As filed with the Securities and Exchange Commission on July 30, 1997.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act
__________________
APOGEE ENTERPRISES, INC.
------------------------
(Exact name of registrant as specified in its charter)
Minnesota 41-0919654
--------- ----------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
7900 Xerxes Avenue South - Suite 1800
Minneapolis, Minnesota 55431
(612) 835-1874
--------------
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
APOGEE ENTERPRISES, INC.
1997 OMNIBUS STOCK
INCENTIVE PLAN
(Full title of plan)
--------------------
Martha L. Richards, Esq. Robert A. Rosenbaum, Esq.
General Counsel Dorsey & Whitney LLP
Apogee Enterprises, Inc. Pillsbury Center South
Suite 1800 220 South Sixth Street
Minneapolis, Minnesota 55431 Minneapolis, MN 55402
(612) 835-1874 (612) 340-5681
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
____________________
Approximate date of commencement of proposed sale to the public: from time
to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Title of each class Maximum Offering Maximum
of Securities to be Amount to be Price Aggregate Offering Amount of
registered registered per Unit (1) Price (1) Registration Fee
- -----------------------------------------------------------------------------------------------------
Common Stock
($.33-1/3 par value) 2,500,000 $21.11 $52,775,000 $15,993
- -----------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the high and low
prices for the Common Stock as reported by the Nasdaq National Market on
July 28, 1997.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents, which have been filed by Apogee
Enterprises, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission"), are incorporated by reference in this Registration
Statement, as of their respective dates:
(1) the Annual Report on Form 10-K for the year ended March 1,
1997;
(2) the Quarterly Report on Form 10-Q for the quarter ended
May 31, 1997; and
(3) the description of the Company's Common Stock contained in
the Company's Registration Statement filed pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and any amendment or report filed to update such description filed
subsequent to the date of this Prospectus and prior to the termination
of the offering of the Common Stock offered hereby.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior
to the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference herein and to be a part hereof from the respective
dates of filing of such documents. Any statement contained herein or in a
document all or part of which is incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein 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 Registration Statement.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company is subject to Minnesota Statutes, Chapter 302A.
Section 302A.521 provides that a corporation shall indemnify any person made or
threatened to be made a party to a proceeding by reason of the former or present
official capacity (as defined) of such person against judgments, penalties,
fines (including, without limitation, excise taxes assessed against such person
with respect to an employee benefit plan), settlements and reasonable expenses,
including attorneys' fees and disbursements, incurred by such person in
connection with the proceeding, if, with respect to the acts or omissions of
such person complained of in the proceedings, such person (1) has not been
indemnified therefor by another organization or employee benefit plan; (2) acted
in good faith; (3) received no improper personal benefit and Section 302A.255
(with respect to director conflicts of interest), if applicable, has been
satisfied; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) reasonably believed that the conduct
was in the best interests of the corporation in the case of acts or omissions in
such person's official capacity for the corporation, or reasonable believed that
the conduct was not opposed to the best interests of the corporation in the case
of acts or omissions in such person's official capacity for other affiliated
organizations. The Company's Restated Bylaws provide that the Company shall
indemnify such persons, for such liabilities and expenses, in such manner, under
such circumstances, and to such extent as required or permitted by Section
302A.521, as now enacted or hereafter amended.
The Company also maintains an insurance policy or policies to
assist in funding indemnification of directors and officers for certain
liabilities.
Item 8. Exhibits.
---------
5.1 Opinion of Dorsey & Whitney LLP concerning legality.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5 above).
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS.
------------
A. POST-EFFECTIVE AMENDMENTS.
-------------------------
The undersigned issuer hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(c) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that subparagraphs (a) and (b) above do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those subparagraphs is contained
in periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
-2-
B. Subsequent Documents Incorporated by Reference.
-----------------------------------------------
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Claims for Indemnification.
---------------------------
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or other controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-3-
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on this 25th day of
July, 1997.
Apogee Enterprises, Inc.
By: /s/ Donald W. Goldfus
-----------------------------------------
Donald W. Goldfus
Chairman of the Board of Directors,
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the date indicated:
Signature Title Date
--------- ----- ----
July 25, 1997
/s/ Donald W. Goldfus Chairman of the Board of Directors,
- -----------------------------
Donald W. Goldfus Chief Executive Officer and President
/s/ Terry L. Hall Vice President and Chief Financial Officer July 25, 1997
- -----------------------------
Terry L. Hall
/s/ James L. Martineau Executive Vice President and Director July 25, 1997
- -----------------------------
James L. Martineau
/s/ Barbara B. Grogan Director July 25, 1997
- -----------------------------
Barbara B. Grogan
/s/ Harry A. Hammerly Director July 25, 1997
- -----------------------------
Harry A. Hammerly
/s/ Stephen C. Mitchell Director July 25, 1997
- -----------------------------
Stephen C. Mitchell
/s/ Laurence J. Niederhofer Director July 25, 1997
- -----------------------------
Laurence J. Niederhofer
/s/ D.Eugene Nugent Director July 25, 1997
- -----------------------------
D. Eugene Nugent
-4-
- -4-
EXHIBIT INDEX
-------------
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Dorsey & Whitney LLP Concerning Legality
23.1 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney
EXHIBIT 5.1
[Dorsey & Whitney LLP Letterhead]
July 30, 1997
Apogee Enterprises, Inc.
7900 Xerxes Avenue South
Suite 1800
Minneapolis, MN 55431
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Apogee Enterprises, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 relating to the sale by the Company from time to time of up to 2,500,000
shares of Common Stock, $.33-1/3 par value, of the Company (the "Shares"),
initially issuable upon the grant of awards, or the exercise of stock options
granted, pursuant to the Company's 1997 Omnibus Stock Incentive Plan (the
"Plan").
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of the
opinion set forth below.
In rendering our opinion 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 have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plan under which such Shares are issued, will
be validly issued, fully paid and nonassessable.
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.
Very truly yours,
/s/ DORSEY & WHITNEY LLP
RAR
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
The Board of Directors
Apogee Enterprises, Inc.:
We consent to the use of our report dated April 9, 1997, relating to
the consolidated balance sheets of Apogee Enterprises, Inc. and subsidiaries as
of March 1, 1997 and March 2, 1996 and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended March 1, 1997 incorporated by reference in the
Registration Statement on Form S-8.
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
July 30, 1997
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of Donald W. Goldfus, Terry L. Hall
and Robert Barbieri, with full power to each to act without the other, his true
and lawful attorney-in-fact and agent with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign the
Registration Statement on Form S-8 of Apogee Enterprises, Inc. (the "Company")
relating to the registration of 2,500,000 shares of Company Common Stock that
may be issued from time to time pursuant to the Company's 1997 Omnibus Stock
Incentive Plan, and any or all amendments or post-effective amendments thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, and file the
same with such state commissions and other agencies as necessary, granting unto
each such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each such attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed on this
25th day of July, 1997, by the following persons:
/s/ Donald W. Goldfus /s/ James L. Martineau
- --------------------------------- ---------------------------------------
Donald W. Goldfus James L. Martineau
/s/ Terry L. Hall /s/ Stephen C. Mitchell
- --------------------------------- ---------------------------------------
Terry L. Hall Stephen C. Mitchell
/s/ Barbara B. Grogan /s/Laurence J. Niederhofer
- --------------------------------- ---------------------------------------
Barbara B. Grogan Laurence J. Niederhofer
/s/ Harry A. Hammerly /s/ D.Eugene Nugent
- --------------------------------- ---------------------------------------
Harry A. Hammerly D. Eugene Nugent
