AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1994
REGISTRATION NO. 33-55635
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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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APOGEE ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
41-0919654
MINNESOTA (I.R.S EMPLOYER
(STATE OR OTHER JURISDICTION IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
7900 XERXES AVENUE SOUTH, SUITE 1800
MINNEAPOLIS, MINNESOTA 55431-1159
(612) 835-1874
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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DONALD W. GOLDFUS
CHIEF EXECUTIVE OFFICER
APOGEE ENTERPRISES, INC.
7900 XERXES AVENUE SOUTH, SUITE 1800
MINNEAPOLIS, MINNESOTA 55431-1159
(612) 835-1874
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
LEE R. MITAU JOHN R. HOUSTON
DORSEY & WHITNEY LINDQUIST & VENNUM PLLP
220 SOUTH SIXTH STREET 4200 IDS CENTER
MINNEAPOLIS, MINNESOTA 55402 MINNEAPOLIS, MINNESOTA 55402
(612) 340-2780 (612) 371-3279
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
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 SAID SECTION 8(A),
MAY DETERMINE.
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ITEM 16. EXHIBITS
*1 Form of Underwriting Agreement
4.1 Specimen certificate representing the Common Stock of the Company
(incorporated by reference to Exhibit 4A to the Company's Annual
Report on Form 10-K for year ended February 29, 1992)
4.2 Restated Articles of Incorporation of the Company, as amended to
date
4.3 Bylaws of the Company, as amended to date (incorporated by
reference to Exhibit 3B to the Company's Annual Report on Form 10-
K for the year ended February 29, 1992)
4.6 Rights Agreement dated October 19, 1990 between the Company and
American Stock Transfer Co. (incorporated by reference to the
Company's Current Report on Form 8-A filed October 31, 1990)
5 Opinion of Dorsey & Whitney regarding legality
23.1 Consent of Dorsey & Whitney (included in their opinion filed as
Exhibit 5)
*23.2 Consent of KPMG Peat Marwick LLP
*24 Powers of Attorney
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*Previously filed.
II-1
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 AMENDMENT NO. 1 TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNEAPOLIS, STATE OF MINNESOTA, ON OCTOBER 14,
1994.
Apogee Enterprises, Inc.
/s/ Donald W. Goldfus
By: _________________________________
Donald W. Goldfus
Chairman of the Board and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THEIR CAPACITIES ON OCTOBER 14, 1994.
NAME TITLE
---- -----
/s/ Donald W. Goldfus Chairman and Chief Executive Officer
___________________________________________
Donald W. Goldfus
/s/ William G. Gardner Secretary, Treasurer and Chief Financial
___________________________________________ Officer (principal financial and
William G. Gardner accounting officer)
* Director
___________________________________________
Anthony L. Andersen
* President and Director
___________________________________________
Gerald K. Anderson
* Director
___________________________________________
Harry A. Hammerly
* Director
___________________________________________
O. Walter Johnson
* Director
___________________________________________
Jerry W. Levin
* Vice President and Director
___________________________________________
James L. Martineau
* Director
___________________________________________
Laurence J. Niederhofer
* Director
___________________________________________
D. Eugene Nugent
/s/ William G. Gardner
___________________________________________
William G. Gardner
* Attorney-in-fact
II-2
EXHIBIT 4.2
RESTATED ARTICLES OF INCORPORATION
OF
APOGEE ENTERPRISES, INC.
ARTICLE I
NAME OF CORPORATION
The name of this Corporation shall be APOGEE ENTERPRISES, INC.
ARTICLE II
PURPOSES OF CORPORATION
The Corporation shall have general business purposes and the nature of the
business, objects and purposes of the Corporation shall include but not be
limited to the following:
(1) To engage in and furnish business management services and render
consulting services in the fields of business administration, finance,
production, personnel, labor relations, marketing, sales, advertising,
accounting, purchasing, mergers, acquisitions, and diversification programs
and generally engage in and conduct a business management and consultant
business.
(2) To acquire, own, hold, manage and operate either separately or as
part of the business of this Corporation, other businesses, firms,
corporations or enterprises.
(3) To acquire, hold, pledge, vote, sell and dispose of shares, bonds,
securities and other evidences of indebtedness of any person or domestic or
foreign corporation, firm or government, whether for the purpose of
investment of the funds of this Corporation or for the purpose of
exercising control or management over the affairs of other persons, firms
or corporations, or for both purposes.
(4) To purchase, lease or otherwise acquire, to own, hold, manage,
operate or employ, to mortgage, pledge, or otherwise encumber, and to sell,
let, exchange or otherwise dispose of real property or personal property or
mixed real and personal property.
(5) To enter into partnerships, joint ventures, and agreements of all
kinds with other persons, firms, partnerships and corporations.
(6) To borrow money and secure credit upon such terms and security as
may be deemed necessary or appropriate, to pledge or mortgage any or all of
the assets of the Corporation to secure such loan or credit.
(7) To make any guarantee respecting securities, indebtedness,
dividends, interests, contracts, or other obligations, so far as it may be
permitted by law.
(8) To do any and all other acts and things, in addition to those
enumerated and specified above, which may be advantageous, necessary,
expedient or convenient to the conduct of the business or the attainment of
the purposes of the Corporation.
The foregoing clauses and statement of purposes shall also be a statement
of powers of this Corporation, but the declaration of purposes and powers herein
set forth shall not be deemed to limit or restrict in any manner the powers of
this Corporation, which shall possess all of the powers bestowed upon or
permitted to it by law which are not inconsistent with those set forth herein.
ARTICLE III
REGISTERED OFFICE
The location and post office address of its registered office in this state
is Suite 1944, 7900 Xerxes Avenue South, Minneapolis, Minnesota 55431.
ARTICLE IV
CAPITAL STOCK
4.01. Authorized Shares. The aggregate number of shares of stock which
this Corporation shall have the authority to issue is 50,000,000 shares.
4.02. Classes or Series of Shares. The Board of Directors may, from time
to time, establish by resolution different classes or series of shares and may
fix the rights and preferences of said shares in any class or series.
4.03. Issuing Shares Between Classes or Series of Shares. The Board of
Directors shall have the authority to issue shares of a class or series to
holders of shares of another class or series to effectuate share dividends,
splits, or conversion of its outstanding shares.
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4.04. No Pre-emptive Rights. No shareholder of the Corporation shall
have any pre-emptive rights.
4.05. No Cumulative Voting Rights. No shareholder shall be entitled to
any cumulative voting rights.
4.06. Preferred Stock. The foregoing authority of the Board of Directors
shall include, without limitation, the specific authority from time to time to
issue one or more series of preferred stock having such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or
resolutions of the Board of Directors providing for the issue of such stock.
The Board of Directors may in the resolution or resolutions providing for
the issue of the preferred stock or of any series thereof:
1. Make any such preferred stock or any series thereof subject to
redemption at such time or times and at such price or prices as shall be
provided in such resolution or resolutions.
2. Establish the dividends that the holders thereof shall be
entitled to receive at such rates, on such conditions and at such times as
shall be stated in such resolution or resolutions payable in preference to,
or in such relation to, the dividends payable on any other class or classes
or of any other series of stock, and cumulative or non-cumulative as shall
be so stated and expressed.
3. Provide such rights upon the dissolution of, or upon any
distribution of the assets of the Corporation, to the holders of such
preferred stock or any series thereof as shall be stated and expressed in
such resolution or resolutions.
4. Make the preferred stock or any series thereof convertible into,
or exchangeable for, shares of any other class or classes of stock or of
any other series thereof, of the corporation at such price or prices or at
such rates of exchange and with such adjustments as shall be stated in such
resolution or resolutions.
5. Provide for any other rights, preferences and, if voting, the
number of votes per share.
4.07. Options and Warrants. The foregoing authority of the Board of
Directors shall also include, without limitation, the power at any time, and
from time to time (without any action by the shareholders) in the name and on
behalf of
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this corporation to grant rights, options and warrants, to run for any period of
time, to purchase from this corporation any shares of any class of its stock
upon such price, terms and conditions as the Board of Directors in its sole
discretion shall determine, except as otherwise specifically limited by these
Articles of Incorporation.
ARTICLE V
BOARD OF DIRECTORS
5.01 Classified Board. The government of the Corporation and the
management of its affairs shall be vested in the Board of Directors. The number
of directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the directors then
in office. At the 1986 annual meeting of shareholders, the directors shall be
divided into three classes (which at all times shall be as nearly equal in
number as possible), with the term of office of the first class to expire at the
1987 annual meeting of shareholders, the term of office of the second class to
expire at the 1988 annual meeting of shareholders and the term of office of the
third class to expire at the 1989 annual meeting of shareholders. At each
annual meeting of shareholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding annual meeting
of shareholders after their election. If the number of directors is changed,
any newly created directorships or any decrease in directorships shall be so
assigned among the classes by a majority of the directors then in office, though
less than a quorum, as to make all classes as nearly equal in number as
possible. No decrease in the number of directors shall shorten the term of any
incumbent director. Any vacancies in the Board of Directors, by reason of an
increase in the number of directors or otherwise, shall be filled solely by the
Board of Directors, by majority vote of the directors then in office, though
less than a quorum, and any such director so elected shall hold office for a
term expiring at the annual meeting of shareholders at which the term of office
of the class to which the Director has been elected expires. Directors shall
continue in office until others are chosen and qualified in their stead.
5.02. Removal. Any director may be removed from office as a director (1)
by the affirmative vote of the holders of 80% of the combined voting power of
the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class and
only for cause, or (2) by a majority of the Directors then in office with or
without cause.
5.03. Amendment. Notwithstanding anything contained in these Restated
Articles of Incorporation to the contrary, the affirmative vote of the holders
of at least 80% of the combined voting power of the then outstanding shares of
the stock of the Corporation entitled to vote generally in the election of
directors,
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voting together as a single class, shall be required to alter, amend, or adopt
any provision inconsistent with or repeal this Article V.
ARTICLE VI
BOARD OF DIRECTORS EVALUATION OF
NON-MONETARY FACTORS FOR ACQUISITIONS
The Board of Directors of the Corporation, when evaluating any offer of
another party to (a) make a tender or exchange offer for any equity security of
the Corporation, (b) merge or consolidate the Corporation with another
corporation or (c) purchase or acquire all, or substantially all, of the
properties and assets of the Corporation, shall, in connection with the exercise
of their judgment in determining what is in the best interest of the Corporation
and its shareholders, give due consideration to all relevant factors, including
without limitation the following:
(1) The business and financial condition and earnings prospects of the
party making the offer including, but not limited to, debt service and
other existing or likely financial obligations of the party making the
offer and the possible effect of such conditions upon the Corporation and
its subsidiaries and the communities in which the Corporation and its
subsidiaries operate or are located.
(2) The competence, experience and integrity of the party making the
offer and its or their management.
(3) The interests of the shareholders of this Corporation in
maintaining the Corporation as a continuing, independent business.
In evaluating acquisition proposals, the Board of Directors may retain
special outside legal counsel, investment banking firms, special accounting
firms and such other experts as they, in their discretion, deem necessary or
appropriate to assist them in their evaluation of the transaction, all at the
expense of the Corporation.
ARTICLE VII
FAIR PRICE AND SUPER-MAJORITY VOTE
FOR BUSINESS COMBINATIONS
7.01. Vote Required for Certain Business Combinations.
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1. Higher Vote for Certain Business Combinations. In addition to
any affirmative vote required by law or these Articles of Incorporation,
and except as otherwise expressly provided in Section 7.02 of this Article
VII:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Shareholder (as hereinafter defined) or (ii) any other Corporation
(whether or not itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Shareholder; or
(b) any sale, lease, license, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any Affiliate
of any Interested Shareholder of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value (as hereinafter
defined) of $1 million or more; or
(c) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to an Interested Shareholder or any
Affiliate of an Interested Shareholder having an aggregate Fair Market
Value of $1 million or more; or
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any Interested Shareholder;
or
(e) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
an Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity on convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Shareholder or any Affiliate of any Interested
Shareholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or
that a lesser
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percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
2. Definition of "Business Combination." The term "Business
Combination" as used in this Article VII shall mean any transaction which
is referred to in any one or more of clauses (a) through (e) of Paragraph 1
of this Section 7.01 of Article VII.
7.02. When Higher Vote is Not Required. The provisions of Section 7.01
of this Article VII shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of these Articles of
Incorporation, if all the conditions specified in either of the following
Paragraphs 1 or 2 are met:
1. Approval of Disinterested Directors. The Business Combination
shall have been approved by a majority of the total number of Disinterested
Directors (as hereinafter defined).
2. Price and Procedural Requirements. All of the following
conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of the Business Combination of consideration
other than cash to be received per share by holders of Common Stock in
such Business Combination shall be at least equal to the higher of the
following:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of the
Company's common stock acquired by it (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Shareholder,
whichever is higher; and
(ii) the Fair Market Value per share of the Company's common
stock on the Announcement Date or on the date on which the
Interested Shareholder became an Interested Shareholder (such
latter date is referred to in this Article VII as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of consideration other than cash to be
received per share by holders of shares of any other class of
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outstanding Voting Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this clause
(b) shall be required to be met with respect to every class of
outstanding Voting Stock, whether or not the Interested Shareholder
has previously acquired any shares of a particular class of Voting
Stock):
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of such
class of Voting Stock acquired by it (x) within the two-year
period immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Shareholder,
whichever is higher; and
(ii) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting
Stock are entitled in the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary.
(c) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in
cash or in the same form as the Interested Shareholder has previously
paid for shares of such class of Voting Stock. If the Interested
Shareholder has paid for the shares of any class of Voting Stock with
varying forms of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class of Voting Stock previously
acquired by it.
(d) After such Interested Shareholder has become an Interested
Shareholder and prior to the Consummation Date: (i) except as approved
by a majority of the total number of Disinterested Directors, there
shall have been no failure to declare and pay on the regular date
therefore any full quarterly dividends (whether or not cumulative) on
the outstanding preferred stock of the Corporation; (ii) there shall
have been (x) no reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the total number of
Disinterested Directors and (y) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to
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increase such annual rate is approved by a majority of the total
number of Disinterested Directors; and (iii) such Interested
Shareholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Shareholder becoming an Interested
Shareholder.
(e) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages,
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public shareholders of the Corporation
at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
(g) The holders of all outstanding shares of Voting Stock not
beneficially owned by the Interested Shareholder prior to the
consummation of any Business Combination shall be entitled to receive
in such Business Combination cash or other consideration for their
shares of such Voting Stock in compliance with Paragraphs 2(a), (b)
and (c) of this Section 7.02 (provided, however, that the failure of
any such holders who are exercising their statutory rights to dissent
from such Business Combination and receive payment of the fair value
of their shares to exchange their shares in such Business Combination
shall not be deemed to have prevented the condition set forth in this
Paragraph 2(g) from being satisfied.
7.03. Certain Definitions. For the purpose of this Article VII the
following terms shall be deemed to have the meanings specified below:
1. The term "person" shall mean any individual, firm, corporation or
other entity.
2. The term "Interested Shareholder" shall mean any person (other
than the Corporation or any Subsidiary) who or which:
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(a) is the beneficial owner, directly or indirectly, of 5% or
more of the voting power of the then outstanding Voting Stock; or
(b) is an Affiliate (as hereinafter defined) of the Corporation
and at any time within the two-year period immediately prior to the
Consummation Date or the Announcement Date was the beneficial owner,
directly or indirectly, of 5% or more of the voting power of the then
outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the Consummation Date or the Announcement Date in
question beneficially owned by any Interested Shareholder if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
3. A person shall be deemed a "beneficial owner" of any Voting
Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding; or
(c) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
4. For the purpose of determining whether a person is an Interested
Shareholder pursuant to Paragraph 2 of this Section 7.03 of this
Article VII, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of Paragraph 3 of
this Section 7.03 of this Article VII but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement
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or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
5. The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
April 1, 1986.
6. The term "Subsidiary" shall mean any corporation of which a
majority of any class of equity security is owned, directly or indirectly,
by the Corporation: provided, however, that for the purposes of the
definition of Interested Shareholder set forth in Paragraph 2 of this
Section 7.03 of this Article VII, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
7. The term "Fair Market Value" shall mean: (a) in the case of
stock, the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the Composite
Tape for New York Stock Exchange-Listed Stocks, or, if such stock is not
quoted on the Composite Tape, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sale price with respect to a share of such
stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc., National Market System or
any system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined
by a majority of the total number of Disinterested Directors in good faith,
in each case with respect to any class of such stock, appropriately
adjusted for any dividend or distribution in shares of such stock or any
stock split or reclassification of outstanding shares of such stock into a
greater number of shares of such stock or any combination or
reclassification of outstanding shares of such stock into a smaller number
of shares of such stock; and (b) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined by a majority of the total number of Disinterested Directors in
good faith.
8. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in clauses (a) and (b) of Paragraph 2 of Section 7.02 of this Article VII
shall include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such shares.
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9. The term "Disinterested Director" shall mean any member of the
Board of Directors of the Corporation who is unaffiliated with the
Interested Shareholder and who was a member of the Board of Directors prior
to the Determination Date, and any successor of a Disinterested Director
who is unaffiliated with the Interested Shareholder and is recommended to
succeed a Disinterested Director by a majority of the total number of
Disinterested Directors then on the Board of Directors.
10. References to "highest per share price" shall in each case with
respect to any class of stock reflect an appropriate adjustment for any
dividend or distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater number
of shares of such stock or any combination or reclassification of
outstanding shares of such stock into a smaller number of shares of such
stock.
11. The term "Announcement Date" shall mean the date of the first
public announcement by the Company of the proposed Business Combination.
12. The term "Consummation Date" shall mean the date on which the
transactions described in any Business Combination are complete.
7.04. Powers of the Board of Directors. A majority of the Board of
Directors of the Corporation shall have the power and duty to determine for
purpose of this Article VII, on the basis of information known to them after
reasonable inquiry, whether a person is an Interested Shareholder. Once the
Board of Directors has made a determination, pursuant to the preceding sentence,
that a person is an Interested Shareholder, a majority of the total number of
Directors of the Corporation who would qualify as Disinterested Directors shall
have the power and duty to interpret all of the terms and provisions of this
Article VII, and to determine on the basis of information known to them after
reasonable inquiry all facts necessary to ascertain compliance with this
Article VII, including, without limitation, (a) the number of shares of Voting
Stock beneficially owned by any person, (b) whether a person is an Affiliate or
Associate of another, (c) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $1 million or more and
(d) whether all of the applicable conditions set forth in Paragraph 2 of
Section 7.02 of this Article VII have been met with respect to any Business
Combination. Any determination pursuant to this Section 7.04 of this
Article VII made in good faith shall be binding and conclusive on all parties.
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7.05. No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article VII shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
7.06. Amendment, Repeal, Etc. Notwithstanding any other provision of
these Articles of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, these
Articles of Incorporation or the By-Laws of the Corporation), the affirmative
vote of the holders of 80% or more of the outstanding Voting Stock, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article VII of these Articles of
Incorporation.
ARTICLE VIII
PREVENTION OF GREENMAIL
8.01. Anti-Greenmail. Any purchase or other acquisition, directly or
indirectly, in one or more transactions, by the Corporation or any Subsidiary
(as hereinafter defined) of the Corporation of any share of Voting Stock (as
hereinafter defined) or any Voting Stock Right (as hereinafter defined) known by
the Corporation to be beneficially owned by any Interested Shareholder (as
hereinafter defined) who has beneficially owned such security or right for less
than two years prior to the date of such purchase shall, except as hereinafter
expressly provided, require the affirmative vote of at least 80% of all votes
entitled to be cast by the holders of the Voting Stock voting together as a
single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified by
law or any agreement with any national securities exchange, or otherwise, but no
such affirmative vote shall be required with respect to any purchase or other
acquisition by the Corporation of any of its Subsidiaries of Voting Stock or
Voting Stock Rights purchased at or below Fair Market Value (as hereinafter
defined) and made as part of a tender or exchange offer on the same terms to all
holders of such securities and complying with the applicable requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations thereunder or in a Public Transaction (as hereinafter defined).
8.02. Definitions. For purposes of this Article VIII:
1. The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
April 1, 1986.
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2. A person shall be a "beneficial owner" of any Voting Stock or
Voting Stock Right:
(a) which such person or any of its Affiliates or Associates (as
hereinabove defined) beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) any right to vote pursuant to any agreement, arrangement or
understanding; or
(c) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any security of
any class of the Corporation or any of its Subsidiaries; or
(d) for the purposes of determining whether a person is an
Interested Shareholder, the relevant class of securities outstanding
shall be deemed to include all such securities of which such person is
deemed to be the "beneficial owner" through application of this
subparagraph 3, but shall not include any other securities of such
class which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise, but are not yet issued.
3. "Fair Market Value" means, for any share of Voting Stock or any
Voting Stock Right, the average of the closing sale prices during the 90-
day period immediately preceding the repurchase of such Voting Stock or
Voting Stock Right, as the case may be, on the Composite Tape for the New
York Stock Exchange-Listed Stocks, or, if such Voting Stock or Voting Stock
Right, as the case may be, is not quoted on the Composite Tape, on the New
York Stock Exchange, or, if such Voting Stock or Voting Stock Right, as the
case may be, is not listed on such Exchange, on the principal United States
securities exchange registered under the Exchange Act on which such Voting
Stock or Voting Stock Right, as the case may be, is listed, or if such
Voting Stock or Voting Stock Right, as the case may be, is not listed on
any such exchange, the average of the closing sale price with respect to a
share of such Voting Stock or Voting Stock Right, as the case may be,
during the 90-day period immediately preceding the date in question on the
National Association of Securities Dealers, Inc., National Market System or
any system then in use or, if no such quotations are available, the Fair
Market Value on
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the date in question of a share of such Voting Stock or Voting Stock Right,
as the case may be, as determined by the Board of Directors in good faith.
4. "Interested Shareholder" shall mean any person (other than
(i) the Corporation, (ii) any of its Subsidiaries, (iii) any benefit plan
or trust of or for the benefit of the Corporation or any of its
Subsidiaries, or (iv) any trustee, agent or other representative of any of
the foregoing) who or which:
(a) is the beneficial owner, directly or indirectly, of more than
5% of any class of Voting Stock (for Voting Stock Rights with respect
to more than 5% of any such class); or
(b) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly of more than 5% of any class
of Voting Stock (or Voting Stock Rights with respect to more than 5%
of any such class); or
(c) is an assignee of or has otherwise succeeded to any shares of
any class of Voting Stock (or Voting Stock Rights with respect to more
than 5% of any such class) which were at any time within the two-year
period immediately prior to the date in question beneficially owned by
an Interested Shareholder, unless such assignment or succession shall
have occurred pursuant to any Public Transaction or a series of
transactions including a Public Transaction.
5. A "person" shall mean any individual, firm, corporation or other
entity (including a "group" within the meaning of Section 13(d) of the
Exchange Act).
6. A "Public Transaction" shall mean any (i) purchase of shares
offered pursuant to an effective registration statement under the
Securities Act of 1933 or (ii) open market purchases of shares if, in
either such case, the price and other terms of sale are not negotiated by
the purchaser and seller of the beneficial interest in the shares.
7. The term "Subsidiary" shall mean any Corporation of which at
least a majority of the outstanding securities having ordinary voting power
to elect a majority of the board of directors of such corporation (whether
or not any other class of securities has or might have voting power by
reason of the happening of a contingency) is at the time owned or
controlled directly or indirectly by the Corporation or one or more
subsidiaries or by the Corporation and one or more Subsidiaries.
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8. The term "Voting Stock" shall mean stock of all classes and
series of the Corporation entitled to vote generally in the election of
directors.
9. The term "Voting Stock Right" shall mean any security convertible
into, and any warrant, option or other right of any kind to acquire
beneficial ownership of, any Voting Stock, other than securities issued
pursuant to any of the Corporation's employee benefit plans.
8.03. Power of Directors. A majority of the Board of Directors shall
have the power and duty to determine for the purposes of this Article VIII, on
the basis of information known to it after reasonable inquiry, all facts
necessary to determine compliance with this Article VIII, including without
limitation,
1. whether:
(a) a person is an Interested Shareholder;
(b) any Voting Stock and Voting Stock Right is beneficially owned
by any person;
(c) a person is an Affiliate or Associate of another;
(d) a transaction is a Public Transaction; and
2. the Fair Market Value of any Voting Stock or Voting Stock Right.
8.04. Amendment, Repeal, Etc. Notwithstanding any other provision of
these Articles of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, these
Articles of Incorporation or the By-Laws of the Corporation), the affirmative
vote of the holders of 80% or more of the outstanding Voting Stock, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article VIII of these Articles of
Incorporation.
ARTICLE IX
AMENDMENT
These articles may be amended at a regular meeting of the shareholders or
at any special meeting called for that express purpose by the affirmative vote
of the holders of the majority of the outstanding capital stock of the
Corporation, except for amendments to specific Articles herein which specify a
greater percentage.
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CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
APOGEE ENTERPRISES, INC.
I, William G. Gardner, Secretary of Apogee Enterprises, Inc., a
corporation organized and existing under the Business Corporation Act of the
State of Minnesota (hereinafter referred to as the "Corporation"), in accordance
with the provisions of Section 302A.401 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
of the Corporation (hereinafter referred to as the "Board of Directors" or the
"Board") by the Restated Articles of Incorporation of the corporation, the Board
of Directors on October 19, 1990, adopted the following resolution creating a
series of two hundred thousand (200,000) preferred shares of the par value of
$1.00 per share designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors in accordance with the provisions of the Restated Articles of
Incorporation of the Corporation, a series of preferred stock of the Corporation
be, and it hereby is, created, and that the designation and amount thereof and
the relative rights and preferences of the shares of such series, are as
follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Junior Preferred Stock") and the number of shares constituting the Series A
Junior Preferred Stock shall be two hundred thousand (200,000). Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A Junior
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Junior Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of preferred stock (or any similar stock) ranking prior and superior to the
Series A Junior Preferred Stock with respect to dividends, the holders of
shares of Series A Junior Preferred Stock, in preference to the holders of
Common Stock, par value $.33 1/3 (the "Common Stock"), of the Corporation,
and of any other junior stock, shall be entitled to receive, when, as and
if declared by
the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 or
(b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Preferred Stock. In the
event the Corporation shall at any time after October 19, 1990, declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
to which holders of shares of Series A Junior Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding Common Stock); provided that, in the event
no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share
on the Series A Junior Preferred Stock shall nevertheless be payable, out
of funds legally available for such purpose, on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares, unless the
date of issue of such shares is prior to the record date for the first
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Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Junior
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares
of Series A Junior Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation shall at any time after
October 19, 1990, declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to which
holders of shares of Series A Junior Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designation creating a series of preferred stock or any similar stock, or
by law, the holders of shares of Series A Junior Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Junior Preferred Stock shall have no special voting
rights
-3-
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Preferred Stock as provided in Section 2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Junior
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Preferred Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior
Preferred Stock, except dividends paid ratably on the Series A Junior
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding
up) to the Series A Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Junior Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Preferred Stock, except
in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good
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faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of preferred stock and may be reissued as part of a new series
of preferred stock subject to the conditions and restrictions on issuance set
forth herein, in the Restated Articles of Incorporation, or in any other
certificate of designation creating a series of preferred stock or any similar
stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Preferred Stock unless, prior thereto, the holders of shares of Series A Junior
Preferred Stock shall have received the greater of (i) $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, or (ii) an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Preferred Stock, except distributions made ratably on the Series
A Junior Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time after October 19, 1990, declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the aggregate amount to which holders of shares of Series A
Junior Preferred Stock were entitled immediately prior to such event under
clause (1)(ii) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
-5-
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each share
of Series A Junior Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after October 19, 1990, declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series A Junior Preferred Stock shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series A Junior Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series A Junior Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of assets, junior
to all series of any other class of the Corporation's preferred stock.
Section 10. Fractional Shares. Series A Junior Preferred Stock may
be issued in fractions of a share which shall entitle the holder, in proportion
to such holder's fractional shares, to receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series
A Junior Preferred Stock.
Section 11. Amendment. The Restated Articles of Incorporation of
the Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or rights of the Series A Junior
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Series A Junior
Preferred Stock, voting together as a single class.
-6-
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Designation, Preferences and Rights on behalf of the Corporation this 31st day
of October, 1990.
/s/ William G. Gardner
-------------------------------
William G. Gardner
Secretary
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ARTICLES OF CORRECTION
OF
APOGEE ENTERPRISES, INC.
In order to correct The 1986 Restated Articles of Incorporation of Apogee
Enterprises, Inc. as filed with the Minnesota Secretary of State on June 26,
1986, the undersigned hereby makes the following statements:
1. The name of the person who filed the instrument is Apogee Enterprises,
Inc. (the "Corporation").
2. The instrument to be corrected is The 1986 Restated Articles of
Incorporation of Apogee Enterprises, Inc. (the "Restated Articles")
filed with the Minnesota Secretary of State on June 26, 1986.
3. The error to be corrected appears in Article IV, Section 4.01 of the
Restated Articles, which erroneously omitted a statement of the par
value of shares of stock of the Corporation.
4. The following portion of the Restated Articles is hereby set forth in
its corrected form and its entirety as follows:
Restated Articles, Section 4.01:
"4.01. Authorized Shares. The aggregate number of shares of stock
which this Corporation shall have the authority to issue is
50,000,000 shares. Unless otherwise established by a resolution of the
Board of Directors fixing the rights and preferences of a class or a
series of shares, the shares of stock of this Corporation shall have a
par value of $.33 1/3 per share."
Dated: September 29, 1994
APOGEE ENTERPRISES, INC.
/s/ William G. Gardner
----------------------------------
William G. Gardner
Treasurer, Chief Financial Officer
and Secretary
[Opinion letterhead of Dorsey & Whitney]
EXHIBIT 5
Apogee Enterprises, Inc.
7900 Xerxes Avenue South, Suite 1800
Minneapolis, Minnesota 55431-1159
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Apogee Enterprises, Inc. (the "Company")
in connection with a Registration Statement on Form S-3 (the "Registration
Statement") covering 920,000 shares of common stock of the Company, par value
$.33-1/3 per share ("Common Stock"), of which all such shares will be offered on
behalf of a selling shareholder of the Company.
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of our
opinions set forth below. In rendering our opinions set forth below, we have
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures and the conformity to authentic originals of all
documents submitted to us as copies. We have also assumed the legal capacity
for all purposes relevant hereto of all natural persons and, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or otherwise)
to execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the shares of
Common Stock, up to a maximum of 920,000 shares, to be sold by the selling
shareholder pursuant to the Registration Statement have been duly authorized and
validly issued, and are fully paid and nonassessable.
Apogee Enterprises, Inc.
Page 2
Our opinion expressed above is limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus constituting a part of the Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney
Dated: October 14, 1994
LRM
