As filed with the Securities and Exchange Commission on June 11, 1999.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-8
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 of (I.R.S. Employer
Identification No.)
Incorporation or Organization)
132 Fairgrounds Road, West Kingston, RI 02892
(Address of Principal Executive Offices)(Zip Code)
American Power Conversion Corporation 401(k) Plan
(Full Title of the Plan)
____________________
Rodger B. Dowdell, Jr.
President and Chief Executive Officer
132 Fairgrounds Road
West Kingston, RI 02892
(401) 789-5735
(Name, address including zip code and telephone number,
including area code, of agent for service)
____________________
Copy to:
William B. Simmons, Jr., Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount to be Offering Aggregate Amount of
Securities Registered Price Offering Registratio
to be Per Share Price n Fee
Registered
Common 370,000 $19.78(2) $7,318,600 $2,034.57
Stock, $.01 shares (1)
par value
Participant Indeterminate(3) N/A (4) N/A (4) $0 (4)
Interests
in the Plan
_______________________________________________
(1) The amount of shares registered hereunder is based upon an estimate of
the number of shares of common stock, $.01 par value per share ("Common Stock"),
to be issued pursuant to the American Power Conversion Corporation 401(k) Plan
(the "Plan"). In addition, pursuant to Rule 416, there are also being
registered such additional shares of Common Stock, as may become issuable
pursuant to stock splits, stock dividends or similar events.
(2) The price of $19.78 per share, which is the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market System on
June 9, 1999, is set forth solely for the purposes of calculating the filing fee
pursuant to Rules 457(c) and (h).
(3) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended
(the "Act"), this Registration Statement also covers an indeterminate amount of
interests offered or sold pursuant to the employee benefit plan described
herein, such interests constituting separate securities required to be
registered under the Act.
(4) Pursuant to Rule 457(h)(2) under the Act this Registration Statement
covers an indeterminate amount of plan interests to be registered not requiring
a separate registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by American Power Conversion Corporation (the
"Registrant") with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated in this Registration
Statement by reference as of their respective dates:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 28, 1999; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under Section
12(g) of the Exchange Act on August 29, 1988.
All documents subsequently filed with the Commission by the Registrant or
the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered herein 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.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. 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,
as amended and restated, 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, as amended and restated, filed as Exhibit 3.02 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998
(File No. 1-12432).
The Company maintains director and officers liability insurance for the
benefit of its directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
4.1 Articles of Organization of the Registrant, as amended
(previously filed as Exhibit 3.01 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1994 and incorporated herein by reference (File No. 1-
12432)).
4.2 By-Laws of Registrant, as amended and restated (previously
filed as Exhibit 3.02 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 and
incorporated herein by reference (File No. 1-12432)).
8.1 Tax Opinion not required. The Registrant hereby undertakes
to submit the Plan to the Internal Revenue Service ("IRS")
in order to receive a determination letter that the Plan is
qualified under Section 401 of the Internal Revenue Code, as
amended, and will submit any amendments to the Plan to the
IRS in a timely manner, and will make all changes required
by the IRS in order to qualify, or continue the
qualification of, the Plan.
23.1 Consent of KPMG LLP
24.1 Power of Attorney (contained in page 8 of this Registration
Statement).
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; 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 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 Commission 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 (and, where applicable, 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.
(c) 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
The Registrant. 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 West Kingston, state of Rhode Island, on this
7th day of May, 1999.
AMERICAN POWER CONVERSION CORPORATION
By: /s/ Rodger B. Dowdell, Jr.
Rodger B. Dowdell, Jr.,
President and Chief Executive Officer
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees or other persons who administer the employee benefit plan have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of West Kingston and the
state of Rhode Island, on this 7th day of May, 1999.
AMERICAN POWER CONVERSION CORPORATION
401(k) PLAN
By: American Power Conversion Corporation,
as Plan Administrator
By: /s/ Donald M. Muir
Donald M. Muir,
Chief Financial Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of American Power Conversion
Corporation, hereby severally constitute and appoint Rodger B. Dowdell, Jr. and
Donald Muir, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, all pre-effective and post-effective amendments to
this registration statement, and generally do all things in our names and on our
behalf in such capacities to enable American Power Conversion Corporation to
comply with the provisions of the Securities Act of 1933 and all requirements of
the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
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, President and Chief Executive May 7, 1999
Jr. Officer
Rodger B. Dowdell, Jr. (Principal Executive Officer)
/s/ Donald M. Muir Chief Financial Officer (Principal May 7, 1999
Donald M. Muir Financial and Accounting Officer)
/s/ Emanuel E. Landsman Vice President, Clerk and Director May 7, 1999
Emanuel E. Landsman
/s/ Neil E. Rasmussen Vice President and Director May 7, 1999
Neil E. Rasmussen
/s/ Ervin F. Lyon Director May 7, 1999
Ervin F. Lyon
/s/ James D. Gerson Director May 7, 1999
James D. Gerson
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Articles of Organization of the Registrant, as amended
(previously filed as Exhibit 3.01 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1994 and incorporated herein by reference (File No. 1-
12432)).
4.2 By-Laws of Registrant, as amended and restated (previously
filed as Exhibit 3.02 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 and
incorporated herein by reference (File No. 1-12432)).
8.1 Tax Opinion not required. The Registrant hereby undertakes
to submit the Plan to the Internal Revenue Service ("IRS")
in order to receive a determination letter that the Plan is
qualified under Section 401 of the Internal Revenue Code, as
amended, and will submit any amendments to the Plan to the
IRS in a timely manner, and will make all changes required
by the IRS in order to qualify, or continue the
qualification of, the Plan.
23.1 Consent of KPMG LLP
24.1 Power of Attorney (contained in page 8 of this Registration
Statement).
<PAGE.
Exhibit 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
American Power Conversion Corporation
We consent to incorporation by reference in this registration statement on
Form S-8 of American Power Conversion Corporation for the registration of
370,000 shares of Common Stock for the American Power Conversion Corporation
401(k) Plan of our reports dated February 4, 1999, relating to the
consolidated balance sheets of American Power Conversion Corporation as of
December 31, 1998, and 1997, and the related consolidated statements of
income, changes in stockholders' equity, and cash flows for each of the years
in the three-year period ended December 31, 1998, and the related schedule,
which reports appear in the December 31, 1998, annual report on Form 10-K of
American Power Conversion Corporation.
KPMG LLP
Providence Rhode Island
June 9, 1999