As filed with the Securities and Exchange Commission on July 26, 2013

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)

Individual Stock Option Agreement

(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)		Proposed maximum offering price per share(2)		Proposed maximum aggregate offering price(2)		Amount of registration fee
Common Stock, par value $0.33 1/3 per share		450,512 shares		$8.34		$3,757,270		$513

 

(1)

The number of shares being registered represents the shares to be offered and sold pursuant to the Stock Option Agreement, effective as of August 22, 2011, between Apogee Enterprises, Inc. and Joseph F. Puishys (the “Option Agreement”). Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers any additional shares of Apogee Enterprises, Inc. common stock that may become issuable according to anti-dilution provisions of the Option Agreement.

(2)	Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h)(1) under the Securities Act of 1933, as amended, based upon the option exercise price under the Option Agreement.

 

 

 

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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 March 2, 2013;

 

(b)

Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 1, 2013;

 

(c)

Our Current Reports on Form 8-K filed on May 6, 2013 and June 27, 2013; 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 (the “MBCA”) 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 of the MBCA 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 MBCA 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.

 

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 Annual Report on Form 10-K for the year ended March 3, 2012).
	4.4			Form of Option Agreement to be entered into by Apogee Enterprises, Inc. and Joseph F. Puishys on August 22, 2011 (incorporated by reference to Exhibit 10.3 to Apogee’s Current Report on Form 8-K filed on August 8, 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 26, 2013.

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on July 26, 2013.

 

Signature		Title
* Joseph F. Puishys		President and Chief Executive Officer and Director (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
* Donald A. Nolan		Director
* Richard V. Reynolds		Director
* David E. Weiss		Director

 

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*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 Annual Report on Form 10-K for the year ended March 3, 2012).
4.4		Form of Option Agreement to be entered into by Apogee Enterprises, Inc. and Joseph F. Puishys on August 22, 2011 (incorporated by reference to Exhibit 10.3 to Apogee’s Current Report on Form 8-K filed on August 8, 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 26, 2013

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 external legal 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 up to 450,512 shares of common stock, $.33 1/3 par value per share, of the Company (the “Shares”) issuable upon the exercise of options granted to Mr. Joseph F. Puishys pursuant to the Stock Option Agreement, effective as of August 22, 2011, between Apogee Enterprises, Inc. and Joseph F. Puishys (the “Stock Option Agreement”).

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 the Shares have been duly authorized and, upon issuance, delivery and payment therefor in accordance with the terms of the Stock Option Agreement, 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.

Very truly yours,

/s/ Dorsey & Whitney LLP

RAR

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 May 16, 2013, relating to the consolidated financial statements and financial statement schedule of Apogee Enterprises, Inc. and subsidiaries (the “Company”), 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 March 2, 2013.

/s/ Deloitte & Touche LLP

Minneapolis, Minnesota

July 26, 2013

Exhibit 24.1

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints 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 Stock Option Agreement, effective as of August 22, 2011, between Apogee Enterprises, Inc. and Joseph F. Puishys, 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 the dates set forth below:

 

Signature		Title		Date
/s/ Joseph F. Puishys Joseph F. Puishys		President and Chief Executive Officer and Director (principal executive officer)		July 22, 2013
/s/ James S. Porter James S. Porter		Chief Financial Officer (principal financial and accounting officer)		July 22, 2013
/s/ Bernard P. Aldrich Bernard P. Aldrich		Chairman		July 22, 2013
/s/ Jerome L. Davis Jerome L. Davis		Director		July 22, 2013
/s/ Sara L. Hays Sara L. Hays		Director		July 23, 2013
/s/ John T. Manning John T. Manning		Director		July 20, 2013
/s/ Robert J. Marzec Robert J. Marzec		Director		July 22, 2013

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/s/ Stephen C. Mitchell Stephen C. Mitchell		Director		July 23, 2013
/s/ Donald A. Nolan Donald A. Nolan		Director		July 22, 2013
/s/ Richard V. Reynolds Richard V. Reynolds		Director		July 23, 2013
/s/ David E. Weiss David E. Weiss		Director		July 24, 2013