
table, has been obtained from the selling securityholders and we have not
independently verified this information. Except as indicated in the footnotes to
the following table, none of the selling securityholders has had any position,
office or other material relationship with us or any of our affiliates within
the past three years. Because the selling securityholders may offer all or some
portion of the debentures or the common stock issuable upon conversion of the
debentures pursuant to this prospectus, no estimate can be given as to the
amount of the debentures or common stock that will be held by the selling
securityholders upon termination of this offering. In addition, the selling
securityholders identified below may have sold, transferred or otherwise
disposed of all or a portion of their debentures or common stock since the date
on which they provided the information to us for inclusion in the following
table.
Unless otherwise indicated, the following table includes all shares of
common stock issuable upon conversion of the debentures and assumes a conversion
rate of 25.0563 shares of our common stock per $1,000 principal amount of the
debentures and a cash payment in lieu of any fractional share. However, this
conversion rate will be subject to adjustment as described under "Description of
the Debentures--Conversion of the Debentures." In addition, as described above
under "Registration Rights," we may, under certain circumstances, become
obligated to issue additional shares of common stock upon conversion of
debentures in lieu of the payment of liquidated damages. As a result, the number
of shares of common stock beneficially owned prior to this offering and the
number of shares of common stock offered hereby may increase or decrease in the
future. Also, the table below assumes that the debentures are convertible
immediately. As described above under "Description of the Debentures--
Conversion of the Debentures," the debentures are convertible only in specified
circumstances.
In addition, the selling securityholders identified below may have
sold, transferred or otherwise disposed of all or a portion of their debentures
or common stock since the date on which they provided the information to us for
inclusion in the following table.
------------------------------------------------------------ ------------------- ------------------ -------------------
NAME OF SELLING SECURITYHOLDER(1) PRINCIPAL AMOUNT NUMBER OF SHARES NUMBER OF
OF THE DEBENTURES OF COMMON STOCK SHARES OF
BENEFICIALLY BENEFICIALLY COMMON STOCK
OWNED PRIOR TO OWNED PRIOR TO OFFERED HEREBY
THIS OFFERING AND THIS OFFERING
OFFERED HEREBY
------------------------------------------------------------ ------------------- ------------------ -------------------
Akela Capital Master Fund, Ltd. (2) 15,000,000 375,844 375,844
------------------------------------------------------------ ------------------- ------------------ -------------------
Allstate Insurance Company (3)(4) 1,500,000 37,584 37,584
------------------------------------------------------------ ------------------- ------------------ -------------------
Arkansas PERS (5) 1,710,000 42,846 42,846
------------------------------------------------------------ ------------------- ------------------ -------------------
Arkansas Teacher Retirement (6) 4,470,000 112,001 112,001
------------------------------------------------------------ ------------------- ------------------ -------------------
Astraszenecea Holdings Pension (5) 500,000 12,528 12,528
------------------------------------------------------------ ------------------- ------------------ -------------------
Baptist Health of South Florida (6) 605,000 15,159 15,159
------------------------------------------------------------ ------------------- ------------------ -------------------
BNP Paribas Equity Strategies, SNC (3)(7) 4,110,000 106,321 102,981
------------------------------------------------------------ ------------------- ------------------ -------------------
Boilermakers Blacksmith Pension Trust (5) 1,245,000 31,195 31,195
------------------------------------------------------------ ------------------- ------------------ -------------------
Calamos Market Neutral Fund - Calamos Investment Trust (8) 5,000,000 125,281 125,281
------------------------------------------------------------ ------------------- ------------------ -------------------
Consulting Group Capital Markets Funds (8) 900,000 22,550 22,550
------------------------------------------------------------ ------------------- ------------------ -------------------
CNH CA Master Account, L.P. (9) 2,250,000 56,376 56,376
------------------------------------------------------------ ------------------- ------------------ -------------------
Context Convertible Arbitrage Fund, LP (10) (11) 525,000 13,154 13,154
------------------------------------------------------------ ------------------- ------------------ -------------------
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------------------------------------------------------------ ------------------- ------------------ -------------------
NAME OF SELLING SECURITYHOLDER(1) PRINCIPAL AMOUNT NUMBER OF SHARES NUMBER OF
OF THE DEBENTURES OF COMMON STOCK SHARES OF
BENEFICIALLY BENEFICIALLY COMMON STOCK
OWNED PRIOR TO OWNED PRIOR TO OFFERED HEREBY
THIS OFFERING AND THIS OFFERING
OFFERED HEREBY
------------------------------------------------------------ ------------------- ------------------ -------------------
Context Convertible Arbitrage Offshore, Ltd. (11) 525,000 13,154 13,154
------------------------------------------------------------ ------------------- ------------------ -------------------
CooperNeff Convertible Strategies (Cayman) Master Fund, 4,059,000 101,703 101,703
L.P. (12)
------------------------------------------------------------ ------------------- ------------------ -------------------
DB Equity Opportunities Master Portfolio Ltd. (13) 2,000,000 50,112 50,112
------------------------------------------------------------ ------------------- ------------------ -------------------
Deam Convertible Arbitrage (13) 1,000,000 25,056 25,056
------------------------------------------------------------ ------------------- ------------------ -------------------
Delaware PERS (5) 1,610,000 40,340 40,340
------------------------------------------------------------ ------------------- ------------------ -------------------
Delta Airlines Master Trust (5) 490,000 12,277 12,277
------------------------------------------------------------ ------------------- ------------------ -------------------
Duke Endowment (5) 365,000 9,146 9,146
------------------------------------------------------------ ------------------- ------------------ -------------------
Engineers Joint Pension (6) 405,000 10,147 10,147
------------------------------------------------------------ ------------------- ------------------ -------------------
Froley Revy Investment Convertible Security Fund (5) 130,000 3,257 3,257
------------------------------------------------------------ ------------------- ------------------ -------------------
ICI American Holdings Trust (5)(14) 365,000 9,145 9,145
------------------------------------------------------------ ------------------- ------------------ -------------------
Innovest Finanzdienstle (6) 1,700,000 42,595 42,595
------------------------------------------------------------ ------------------- ------------------ -------------------
KBC Financial Products USA Inc. (10)(15) 4,600,000 115,258 115,258
------------------------------------------------------------ ------------------- ------------------ -------------------
Lyxor Zola Fund Ltd. 100,000 2,505 2,505
------------------------------------------------------------ ------------------- ------------------ -------------------
Lyxor/Convertible Arbitrage Fund Limited (16) 390,000 9,771 9,771
------------------------------------------------------------ ------------------- ------------------ -------------------
Mellon HBV Master Convertible Arbitrage Fund LP (3)(17) 350,000 8,769 8,769
------------------------------------------------------------ ------------------- ------------------ -------------------
Mellon HBV Master MultiStrategies Fund LP (3) 400,000 10,022 10,022
------------------------------------------------------------ ------------------- ------------------ -------------------
Mint Master Fund Ltd. 400,000 10,022 10,022
------------------------------------------------------------ ------------------- ------------------ -------------------
Morgan Stanley Convertible Securities Trust (3) 800,000 20,045 20,045
------------------------------------------------------------ ------------------- ------------------ -------------------
National Bank of Canada (11) 200,000 5,011 5,011
------------------------------------------------------------ ------------------- ------------------ -------------------
National Bank of Canada c/o Putnam Lovell NBF Securities 250,000 6,264 6,264
Inc. (10)
------------------------------------------------------------ ------------------- ------------------ -------------------
Nicholas Applegate Capital Management Convertible Mutual 690,000 17,288 17,288
Fund (6)
------------------------------------------------------------ ------------------- ------------------ -------------------
Nomura Securities International, Inc. (10) (18) 7,000,000 178,294 175,394
------------------------------------------------------------ ------------------- ------------------ -------------------
Prudential Insurance Co. of America (5) 95,000 2,380 2,380
------------------------------------------------------------ ------------------- ------------------ -------------------
Pyramid Equity Strategies Fund (13) 520,000 13,029 13,029
------------------------------------------------------------ ------------------- ------------------ -------------------
S.A.C. Capital Associates, LLC (19) 1,000,000 25,056 25,056
------------------------------------------------------------ ------------------- ------------------ -------------------
San Diego City Retirement (6) 880,000 22,049 22,049
------------------------------------------------------------ ------------------- ------------------ -------------------
San Diego County Convertible (6) 1,855,000 46,479 46,479
------------------------------------------------------------ ------------------- ------------------ -------------------
SG Cowen Securities Corp. (10) 1,175,000 29,441 29,441
------------------------------------------------------------ ------------------- ------------------ -------------------
SG Cowen Securities - Convertible Arbitrage (10) 2,000,000 50,112 50,112
------------------------------------------------------------ ------------------- ------------------ -------------------
Singlehedge U.S. Convertible Arbitrage Fund (7) 1,127,000 28,238 28,238
------------------------------------------------------------ ------------------- ------------------ -------------------
State of Oregon/Equity (5) 5,020,000 125,782 125,782
------------------------------------------------------------ ------------------- ------------------ -------------------
Sturgeon Limited (20) 57,000 1,428 1,428
------------------------------------------------------------ ------------------- ------------------ -------------------
Syngenta AG (5) 270,000 6,765 6,765
------------------------------------------------------------ ------------------- ------------------ -------------------
Van Kampen Harbor Fund (10)(21) 1,200,000 30,067 30,067
------------------------------------------------------------ ------------------- ------------------ -------------------
Victus Capital LP (3) (22) 3,500,000 87,697 87,697
------------------------------------------------------------ ------------------- ------------------ -------------------
Wachovia Capital Markets LLC (10) (23) 11,586,000 290,302 290,302
------------------------------------------------------------ ------------------- ------------------ -------------------
Wake Forest University (6) 450,000 11,275 11,275
------------------------------------------------------------ ------------------- ------------------ -------------------
Windmill Master Fund, LP (24) 1,000,000 25,056 25,056
------------------------------------------------------------ ------------------- ------------------ -------------------
Wyoming State Treasurer (6) 915,000 22,926 22,926
------------------------------------------------------------ ------------------- ------------------ -------------------
Zola Partners, LP (25) 150,000 3,758 3,758
------------------------------------------------------------ ------------------- ------------------ -------------------
Zozove Hedge Convertible Fund L.P. (26) 3,000,000 75,168 75,168
------------------------------------------------------------ ------------------- ------------------ -------------------
Zozove Income Fund L.P. (26) 1,000,000 25,056 25,056
------------------------------------------------------------ ------------------- ------------------ -------------------
Zozove Convertible Arbitrage Fund L.P. (26) 4,650,000 116,511 116,511
------------------------------------------------------------ ------------------- ------------------ -------------------
Zurich Institutional Benchmarks Master Fund Ltd. (26) 2,000,000 50,112 50,112
------------------------------------------------------------ ------------------- ------------------ -------------------
RCG Latitude Master Fund, LTD. (27) 5,500,000 137,809 137,809
------------------------------------------------------------ ------------------- ------------------ -------------------
RCG Multi-Strategy Master Fund, LTD. (27) 2,000,000 50,112 50,112
------------------------------------------------------------ ------------------- ------------------ -------------------
Guggenheim Portfolio Co. XV, LLC (27) 1,000,000 25,056 25,056
------------------------------------------------------------ ------------------- ------------------ -------------------
MSD TCB, LP (28) 10,000,000 250,563 250,563
------------------------------------------------------------ ------------------- ------------------ -------------------
Calamos Markeet Neutral Fund - Calamos Investment Trust 12,000,000 300,675 300,675
(29)
------------------------------------------------------------ ------------------- ------------------ -------------------
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------------------------------------------------------------ ------------------- ------------------ -------------------
NAME OF SELLING SECURITYHOLDER(1) PRINCIPAL AMOUNT NUMBER OF SHARES NUMBER OF
OF THE DEBENTURES OF COMMON STOCK SHARES OF
BENEFICIALLY BENEFICIALLY COMMON STOCK
OWNED PRIOR TO OWNED PRIOR TO OFFERED HEREBY
THIS OFFERING AND THIS OFFERING
OFFERED HEREBY
------------------------------------------------------------ ------------------- ------------------ -------------------
Consulting Groups Capital Markets Funds (29) 900,000 22,550 22,550
------------------------------------------------------------ ------------------- ------------------ -------------------
OCM Convertible Trust (30) 1,850,000 46,354 46,354
------------------------------------------------------------ ------------------- ------------------ -------------------
Delta Air Lines Master Trust - CV(30) 930,000 23,302 23,302
------------------------------------------------------------ ------------------- ------------------ -------------------
State Employees' Retirement Fund of the State of Delaware 1,060,000 26,559 26,559
(30)
------------------------------------------------------------ ------------------- ------------------ -------------------
Partner Reinsurance Company Ltd. (30) 795,000 19,919 19,919
------------------------------------------------------------ ------------------- ------------------ -------------------
Chrysler Corporation Master Retirement Trust(30) 4,160,000 104,234 104,234
------------------------------------------------------------ ------------------- ------------------ -------------------
Motion Picture Industry Health Plan - Active Member 220,000 5,512 5,512
Fund(30)
------------------------------------------------------------ ------------------- ------------------ -------------------
Motion Picture Industry Health Plan - Retiree Member 155,000 3,883 3,883
Fund(30)
------------------------------------------------------------ ------------------- ------------------ -------------------
Delta Pilots Disability & Survivorship Trust - CV(30) 455,000 11,400 11,400
------------------------------------------------------------ ------------------- ------------------ -------------------
Microsoft Corporation(30) 935,000 23,427 23,427
------------------------------------------------------------ ------------------- ------------------ -------------------
Qwest Occupational Health Trust(30) 170,000 4,259 4,259
------------------------------------------------------------ ------------------- ------------------ -------------------
Travelers Indemnity Company - Commercial Lines(30) 230,000 5,762 5,762
------------------------------------------------------------ ------------------- ------------------ -------------------
Travelers Indemnity Company - Personal Lines(30) 155,000 3,883 3,883
------------------------------------------------------------ ------------------- ------------------ -------------------
OCM Global Convertible Securities Fund(30) 135,000 3,382 3,382
------------------------------------------------------------ ------------------- ------------------ -------------------
International Truck & Engine Corporation Non-Contributory 495,000 12,402 12,402
Retirement Plan Trust(30)
------------------------------------------------------------ ------------------- ------------------ -------------------
International Truck & Engine Corporation Retirement Plan 530,000 13,279 13,279
for Salaried Employees Trust(30)
------------------------------------------------------------ ------------------- ------------------ -------------------
International Truck & Engine Corporation, Retiree Health 140,000 3,507 3,507
Benefit Trust(30)
------------------------------------------------------------ ------------------- ------------------ -------------------
UnumProvident Corporation(30) 335,000 8,393 8,393
------------------------------------------------------------ ------------------- ------------------ -------------------
Any other holders of debentures or shares of common stock (31) (31) (31)
issued on conversion of the debentures and future
transferors, pledges, donees and successors thereof (31)
------------------------------------------------------------ ------------------- ------------------ -------------------
-------------------------------------------------------------------------------------------------------------------
(1) Information concerning the selling securityholders may change from time to time. Any such changed information
will be set forth in amendments or supplements to the registration statement of which this prospectus, is a
part, if and when required. A post-effective amendment will be filed to identify unknown securityholders who
are not donees, pledgees or transferees of the selling securityholders listed in the table.
(2) As general partner of this selling securityholder, Anthony B. Bosco has voting and investment power over the
shares held by this selling securityholder.
(3) This selling securityholder has advised us that it is an affiliate of a broker or dealer and that it purchased
the securities reflected in this table as being owned by it in the ordinary course of business and, at the time
of purchase, it had no agreements or understandings, directly or indirectly, with any person to distribute
those securities.
(4) The Allstate Corporation is the parent company of Allstate Insurance Company.
(5) Froley Revy Investment Co., Inc., as investment advisor for the selling securityholder, has voting and
investment power over the securities listed above that are held by this selling securityholder.
(6) Nicholas Applegate Capital Management, as investment manager for the selling securityholder, has voting and
investment power over the securities listed above that are held by this selling securityholder.
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(7) CooperNeff Advisors, Inc. has sole voting and investment power over the securities listed above that are held
by this selling securityholder. CooperNeff Advisors, Inc. is a wholly-owned subsidiary of CooperNeff Group,
Inc., which is a wholly-owned on a consolidated basis, by BNP Paribas S.A.
(8) Nick Calamos has voting and investment power over the securities listed above that are held by this selling
securityholder.
(9) CNH Partners, LLC, the investment advisor for the selling securityholder, has voting and investment power over
the securities listed above that are held by this selling securityholder. Investment principals for this
investment advisor are Robert Krail, Mark Mitchell and Todd Pulvino.
(10) This selling securityholder has advised us that it is a broker or dealer. Accordingly, under interpretations by
the staff of the SEC, this selling securityholder may be deemed an "underwriter" within the meaning of the
Securities Act of 1933.
(11) Context Capital Management, LLC is general partner of this selling securityholder. Michael Rosen and William
Fendy have voting and investment power over the securities listed above that are held by this selling
securityholder.
(12) CooperNeff (Cayman) Ltd. is the general partner of this selling stockholder. CooperNeff (Cayman) Ltd. is owned
by CooperNeff Advisors, Inc., a subsidiary of CooperNeff Group, Inc., which is wholly-owned on a consolidated
basis by BNP Paribas, S.A.
(13) Deutsche Bank Trust Company Americas is the general partner of this selling securityholder. Eric Lobben has
sole voting and investment power over the securities listed above that are held by this selling securityholder.
(14) Ann Houlihan has voting and investment power over the securities listed above that are held by this selling
securityholder.
(15) Mr. Luke Edwards, as managing director of the selling securityholder, has voting and investment power over the
securities listed above that are held by this selling securityholder on behalf of the selling securityholder.
(16) SG Hambras Fund Managers (Jersey) Limited has sole voting and investment power over the securities listed above
that are held by this selling securityholder.
(17) Mellon HBV IL, LLC is the general partner of this selling securityholder.
(18) Mr. Robert Citrino, as the managing director of the selling securityholder, has voting and investment power
over the securities listed above that are held by the selling securityholder.
(19) Pursuant to investment agreements, each of S.A.C. Capital Advisors, LLC, a Delaware limited liability company
("SAC Capital Advisors"), and S.A.C. Capital Management, LLC, a Delaware limited liability company ("SAC
Capital Management"), share all investment and voting power with respect to the securities held by the selling
securityholder. Mr. Stephen E. Cohen controls both SAC Capital Advisors and SAC Capital Management. Each of SAC
Capital Advisors, SAC Capital Management and Mr. Cohen disclaim beneficial ownership of any of the securities
listed above as beneficially owned or offered by this selling securityholder.
(20) CooperNeff Advisors Inc., as the selling securityholder's investment advisor, has voting and investment power
over the securities held by this selling securityholder.
(21) Van Kampen Asset Management, Inc., as the selling securityholder's investment advisor, has discretionary
authority over the securities held by this selling securityholder.
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(22) Victus Capital, LLC is the general partner of this selling securityholder.
(23) Wachovia Capital Markets, LLC was an initial purchaser in our November 2003 private placement of the
debentures. Wachovia Bank, National Association, an affiliate of Wachovia Capital Markets, LLC, is a lender
under our senior credit facility.
(24) Duquesne Capital Management, LLC, as investment manager of Windmill Master Fund, LP, has discretionary
authority over the securities held by this selling securityholder.
(25) Zola Capital Management, LLC is the general partner of this selling securityholder. Mark P. Zola and Daniel A.
David have voting and investment power over the securities listed above that are held by this selling
securityholder.
(26) Gene Pretti, through his control of Zazove Associates LLC, which is the selling securityholder of this selling
securityholder, has voting and investment power over the securities listed above that are held by this selling
securityholder.
(27) Alex Adair has voting and investment power over the securities listed above that are held by this selling
securityholder.
(28) Michael Dell and Susan Dell, through their control of MSD Capital, L.P., have voting and investment power over
the securities listed above that are held by this selling securityholder.
(29) Nick Calamos has voting and investment power over the securities listed above that are held by this selling
securityholder.
(30) Oaktree Capital Management, LLC, as investment advisor for the selling securityholder, has voting and
investment power over the securities listed above that are held by this selling securityholder.
(31) Any of these other holders of debentures or shares of common stock issued upon conversion of the debentures may
be identified at a later date by means of one or more supplements or, if required, a post-effective amendment
to the registration statement of which this prospectus is a part. A post-effective amendment will be filed to
identify unknown securityholders who are not donees, pledgees or transferees of the selling securityholders
listed in the table.
PLAN OF DISTRIBUTION
The selling securityholders (including their transferees, pledgees,
donees and successors) may sell the debentures and the common stock issuable
upon conversion of the debentures from time to time directly to purchasers or
through broker-dealers or agents who may receive compensation in the form of
discounts, concessions or commissions from the selling securityholders or the
purchasers. If the debentures or the shares of common stock issuable upon
conversion of the debentures are sold through broker-dealers or agents, the
selling securityholders will be responsible for any discounts, concessions or
commissions payable to those broker-dealers or agents.
The debentures and the common stock issuable upon conversion of the
debentures may be sold in one or more transactions at:
o fixed prices,
o prevailing market prices at the time of sale,
o varying prices determined at the time of sale, or
o negotiated prices.
These sales may be effected in transactions, which may involve crosses
or block transactions:
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o on any national securities exchange or quotation service on which the
debentures or the common stock may be listed or quoted at the time of
sale;
o in the over-the-counter market;
o otherwise than on such exchanges or services or in the over-the-counter
market; or
o through the writing of options.
Crosses are transactions in which the same broker acts as an agent on both sides
of the trade.
In connection with the sale of the debentures and the common stock
issuable upon conversion of the debentures or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the
debentures or common stock in the course of hedging their positions. The selling
securityholders also may deliver the debentures and shares of common stock
issuable upon conversion of the debentures to close out short positions, or loan
or pledge the debentures or the common stock issuable upon conversion of such
debentures to broker-dealers or other financial institutions that in turn may
sell those securities. The selling securityholders also may transfer, donate and
pledge debentures and shares of common stock issuable upon conversion of the
debentures, in which case the transferees, donees, pledgees or other successors
in interest will be deemed selling securityholders for purposes of this
prospectus.
The aggregate proceeds to the selling securityholders from the sale of
debentures or the common stock issuable upon the conversion of the debentures
offered by them will be the purchase price of such debentures or common stock
less discounts and commissions, if any, payable by them. Each of the selling
securityholders reserves the right to accept and, together with their
broker-dealers or agents from time to time, to reject, in whole or in part, any
proposed purchase of the debentures or the common stock issuable upon conversion
of the debentures to be made directly or through broker-dealers or agents. We
will not receive any of the proceeds from the offering of debentures and the
common stock issuable upon conversion of the debentures.
There is no public market for the debentures and we do not intend to
apply for listing of the debentures on any securities exchange or for quotation
of the debentures through any automated quotation system. The debentures are
currently designated for trading on the PORTAL Market. However, once debentures
are sold by means of this prospectus, those debentures will no longer trade on
the PORTAL Market. Our common stock is listed on the New York Stock Exchange
under the symbol "ATU".
In order to comply with the securities laws of some states, if
applicable, the debentures and the common stock issuable upon conversion of the
debentures may be sold in those jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the debentures and the
common stock issuable upon conversion of the debentures may not be sold unless
they have been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied with.
The selling securityholders may not sell any, or may sell less than
all, of the debentures and shares of common stock issuable upon conversion of
the debentures offered by them pursuant to this prospectus. In addition, any
selling securityholder may, to the extent permitted by applicable law, sell,
transfer, devise or gift the debentures or shares of common stock issuable upon
conversion of the debentures by means not described in this prospectus. In that
regard, any debentures or shares of common stock issuable upon conversion of the
debentures that qualify for sale pursuant to Rule 144A or Rule 144 under the
Securities Act may be sold under that rule, if applicable, rather than pursuant
to this prospectus.
The selling securityholders and any broker-dealers or agents that
participate in the distribution of the debentures and the common stock issuable
upon conversion of the debenture may be "underwriters" within the meaning of
Section 2(11) of the Securities Act. As a result, any profits on the sale of the
debentures or the shares of common stock issued on conversion of the debentures
received by selling securityholders and any discounts, commissions or
concessions received by any such broker-dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. If the selling
securityholders were deemed to be underwriters, the selling securityholders
-69-
could be subject to certain statutory liabilities under the federal securities
laws, including under Sections 11, 12 and 17 of the Securities Act and Rule
10b-5 under the Securities Exchange Act of 1934.
The selling securityholders and any other persons participating in the
distribution of the debentures and the shares of common stock issuable upon
conversion of the debentures will be subject to the Securities Exchange Act. The
Securities Exchange Act rules include, without limitation, Regulation M, which
may limit the timing of or prohibit the purchase and sale of debentures and
shares of common stock by the selling securityholders and any such other person.
In addition, under Regulation M, any selling securityholder or other person
engaged in the "distribution", within the meaning of Regulation M, of the
debentures or the shares of common stock issuable upon conversion of the
debentures may not engage in market-making activities with respect to the
debentures or the common stock for certain periods prior to the commencement of
that distribution, unless, in the case of persons other than selling
securityholders, an applicable exemption is available under Regulation M. The
foregoing may affect the marketability of the debentures and the common stock
issuable upon conversion of the debentures and the ability of any person or
entity to engage in market-making activities with respect to those securities.
In that regard, the selling securityholders are required to acknowledge
that they understand their obligations to comply with the provisions of the
Securities Exchange Act and the rules thereunder relating to stock manipulation,
particularly Regulation M thereunder (or any successor rules or regulations), in
connection with the offering made by this prospectus. Each selling
securityholder is required to agree that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
To the extent required, the specific debentures or common stock to be
sold, the names of the selling securityholders, the respective purchase prices
and public offering prices, the names of any agent or broker-dealer, and any
applicable commissions or discounts with respect to a particular sale or other
disposition of debentures or shares of common stock issued on conversion of the
debentures pursuant to this prospectus will be set forth in a supplement to this
prospectus or, if appropriate, a post-effective amendment to the shelf
registration statement of which this prospectus is a part.
Pursuant to the registration rights agreement described above under
"Registration Rights," Actuant Corporation and the Guarantors, on the one hand,
and the selling securityholders, on the other hand, have agreed, subject to
exceptions, to indemnify each other against specified liabilities, including
liabilities under the Securities Act, and may be entitled to contribution from
each other in respect of those liabilities.
We will pay substantially all of the expenses incident to the offering
and sale of the debentures and the common stock issuable upon conversion of the
debentures pursuant to this prospectus, other than commissions, fees and
discounts payable to brokers-dealers or agents, fees and disbursements of any
counsel or other advisors or experts retained by the selling securityholders and
any documentary, stamp or similar issue or transfer tax.
Under the registration rights agreement, we may be required from time
to time to require holders of debentures and shares of common stock issued on
conversion of the debentures to discontinue the sale or other disposition of
those debentures and shares of common stock under specified circumstances. See
"Registration Rights" above.
WHERE YOU CAN FIND MORE INFORMATION
You may read and copy materials that we have filed with the SEC at the
SEC's public reference room located at 450 Fifth Street, N.W. Room 1024,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our filings with the SEC are also
available on the Internet at the SEC's website at www.sec.gov.
You may also request a copy of each document incorporated by reference
in this prospectus at no cost, by writing or calling us at the following address
or telephone number:
Actuant Corporation
6100 North Baker Road
Milwaukee, Wisconsin 53209
Attention: Chief Financial Officer
(414) 352-4160
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Exhibits to a document will not be provided unless they are
specifically incorporated by reference in that document.
-71-
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Some of the information that you may want to
consider in deciding whether to invest in the debentures or the shares of common
stock issued upon conversion of the debentures is not included in this
prospectus, but rather is incorporated by reference to documents that we have
filed with the SEC. This permits us to disclose important information to you by
referring to those filings rather than repeating them in full in this
prospectus. The information incorporated by reference in this prospectus
contains important business and financial information. In addition, information
that we file with the SEC after the date of this prospectus and prior to the
completion of this offering will update and may supersede the information
contained in this prospectus and incorporated filings. We specifically
incorporate by reference the following documents filed by us with the SEC:
OUR SEC FILINGS PERIOD COVERED OR DATE OF FILING
Annual Report on Form 10-K, as amended Year Ended August 31, 2003
by our Annual Report on Form 10-K/A
Quarterly Report on Form 10-Q Quarter ended November 30, 2003
All subsequent documents filed by us After the date of this prospectus and
under Sections 13(a), 13(c), 14 or prior to the completion of this
15(d) of the Securities Exchange Act offering
of 1934
Any statement contained in this prospectus or any document incorporated
by reference in this prospectus shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement contained herein, or
in any other subsequently filed document which is also incorporated by reference
into this prospectus, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus. Statements contained in
this prospectus as to the contents of any contract or other document referred to
in this prospectus do not purport to be complete, and where reference is made to
the particular provisions of such contract or other document, such statements
are qualified in all respects by all of the provisions of such contract or other
document. Information which is furnished but not filed with the SEC shall not be
incorporated by reference in this prospectus.
LEGAL MATTERS
The validity of the debentures and the guarantees have been passed upon
for us by McDermott, Will & Emery, Chicago, Illinois. The validity of the common
stock and the guarantee of GB Tools and Supplies, Inc. have been passed upon by
Quarles & Brady LLP, Milwaukee, Wisconsin.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K/A for the year ended August 31, 2003 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
-72-
$150,000,000
ACTUANT CORPORATION
2% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2023 AND THE COMMON
STOCK ISSUABLE UPON CONVERSION OF THE DEBENTURES
-------------------------------------------
PROSPECTUS
______________, 2004
-------------------------------------------
I-1
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the fees and expenses, other than
discounts, commission and concessions payable to broker-dealers and agents, in
connection with the offering and distribution of the securities being offered
hereunder. Except for the SEC registration fee, all amounts are estimates. All
of these fees and expenses will be borne by the Registrant.
SEC Registration Fee $ 12,135
Printing and Engraving 25,000
Trustees' Fees and Expenses 10,000
Legal Fees and Expenses 100,000
Accounting Fees and Expenses 50,000
Miscellaneous 52,865
-------------
Total $ 250,000
=============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Actuant Corporation is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, Actuant
Corporation 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 Actuant Corporation. In all
other cases, Actuant Corporation 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
Actuant Corporation, unless it is determined that he or she breached or failed
to perform a duty owed to Actuant Corporation and the breach or failure to
perform constitutes: (i) a willful failure to deal fairly with Actuant
Corporation 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 Actuant Corporation'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 Actuant Corporation
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.
I-2
Article VIII of Actuant Corporation'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 Actuant
Corporation 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 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBITS
4.1 Indenture, dated as of November 10, 2003, by and between the
Registrants and U.S. Bank National Association including the form of
2% Convertible Senior Subordinated Debenture due 2023
4.2 Articles of Incorporation of Actuant Corporation (incorporated herein
by reference to Exhibit 4.9 to Actuant Corporation's Quarterly Report
on Form 10-Q for the quarter ended February 28, 2001)
4.3 Amended and Restated Bylaws of Actuant Corporation (incorporated
herein by reference to Exhibit 3.4 to Actuant Corporation's Quarterly
Report on Form 10-Q for the quarter ended May 31, 2001)
4.4 Registration Rights Agreement dated as of November 10, 2003 among
Actuant Corporation, Wachovia Capital Markets, LLC and Goldman Sachs
& Co.
5.1 Opinion of McDermott, Will & Emery
5.2 Opinion of Quarles & Brady LLP
*8 Opinion of McDermott, Will & Emery as to certain tax matters
12.1 Statements Regarding Computation of Ratios
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of McDermott, Will & Emery (included in the opinions filed as
Exhibits 5.1 and 8)
23.3 Consent of Quarles & Brady LLP (included in the opinion filed as
Exhibit 5.2)
24 Powers of Attorney (previously filed)
25 Statement of Eligibility of the Trustee on Form T-1
----------
* To be filed by amendment
ITEM 17. UNDERTAKINGS
The undersigned hereby undertake:
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 this 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 this 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 20 percent 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.
I-3
provided, however, that paragraphs (1)(i) and (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 with or furnished to the Commission by
Actuant Corporation pursuant to Section 13 or 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 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.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Actuant Corporation's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the foregoing provisions (except for the insurance
referred to in the last paragraph of Item 15), or otherwise, the registrants
have 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 and other than a claim
under such insurance) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrants will,
unless in the opinion of their counsel the matter has been settled by
controlling precedent, submit to 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.
I-4
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-3 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 February 27, 2004.
ACTUANT CORPORATION
By: /s/ Andrew G. Lampereur
--------------------------------
Name: Andrew G. Lampereur
Title: Chief Financial Officer/
Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 27, 2004.
SIGNATURE TITLE I- 10
--------- ----- -----
*
--------------------------------------------------------- Chairman of the Board, President and
Robert C. Arzbaecher Chief Executive Officer, Director
*
--------------------------------------------------------- Director
H. Richard Crowther
*
--------------------------------------------------------- Director and Vice President-Kopp
Gustav H.P. Boel
*
--------------------------------------------------------- Director
Bruce S. Chelberg
*
--------------------------------------------------------- Director
William P. Sovey
*
--------------------------------------------------------- Director
Kathleen J. Hempel
*
--------------------------------------------------------- Director
William K. Hall
*
--------------------------------------------------------- Director
Thomas J. Fischer
I-5
*
--------------------------------------------------------- Director
Robert A. Peterson
/s/ Andrew G. Lampereur
--------------------------------------------------------- Vice President and Chief Financial Officer
Andrew G. Lampereur (Principal Financial and Accounting Officer)
*Pursuant to Power of Attorney
/s/ Andrew G. Lampereur
---------------------------------------------------------
Andrew G. Lampereur
I-6
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-3 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 February 27, 2004.
APPLIED POWER INVESTMENTS II, INC.
By: /s/ Patrick C. Dorn
-------------------------------
Patrick C. Dorn, President,
Secretary & Treasurer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert C. Arzbaecher and Andrew G.
Lampereur, and each of them (each with full power to act alone), his or her true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement and any related registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933 (in each case including, without limitation,
any post-effective amendments), and to file the same, with all exhibits thereto,
and other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them
full power and authority to do and to perform each and every act and thing
requisite and necessary to be done in and about the premises, as full and to all
intents and purposes as he or she might or would do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or 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 indicated on February 27, 2004.
SIGNATURE TITLE I- 10
--------- ----- -----
*
--------------------------------------------------------- President, Secretary & Treasurer, Director
Patrick C. Dorn
*
--------------------------------------------------------- Director
Michael R. Wimmer
*
--------------------------------------------------------- Director
Helen R. Friedli
*Pursuant to Power of Attorney
/s/ Andrew G. Lampereur
--------------------------------------------------------
Andrew G. Lampereur
I-7
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-3 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 February 27, 2004.
ENGINEERED SOLUTIONS L.P.
By: /s/ Andrew G. Lampereur
--------------------------------
Name: Andrew G. Lampereur
Title: Vice President, Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 27, 2004.
SIGNATURE TITLE I- 10
--------- ----- -----
*
--------------------------------------------------------- Chairman of the Board, President and
Robert C. Arzbaecher Chief Executive Officer, Director
/s/ Andrew G. Lampereur
--------------------------------------------------------- Vice President, Director
Andrew G. Lampereur
*
--------------------------------------------------------- Director
Helen R. Friedli
*Pursuant to Power of Attorney
/s/ Andrew G. Lampereur
---------------------------------------------------------
Andrew G. Lampereur
I-8
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-3 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 February 27, 2004.
GB TOOLS AND SUPPLIES, INC.
By: /s/ Andrew G. Lampereur
--------------------------------
Name: Andrew G. Lampereur
Title: Vice President,
Secretary and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 27, 2004.
SIGNATURE TITLE I- 10
--------- ----- -----
*
--------------------------------------------------------- President and Director
Robert C. Arzbaecher
/s/ Andrew G. Lampereur
--------------------------------------------------------- Vice President, Secretary and Director
Andrew G. Lampereur
*
--------------------------------------------------------- Director
Helen R. Friedli
*Pursuant to Power of Attorney
/s/ Andrew G. Lampereur
---------------------------------------------------------
Andrew G. Lampereur
I-9
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-3 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 February 27, 2004.
VERSA TECHNOLOGIES, INC.
By: /s/ Andrew G. Lampereur
--------------------------------
Name: Andrew G. Lampereur
Title: Vice President,
Secretary and Director
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert C. Arzbaecher and Andrew G.
Lampereur, and each of them (each with full power to act alone), his or her true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement and any related registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933 (in each case including, without limitation,
any post-effective amendments), and to file the same, with all exhibits thereto,
and other documents in connection therewith with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them
full power and authority to do and to perform each and every act and thing
requisite and necessary to be done in and about the premises, as full and to all
intents and purposes as he or she might or would do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or 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 indicated on February 27, 2004.
SIGNATURE TITLE I- 10
--------- ----- -----
*
--------------------------------------------------------- Chairman of the Board, President and
Robert C. Arzbaecher Chief Executive Officer, Director
/s/ Andrew G. Lampereur
--------------------------------------------------------- Vice President, Secretary and Director
Andrew G. Lampereur
*
--------------------------------------------------------- Director
Helen R. Friedli
*Pursuant to Power of Attorney
/s/ Andrew G. Lampereur
---------------------------------------------------------
Andrew G. Lampereur
I-10