As filed with the Securities and Exchange Commission on September 13, 2002
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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THE MANITOWOC COMPANY, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-0448110
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 South 16th Street
Manitowoc, Wisconsin 54221
(Address of principal executive offices) (Zip Code)
The Manitowoc Company, Inc. 1995 Stock Plan
(Full title of the plan)
Maurice D. Jones
Vice President, General Counsel and Secretary Copy to:
The Manitowoc Company, Inc.
500 South 16th Street Jay O. Rothman
Manitowoc, Wisconsin 54221 Foley & Lardner
(920) 684-4410 777 East Wisconsin Avenue
(Name, address and telephone number, Milwaukee, Wisconsin 53202
including area code, of agent for service) (414) 271-2400
CALCULATION OF REGISTRATION FEE
------------------------ ---------------------- ---------------------- ---------------------- -------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share(2) Price(2) Registration Fee
------------------------ ---------------------- ---------------------- ---------------------- -------------------
Common Stock,
$.01 par value 2,326,944 Shares $32.59 $75,835,105 $6,977.00
------------------------ ---------------------- ---------------------- ---------------------- -------------------
Common Stock Purchase
Rights 1,034,198 Rights (3) (3) (3)
------------------------ ---------------------- ---------------------- ---------------------- -------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers an
indeterminate number of additional shares of Common Stock that may become issuable as a result of stock
splits, stock dividends or similar transactions pursuant to the anti-dilution provisions of the 1995 Stock Plan.
(2) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933 solely for the purpose of calculating
the registration fee based on the average of the high and low prices for The Manitowoc Company, Inc. Common
Stock as reported on The New York Stock Exchange on September 6, 2002.
(3) The value attributable to the Common Stock Purchase Rights is reflected in the market price of the Common Stock
to which the Rights are attached.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Manitowoc Company, Inc. (the
"Company") with the Commission are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 2001, which includes certified financial statements as of and for the year
ended December 31, 2001.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2002 and June 30, 2002.
3. The Company's Current Reports on Form 8-K, dated May 9, 2001 (which
includes audited financial statements of Potain Group S.A., a company the
Company acquired in 2001, as of and for the years ended December 31, 2000 and
1999), March 18, 2002, June 24, 2002, July 18, 2002, July 23, 2002, July 30,
2002, two dated August 8, 2002 (one which includes audited financial statements
of Grove Investors Inc., a company the Company acquired in 2002, as of September
29, 2001, and its predecessor company SGPA, Inc., as of September 30, 2000 and
for each year of the three years ended September 29, 2001) and September 12,
2002.
4. The description of the Company's Common Stock contained in Item 1 of
the Company's Registration Statement on Form 8-A, and any amendment or report
filed for the purpose of updating such description.
5. The description of the Company's Common Stock Purchase Rights
contained in Item 1 of the Company's Registration Statement on Form 8-A, dated
August 5, 1996, and any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the Company's
By-laws, directors and officers of the Company are entitled to mandatory
indemnification from the Company against certain liabilities (which may include
liabilities under the Securities Act of 1933) and expenses (i) to the extent
such officers or directors are successful in the defense of a proceeding and
(ii) in proceedings in which the director or officer is not successful in
defense thereof, unless it is determined that the director or officer breached
or failed to perform his or her duties to the Company and such breach or failure
constituted: (a) a willful failure to deal fairly with the Company or its
shareholders in connection with a matter in which the director or officer had a
material conflict of interest; (b) a violation of the criminal law, unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was unlawful;
(c) a transaction from which the director or officer derived an improper
personal profit; or (d) willful misconduct. It should be noted that the
Wisconsin Business Corporation Law specifically states that it is the public
policy of Wisconsin to require or permit indemnification in connection with a
proceeding involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the Wisconsin
Business Corporation Law, directors of the Company are not subject to personal
liability to the Company, its shareholders or any person asserting rights on
behalf thereof for certain breaches or failures to perform any duty resulting
solely from their status as directors except in circumstances paralleling those
in subparagraphs (a) through (d) outlined above. The indemnification provided by
the Wisconsin Business Corporation Law and the Company's By-laws is not
exclusive of any other rights to which a director or officer may be entitled.
Expenses for the defense of any action for which indemnification may be
available may be advanced by the Company under certain circumstances.
The Company maintains a liability insurance policy for its directors and
officers as permitted by Wisconsin law which may extend to, among other things,
liability arising under the Securities Act of 1933, as amended.
The Company has entered into Indemnity Agreements with each of the
members of the Company's Board of Directors and each executive officer of the
Company. Pursuant to such Indemnity Agreements, the Company is required to
indemnify each such person to the fullest extent permitted or required by the
Wisconsin Business Corporation Law against any liability incurred by such person
in any proceeding in which such person is a party because he is a director or
executive officer of the Company.
Item 7. Exemption from Registration Claimed.
Not Applicable.
3
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise indicated)
as part of this Registration Statement:
Exhibit
No. Exhibit
(4.1) Amended and Restated Articles of Incorporation of The Manitowoc
Company, Inc., as amended [Incorporated by reference to Exhibit 3.1 to
The Manitowoc Company, Inc.'s Registration Statement on Form S-4 filed
on April 10, 2002 (Reg. No. 333-85938)]
(4.2) Restated By-laws of The Manitowoc Company, Inc., as amended
[Incorporated by reference to Exhibit 3.2 to The Manitowoc Company,
Inc.'s Quarterly Report Form 10-Q for the quarter ended June 30, 1995
(File No. 1-11978)]
(4.3) Rights Agreement, dated August 5, 1996 between The Manitowoc Company,
Inc. and First Chicago Trust Company of New York [Incorporated by
reference to Exhibit 4 to The Manitowoc Company, Inc.'s Current Report
on Form 8-K filed on August 5, 1996 (File No. 1-11978)]
(4.4) The Manitowoc Company, Inc. 1995 Stock Plan [Incorporated by reference
to Appendix A to The Manitowoc Company, Inc.'s Definitive Proxy
Statement on Schedule 14A for the 1996 Annual Meeting of Stockholders
(File No. 1-11978)]
(4.5) Credit Agreement, dated May 9, 2001, among The Manitowoc Company,
Inc., the lenders party thereto and Bankers Trust Company, as
Administrative Agent [Incorporated by reference to Exhibit 4.1 to The
Manitowoc Company, Inc.'s Current Report on Form 8-K dated as of May
9, 2001 (File No. 1-11978)]
The Company has instruments that define the rights of holders of
long-term debt that are not being filed with this Registration
Statement in reliance upon Item 601(b)(4)(iii) of Regulation S-K,
since none of the Company's long-term debt outstanding at the date of
this Registration Statement exceeds 10 percent of the Company's total
consolidated assets. The Company agrees to furnish to the Securities
and Exchange Commission, upon request, copies of any instruments
defining rights of holders of long-term debt.
(5) Opinion of Foley & Lardner
(23.1) Consent of PricewaterhouseCoopers LLP
(23.2) Consent of Ernst & Young Audit
(23.3) Consent of KPMG LLP
(23.4) Consent of Foley & Lardner (contained in Exhibit (5) hereto)
(24) Power of Attorney (included on the signature page hereto)
4
Item 8. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represents a fundamental change in the information
set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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
5
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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
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 Manitowoc, State of Wisconsin, on August 7, 2002.
THE MANITOWOC COMPANY, INC.
By:/s/ Terry D. Growcock
---------------------------------
Terry D. Growcock
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Terry D. Growcock, Carl J. Laurino and
Maurice D. Jones, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to sign
any registration statement for the same offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and any other regulatory authority,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.*
Signature Title
/s/ Terry D. Growcock President and Chief Executive
------------------------------------- Officer (Principal Executive
Terry D. Growcock Officer of the Registrant)
/s/ Carl J. Laurino Treasurer and Interim Chief
------------------------------------- Financial Officer (Principal
Carl J. Laurino Financial Officer and Principal
Accounting Officer of the
Registrant)
/s/ Dean H. Anderson Director
-------------------------------------
Dean H. Anderson
7
/s/ Virgis W. Colbert Director
-------------------------------------
Virgis W. Colbert
/s/ Daniel W. Duval Director
-------------------------------------
Daniel W. Duval
/s/ James L. Packard Director
-------------------------------------
James L. Packard
/s/ Gilbert F. Rankin, Jr. Director
-------------------------------------
Gilbert F. Rankin, Jr.
/s/ Robert C. Stift Director
-------------------------------------
Robert C. Stift
/s/ Robert S. Throop Director
-------------------------------------
Robert S. Throop
*Each of these signatures is affixed as of August 7, 2002.
8
EXHIBIT INDEX
THE MANITOWOC COMPANY, INC.
1995 STOCK PLAN
Exhibit
No. Exhibit
(4.1) Amended and Restated Articles of Incorporation of The Manitowoc
Company, Inc., as amended [Incorporated by reference to Exhibit 3.1 to
The Manitowoc Company, Inc.'s Registration Statement on Form S-4 filed
on April 10, 2002 (Reg. No. 333-85938)]
(4.2) Restated By-laws of The Manitowoc Company, Inc., as amended
[Incorporated by reference to Exhibit 3.2 to The Manitowoc Company,
Inc.'s Quarterly Report Form 10-Q for the quarter ended June 30, 1995
(File No. 1-11978)]
(4.3) Rights Agreement, dated August 5, 1996 between The Manitowoc Company,
Inc. and First Chicago Trust Company of New York [Incorporated by
reference to Exhibit 4 to The Manitowoc Company, Inc.'s Current Report
on Form 8-K filed on August 5, 1996 (File No. 1-11978)]
(4.4) The Manitowoc Company, Inc. 1995 Stock Plan [Incorporated by reference
to Appendix A to The Manitowoc Company, Inc.'s Definitive Proxy
Statement on Schedule 14A for the 1996 Annual Meeting of Stockholders
(File No. 1-11978)]
(4.5) Credit Agreement, dated May 9, 2001, among The Manitowoc Company,
Inc., the lenders party thereto and Bankers Trust Company, as
Administrative Agent [Incorporated by reference to Exhibit 4.1 to The
Manitowoc Company, Inc.'s Current Report on Form 8-K dated as of May
9, 2001 (File No. 1-11978)]
The Company has instruments that define the rights of holders of
long-term debt that are not being filed with this Registration
Statement in reliance upon Item 601(b)(4)(iii) of Regulation S-K,
since none of the Company's long-term debt outstanding at the date of
this Registration Statement exceeds 10 percent of the Company's total
consolidated assets. The Company agrees to furnish to the Securities
and Exchange Commission, upon request, copies of any instruments
defining rights of holders of long-term debt.
(5) Opinion of Foley & Lardner
(23.1) Consent of PricewaterhouseCoopers LLP
(23.2) Consent of Ernst & Young Audit
(23.3) Consent of KPMG LLP
(23.4) Consent of Foley & Lardner (contained in Exhibit (5) hereto)
(24) Power of Attorney (included on the signature page hereto)
E-1