As filed with the Securities and Exchange Commission on April 22, 1997
Registration No. 333- 23007
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
________________________________________
Pre-Effective
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________________
AMERICAN POWER CONVERSION CORPORATION
(Exact name of Registrant as specified in its charter)
Massachusetts 04-2722013
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
132 Fairgrounds Road
West Kingston, Rhode Island 02892
(401) 789-5735
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
________________________________________
Rodger B. Dowdell, Jr.
President and Chief Executive Officer
132 Fairgrounds Road
West Kingston, Rhode Island 02892
(401) 789-5735
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
________________________________________
COPIES TO:
William B. Simmons, Jr., ESQ.
Testa, Hurwitz & Thibeault, LLP
High Street Tower, 125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective.
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, check the following box. [ x ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, check the following box. [ ]
________________________________________
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.
_______________________
PROSPECTUS
480,144 SHARES
AMERICAN POWER CONVERSION CORPORATION
COMMON STOCK
_______________________
This Prospectus relates to the sale of up to an aggregate of 480,144
shares (the "Shares") of the common stock, par value $.01 per share (the
"Common Stock"), of American Power Conversion Corporation, a Massachusetts
corporation ("APC" or the "Company"), by certain stockholders of the
Company (collectively, the "Selling Stockholders"). The Selling
Stockholders may sell the Shares from time to time at market prices
prevailing at the time of sale or at prices otherwise negotiated. The
Selling Stockholders and certain persons who purchase shares from them
including broker-dealers acting as principals who may resell the Shares,
may be deemed "underwriters," as such term is defined in the Securities Act
of 1933, as amended (the "Securities Act"). See "Plan of Distribution."
The Company will not receive any of the proceeds from the sale of the
Shares. The Company is responsible for the expenses incurred in connection
with the registration of the Shares. The Selling Stockholders will pay or
assume brokerage commissions or other similar charges incurred in the sale
of the Shares.
The Company's Common Stock is listed on the Nasdaq National Market
under the symbol "APCC." The last reported sale price for the Common Stock
on April 22, 1997 was $21.25 per share, as reported by the Nasdaq
National Market.
_______________
AN INVESTMENT IN THESE SECURITIES INVOLVE CERTAIN RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 5.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
The date of this Prospectus is April __, 1997 .
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the Commission's regional offices located at Seven World Trade
Center, 13th Floor, New York, New York 10048, and at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies may also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. The Commission also maintains a
World Wide Web site that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission at the address
"http://www.sec.gov." The Common Stock of the Company is listed
on the Nasdaq National Market. Reports, proxy statements and
other information concerning the Company may also be inspected at
the offices of the National Association of Securities Dealers,
Inc. located at 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration
Statement on Form S-3 (including all amendments thereto, the
"Registration Statement") under the Securities Act, with respect
to the Common Stock offered hereby. This Prospectus does not
contain all information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules
and regulations of the Commission. For further information
regarding the Company and the Common Stock offered hereby,
reference is hereby made to the Registration Statement and to the
exhibits and schedules filed therewith. Statements contained in
this Prospectus regarding the contents of any agreement or other
document filed as an exhibit to the Registration Statement are
not necessarily complete, and in each instance reference is made
to the copy of such document filed as an exhibit to the
Registration Statement, each such statement being qualified in
all respects by such reference. The Registration Statement,
including the exhibits and schedules thereto, may be inspected at
the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and copies of all
or any part thereof may be obtained from such office upon payment
of the prescribed fees.
The Company will provide without charge to each person to
whom a Prospectus is delivered, on the written or oral request of
any such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such
documents unless such exhibits are specifically incorporated by
reference into such documents). Requests for such copies should
be directed to Donald M. Muir, American Power Conversion
Corporation, 132 Fairgrounds Road, West Kingston, Rhode Island
02892, telephone number (401) 789-5735.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this
Prospectus by reference (File No. 333- 23007 ):
1. The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996.
2
2. The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A
filed pursuant to Section 12(g) of the Exchange Act on
August 29, 1988.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the termination of the offering of the Shares, shall be deemed to
be incorporated by reference in this Prospectus and made a part
hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated
by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which is also deemed to be incorporated by reference
herein or in any prospectus supplement modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
3
THE COMPANY
RECENT DEVELOPMENTS
Systems Enhancement Corporation Acquisition. On February
14, 1997, the Company acquired all of the outstanding shares of
capital stock of Systems Enhancement Corporation ("Systems
Enhancement"), a Missouri corporation, (the "Merger") pursuant to
an Agreement and Plan of Merger and Reorganization dated as of
February 14, 1997 (the "Merger Agreement"), among the Company,
Blue Acquisition Corporation, a Delaware corporation and a wholly-
owned subsidiary of the Company, Systems Enhancement and the six
stockholders of Systems Enhancement. The Merger was accomplished
through an exchange of 480,144 shares of the Company's Common
Stock for all outstanding shares of capital stock of Systems
Enhancement. The Merger has been accounted for as a pooling-of-
interests. The purchase price and terms of the transaction were
determined in arms-length negotiations. Systems Enhancement is a
developer of network power management products.
The Selling Stockholders represented to the Company, in
connection with the completion of the Merger, that such Selling
Stockholder was acquiring the Shares from the Company without any
present intention of effecting a distribution of those Shares.
In recognition of the fact, however, that investors may want to
be able to sell their shares when they consider appropriate, the
Company agreed to file with the Commission a registration
statement on Form S-3 (of which this Prospectus is a part) to
permit the public sale of the Shares by the Selling Stockholders
from time to time and to use reasonable commercial efforts to
keep the registration statement effective until the earlier of
the sale of the Shares pursuant to the Registration Statement or
February 14, 1999 (being the second anniversary of the effective
date of the Merger). The Company will prepare and file such
amendments and supplements to the registration statement as may
be necessary to keep it effective until the earlier of the sale
of all Shares pursuant to the registration statement or until
February 14, 1999. Notwithstanding the foregoing, each of the
Selling Stockholders have entered into an Affiliate Agreement
pursuant to which such Selling Stockholder has agreed not to sell
any of the Shares until such time as results covering at least 30
days of combined operations of the Company and Systems
Enhancement have been published by the Company, in the form of a
quarterly or annual earnings report, an effective registration
statement filed with the Commission, a report to the Commission
on Form 10-K, 10-Q or 8-K, or any other public filing or
announcement (including a press release) which includes the
combined results of operations.
4
RISK FACTORS
In addition to the other information presented in this
Prospectus and the information incorporated in this Prospectus by
reference, the following risk factors should be considered
carefully in evaluating the Company and its business before
purchasing the Common Stock offered hereby.
Fluctuations in Revenue and Operating Results. The Company's
quarterly operating results may fluctuate as a result of a number
of factors, including the growth rates in the UPS industry and
related industries; timing of orders from, and shipments to,
customers; the timing of new product introductions and the market
acceptance of those products; increased competition; changes in
manufacturing costs; changes in the mix of product sales;
inventory risks due to shifts in market demand; component
constraints and shortages; risks of nonpayment of accounts
receivable; expansion of manufacturing capacity; factors
associated with international operations; and changes in world
economic conditions.
Management of Growth. The Company has experienced, and is
currently experiencing, a period of rapid growth which has
placed, and could continue to place, a significant strain on the
resources of the Company. In order to support the growth of its
business, the Company plans to significantly expand its level of
operations during 1997. If the Company's management is unable to
manage growth effectively, the Company's operating results could
be adversely affected.
Competition. The Company believes it is one of five global
companies providing a full range of UPS products and services in
the 0 to 5kva market. The UPS industry, however, is highly
competitive on both a worldwide basis and a regional geographic
basis. The Company competes, and will continue to compete, with
several U.S. and foreign firms with respect to UPS products, both
on a worldwide basis and in various geographical regions, and
within individual UPS product and application niches. The Company
expects competition to increase in the future from existing
competitors and a number of companies which may enter the
Company's existing or future markets. Increased competition
could adversely affect the Company's revenue and profitability
through price reductions and loss of market share. The principal
competitive factors in the UPS industry are product performance
and quality, marketing and access to distribution channels,
customer services, product design and price. Some of the
Company's current and potential competitors have substantially
greater financial, technical, sales and marketing resources than
the Company. There can be no assurance that the Company will be
able to continue to compete successfully with its existing
competitors or will be able to compete successfully with new
competitors.
Technological Change; New Product Delays; Risks of Product
Defects. The market for the Company's products is characterized
by rapidly changing technology, evolving industry standards and
frequent new product introductions. Current competitors or new
market entrants may develop new products with features that could
adversely affect the competitive position of the Company's
products. There can be no assurance that the Company will be
successful in selecting, developing, manufacturing and marketing
new products or enhancing its existing products or that the
Company will be able to respond effectively to technological
changes, new standards or product announcements by competitors.
The timely availability of new products and enhancements, and
their acceptance by customers are important to the future success
of the Company. Delays in such availability or a lack of market
acceptance could have an adverse affect on the Company.
Although the Company has not experienced material adverse effects
resulting from product defects, there can be no assurance that,
despite testing internally or by current or potential customers,
defects will not be found in products, resulting in loss or delay
in market acceptance, which could have a material adverse effect
upon the Company's business, operating results and financial
condition.
5
Dependence on Key Employees. The Company's success depends
to a significant degree upon the continuing contributions of its
key management, sales, marketing, research and development and
manufacturing personnel, many of whom would be difficult to
replace. The Company does not have employment contracts with
most of its key personnel. The Company believes that its future
success will depend in large part upon its ability to attract and
retain highly-skilled hardware and software engineers, and
management, sales and marketing personnel. Competition for such
personnel is intense, and there can be no assurance that the
Company will be successful in attracting and retaining such
personnel. Failure to attract and retain key personnel could
have a material adverse effect on the Company's business,
operating results and financial condition.
Foreign Operations; Risk of Currency Fluctuations.
The Company manufactures and markets its products worldwide
through several foreign subsidiaries and independent agents. The
Company's worldwide operations are subject to the risks normally
associated with foreign operations including, but not limited to,
the disruption of markets, changes in export or import laws,
restrictions on currency exchanges, potentially negative tax
consequences and the modification or introduction of other
governmental policies with potentially adverse effects.
International sales (sales to customers outside the United
States, both direct and indirect) accounted for approximately
41.7%, 39.7% and 35.5% of the Company's net sales in 1996, 1995
and 1994, respectively. The Company anticipates that
international sales will continue to account for a significant
portion of revenue. During 1994, the Company began invoicing its
customers in Great Britain, France and Germany in their
respective local currencies and during the second quarter of 1996
began invoicing its customers in Japan in Yen. To date, the
Company does not utilize any rate protection agreements or
derivative agreements to hedge any foreign exchange exposure.
Accordingly, the Company may be exposed to exchange losses based
upon currency exchange rate fluctuations, which losses could have
a materially adverse effect on the Company's operating results.
Dependence on Sole Source Suppliers. Some components of the
Company's products are currently obtained from single sources.
There can be no assurance that in the future the Company's
suppliers will be able to meet the Company's demand for
components in a timely and cost-effective manner. The Company
generally purchases these single or limited source components
pursuant to purchase orders and has no guaranteed supply
arrangements with the suppliers. In addition, the availability
of many of these components to the Company is dependent in part
on the ability of the Company to provide the suppliers with
accurate forecasts of future requirements. The Company has
generally been able to obtain adequate supplies of parts and
components in a timely manner from existing sources. The
Company's operating results and customer relationships could be
adversely affected by either an increase in prices for, or an
interruption or reduction in supply of, any key components.
Uncertainties Regarding Patents and Protection of
Proprietary Technology. The Company's success will depend, to a
large extent, on its ability to protect its proprietary
technology. The Company relies on a combination of contractual
rights, trade secrets and copyrights to protect its proprietary
rights. Although the Company may apply for patents in the
future, there can be no assurance that the Company's intellectual
property protection will be sufficient to prevent competitors
from developing similar technology. Moreover, in the absence of
patent protection, the Company's business may be adversely
affected by competitors that independently develop functionally
equivalent technology. The Company attempts to ensure that its
6
products and processes do not infringe patents and other
proprietary rights, but there can be no assurance that such
infringement may not be alleged by third parties in the future.
If infringement is alleged, there can be no assurance that the
necessary licenses would be available on acceptable terms, if at
all, or that the Company would prevail in any such challenge.
Integration of Acquired Businesses. The Company consummated
its acquisition of Systems Enhancement in February 1997. Systems
Enhancement currently operates as a wholly-owned subsidiary of
the Company. The Company has limited experience in integrating
acquired companies or technologies into its operations. The
Company may from time to time pursue the acquisition of other
companies, assets, products or technologies. There can be no
assurance that products, technologies, distribution channels, key
personnel and businesses of Systems Enhancement or any other
acquired companies will be successfully integrated into the
Company's business or product offerings, or that such integration
will not adversely affect the Company's business, financial
condition or results of operations. There can be no assurance
that any acquired companies, assets, products or technologies
will contribute significantly to the Company's sales or earnings,
that the sales and earnings from acquired businesses will not be
adversely affected by the integration process or other factors.
If the Company is not successful in the integration of such
acquired businesses, there could be an adverse impact on the
financial results of the Company. There can be no assurance that
the Company will continue to be able to identify and consummate
suitable acquisition transactions in the future.
Possible Volatility of Stock Price. The market price of the
Company's Common Stock has been, and may continue to be,
extremely volatile. The trading price of the Company's Common
Stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results, changes in
earnings estimates by analysts, announcements of technological
innovations or new products by the Company or its competitors,
challenges associated with integration of businesses and other
events or factors. In addition, the stock market has from time
to time experienced extreme price and volume fluctuations which
have particularly affected the market price for many high
technology companies and which often have been unrelated to the
operating performance of these companies. These broad market
fluctuations may adversely affect the market price of the
Company's Common Stock.
7
USE OF PROCEEDS
The Company will not receive any of the proceeds from the
sale of the Shares by the Selling Stockholders.
SELLING STOCKHOLDERS
The following table sets forth certain information regarding
ownership of the Common Stock of APC as of February 14, 1997 and
the number of Shares that may be offered for the account of the
Selling Stockholders or their transferees, distributees,
pledgees, donees or other successors in interest from time to
time. All of the shares offered hereby were acquired in
connection with the APC acquisition of Systems Enhancement. See
"Plan of Distribution."
Common Stock Shares Common Stock
Owned Prior to be Sold Owned After
to the in the the
Selling Stockholder Offering Offering(1) Offering(2)
Rollie R. Johnson 86,426 86,426 *
Richard J. Johnson 86,426 86,426 *
Robert J. Johnson 86,426 86,426 *
James R. Johnson 86,426 86,426 *
Patrick R. Johnson 86,426 86,426 *
Jacqueline A. Rigman 48,014 48,014 *
TOTAL 480,144 480,144
-------------------------
*See Footnote 2 below
(1) Assumes that all of the Shares owned by each Selling
Stockholder and offered under this Prospectus are sold
during the distribution period.
(2) Because the Selling Stockholders or their
transferees, distributees, pledges, donees or other
successors in interest may sell all or any part of their
Shares pursuant to this Prospectus, no estimate can be
given as to the number of Shares that will be held by
each Selling Stockholder upon termination of this
offering. However, prior to the offering each Selling
Stockholder held less than one percent (1%) of APC's
outstanding shares of Common Stock, based on shares of
Common Stock outstanding as of February 14, 1997.
8
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold from time to time by
the Selling Stockholders acting as principals for their own
account. The Company is responsible for the expenses incurred in
connection with the registration of the Shares. The Company will
receive none of the proceeds from this offering. The Selling
Stockholders will pay or assume brokerage commissions or other
charges and expenses incurred in the sale of the Shares. In
addition, the Company has agreed to indemnify the Selling
Stockholders against certain liabilities, including liabilities
under the Securities Act, and, in the event that any offering is
made by the Selling Stockholders through underwriters, to agree
to indemnify such underwriters for such liabilities.
The distribution of the Shares by the Selling Stockholders
is not currently subject to any underwriting agreement. The
Shares covered by this Prospectus may be sold by the Selling
Stockholders or their transferees, distributees, pledgees,
donees, or other successors in interest from time to time. Such
sales may be made at fixed prices that may be changed, at market
prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Such sales
may be effected in the over-the-counter market, on the National
Association of Securities Dealers Automated Quotation System, on
the Nasdaq National Market, or on any exchange on which the
Shares may then be listed. The Shares may be sold by one or more
of the following: (a) one or more block trades in which a broker
or dealer so engaged will attempt to sell all or a portion of the
Shares held by the Selling Stockholders as agent but may position
and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this
Prospectus; (c) ordinary brokerage transactions and transactions
in which the broker solicits purchasers; (d) in negotiated
transactions; and (e) through other means. The Selling
Stockholders may effect such transactions by selling Shares to or
through broker-dealers, and such broker-dealers will receive
compensation in negotiated amounts in the form of discounts,
concessions, commissions or fees from the Selling Stockholders
and/or the purchasers of the Shares for whom such broker-dealers
may act as agent or to whom they sell as principal, or both
(which compensation to a particular broker-dealer might be in
excess of customary commissions). Such brokers or dealers or the
participating brokers or dealers and the Selling Stockholders may
be deemed to be "underwriters" within the meaning of the
Securities Act, in connection with such sales, and any
commissions received by such broker-dealers may be deemed to be
underwriting compensation.
Any shares covered by the Prospectus that qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under
Rule 144 rather than pursuant to this Prospectus.
The Selling Stockholders are not restricted as to the price
or prices at which they may sell their Shares. Sales of such
Shares at less than the market prices may depress the market
price of the Company's Common Stock. During the effective time
of this Prospectus, the Selling Stockholders have agreed to
potential restrictions on resale if notified by the Company of a
potential material event that could have a material effect on the
Company's business and financial condition, a period commencing
upon such notice and ending upon notice by the Company that such
potential material event either has been disclosed to the public
or no longer constitutes a potential material event. The Selling
Stockholders are not restricted as to the number of Shares which
may be sold at any one time, and it is possible that a
significant number of Shares could be sold at the same time.
Boston EquiServe L.P., 150 Royall Street, Canton,
Massachusetts 02021, is the transfer agent for the Company's
Common Stock.
9
LEGAL MATTERS
Certain legal matters with respect to the issuance of the
Shares are being passed upon for the Company by Testa, Hurwitz &
Thibeault, LLP, Boston, Massachusetts.
EXPERTS
The consolidated balance sheets of American Power Conversion
Corporation as of December 31, 1996 and 1995 and the related
consolidated statements of income, shareholder' equity and cash flows
for each of the years in the three year period ended December
31, 1996 and related schedule included in the Company's
Annual Report on Form 10-K have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, and upon the authority
of said firm as experts in accounting and auditing.
10
No person has been authorized 480,144 Shares
to give any information or to
make any representation other
than those contained in this
Prospectus and, if given or
made, such information or
representation must not be AMERICAN POWER CONVERSION
relied upon as having been CORPORATION
authorized by the Company, any
Selling Stockholder or any
other person. This Prospectus
does not constitute an offer
to sell or a solicitation of
an offer in any jurisdiction
in which such offer or COMMON STOCK
solicitation would be unlawful
or to any person to whom it is
unlawful. Neither the
delivery of this Prospectus
nor any sale made hereunder
shall, under any
circumstances, create an
implication that there has
been no change in the affairs
of the Company or that
information contained herein
is correct as of any time
subsequent to this date
hereof.
___________ __________
TABLE OF CONTENTS PROSPECTUS
Page __________
Available Information 2
Incorporation of Certain
Information by Reference 3
The Company 4
Recent Developments 4
Risk Factors 5
Use of Proceeds 8
Selling Stockholders 8
Plan of Distribution 9 April __, 1997
Legal Matters 10
Experts 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses (other than underwriting discounts and
commissions) payable in connection with the sale of the Common
Stock offered hereby are as follows:
SEC Registration Fee $ 2,819.03
Nasdaq Filing Fee 9,602.88
Legal fees and expenses 20,000.00
Accounting fees and expenses 20,000.00
Blue Sky fees and expenses (including
legal fees) 2,000.00
Printing Fees 5,000.00
Total $59,421.91
The Company will bear all expenses shown above.
Item 15. Indemnification of Directors and Officers.
Section 67 of the Massachusetts Business Corporation Law
("Section 67") provides that a corporation may indemnify its
directors and officers to the extent specified in or authorized
by (i) the articles of organization, (ii) a by-law adopted by the
stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election
of directors. In all instances, the extent to which a
corporation provides indemnification to its directors and
officers under Section 67 is optional. The Company's By-laws
provide that each director and officer shall be indemnified by
the Company against liabilities and expenses in connection with
any legal proceeding to which such officer or director may become
a party by reason of being or having been an officer or director,
provided that such officer or director acted in good faith in the
reasonable belief that his or her action was in the best
interests of the Company. Reference is made to the Company's By-
laws filed as Exhibit 3.02 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1991 (File No. 0-
17126).
The Company maintains director and officers liability
insurance for the benefit of its directors and officers.
Item 16. Exhibits.
4.01 Articles of Organization of the Company, as
amended (filed as Exhibit 3.01 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1994 (File No. 1-12432) and incorporated herein by
reference)
4.02 By-laws of the Company (filed as Exhibit 3.02 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1991 (File No. 0-17126) and
incorporated herein by reference)
5.01 Opinion of Testa, Hurwitz & Thibeault, LLP (previously filed as
Exhibit 5.01 to this Registration Statement on Form S-3 (File
No. 333-23007) and incorporated herein by reference.
23.01 Consent of KPMG Peat Marwick LLP
23.02 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.01)
24.01 Power of Attorney (included as part of the signature
page to this Registration Statement)
II-1
Item 17. Undertakings.
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 this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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 this 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.
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 15(d) of the Securities Exchange Act of 1934
(and, where appropriate, each filing of an employee benefit
plan's annual report pursuant to 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.
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 Securities Act of 1933 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,
II-2
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 Securities Act of 1933 and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
II-3
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-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 West Kingston, Rhode Island on April 22, 1997 .
AMERICAN POWER CONVERSION CORPORATION
By: /s/ Rodger B. Dowdell, Jr.
Rodger B. Dowdell, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
Signature Title(s) Date
/s/ Rodger B. Dowdell, Jr. President, Chief Executive April 22, 1997
Officer and Chairman of
Rodger B. Dowdell, Jr. the Board of Directors
(Principal Executive
Officer)
/s/ Donald M. Muir Chief Financial Officer April 22, 1997
Donald M. Muir (Principal Financial and
Accounting Officer)
* Vice President, Clerk and April 22, 1997
Emanuel E. Landsman Director
* Vice President and April 22, 1997
Neil E. Rasmussen Director
II-4
* Director April 22, 1997
Ervin F. Lyons
* Director April 22, 1997
James D. Gerson
* By: /s/ Rodger B. Dowdell, Jr.
Rodger B. Dowdell, Jr.
as Attorney-in-Fact
II-5
EXHIBIT INDEX
Exhibit Description of Exhibit
No.
4.01 Articles of Organization of the Company, as
amended (filed as Exhibit 3.01 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1994 (File No. 1-12432) and incorporated herein by
reference)
4.02 By-laws of the Company (filed as Exhibit 3.02 to
the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1991 (File No. 0-17126) and
incorporated herein by reference)
5.01 Opinion of Testa, Hurwitz & Thibeault, LLP (previously filed
as Exhibit 5.01 to this Registration Statement on Form S-3
(File No. 333-23007) and incorporated herein by reference)
23.01 Consent of KPMG Peat Marwick LLP
23.02 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.01)
24.01 Power of Attorney (included as part of the signature
page to this Registration Statement)
II-6
Exhibit 23.01
ACCOUNTANTS' CONSENT
The Board of Directors
American Power Conversion Corporation:
We consent to incorporation by reference in this Registration
Statement on Form S-3 of American Power Conversion Corporation of
our reports dated February 10, 1997 , relating to the consolidated
balance sheets of American Power Conversion Corporation as of
December 31, 1996 and 1995 , and the related consolidated
statements of income, shareholders' equity and cash flows for
each of the years in the three-year period ended December 31,
1996 , and related schedule, which reports appear in the 1996
annual report on Form 10-K of American Power Conversion
Corporation, and to the reference to our firm under the heading
"Experts" in the Registration Statement.
(signed) KPMG Peat Marwick LLP
Providence, Rhode Island
April 22, 1997