AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 16, 1998
REGISTRATION NO. 333-57609
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GROVE HOLDINGS LLC GROVE HOLDINGS CAPITAL, INC.
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
6719 6799
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
52-2089467 52-2090024
(I.R.S. Employer Identification (I.R.S. Employer Identification
Number) Number)
201 MAIN STREET, SUITE 3200 1565 BUCHANAN TRAIL EAST
FORT WORTH, TEXAS 76102 SHADY GROVE, PENNSYLVANIA 17256
(817) 390-8500 (717) 597-8121
(Address, including zip code, and (Address, including zip code, and
telephone number, including area telephone number, including area
code, of registrant's principal code, of registrant's principal
executive offices) executive offices)
SALVATORE J. BONANNO
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GROVE HOLDINGS LLC
1565 BUCHANAN TRAIL EAST
SHADY GROVE, PENNSYLVANIA 17256
(717) 597-8121
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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WITH A COPY TO:
MARK S. BERGMAN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 373-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the Securities registered on this Form are to be offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. / /_____
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THE REGISTRANTS HEREBY AMEND 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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 18-108 of the Delaware Limited Liability Company Act, as amended
(the "Act"), grants a Delaware limited liability company the power, subject to
such standards and restrictions, if any, as are set forth in its limited
liability company agreement to indemnify and hold harmless any member or manager
or other person from and against any and all claims and demands whatsoever.
Section 6.1 of the Grove Holdings LLC ("Holdings") Amended and Restated
Limited Liability Company Agreement (the "Operating Agreement") provides that a
member shall not be personally liable for any debt, obligation or other
liability of Holdings, whether arising in contract, tort or otherwise, except
that a member shall remain personally liable for the payment of any capital
contributions required by Article III regarding distributions to the members,
and as otherwise provided in the Operating Agreement, the Act and any other
applicable law. Section 6.2 of the Operating Agreement provides that any
affiliate of a member, and any officer, director, shareholder, partner, member,
employee or agent of a member or any affiliate thereof, and any officer,
employee or expressly authorized agent of Holdings or its affiliates is a
"Covered Person." No Covered Person shall be liable to Holdings or any other
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
Holdings and in a manner reasonably believed to be within the scope of authority
conferred on such Covered Person by the Operating Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct. A
Covered Person shall be fully protected in relying in good faith upon the
records of Holdings and upon such information, opinions, reports or statements
presented to Holdings by any person as to matters the Covered Person reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of Holdings,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which distributions to s might
properly be paid.
Section 145 of the Delaware General Corporation Law (the "DGCL") grants a
Delaware corporation the power to indemnify any director, officer, employee or
agent against reasonable expenses (including attorneys' fees) incurred by him in
connection with any proceeding brought by or on behalf of the corporation and
against judgments, fines, settlements and reasonable expenses (including
attorneys' fees) incurred by him in connection with any other proceeding, if (a)
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and (b) in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. Except as ordered by a court, however, no indemnification is to be
made in connection with any proceeding brought by or in the right of the
corporation where the person involved is adjudged to be liable to the
corporation.
Section 8 of the Grove Holdings Capital, Inc. ("Grove Holdings Capital")
certificate of incorporation and Article 8 of Grove Holdings Capital's by-laws
provide that Grove Holdings Capital shall to the extent not prohibited by law,
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of Grove Holdings
Capital to procure a judgment in its favor, by reason of the fact that such
person, or a person of whom such person is the legal representative, is or was a
director or officer of Grove Holdings Capital, or, at the request of Grove
Holdings Capital, is or was serving as a director or officer of any other
corporation or in a capacity with comparable authority or responsibilities for
any partnership, joint venture, trust, employee benefit plan or other enterprise
(an "Other Entity"), against judgments, fines, penalties, excise taxes,
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amounts paid in settlement and costs, charges and expenses (including attorneys'
fees, disbursements and other charges). Persons who are not directors or
officers of Grove Holdings Capital (or otherwise entitled to indemnification
pursuant to the preceding sentence) may be similarly indemnified in respect of
service to Grove Holdings Capital or to an Other Entity at the request of Grove
Holdings Capital to the extent the board of directors of Grove Holdings Capital
at any time specifies that such persons are entitled to the benefits of this
Article 8.
Section 102(b)(7) of the DGCL permits the elimination or limitation of
directors' personal liability to the corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director except for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law, (iii) breaches under section 174 of the DGCL,
which relate to unlawful payments of dividends or unlawful stock repurchase or
redemptions, and (iv) any transaction from which the director derived an
improper personal benefit.
Section 7 of Grove Holdings Capital's certificate of incorporation limits
the personal liability of directors of the company to the fullest extent
permitted by paragraph (7) of subsection (b) of section 102 of the DGCL.
The Directors' and Officers' Liability and Reimbursement Insurance Policy
covering Holdings and Grove Holdings Capital is designed to reimburse Holdings
and Grove Holdings Capital for any payments made by them pursuant to the
foregoing indemnification. Such policy has aggregate coverage of $10.0 million.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Holdings and
Grove Holdings Capital pursuant to the foregoing provisions, Holdings and Grove
Holdings Capital have been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Pursuant to Section 8 of the Registration Rights Agreement dated April 29,
1998 between the Holding, Grove Holdings Capital and Donaldson, Lufkin &
Jenrette Securities Corporation and Chase Securities Inc. (the "Initial
Purchasers") (the "Registration Rights Agreement"), the holders of the
Debentures have agreed to indemnify Holdings and Grove Holdings Capital and
their directors and controlling persons against any losses, claims, damages,
liabilities or expenses that may arise out of an untrue statement or alleged
untrue statement of or omission to state a material fact, contained in the
registration statement or prospectus, but only with reference to information
relating to such holder furnished in writing to Holdings and Grove Holdings
Capital.
The Purchase Agreement dated as of April 29, 1998, by and among Holdings,
Grove Holdings Capital and Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") and Chase Securities Inc. ("Chase Securities," together with DLJ, the
"Initial Purchasers"), contains provisions by which the Initial Purchasers agree
to indemnify Holdings and Grove Holdings Capital and their respective directors,
officers and controlling persons against any losses, claims, damages,
liabilities or expenses that may arise out of an untrue statement or alleged
untrue statement of or omission to state a material fact, contained in the
registration statement or prospectus, but only with reference to information
relating to such holder furnished in writing to Holdings and Grove Holdings
Capital.
Section 10.07 of the Indenture dated as of April 29, 1998, by and among
Holdings, Grove Holdings Capital and the United States Trust Company of New York
provides that the holders of the Debentures have agreed to waive all liability
for any obligations incurred by Holdings and Grove Holdings Capital under the
Debentures or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation, against any incorporator, member,
director, officer, employee or stockholder, as such, of Holdings and Grove
Holdings Capital, and have agreed to the release of such persons from any such
liability.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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1.1* Purchase Agreement dated as of April 29, 1998, by and among Holdings and Grove Holdings Capital and
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") and Chase Securities Inc. ("Chase
Securities," together with DLJ, the "Initial Purchasers").
3.1* Amended and Restated Limited Liability Company Agreement of Holdings.
3.2* Articles of Incorporation of Grove Holdings Capital.
3.3* By-laws of Grove Holdings Capital.
4.1* Indenture dated as of April 29, 1998, by and among Holdings and Grove Holdings Capital and the United
States Trust Company of New York (the "Indenture").
4.2* Form of 11 5/8% Senior Discount Debentures due 2009 (see Exhibit A of the Indenture).
4.3 Form of new 11 5/8% Senior Discount Debentures due 2009.
4.4* Registration Rights Agreement dated as of April 29, 1998, by and among Holdings and Grove Holdings
Capital and the Initial Purchasers.
4.5* Credit Agreement dated April 29, 1998, by and among Grove Worldwide LLC, Grove Capital, Inc. and
Chase Bank of Texas, National Association, as administrative agent, Donaldson, Lufkin & Jenrette
Securities Corporation, as documentation agent, and BankBoston, N.A., as syndication agent.
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to validity of the Debentures.
8.1* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to certain federal income tax matters.
10.1* Stock and Asset Purchase Agreement, dated March 10, 1998 (the "Acquisition Agreement"), by and among
Grove Worldwide LLC and Hanson Funding (G) Limited, Deutsche Grove Corporation, Hanson America
Holdings (4) Ltd., Grove France SA, Kidde Industries, Inc. and Hanson Finance PLC (collectively, the
"Sellers")
10.2* Amendment to the Acquisition Agreement, dated April 29, 1998, by and among Grove Worldwide LLC and
the Sellers.
10.3* George Group Consulting Agreement dated as of April 29, 1998 by and between Grove Worldwide LLC and
George Group Inc.
10.4* Employment Agreement dated as of March 5, 1998 by and between Grove Worldwide LLC and Salvatore J.
Bonanno.
10.5* Change of Control Agreement dated July 24, 1997 by and between Grove Worldwide and James A. Kolinski.
10.6* Change of Control Agreement dated July 24, 1997 by and between Grove Worldwide and Joseph A. Shull.
10.7* Change of Control Agreement dated July 24, 1997 by and between Grove Worldwide and Robert J. Sliwa.
10.8* Change of Control Agreement dated July 24, 1997 by and between Grove Worldwide and Keith R. Simmons.
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
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10.9* Change of Control Agreement dated July 24, 1997 by and between Grove Worldwide and Theodore J.
Urbanek.
10.10* Change of Control Agreement dated July 24, 1997 by and between Grove Worldwide LLC and G. Fred
Heidinger
10.11* Grove Investors LLC Management Option Plan.
10.12* Grove Worldwide LLC Short-Term Incentive Plan.
10.13* Guarantee and Collateral Agreement by Grove Holdings LLC, Grove Worldwide LLC, Grove Capital, Inc.
and certain of their subsidiaries in favor of Chase Bank of Texas, National Association, as
administrative agent.
10.14* Software License and Support Agreement, dated June 29, 1996, between Baan U.S.A. Inc. and Grove North
America, Division of Kidde Industries, Inc., ans amended by Addendum No. One, dated June 29, 1996.
10.15* Professional Services Agreement, dated June 26, 1996, between Baan U.S.A. Inc. and Grove North
America, Division of Kidde Industries, Inc., ans amended by Addendum No. One, dated June 29, 1996.
10.16* Consent Letter, dated April 27, 1998 from Grove Worldwide LLC to Baan U.S.A. Inc.
12.1* Statement of Computation of Ratios of Earnings to Fixed Charges.
21.1* Subsidiaries of Holdings.
23.1* Consent of Price Waterhouse LLP.
23.2* Consent of Ernst & Young LLP.
23.3* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in the opinions filed as Exhibits 5.1
and 8.1 of this Registration Statement).
24.1* Powers of Attorney (contained on signature pages).
25.1 Form T-1 Statement of Eligibility of the United States Trust Company of New York to act as trustee
under the Indenture.
27.1* Financial Data Schedule
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Guidelines for Certification of Taxpayer Identification Number of Substitute Form W-9
99.4 Form of Securities Dealers, Commercial Banks, Trust Companies and Other Nominees Letter
99.5 Form of Client Letter
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* Previously filed.
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(B) FINANCIAL STATEMENTS SCHEDULE
S-1 VALUATION AND QUALIFYING ACCOUNTS
ITEM 22. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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, officers 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 registrants 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 and will be governed by
the final adjudication of such issue.
The undersigned registrants hereby undertake:
(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;
(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 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;
(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;
(2) That, for the purpose of determining any liability under the Securities
Act, 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 post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering;
(4) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the Issuers undertake that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other Items of the applicable form;
(5) That every prospectus (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act of 1933 and is used in
II-5
connection with an offering of securities subject to Rule 415, will be filed as
part of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes 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;
(6) To respond to requests for information that is incorporated by reference
into the prospectus pursuant to Item 4, 10(b), 11 or 13 of Form S-4, within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of this
Registration Statement through the date of responding to the request; and
(7) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
II-6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, GROVE HOLDINGS LLC HAS
DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW
YORK, STATE OF NEW YORK, ON JULY 16TH, 1998.
GROVE HOLDINGS LLC
By: /s/ SALVATORE J. BONANNO
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Salvatore J. Bonanno
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS AMENDMENT NO. 1 TO
THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON
BEHALF OF THE REGISTRANT AND IN THE CAPACITIES INDICATED, ON JULY 16TH, 1998.
SIGNATURES TITLE
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Chairman and Chief
Executive Officer and
/s/ SALVATORE J. BONANNO Member (Principal
- ------------------------------ Executive Officer,
Salvatore J. Bonanno Principal Financial
Officer and and Principal
Accounting Officer)
* Member
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J Taylor Crandall
* Member
- ------------------------------
Michael L. George
* Member
- ------------------------------
Gerard Grinstein
* Member
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Steven B. Gruber
* Member
- ------------------------------
Robert B. Henske
* Member
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Gerard E. Holthaus
* Member
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Anthony P. Scotto
*By: /s/ SALVATORE J.
BONANNO
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Salvatore J. Bonanno
Attorney-in-fact
II-7
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, GROVE HOLDINGS CAPITAL,
INC. HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF NEW YORK, STATE OF NEW YORK, ON JULY 16TH, 1998.
GROVE HOLDINGS CAPITAL, INC.
BY /S/ SALVATORE J. BONANNO
-----------------------------------------
Salvatore J. Bonanno
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS AMENDMENT NO. 1 TO
THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON
BEHALF OF THE REGISTRANT AND IN THE CAPACITIES INDICATED, ON JULY 16TH, 1998.
SIGNATURES TITLE
- ------------------------------ ---------------------------
Chairman and Chief
Executive Officer and
/s/ SALVATORE J. BONANNO Member (Principal
- ------------------------------ Executive Officer,
Salvatore J. Bonanno Principal Financial
Officer and and Principal
Accounting Officer)
* Director
- ------------------------------
Robert B. Henske
/s/ SALVATORE J. BONANNO Director
- ------------------------------
Salvatore J. Bonanno
* Director
- ------------------------------
Anthony P. Scotto
*By: /s/ SALVATORE J.
BONANNO
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Salvatore J. Bonanno
Attorney-in-fact
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