1
Registration No.
-----------
As filed with the Securities and Exchange Commission on December 9, 1999
================================================================================
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
BRADY CORPORATION
(Exact name of registrant as specified in its charter)
WISCONSIN 39-0178960
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6555 West Good Hope Road
P.O. Box 571
Milwaukee, Wisconsin 53201-0571
(Address of Principal Executive Offices) (Zip Code)
-----------------
BRADY CORPORATION RESTORATION PLAN
(Full title of the plan)
-------------------
THOMAS E. SCHERER Copy to:
Vice President, Controller and Assistant Secretary CONRAD G. GOODKIND, ESQ.
Brady Corporation Quarles & Brady LLP
6555 West Good Hope Road 411 East Wisconsin Avenue
P.O. Box 571 Milwaukee, Wisconsin 53202
Milwaukee, Wisconsin 53201-0571
(Name and address of agent for service)
(414) 358-6600
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
- -------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED(1) REGISTERED PER SHARE OFFERING PRICE FEE
--------------------- ------------ --------- -------------- ---
Deferred Compensation Obligations $5,000,000 100% $5,000,000 $1,320
- -------------------------------------------------------------------------------------------------------------------
(1) The Deferred Compensation Obligations are unsecured obligations of
Brady Corporation to pay deferred compensation in the future in
accordance with the terms of the Brady Corporation Restoration Plan for
eligible employees.
================================================================================
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees 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 Brady Corporation ("Brady" or the
"Registrant") (Commission File No. 0-12730) with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, (the "1934 Act") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended July 31, 1999; and
(b) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the 1934 Act since the end of the fiscal
year covered by the Annual Report referred to in (a) above.
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.
Under the Brady Corporation Restoration Plan (the "Plan"), Brady will
provide eligible employees the opportunity to defer a specified percentage of
their compensation. The obligations of Brady for the amounts of compensation
deferred by eligible employees ("Participants") pursuant to the Plan will be
unsecured general obligations of Brady to pay the deferred compensation (plus
any net investment earnings attributable thereto) (the "Obligations") in the
future in accordance with the terms of the Plan and the Brady Corporation
Restoration Trust between Brady and PNC Bank, N.A., as trustee, dated as of
January 1, 2000 (the "Trust Agreement"). In the event of the insolvency of
Brady, the trust fund established under the Trust Agreement (the "Trust") shall
be subject to the claims of the general creditors of Brady. In such event, all
Participants and any Participant designated beneficiaries under the Plan shall
constitute unsecured general creditors of Brady with respect to amounts
otherwise payable thereunder and shall have no special or priority claim with
respect to the assets held in the Trust.
1
3
The amount of compensation to be deferred by a Participant will be
determined in accordance with the Plan based on elections by each Participant.
Each Obligation of a Participant will be payable 30 days following
the termination of that Participant's employment with Brady, subject to certain
earlier payments that may be made in the event of a Participant's financial
hardship. In addition, if a Participant dies before receiving payment of his or
her Obligations, the balance of any remaining Obligations of the Participant
will paid to the Participant's designated beneficiary within 30 days following
the Participant's death.
The Obligations will be indexed to one or more investment options
individually chosen by each Participant from a list of investment options
selected by the Plan administrator from time to time. Each Participant's
Obligation will be adjusted to reflect the investment experience, whether
positive or negative, of the selected investment options.
A Participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, transferred, pledged or
encumbered, and any attempt to do so will be void. Each Participant in the Plan
has the right to designate a beneficiary to receive the balance, if any, of the
Participant's Obligation at the time of the Participant's death and shall have
the right at any time to change such designation.
Except for distributions that may be made in connection with a
Participant's financial hardship, the Obligations are not subject to redemption,
in whole or in part, prior to the payment date specified in the Plan, at the
option of Brady or through operation of a mandatory or optional sinking fund or
analogous provision. However, Brady reserves the right to amend or terminate the
Plan at any time, except that no such amendment or termination shall adversely
affect the right of any Participant (or any beneficiary) to any amounts accrued
to him or her under the Plan prior to the date of such amendment or termination.
The Obligations are not convertible into another security of Brady. PNC
Bank, N.A. has been appointed as Trustee pursuant to the Trust Agreement to take
certain action with respect to the Obligations. Within 30 days following the end
of each calendar year, Brady is required to contribute the amount needed so that
the Trust has sufficient assets to pay all amounts due to Plan Participants or
beneficiaries as of that prior year end. The Trust is irrevocable. So long as
Brady remains solvent, assets of the Trust can be used only to make payments due
under the Plan to Participants and beneficiaries. However, as described above,
in the event of Brady's insolvency, assets of the Trust would be applied for the
benefit of Brady's general creditors. Trust assets will be invested by the
Trustee in investments which are intended to mirror the investment decisions of
Participants under the Plan, but the Plan administrator may direct the Trustee
to make different investments if it so chooses.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities registered hereunder will be passed on
for the Registrant by Quarles & Brady LLP, the Registrant's legal counsel. Peter
J. Lettenberger, a Director, and Conrad G. Goodkind, the Secretary, of the
Registrant, are partners of Quarles & Brady LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Brady Corporation is incorporated under the Wisconsin Business
Corporation Law ("WBCL").
Under Section 180.0851(1) of the WBCL, Brady is required to indemnify a
director or officer, to the extent such person is successful on the merits or
otherwise in the defense of a proceeding, for all reasonable expenses incurred
in the proceeding if such person was a party because he or she was a director or
officer
2
4
of Brady. In all other cases, Brady is required by Section 180.0851(2)
to indemnify a director or officer against liability incurred in a proceeding to
which such person was a party because he or she was a director or officer
of Brady, unless it is determined that he or she breached or failed to perform a
duty owed to Brady and the breach or failure to perform constitutes:
- A willful failure to deal fairly with Brady or its
shareholders in connection with a matter in which the director
or officer has a material conflict of interest;
- A violation of criminal law, unless the director or officer
had reasonable cause to believe his or her conduct was lawful
or no reasonable cause to believe his or her conduct was
unlawful;
- A transaction from which the director or officer derived an
improper personal profit; or
- Willful misconduct.
Section 180.0858 of the WBCL provides that, subject to certain limitations, the
mandatory indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under Brady's Articles of Incorporation, Bylaws, any written agreement between
the director or officer and Brady or a resolution of the Board of Directors or
shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of
the State of Wisconsin to require or permit indemnification, allowance of
expenses and insurance to the extent required or permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851 referred to above.
Brady's Bylaws generally provide for mandatory indemnification of
directors and officers of the Registrant to the fullest extent permitted by law.
Officers and directors of Brady may be covered by insurance policies
purchased by Brady, under which they are insured (subject to exceptions and
limitations specified in the policies) against expenses and liabilities arising
out of actions, suits or proceedings to which they are parties by reason of
being or having been directors or officers.
Under Section 180.0833 of the WBCL, directors of Brady against whom
claims are asserted with respect to the declaration of improper dividends or
distributions to shareholders or certain other improper acts which they approved
are entitled to contribution from other directors who approved such actions and
from shareholders who knowingly accepted an improper dividend or distribution.
3
5
ITEM 8. EXHIBITS.
See Exhibit Index following the 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 a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(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 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
4
6
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 described in
Item 6 of this 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 provisions referred to in Item 6, 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.
5
7
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 Milwaukee, State of Wisconsin, on December 6, 1999.
BRADY CORPORATION
By: /s/ F. M. Jaehnert
------------------------------------------
F. M. Jaehnert
Vice President and Chief Financial Officer
(Principal Accounting Officer)
(Principal Financial Officer)
--------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Katherine M. Hudson and Peter J.
Lettenberger, 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.
---------------------
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/ K. M. Hudson President and Director (Principal Executive Officer)
- ----------------------
K. M. Hudson
/s/ P. J. Lettenberger Director
- ----------------------
P. J. Lettenberger
S-1
8
/s/ R. A. Bemis Director
- ---------------------------------
R. A. Bemis
- --------------------------------- Director
F. W. Harris
/s/ R. C. Buchanan Director
- ---------------------------------
R. C. Buchanan
/s/ R. D. Peirce Director
- ---------------------------------
R. D. Peirce
/s/ G. E. Nei Director
- ---------------------------------
G. E. Nei
/s/ I. Helford Director
- ---------------------------------
I. Helford
- ----------------------
* Each of these signatures is affixed as of December 6, 1999.
S-2
9
BRADY CORPORATION
(Commission File No. 0-12730)
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT INCORPORATED HEREIN FILED
NUMBER DESCRIPTION BY REFERENCE TO HEREWITH
------ ----------- ----------------- --------
4 Brady Corporation Restoration Plan X
5 Opinion of Counsel X
23.1 Consent of Deloitte & Touche LLP X
23.2 Consent of Counsel Contained in
Opinion filed as
Exhibit 5
24 Powers of Attorney Signatures Page to
this Registration
Statement
99.1 Brady Corporation Restoration Trust X
EI-1