As filed with the Securities and Exchange Commission on July 8, 2011

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

APOGEE ENTERPRISES, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Minnesota		41-0919654
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

4400 West 78th Street - Suite 520

Minneapolis, Minnesota 55435

(Address of principal executive offices, including zip code)

 

 

APOGEE ENTERPRISES, INC. 2009 STOCK INCENTIVE PLAN

APOGEE ENTERPRISES, INC. 2009 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN

(Full title of the plans)

 

 

Patricia A. Beithon, Esq.

General Counsel and Secretary

Apogee Enterprises, Inc.

4400 West 78th Street - Suite 520

Minneapolis, Minnesota 55435

(952) 835-1874

(Name, address and telephone number, including area code, of agent for service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		¨		Accelerated filer		x
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be registered(1)(2)		Proposed maximum offering price per share(3)		Proposed maximum aggregate offering price(3)		Amount of registration fee
Common Stock, par value $0.33 1/3 per share(4)		588,000 shares		$13.025		$7,658,700		$890

 

(1)

The number of shares being registered represents the aggregate number of shares of common stock of Apogee Enterprises, Inc. that may be offered or issued under the Apogee Enterprises, Inc. 2009 Stock Incentive Plan, as amended and restated (2011) (the “2009 Incentive Plan”) and the Apogee Enterprises, Inc. 2009 Non-Employee Director Stock Incentive Plan, as amended and restated (2011) (the “2009 Director Plan” and, together with the 2009 Incentive Plan, the “Plans”) as follows: 488,000 shares under the 2009 Incentive Plan and 100,000 shares under the 2009 Director Plan.

(2)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement also covers any additional shares of Apogee Enterprises, Inc. common stock that may be offered or issued under the Plans to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(3)

Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h)(1) and (c) under the Securities Act of 1933, as amended. The proposed maximum offering price is based on the average of the high and low prices of Apogee Enterprises, Inc. common stock as reported on the NASDAQ Stock Market LLC on July 6, 2011.

(4)

Includes corresponding rights to acquire shares of Apogee Enterprises, Inc. preferred stock pursuant to the Amended and Restated Rights Agreement, dated November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York, as amended from time to time, or any successor rights agreement of Apogee Enterprises, Inc.

 

 

 

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents, which have been filed with the Securities and Exchange Commission (the “SEC”) by Apogee Enterprises, Inc. (“we,” “us” or “Apogee”), are incorporated by reference in this registration statement:

 

(a)

Our Annual Report on Form 10-K for the fiscal year ended February 26, 2011;

 

(b)

Our Quarterly Report on Form 10-Q for the fiscal quarter ended May 28, 2011;

 

(c)

Our Current Reports on Form 8-K filed on January 20, 2011 (as amended), March 3, 2011, March 17, 2011, April 27, 2011, May 2, 2011 and June 28, 2011; and

 

(d)

The description of our common stock and preferred stock purchase rights contained in any registration statement or report filed by us under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such documents.

 

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 521 of the Minnesota Business Corporation Act provides that a company shall, subject to certain limitations, indemnify officers and directors made or threatened to be made a party to a proceeding by reason of that officer or director’s former or present official capacity with the company. As required, we will indemnify that person against judgments, penalties, fines, settlements and reasonable expenses if the officer or director:

 

•

has not been indemnified by another organization;

 

•

acted in good faith;

 

•

has not received an improper personal benefit and Section 255 regarding director conflicts of interests, if applicable, has been satisfied;

 

•

assuming the case is a criminal proceeding, the person had no reasonable cause to believe the conduct was unlawful; and

 

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•

reasonably believed that the conduct was in the best interests of the company or, in the case of an officer or director who is or was serving at the request of the company as a director, officer, partner, trustee, employee or agent of another organization or employee benefit plan, reasonably believed that the conduct was not opposed to the best interests of the company.

Article VII of our Amended and Restated Bylaws, as amended, provides that we shall indemnify our officers and directors under such circumstances and to the extent permitted by Section 521 of the Minnesota Business Corporation Act described above.

We maintain directors’ and officers’ liability insurance which covers certain liabilities and expenses of our directors and officers and covers Apogee for reimbursement of payments to our directors and officers in respect of such liabilities and expenses.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

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Item 8.

Exhibits.

 

4.1		Restated Articles of Incorporation of Apogee Enterprises, Inc. (incorporated by reference to Exhibit 3.1 to Apogee’s Annual Report on Form 10-K for the year ended February 28, 2004).
4.2		Amended and Restated Bylaws of Apogee Enterprises, Inc., as amended through January 24, 2006 (incorporated by reference to Exhibit 3.1 to Apogee’s Current Report on Form 8-K filed on January 30, 2006).
4.3		Specimen certificate for shares of common stock of Apogee Enterprises, Inc. (incorporated by reference to Exhibit 4.1 to Apogee’s Quarterly Report on Form 10-Q for the quarter ended May 28, 2011).
4.4		Amended and Restated Rights Agreement dated November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York (incorporated by reference to Exhibit 1 to Apogee’s Form 8-A/A filed on November 30, 2001).
4.5		Amendment No. 1, dated as of June 24, 2010, to Amended and Restated Rights Agreement, dated as of November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York Mellon f/k/a The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 4.1 to Apogee’s Current Report on Form 8-K filed on June 25, 2010).
4.6		Amendment No. 2, dated as of April 25, 2011, to Amended and Restated Rights Agreement, dated as of November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York Mellon f/k/a The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 4.1 to Apogee’s Current Report on Form 8-K filed on April 27, 2011).
4.7		Apogee Enterprises, Inc. 2009 Stock Incentive Plan, as amended and restated (2011) (incorporated by reference to Exhibit 10.1 to Apogee’s Current Report on Form 8-K filed on June 28, 2011).
4.8		Apogee Enterprises, Inc. 2009 Non-Employee Director Stock Incentive Plan, as amended and restated (2011) (incorporated by reference to Exhibit 10.2 to Apogee’s Current Report on Form 8-K filed on June 28, 2011).
5.1		Opinion of Dorsey & Whitney LLP.
23.1		Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
23.2		Consent of Independent Registered Public Accounting Firm.
24.1		Power of Attorney.

 

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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, as amended (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 SEC 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) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference 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 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, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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 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 SEC 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, 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 Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act, 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 Minneapolis, State of Minnesota, on July 8, 2011.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on July 8, 2011.

 

Signature						Title
* Russell Huffer						President and Chief Executive Officer (principal executive officer)
* James S. Porter						Chief Financial Officer (principal financial and accounting officer)
* Bernard P. Aldrich						Chairman
* Jerome L. Davis						Director
* Sara L. Hays						Director
* John T. Manning						Director
* Robert J. Marzec						Director
* Stephen C. Mitchell						Director
* Richard V. Reynolds						Director
* David E. Weiss						Director
*By:		/s/ Patricia A. Beithon
		Patricia A. Beithon Attorney-in-Fact

 

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Restated Articles of Incorporation of Apogee Enterprises, Inc. (incorporated by reference to Exhibit 3.1 to Apogee’s Annual Report on Form 10-K for the year ended February 28, 2004).
4.2		Amended and Restated Bylaws of Apogee Enterprises, Inc., as amended through January 24, 2006 (incorporated by reference to Exhibit 3.1 to Apogee’s Current Report on Form 8-K filed on January 30, 2006).
4.3		Specimen certificate for shares of common stock of Apogee Enterprises, Inc. (incorporated by reference to Exhibit 4.1 to Apogee’s Quarterly Report on Form 10-Q for the quarter ended May 28, 2011).
4.4		Amended and Restated Rights Agreement dated November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York (incorporated by reference to Exhibit 1 to Apogee’s Form 8-A/A filed on November 30, 2001).
4.5		Amendment No. 1, dated as of June 24, 2010, to Amended and Restated Rights Agreement, dated as of November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York Mellon f/k/a The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 4.1 to Apogee’s Current Report on Form 8-K filed on June 25, 2010).
4.6		Amendment No. 2, dated as of April 25, 2011, to Amended and Restated Rights Agreement, dated as of November 12, 2001, between Apogee Enterprises, Inc. and The Bank of New York Mellon f/k/a The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 4.1 to Apogee’s Current Report on Form 8-K filed on April 27, 2011).
4.7		Apogee Enterprises, Inc. 2009 Stock Incentive Plan, as amended and restated (2011) (incorporated by reference to Exhibit 10.1 to Apogee’s Current Report on Form 8-K filed on June 28, 2011).
4.8		Apogee Enterprises, Inc. 2009 Non-Employee Director Stock Incentive Plan, as amended and restated (2011) (incorporated by reference to Exhibit 10.2 to Apogee’s Current Report on Form 8-K filed on June 28, 2011).
5.1		Opinion of Dorsey & Whitney LLP.
23.1		Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
23.2		Consent of Independent Registered Public Accounting Firm.
24.1		Power of Attorney.

Exhibit 5.1

[Dorsey & Whitney LLP Letterhead]

July 7, 2011

Apogee Enterprises, Inc.

4400 West 78th Street - Suite 520

Minneapolis, Minnesota 55435

 

Re:

Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Apogee Enterprises, Inc., a Minnesota corporation (the “Company”), in connection with a Registration Statement on Form S-8 (the “Registration Statement”) relating to the registration of the offer and sale by the Company of (i) up to 488,000 shares (the “2009 Incentive Plan Shares”) of common stock, $.33 1/3 par value per share, of the Company (the “Common Stock”) pursuant to awards granted under the Apogee Enterprises, Inc. 2009 Stock Incentive Plan, as amended and restated (2011) (the “2009 Incentive Plan”) and (ii) up to 100,000 shares (the “2009 Director Plan Shares”) of Common Stock pursuant to the Apogee Enterprises, Inc. 2009 Non-Employee Director Stock Incentive Plan, as amended and restated (2011) (the “2009 Director Plan”).

We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of the opinions set forth below. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials.

Based on the foregoing, we are of the opinion that (i) the 2009 Incentive Plan Shares have been duly authorized and, upon issuance, delivery and payment therefor in accordance with the terms of the 2009 Incentive Plan and any relevant agreements thereunder, will be validly issued, fully paid and nonassessable and (ii) the 2009 Director Plan Shares have been duly authorized and, upon issuance, delivery and payment therefor in accordance with the terms of the 2009 Director Plan and any relevant agreements thereunder, will be validly issued, fully paid and nonassessable.

Our opinions expressed above are limited to the laws of the State of Minnesota.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.

 

ALS

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated April 27, 2011, relating to the consolidated financial statements and financial statement schedule of Apogee Enterprises, Inc. and subsidiaries (the “Company”) (which report expresses an unqualified opinion) and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended February 26, 2011.

/s/ Deloitte & Touche LLP

Minneapolis, Minnesota

July 7, 2011

Exhibit 24.1

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Russell Huffer, James S. Porter and Patricia A. Beithon, and each of them, the undersigned’s true and lawful attorneys-in-fact and agents, each acting alone, with the powers of substitution and revocation, for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign one or more Registration Statements on Form S-8, and any and all amendments (including post-effective amendments) thereto, relating to the issuance of shares of common stock of Apogee Enterprises, Inc. pursuant to the Apogee Enterprises, Inc. 2009 Stock Incentive Plan, as amended and restated (2011), and the Apogee Enterprises, Inc. 2009 Non-Employee Director Stock Incentive Plan, as amended and restated (2011), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and with such state commissions and other agencies as necessary, granting unto such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents, or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, this Power of Attorney has been signed by the following persons as of dates set forth below:

 

Signature				Title				Date
/s/ Russell Huffer Russell Huffer				President and Chief Executive Officer (principal executive officer)				June 27, 2011
/s/ James S. Porter James S. Porter				Chief Financial Officer (principal financial and accounting officer)				June 27, 2011
/s/ Bernard P. Aldrich Bernard P. Aldrich				Chairman				July 5, 2011
/s/ Jerome L. Davis Jerome L. Davis				Director				July 7, 2011
/s/ Sara L. Hays Sara L. Hays				Director				June 28, 2011
/s/ John T. Manning John T. Manning				Director				June 29, 2011
/s/ Robert J. Marzec Robert J. Marzec				Director				June 28, 2011

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/s/ Stephen C. Mitchell Stephen C. Mitchell				Director				June 29, 2011
/s/ Richard V. Reynolds Richard V. Reynolds				Director				June 29, 2011
/s/ David E. Weiss David E. Weiss				Director				July 6, 2011