Registration No. 333-
------------
As filed with the Securities and Exchange
Commission on October 13, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HARNISCHFEGER INDUSTRIES, INC.
(Exact Name of Registrant as
Specified in Its Charter)
DELAWARE 39-1566457
(State or Other (I.R.S. Employer
Jurisdiction of Identification
Incorporation or No.)
Organization)
3600 S. Lake Dr.,
St. Francis, Wisconsin 53235
(Address of Principal Executive
Offices)(Zip Code)
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HARNISCHFEGER INDUSTRIES, INC. LONG-TERM
COMPENSATION PLAN FOR KEY EXECUTIVES
HARNISCHFEGER INDUSTRIES, INC. LONG-TERM
COMPENSATION PLAN FOR DIRECTORS
HARNISCHFEGER INDUSTRIES, INC. LONG-TERM
COMPENSATION PLAN FOR CERTAIN
SUBSIDIARY EXECUTIVES
(Full Title of the Plans)
- -----------------------------------------
ERIC B. FONSTAD, ESQ.
Associate General Counsel and
Assistant Secretary
Harnischfeger Industries, Inc.
3600 S. Lake Dr.
St. Francis, Wisconsin 53235
(Name and Address of Agent For Service)
(414) 486-6400
(Telephone Number, Including Area Code, of
Agent For Service)
CALCULATION OF REGISTRATION FEE
====================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered(1) Registered (2) Per Share(3) Price (3) Fee
- --------------------------------------------------------------------
Common Stock,
$1 par value 1,750,000 shares $6.84 $11,970,000 $3,532.00
====================================================================
(1) Including one preferred share purchase right appertaining to each
share of Common Stock pursuant to a Rights Agreement dated as of
February 8, 1989 between the Registrant and BankBoston, N.A.
(f.k.a. The First National Bank of Boston), as Rights Agent.
(2) Includes 1,300,000 shares being registered for issuance pursuant to
the Harnischfeger Industries, Inc. Long-Term Compensation Plan for
Key Executives, 100,000 shares being registered for issuance
pursuant to the Harnischfeger Industries, Inc. Long-Term
Compensation Plan for Directors and 350,000 shares being registered
for issuance pursuant to the Harnischfeger Industries, Inc.
Long-Term Compensation Plan for Certain Subsidiary Executives.
(3) Pursuant to Rule 457(h), estimated solely for the purpose of
computing the registration fee, based upon the average of the high
and low sales prices of the Registrant's Common Stock on October
12, 1998, as reported in The Wall Street Journal.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Information specified in Part I of Form
S-8 (Items 1 and 2) will be sent or given
to participants in the Harnischfeger
Industries, Inc. Long-term Compensation
Plan for Key Executives, Harnischfeger
Industries, Inc. Long-term Compensation
Plan for Directors and Harnischfeger
Industries, Inc. Long-term Compensation
Plan for Certain Subsidiary Executives as
specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by
Reference.
The following documents filed by
Harnischfeger Industries, Inc. (the
"Registrant") (Commission File No. 1-9299)
with the Securities and Exchange
Commission (the "Commission") pursuant to
Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") are
incorporated herein by reference by the
Registrant:
(a) The Registrant's Annual Report
on Form 10-K for the fiscal year
ended October 31, 1997 (as
amended by Amendment No. 1
thereto on Form 10-K/A filed
June 15, 1998);
(b) The Registrant's Quarterly
Reports on Form 10-Q for the
quarters ended January 31, 1998
(as amended by Amendment No. 1
thereto on Form 10-Q/A filed
June 15, 1998), April 30, 1998
and July 31, 1998;
(c) The Registrant's Current Report
on Form 8-K dated September 21,
1998 which updates and
supersedes, in Item 5 thereof,
the description of the
Registrant's Common Stock in the
Registrant's Registration
Statement on Form 8-B filed on
October 20, 1986, as previously
updated by the Registrant's Form
8-K dated March 25, 1992,
including any amendment or
report filed for the purpose of
further updating such
description; and
(d) The Registrant's Current Reports
on Form 8-K dated April 13, 1998
(as amended by Amendment No. 1
thereto on Form 8-K/A filed June
30, 1998), April 27, 1998, April
28, 1998 (as amended by
Amendment No. 1 thereto on Form
8-K/A filed June 30, 1998), September
12, 1998, September 15, 1998 and
September 28, 1998;
All documents subsequently filed by
the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, prior
to the filing of a post-effective
amendment which indicates that all
securities offered hereby have been sold
or which deregisters all securities then
remaining unsold, shall be deemed to be
incorporated by reference herein and to be
a part hereof from the date of the filing
of such documents.
Any statement contained in a document
incorporated or deemed to be incorporated
by reference herein shall be deemed to be
modified or superseded for purposes hereof
to the extent that a statement contained
herein or in any other subsequently filed
document which also is or is deemed to be
incorporated by reference herein modifies
or supersedes such statement. Any
statement so modified or superseded shall
not be deemed, except as so modified or
superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable. See Item 3(c) above.
Item 5. Interests of Named Experts and
Counsel.
Not applicable.
Item 6. Indemnification of Directors and
Officers.
Section 145 of the General
Corporation Law of the State of Delaware
permits indemnification of directors,
officers, employees and agents of
corporations under certain conditions and
subject to certain limitations.
Section 14 of Article III of the
Registrant's Bylaws provides for
indemnification of any director, officer,
employee or agent of the Registrant, or
any person serving in the same capacity in
any other enterprise at the request of the
Registrant, under certain circumstances.
Article 6 of the Registrant's Restated
Certificate of Incorporation eliminates
the liability of directors of the
Registrant under certain circumstances for
breaches of fiduciary duty to the
Registrant and its stockholders, as
permitted by Section 102(b)(7) of the
Delaware General Corporation Law.
The Registrant is insured against
certain liabilities which it may incur by
reason of Section 14, Article III, of its
Bylaws. In addition, officers and
directors are insured, at the expense of
the Registrant, against certain
liabilities which might arise out of their
employment and which might not be subject
to indemnification under the Bylaws.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index following
Signatures page in this Registration
Statement, which Exhibit Index is
incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant
hereby undertakes:
(1) To file, during any period
in which offers or sales are being made, a
post-effective amendment to this
Registration Statement:
(i) To include any prospectus
required by Section
10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the
prospectus any facts or
events arising after the
effective date of the
Registration Statement (or
the most recent post-effective
amendment thereof) which,
individually or in the
aggregate, represent a
fundamental change in the
information set forth in
the Registration Statement.
Notwithstanding the
foregoing, any increase or
decrease in volume of
securities offered (if the
total dollar value of
securities offered would
not exceed that which was
registered) and any
deviation from the low or
high end of the estimated
maximum offering range may
be reflected in the form of
prospectus filed with the
Commission pursuant to Rule
242(b), if, in the
aggregate, the changes in
volume and price
represent no more than a
20% change in the maximum
aggregate offering price
set forth in the
"Calculation of
Registration Fee" table in
the effective Registration
Statement;
(iii)To include any material
information with respect to
the plan of distribution
not previously disclosed in
the Registration Statement
or any material change to
such information in the
Registration Statement;
Provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on
Form S-3 or Form S-8, and the information
required to be included in a post-effective
amendment by those paragraphs is
contained in periodic reports filed by the
Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of
determining any liability under the
Securities Act of 1933, each such post-effective
amendment shall be deemed to be
a new Registration Statement relating to
the securities offered therein, and the
offering of such securities at that time
shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any
of the securities being registered which
remain unsold at the termination of the
offering.
(b) The undersigned Registrant
hereby undertakes that, for purposes of
determining any liability under the
Securities Act of 1933, each filing of the
Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is
incorporated by reference in the
Registration Statement shall be deemed to
be a new Registration Statement relating
to the securities offered therein, and the
offering of such securities at that time
shall be deemed to be the initial bona
fide offering thereof.
(h) Reference is made to the
indemnification provisions referred to in
Item 6 of the Registration Statement.
Insofar as indemnification for
liabilities arising under the
Securities Act of 1933 may be
permitted to directors, officers and
controlling persons of the Registrant
pursuant to the 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 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.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the registrant
certifies that it has reasonable grounds
to believe that it meets all of the
requirements for filing on Form S-8 and
has duly caused this Registration
Statement to be signed on its behalf by
the undersigned, thereunto duly
authorized, in the City of St. Francis,
State of Wisconsin, on October 7, 1998.
HARNISCHFEGER INDUSTRIES, INC.
(Registrant)
By: /s/ Jeffery T. Grade
---------------------------
Jeffery T. Grade
Chairman and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that
each person whose signature appears below
constitutes and appoints Jeffery T. Grade
and Francis M. Corby, Jr., and each of
them, his true and lawful attorneys-in-fact
and agents, with full power of
substitution and resubstitution, for him
and in his name, place and stead, in any
and all capacities, to sign any and all
amendments (including post-effective
amendments) to this Registration
Statement, and to file the same, with all
exhibits thereto, and other documents in
connection therewith, with the Securities
and Exchange Commission, and any other
regulatory authority, granting unto said
attorneys-in-fact and agents, and each of
them, full power and authority to do and
perform each and every act and thing
requisite and necessary to be done in and
about the premises, as fully to all
intents and purposes as he might or could
do in person, hereby ratifying and
confirming all that said attorneys-in-fact
and agents or any of them, or their
substitutes, may lawfully do or cause to
be done by virtue hereof.
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Pursuant to the requirements of
the Securities Act of 1933, this
Registration Statement and power of
attorney have been signed by the following
persons in the capacities and on the date
indicated*:
Signature Capacity
--------- --------
Chairman and Chief Executive
/s/ Jeffery T. Grade Officer and Director
- ------------------------
Jeffery T. Grade
Executive Vice President for Finance
/s/ Francis M. Corby, Jr. and Administration (Chief Financial
- ------------------------- Officer) and Director
Francis M. Corby, Jr.
Vice President and Controller (Chief
/s/ James C. Benjamin Accounting Officer)
- -------------------------
James C. Benjamin
/s/ Donna M. Alvarado Director
- -------------------------
Donna M. Alvarado
/s/ Larry D. Brady Director
- -------------------------
Larry D. Brady
/s/ John D. Correnti Director
- -------------------------
John D. Correnti
/s/ Harry L. Davis Director
- -------------------------
Harry L. Davis
/s/ Robert M. Gerrity Director
- -------------------------
Robert M. Gerrity
/s/ John N. Hanson Director
- -------------------------
John N. Hanson
/s/ Robert B. Hoffman Director
- -------------------------
Robert B. Hoffman
/s/ Ralph C. Joynes Director
- -------------------------
Ralph C. Joynes
/s/ Jean-Pierre Labruyere Director
- -------------------------
Jean-Pierre Labruyere
/s/ L. Donald LaTorre Director
- -------------------------
L. Donald LaTorre
/s/ Leonard Redon Director
- -------------------------
Leonard Redon
*Each of these signatures is affixed as of October 7, 1998.
HARNISCHFEGER INDUSTRIES, INC.
(the "Registrant")
(Commission File No. 1-9299)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Exhibit Incorporated Herein by Filed
Number Description Reference To Herewith
4.1 Restated Certificate of Exhibit 3(a) to Report of
Incorporation of Harnischfeger Industries,
Harnischfeger Inc. on Form 10-Q for the
Industries, Inc., quarter ended April 30, 1997
including the
Certificate of
Designations of
Preferred Stock
Series D
4.2(a) Rights Agreement dated Exhibit 1 to the Registrant's
as of February 8, 1989 Registration Statement on
between Harnischfeger Form 8-A filed on February 9,
Industries, Inc and 1989
The First National Bank
of Boston, as Rights
Agent,which includes:
as Exhibit A, the
Certificate of Desig-
nations of Preferred
Stock, Series D,
setting forth the
terms of the Preferred
Stock, Series D; as
Exhibit B, the Form
of Rights Certificate;
and as Exhibit C, the
Summary of Rights to
Purchase Preferred Stock,
Series D
4.2(b) Amendment No. 1 to Exhibit 4(j) to Report of
Harnischfeger Industries, Inc. on Form
Rights Agreement dated 10-K for the year ended
as of October 9, 1995 October 31, 1997
4.2(c) Amendment No. 2 to Exhibit 4 to Form 8-K
Rights Agreement dated dated September 15, 1998
as of September 15, 1998 filed September 23, 1998
4.3 Bylaws of Harnischfeger Exhibit 3 to Report of
Industries, Inc., as Harnischfeger Industries,
amended on August 24, Inc. on Form 10-Q for
1998 the quarter ended July 31, 1998
5 Opinion of Counsel X
23.1 Consent of Price-
waterhouseCoopers LLP X
23.2 Consent of Counsel Contained in Opinion filed as
Exhibit 5
24 Powers of Attorney Signature Page to this Registra-
ation Statement
EXHIBIT 5 (Form S-8)
October 7, 1998
Harnischfeger Industries, Inc.
3600 S. Lake Dr.
St. Francis, WI 53235
Gentlemen:
I am providing this opinion in
connection with the Registration Statement
of Harnischfeger Industries, Inc. (the
"Company") on Form S-8 (the "Registration
Statement") filed under the Securities Act
of 1933, as amended (the "Act"), with
respect to the proposed sale of up to
1,750,000 shares of Common Stock, $1 par
value per share, of the Company (the
"Shares") pursuant to the Harnischfeger
Industries, Inc. Long-term Compensation
Plan for Key Executives. Harnischfeger
Industries, Inc. Long-term Compensation
Plan for Directors and Harnischfeger
Industries, Inc. Long-term Compensation
Plan for Certain Subsidiary Executives
(collectively the "Plans") maintained by
the Company. I have examined (i) the
Registration Statement; (ii) the Company's
Restated Certificate of Incorporation and
Bylaws, each as amended to date; (iii) the
Plans; (iv) corporate proceedings
relating to the adoption of the Plans and
the issuance of the Shares; and (v) such
other documents and records as I have
deemed necessary in order to render this
opinion. In rendering this opinion, I
have relied as to certain factual matters
on certificates of officers of the Company
and of state officials.
Based upon the foregoing, it is my
opinion that:
1. The Company is a corporation
duly incorporated and validly
existing under the laws of the
State of Delaware.
2. The Shares to be sold from time
to time pursuant to the Plans
which are original issuance
shares, when issued and paid for
as contemplated by the
Registration Statement and the
Plans, will be validly issued,
fully paid and non-assessable by
the Company subject to the
personal liability which may be
imposed on shareholders by
Section 180.0622(2)(b) of the
Wisconsin Business Corporation
Law, as judicially interpreted,
for debts owing to employees for
services performed, but not
exceeding six months service in
any one case. Although Section
180.0622(2)(b) provides that
such personal liability of
shareholders shall be "to an
amount equal to the par value of
shares owned by them
respectively, and to the
consideration for which their
shares without par value was
issued," the Wisconsin Supreme
Court, by a split decision
without a written opinion, has
affirmed a judgment holding
shareholders of a corporation
liable under the substantially
identical predecessor statute in
effect prior to January 1, 1991
(Section 180.40(6)) for unpaid
employee wages to an amount
equal to the consideration for
which their par value shares
were issued rather than the
shares' lower stated par value.
Local 257 of Hotel and
Restaurant Employees and
Bartenders International Union
v. Wilson Street East Dinner
Playhouse, Inc., 126 Wis. 2d
284, 375 N.W.2d 664 (1985)
(affirming the 1983 decision of
the Circuit Court for Dane
County, Wisconsin, in Case No.
82-CV-0023). The Wisconsin
Supreme Court has held that
Section 180.40(6) applies to
shareholders of foreign
corporations licensed to do
business in the State of
Wisconsin, which the Company is,
as well as to shareholders of
domestic corporations. Joncas
v. Krueger, 61 Wis. 2d 529, 213
N.W. 2d 1 (1973).
I consent to the filing of this
opinion as an Exhibit to the Registration
Statement. In giving my consent, I do not
admit that I am an "expert" within the
meaning of Section 11 of the Act, or that
I come within the category of persons
whose consent is required by Section 7 of
the Act.
Very truly yours,
/s/ Eric B. Fonstad
Eric B. Fonstad, Esq.
Associate General Counsel
and Assistant Secretary
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by
reference in this Registration Statement
on Form S-8 of our report dated November
18, 1997 except as to Note 17 which is as
of June 1, 1998, appearing in Harnischfeger
Industries, Inc's Annual Report on Form
10K/A for the year ended October 31, 1997.
PricewaterhouseCoopers LLP
Milwaukee, Wisconsin
October 7, 1998