As filed with the Securities and Exchange Commission on April 24, 2017
Registration No. 333-217382
UNITED STATES
FORM S-3
REGISTRATION STATEMENT
COLUMBUS McKINNON CORPORATION
New York | 16-0547600 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
205 Crosspoint Parkway
(Address, including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Alan S. Korman
(716) 689-5400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please send copies of all communications to:
Robert J. Olivieri, Esq.
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:
oIf any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, 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, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
oIf this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) 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. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
oIf this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
oIndicate 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 | |
Non-accelerated filer o | Smaller reporting company o | |
(Do not check if a smaller reporting company) | ||
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered(1) | Amount to be Registered(1) | Proposed Maximum Aggregate Price Per Unit(1)(2) | Proposed Maximum Aggregate Offering Price(1)(2) | Amount of Registration Fee(3) | ||||||||
Common Stock, par value $.01 | ||||||||||||
Preferred Stock, par value $1.00 | ||||||||||||
Debt Securities | ||||||||||||
Warrants | ||||||||||||
Rights(4) | ||||||||||||
Stock Purchase Contracts | ||||||||||||
Units of the Securities listed above | ||||||||||||
Guarantees of Debt Securities by the Subsidiary Guarantors(5)(6) | ||||||||||||
Total Registration Fee | $ | 300,000,000 | $ | 36,360 |
Title of Each Class of Securities to be Registered | Amount to be Registered | Proposed Maximum Aggregate Price Per Unit(1) | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee(2) |
Common Stock, par value $.01(3) | 2,273,000 | $24.785 | $56,336,305 | $6,530 |
(Footnote reference on next page)
(Continued from previousn page)
(1) | An indeterminate number of or aggregate principal amount of shares of common stock, preferred stock, warrants, rights, stock purchase contracts, debt securities and units consisting of such securities of the registrant, as shall have an aggregate initial offering price not to exceed $300,000,000 as may from time to time be issued at an indeterminate price. This registration statement also relates to an indeterminate number of shares of the registrant’s common stock that may be issued upon stock splits, stock dividends or similar transactions in accordance with Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”). If any debt securities are issued at an original issue discount, then the debt securities registered shall include such additional debt securities as may be necessary such that the aggregate initial public offering price of all securities issued pursuant to this registration statement will equal $300,000,000. The securities registered also include such indeterminate amounts and numbers of common stock, preferred stock, warrants, rights, stock purchase contracts, debt securities and units as may be issued upon conversion of or exchange for debt securities that provide for such conversion or exchange. |
(2) | Not specified as to each class of securities pursuant to General Instruction II.D to Form S-3 under the Securities Act. |
(3) | Estimated solely for the purpose of |
(4) | Rights evidencing the right to purchase Columbus McKinnon Corporation common stock, preferred stock, warrants, stock purchase contracts, units or debt securities. |
(5) | No separate consideration will be received for the guarantees by the Subsidiary Guarantors of the debt securities of Columbus McKinnon Corporation. Pursuant to Rule |
(6) | |
The registrant hereby amends 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 this Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
Table of Registrant Guarantors(1)
Name(1) | State or other jurisdiction of incorporation or organization | IRS Employer Identification Number |
Magnetek, Inc. | Delaware | 95-3917584 |
Unified Industries, Inc. | Michigan | 38-1429336 |
Yale Industrial Products, Inc. | Delaware | 71-0585582 |
(1) | The Subsidiary Guarantors may guarantee the debt securities issued hereunder and are co-registrants under this registration statement |
(2) | The address, including zip code, and telephone number, including area code, of each of the Registrant Guarantors principal executive office is 205 Crosspoint Parkway, Getzville, New York 14068, (716) 689-5400.. |
The information in this prospectus is not complete and may be changed. The selling shareholdersCompany may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 24, 2017
PROSPECTUS
COLUMBUS McKINNON CORPORATION
COMMON STOCK
We may sell from time to time by certain selling shareholdersin one or more offerings up to $300,000,000 in the aggregate of:
We may sell any combination of these securities, in one or more offerings, up to an aggregate offering price of 2,273,000 shares of common stock, par value $0.01 per share (the “common stock”), issued$300,000,000 on terms to the selling shareholders on January 30, 2017, pursuant to the Share Purchase Agreement (as defined herein), and the associated preferred share purchase rights. The selling shareholders may offer and sell shares of common stock in public or private transactions, or both. These sales may occur at fixed prices, at market prices prevailingbe determined at the time of sale, at prices related to prevailing market prices, or at negotiated prices.
This prospectus describes some of the shares of common stock through underwriters, broker dealers or agents, whogeneral terms that may receive compensation in the form of discounts, concessions or commissions from the selling shareholders, the purchasers of the shares of common stock, or both. See “Plan of Distribution” for a more complete description of the ways in which the shares of common stock may be sold. The names of any underwriters, dealers or agents,apply to these securities. We will provide the specific terms of the plan of distribution, any over-allotment option and any applicable underwriting discounts and commissions will be set forthsuch offering in a supplementone or more supplements to this prospectus.
We may sell the selling shareholdersecurities directly to you, through agents, underwriters and broker-dealers that we select. If we use agents, underwriters or broker-dealers to sell the terms of the shares being offered.
Our common stock is listed on the NASDAQ Global Select Market under the symbol “CMCO.” On April 21, 2017,May 17, 2019, the last reported sale price of our common stock on the NASDAQ Global Select Market was $25.44.
INVESTING IN OUR SECURITIES INVOLVES RISKS. YOU SHOULD CONSIDER CAREFULLY THE RISKS THAT WE HAVE DESCRIBED IN “RISK FACTORS” BEGINNING ON PAGE 12 BEFORE DECIDING WHETHER TO INVEST IN OUR COMMON STOCK.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is .
TABLE OF CONTENTS
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The distribution of this prospectus may be restricted by law in certain jurisdictions. You should inform yourself about and observe any of these restrictions. This prospectus does not constitute, and may not be used in connection with, an offer or solicitation by anyone in any jurisdiction in which the offer or solicitation is not authorized, or in which the person making the offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make the offer or solicitation.
We have not authorized anyone to provide you with any information or to make any representation that is different from, or in addition to, the information contained in this prospectus or any documents incorporated by reference in this prospectus. If anyone provides you with different, additional or inconsistent information, you should not rely on it. Unless the information specifically indicates that another date applies, you should not assume that the information contained in this prospectus, or the information contained in any document incorporated by reference in this prospectus, is accurate as of any date other than the date of each such document, as our business, financial condition, results of operations and prospects may have changed since that date.
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process or continuous offering process, which allows the selling shareholdersus to offer and sell any combination of the shares of our common stock coveredsecurities described in this prospectus in one or more offerings. The selling shareholdersUsing this prospectus, we may offer up to a total dollar amount of $300,000,000 of these securities.
The types of securities that we may offer and sell and seek offersfrom time to buy, shares of our time by this prospectus are:
This prospectus provides you with a general description of the common stock the selling shareholderssecurities we may offer. Each time the selling shareholderswe offer to sell shares of our common stocksecurities pursuant to this registration statement and the prospectus contained herein, we will to the extent required by law, provide a prospectus supplement that will contain specific information about the terms of that offering. AnyThat prospectus supplement may include additional risk factors about us and the terms of that particular offering. Prospectus supplements may also add to, update or change the information contained in this prospectus. To the extent that any statement that we make in anya prospectus supplement or any related free writing prospectus is inconsistent with statements made in this prospectus, the statements made in this prospectus will be deemed modified or superseded by those made in such prospectus supplement or such related free writing prospectus.supplement. In addition, as we describe in the section entitled “Information Incorporated by Reference,” we have filed and plan to continue to file other documents with the SEC that contain information about us and the business conducted by us and our subsidiaries. Before you decide whether to invest in any of these securities, you should read this prospectus, the prospectus supplement that further describes the offering of these securities and the information we file with the SEC.
Unless the selling shareholders have authorized any dealer, agent or other person to give any information or to make any representation other than those contained in or incorporated by reference into this prospectuscontext otherwise requires, the terms “Columbus McKinnon,” “the Company,” “the registrants,” “we,” “us” and any prospectus supplement or a related authorized free writing prospectus, and we and the selling shareholders take no responsibility for any other information that others may give you. This prospectus and any prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered shares of our common stock to which they relate, nor do this prospectus and any prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained or incorporated by reference into this prospectus, any prospectus supplement or any related free writing prospectus is accurate as of any date other than the date of the document containing the information (as our business, financial condition, results of operations and prospects may have changed since that date), even though this prospectus, any prospectus supplement or any related free writing prospectus is delivered or shares of our common stock are sold on a later date.
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We are a leading globalworldwide designer, manufacturer and marketer of hoists, actuators, cranes, rigging tools, digital powermotion control products, technologies, systems and other material handling products serving a wide variety of commercial and industrial end-user markets. Our products are used toservices that efficiently and ergonomically move, lift, position and secure objectsmaterials. Key products include hoists, rigging tools, digital power control systems, and loads.actuators. We are focused on commercial and industrial applications that require safety and productivity in moving material provided by our superior design and engineering know-how. Our products are used for mission critical industrial applications where we have established trusted brands with significant customer retention. Our targeted market verticals include general industrial, construction and infrastructure, mining, oil & gas, energy, aerospace, transportation, automotive, heavy equipment manufacturing and entertainment.
In the U.S., we are the market leader infor hoists and material handling drivedigital power control systems, our principal line of products, as well as certain chain, forged attachment,fittings, and actuator products which we believe provides us with a strategic advantage in selling our other products. We have achieved this leadership position through strategic acquisitions, our extensive, diverse, and well-established distribution channels and our commitment to product innovation and quality. We have one ofbelieve the most comprehensive product offerings in the industry and we believe we have more overhead hoists in use in North America than allbreadth of our competitors combined.product offering and expansive distribution channels provide us a strategic advantage in our markets. Additionally, we believe we are the market leader offor manual hoist and actuator products in Europe, which providesEurope. Our market leadership and strong brands enable us further opportunity to sell more products than our other productscompetition through our existingextensive distribution channels in that region. the U.S. and Europe.
Our Blueprint for Growth Strategy is a three-phased strategy to increase the earnings power of the company and transform us into a growth-oriented industrial technology company. The goal of our strategy is to increase our earnings power and expand EBITDA margins, as well as improve our Return on Invested Capital.
We design, manufacture, and distribute a broad range of material handling products are sold globally and our brand names, including CM, Coffing, Chester, Duff-Norton, Pfaff, Shaw-Box, Yale, Telemotive, Electromotive Systems, OmniPulse, IMPULSE, Enrange, Mondel, M-FORCE, and Quattro are among the most recognized and well-respected in the marketplace
For more information about our business, please refer to the “Business” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of our Annual Reportannual report on Form 10-K for the fiscal year ended March 31, 2016 and our Quarterly Reports on Form 10-Q filed subsequent to such Annual Report on Form 10-K,2019 which areis incorporated by reference into this prospectus and any prospectus supplement hereto in their entirety, as the same may be amended, supplemented or superseded.
Our principal executive offices are located at 205 Crosspoint Parkway, Getzville, New York 14068. Our telephone number is (716) 689-5400. Our web site address is
www.cmworks.com. The information on our website is not part of this prospectus.1
An investment in our common stock involves risk. Prior to making a decision about investing in our securities, you should carefully consider those risk factors included in our most recent Annual Report on Form 10-K and our subsequently filed Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which are incorporated herein by reference, as well as those risk factors that may be included in any applicable prospectus supplement, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference, in evaluating an investment in our common stock. If any of the risks discussed in the foregoing documents were to occur, our business, financial condition, results of operations and cash flows could be materially adversely affected. In addition to these risk factors, there may be additional risks and uncertainties of which management is not aware or focused on or that management deems immaterial. Any of these additional risk factors could have a material adverse effect on our business, results of operations, financial position or cash flows, which may result in the loss of all or part of your investment. For more information, please see the sections entitled “Cautionary Statement Regarding Forward-Looking Statements” and “Where You Can Find More Information.”
Statements made in this prospectus and the documents incorporated herein contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). All statements that relate to future plans, events, liquidity, financial results or performance, including statements relating to future cash flows and liquidity and future cost alignment actions, as well as estimated unrecognized stock compensation expense, computation of the annual estimated effective tax rate at each interim period, projected capital expenditures, future contractual obligations, current business outlook, estimated charges related to the restructuring of global operations, future global economic conditions, future growth or market share gains, the ability to manage costs or invest in future initiatives, as well as future changes in foreign currency rates, are forward-looking statements as defined under the Private Securities Litigation Reform Act of 1995. In some cases, you can identify forward-looking statements by terminology such as “anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,” “projects,” “will,” “would,” and similar expressions or expressions of the negative of these terms.
These statements involve known and unknown risks and are based upon current information and expectations. Actual results may differ materially from those anticipated if the information on which those estimates were based ultimately proves to be incorrect or as a result of certain risks and uncertainties that could cause our actual results to differ materially from the results expressed or implied by such statements, including
Unless otherwise indicated in a prospectus supplement, we intend to use the footnotes tonet proceeds that we receive from the sale of any securities by us covered by this table, we believe that eachprospectus for general corporate purposes, which may include, among other things: reducing or refinancing indebtedness; making acquisitions of assets, businesses or securities; stock repurchases and capital expenditures; and for working capital. When specific securities are offered, the prospectus supplement relating thereto will set forth our intended use of the selling shareholders named in this table has sole voting and investment power with respect tonet proceeds that we receive from the sharessale of common stock indicated as beneficially owned. The number of shares of common stock beneficially owned bysuch securities. Pending the selling shareholders also includes shares of common stock currently held by such selling shareholders that were previously purchased on the open market. Such shares of common stock are not being registered pursuant to this prospectus and are not included in the number of shares that may be offered pursuant to this prospectus.
Common Stock | |||||||||||||
Name of selling stockholder | Number of shares beneficially owned | Number of shares offered hereby(1) | Number of shares owned after completion of The offering(2) | Percent of shares beneficially owned after the offering(3) | |||||||||
Adage Capital Partners, LP | 1,818,460 | 1,818,460 | — | — | % | ||||||||
CVI Investments Inc.(4) | 227,270 | 227,270 | — | — | % | ||||||||
Nineteen77 Global Multi-Strategy Alpha (Levered) Master Limited | 34,454 | 35,454 | — | — | % | ||||||||
O’Connor Global Fundamental Market Neutral Long/Short (Levered) Master Limited | 14,091 | 14,091 | — | — | % | ||||||||
O’Connor Global Fundamental Market Neutral Long/Short Master Limited | 2,045 | 2,045 | — | — | % | ||||||||
O’Connor Global Multi-Strategy Alpha Master Limited | 175,680 | 175,680 | — | — | % |
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The following is a general description of the terms and provisions of our capital stock, together with any additional informationthe securities we include in any applicable prospectus supplement or any related free writingmay offer and sell by this prospectus. This summary isThese summaries are not meant to be complete. This prospectus and the applicable prospectus supplement will contain the material terms and conditions of each security. The prospectus supplement may add, update or change the terms and conditions of the securities as described in this prospectus.
Common Stock
Authorized Shares.
Our authorized capital stock consists of 50,000,000 shares of common stock, par value $.01 per share, and 1,000,000 shares of preferred stock, par value $1.00 per share. As of AprilMay 17, 2017,2019, there were (i) 22,565,70823,403,782 shares of common stock outstanding, (ii) 1,063,894821,849 shares of common stock issuable upon exercise of outstanding stock options under our long term incentive plan at a weighted average price of $18.48$23.65 per share, (iii) 488,956390,176 shares of common stock issuable upon vesting of restricted stock units under our long term incentive plan and (iv) 1,402,194124,292 shares of common stock reserved and available
Voting Rights.
Holders of common stock are entitled to one vote on all matters submitted to a vote of our shareholders, including the election of directors. There is no cumulative voting. Therefore, the holders of a majority of the shares of common stock voted in an election of directors can elect all of the directors then standing for election, subject to any rights of the holders of any outstanding preferred stock, if any.
Liquidation.
In the event of any dissolution, liquidation or winding up of our affairs, whether voluntary or involuntary, after payment of our debts and other liabilities and making provision for the holders of outstanding preferred stock, if any, our remaining assets will be distributed ratably among the holders of our common stock.
Pre-emption.
There are no pre-emptive or other rights to subscribe for any of our shares or securities.
Dividends.
Holders of shares of common stock are entitled to receive dividends, if, as and when such dividends are declared by our Board of Directors out of assets legally available therefor after payment of dividends required to be paid on shares of outstanding preferred stock, if any.
Transfer Agent and Registrar.
The transfer agent and registrar for our common stock is American Stock Transfer and Trust Company.
Preferred Stock
Our Board of Directors has the authority to issue preferred stock in one or more series and to establish the rights and restrictions granted to or imposed on any unissued shares of preferred stock and to fix the number of shares constituting any series without any
The terms and provisions of any preferred stock that may be offered by this prospectus will be described in the applicable prospectus supplement. You should read the certificate of designations relating to the applicable series of preferred stock for additional information before you purchase any preferred stock.
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Warrants
We may issue warrants for the purchase of our debt securities, common stock, preferred stock, or units of two or more of these types of securities. Warrants may be issued independently or together with debt securities, common stock or preferred stock and may be attached to or separate from these securities. Each series of warrants will be issued under a separate warrant agreement. We will distribute a prospectus supplement with regard to each issue or series of warrants. Each such prospectus supplement will describe:
⮚ | the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
⮚ | the maximum or minimum number of the warrants which may be exercised at any time; and |
⮚ | any limitations relating to the exchange and exercise of such warrants; |
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase the securities, at the exercise price as shall be set forth in, or be determinable as set forth in, the prospectus supplement relating to the warrants. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchased upon such exercise. If less than all of the warrants represented by a warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
Prior to the exercise of any warrants, holders of the warrants will not have any of the rights of holders of the securities purchasable upon exercise, including:
Certificates for warrants to purchase securities will be exchangeable for new warrant certificates of different denominations to the extent set forth in the prospectus supplement.
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Rights
We may issue rights to purchase our common stock, preferred stock or debt securities that we may offer to our securityholders. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us and a bank or trust company, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the rights agreement.and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
Each right would entitle the holder of the rights to purchase for cash the principal amount of shares of common stock, preferred stock or debt securities at the exercise price set forth in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than our Boardsecurity holders, to or through agents, underwriters or dealers or through a combination of Directors adoptedsuch methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Stock Purchase Contracts
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and obligating us to sell to the holders, a Preferred Share Purchase Rights Plan (the “Rights Plan”). specified number or variable number of shares of our common stock or preferred stock at a future date or dates. The consideration per share may be fixed at the time stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may be issued separately or as part of stock purchase units consisting of a stock purchase contract and our debt securities, preferred stock, any other securities described in the applicable prospectus supplement or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the shares under the stock purchase contracts. The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase units or vice versa, and such payments may be unsecured or prefunded on some basis.
The applicable prospectus supplement will describe the terms of any stock purchase contracts or stock purchase units. Material federal income tax considerations applicable to the stock purchase units and the stock purchase contracts will be discussed in the related prospectus supplement.
Units
We may issue units, which will consist of one or more of common stock, preferred stock, warrants, rights, stock purchase contracts, debt securities or any combination thereof. The applicable prospectus supplement for any units will describe:
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Debt Securities and Guarantees
The following description discusses the general terms and provisions of the debt securities that we may offer under this prospectus. The debt securities may be issued as senior debt securities or subordinated debt securities. The indebtedness represented by the senior debt securities will rank equally with all of our other unsecured and unsubordinated debt. The indebtedness represented by the subordinated debt securities will rank junior and be subordinate in right of payment to the prior payment in full of our senior debt, to the extent and in the manner set forth in the applicable prospectus supplement for the securities.
The senior debt securities and the subordinated debt securities will be issued under separate indentures between us and one or more U.S. banking institutions. The trustee for each series of our debt securities will be identified in the applicable prospectus supplement. We may refer to the indenture covering the senior debt securities as the “senior indenture” and the indenture covering the subordinated debt securities as the “subordinated indenture.” Together the senior indenture and the subordinated indenture are called “indentures.”
The form of the indentures are filed as exhibits to the registration statement of which this prospectus is a part. The indentures are subject to and governed by the Trust Indenture Act of 1939, or the Trust Indenture Act, and may be supplemented or amended from time to time following their execution. We have not yet selected a trustee for either of the indentures, and we have not yet executed either indenture. Prior to issuing any debt securities, we will be required to select a trustee for the applicable indenture or indentures, qualify the trustee or trustees under the Trust Indenture Act and execute the applicable indenture or indentures.
The form of each indenture gives us broad authority to set the particular terms of each series of debt securities, including the right to modify certain of the terms contained in the indenture. The particular terms of a series of debt securities and the extent, if any, to which the particular terms of the issue modify the terms of the applicable form of indenture will be described in the prospectus supplement relating to such series of debt securities.
The following summary describes selected provisions of the Rights Planindentures. This summary does not purportdescribe every aspect of the debt securities or the applicable indenture and is subject to, be complete and is qualified in its entirety by reference to, that certain Rights Agreement dated asall the provisions of May 18, 2009, between the Companyapplicable indenture, including the terms defined in the applicable indenture. We urge you to read the applicable indenture in its entirety. This summary is also subject to, and the Rights Agent (the “Rights Agreement”) (incorporatedqualified in its entirety by reference to, Exhibit 4.1the description of the particular debt securities in the applicable prospectus supplement.
General.
The indentures provide that we will be able to issue an unlimited aggregate principal amount of debt securities under the indentures, in one or more series, and in any currency or currency units. We are not required to issue all debt securities of one series at the same time and, unless otherwise provided, we may reopen a series, without the consent of the holders of the debt securities of that series, for issuances of additional debt securities of that series.
Prior to the issuance of each series of debt securities, the terms of the particular securities will be specified in a supplemental indenture or a resolution of our Current Reportboard of directors or in one or more officer’s certificates pursuant to a board resolution. We will describe in the applicable prospectus supplement the terms of the debt securities being offered, including:
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If the offered debt securities are denominated in whole or in part in any currency other than U.S. dollars, if the principal of (and premium, if any) or interest, if any, on the offered debt securities are to be payable in a currency or currencies other than that in which the debt securities are to be payable, or if any index is used to determine the amount of payments of principal of (and premium, if any) or interest on any series of the debt securities, material federal income tax, accounting and other considerations applicable thereto will be described in the applicable prospectus supplement.
If so provided in the applicable prospectus supplement, we may issue our debt securities at a discount below their principal amount and pay less than the entire principal amount of our debt securities upon declaration of acceleration of their maturity. The applicable prospectus supplement will describe all material federal income tax, accounting and other considerations applicable to any such original issue discount securities.
The general provisions of the indentures do not contain any provisions that would limit our ability or the ability of our subsidiaries to incur indebtedness or that would afford holders of our debt securities protection in the event of a Series A Junior Participating Preferred Share, par value $1.00 per share (the “Preferred Shares”), at a price of $80.00 per one one-thousandth (1/1,000th) of a Preferred Share, subject to certain anti-dilution adjustments (the “Purchase Price”). Until the earlier to occur of (i) the tenth business day following a public announcement that a personhighly leveraged or group of affiliatedsimilar transaction involving us or associated persons has acquired, or obtained the right to acquire, beneficial ownership of 20% or more of the common stock (an “Acquiring Person”) or (ii) the tenth business day (or such later date as may be determined by actionany of our Board of Directors priorsubsidiaries. Please refer to such time as any person or group of affiliated persons becomes an Acquiring Person) following the commencement or announcement of an intention to make a tender offer or exchange offer the consummation of which would result in the beneficial ownership by a person or group of 20% or more of the common stock (the earlier of (i) and (ii) being called the “Distribution Date”), the Rights are evidenced,applicable prospectus supplement for information with respect to any deletions from, modifications of the common stock certificates outstanding as of the Record Date, by such common stock certificate (or, with respect to any common stock held in book entry form, by the notation in book entry). The Rights Agreement provides that any person, who immediately prioror additions to, the first public announcementevents of the adoption of the Rights Agreement, beneficially owned 20% or more of the common stock then outstanding, together with any respective affiliates and associates ofdefault described below that person (each an “Existing Holder”), shall not be deemed to be an “Acquiring Person” for purposes of the Rights Agreement unless the Existing Holder becomes the beneficial owner of (x) a percentage of the common stock of the Company then outstanding that is more than the aggregate percentage of the outstanding common stock that such Existing Holder beneficially owns as of the date immediately priorare applicable to the first public announcement ofoffered debt securities or any covenants or other provisions providing event risk or similar protection.
Payment.
Unless we state otherwise in the adoption ofapplicable prospectus supplement, we will pay interest on a debt security on each interest payment date to the Rights Agreement or (y) less than 20% ofperson in whose name the common stock of the Company then outstanding (after which, if the Existing Holder becomes the beneficial owner of 20% or more of the common stock of the Company then outstanding, the Existing Holder shall be deemed to be an “Acquiring Person”).
Unless we state otherwise in the applicable prospectus supplement, we will pay principal of and such separate Right Certificates alone will evidenceany premium on the Rights. The Rights willdebt securities at no time have any voting rights.
Form, Transfers and if declared, to a minimum preferential quarterly dividend payment equalExchanges.
The debt securities of each series will be issued only in fully registered form, without interest coupons. Unless we state otherwise in the applicable prospectus supplement, the debt securities will be issued in denominations of $1,000 each or multiples thereof.
Subject to the greater of (a) $1.00 per share or (b) 1,000 times the dividend, if any, declared per share of common stock. In the event of liquidation, dissolution or winding upterms of the Company,applicable indenture and the holderslimitations applicable to global securities, you may exchange or transfer debt securities at the corporate trust office of the Preferred Sharestrustee or at any other office or agency maintained by us for that purpose, without the payment of any service charge, except for any tax or governmental charge.
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Global Securities.
The debt securities of any series may be issued, in whole or in part, by one or more global certificates that will be entitled to a preferential liquidation payment of $1,000 per share plus any accrued but unpaid dividends, provided that the holders of the Preferred Shares shall be entitled to 1,000 times the payment made per share of common stock. Each Preferred Share will have 1,000 votes and will vote togetherdeposited with the shares of common stock. Finally,depositary identified in the eventapplicable prospectus supplement.
No global security may be exchanged in whole or in part for the debt securities registered in the name of any merger, consolidationperson other than the depositary for that global security or other transactionany nominee of that depositary except in which the common stock are exchanged, each Preferred Share will be entitledfollowing circumstances or as otherwise provided in the applicable prospectus supplement. The depositary may discontinue providing its services as depositary with respect to receive 1,000 times the amount received per share of common stock. Preferred Shares will not be redeemable. The Rights are protectedsecurities at any time by customary anti-dilution provisions. Because ofgiving reasonable notice to us or the nature of the Preferred Share’s dividend, liquidation and voting rights, the value of one one-thousandth of a Preferred Share purchasable upon exercise of each Right should approximate the value of one share of common stock.
Unless otherwise stated in any prospectus supplement, The Depository Trust Company, or DTC, will act as depositary. Beneficial interests in global certificates will be shown on, and transfers of global certificates will be effected only through records maintained by DTC and its participants.
Events of Default.
Unless otherwise specified in the applicable prospectus supplement, an Acquiring Personevent of default occurs with respect to debt securities of any series if:
No event of default with respect to a series of debt securities necessarily constitutes an event of default with respect to the debt securities of any other series issued under the indentures.
Each indenture requires us to file annually with the applicable trustee an officers’ certificate as to our compliance with all conditions and covenants under the applicable indenture. Each indenture provides that the applicable trustee may withhold notice to the holders of a series of debt securities of any default, except payment defaults on those debt securities, if it considers such withholding to be in the interest of the holders of that series of debt securities.
If an event of default occurs and is continuing with respect to any series of debt securities, then either the applicable trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may declare the principal amount, or, if any debt securities of that series are original issue discount securities, that portion of the Company wereprincipal amount of those original issue discount securities as may be specified in the surviving corporationterms of those original issue discount securities, of all of the debt securities of that series to be due and payable immediately, by a notice in writing to us, and to the applicable trustee if given by the holders, and upon any such declaration that principal amount, or specified amount, plus accrued and unpaid interest, and premium, if any, will become immediately due and payable. Upon payment of that amount in the currency in which the debt securities are denominated (except as otherwise provided in the applicable indenture or the applicable prospectus supplement), all of our obligations in respect of the payment of principal of the debt securities of that series will terminate.
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After a merger with an Acquiring Persondeclaration of acceleration has been made and before the trustee has obtained a judgment or decree for payment of the money due on any affiliate or associateseries of an Acquiring Persondebt securities, the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of that series, by written notice to us and the common stock were not changedapplicable trustee, may rescind and annul the declaration and its consequences, subject to any terms or exchanged, each holderconditions specified in the applicable prospectus supplement.
If an event of default results from bankruptcy, insolvency or reorganization, the principal amount of all the debt securities of a Right, other than Rightsseries, or that areportion of the principal amount of such debt securities as may be specified in the applicable prospectus supplement, will automatically become immediately due and payable.
Subject to the provisions of each indenture relating to the duties of the applicable trustee, in case an event of default with respect to our debt securities of a particular series occurs and is continuing, the applicable trustee will be under no obligation to exercise any of its rights or were acquiredpowers under that indenture at the request, order or beneficially owneddirection of any of the holders of debt securities of that series, unless the holders have offered to the applicable trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in complying with such request or direction. Subject to the Acquiring Person (which Rightsprovisions for the indemnification of the applicable trustee, the holders of a majority in principal amount of the outstanding debt securities of that series will
Merger or Consolidation.
Each indenture provides that we may not consolidate with or merge or wind up into any other entity, whether or not we are the surviving entity, and that we may not sell, assign, convey, transfer or lease our properties and assets substantially as an entirety to any person, unless:
Modification or Waiver.
Without prior notice to or the consent of any holders, we and the applicable trustee may modify the applicable indenture for any of the following purposes:
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We and the applicable trustee may, with some exceptions, amend or modify either indenture with the consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of all series affected by the amendment or modification. However, no amendment or modification may, without the consent of the holder of each outstanding debt security affected thereby:
A modification which changes or eliminates any provision of an indenture expressly included solely for the benefit of holders of debt securities of one or more particular series or modifies the holders’ rights will be deemed not to affect the rights under the indenture of the registered holders of debt securities of any other series.
Each of the indentures provides that the holders of not less than a majority in aggregate principal amount of the then outstanding debt securities of any series, by notice to the relevant trustee, may on behalf of the holders of the debt securities of that series waive any default or event of default and its consequences under the applicable indenture, except:
Legal Defeasance and Covenant Defeasance.
The applicable indenture with respect to the debt securities of any series may be discharged, subject to the terms and conditions as specified in the applicable prospectus supplement, when either:
⮚ | have become due and payable; |
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⮚ | will become due and payable at their stated maturity within one year; or |
⮚ | are to be called for redemption within one year; or |
In addition, each series of debt securities may provide additional or different terms or conditions for the discharge or defeasance of some or all of our obligations as may be specified in the applicable prospectus supplement.
If provision is made for the defeasance of debt securities of a series, and if the debt securities of that series are registered securities and denominated and payable only in U.S. dollars, then the provisions of each indenture relating to defeasance will be applicable except as otherwise specified in the applicable prospectus supplement for debt securities of that series. Defeasance provisions, if any, for debt securities denominated in a foreign currency or currencies may be specified in the applicable prospectus supplement.
At our option, either (i) we will be deemed to have been discharged from our obligations with respect to debt securities of any series, i.e., the “legal defeasance option,” or (ii) we will cease to be under any obligation to comply with certain provisions of the applicable indenture with respect to certain covenants, if any, specified in the applicable prospectus supplement with respect to debt securities of any series, i.e., the “covenant defeasance option,” at any time after the conditions specified in the applicable prospectus supplement have been satisfied.
Senior Debt Securities.
The senior debt securities will be unsecured senior obligations and will rank equally with all other senior unsecured and unsubordinated debt. The senior debt securities will, however, be subordinated in right of payment to all of our secured indebtedness to the extent of the value of the assets securing that indebtedness. Except as provided in the senior indenture or specified in any authorizing resolution or supplemental indenture relating to a series of senior debt securities to be issued, no senior indenture will limit the amount of additional indebtedness that may rank equally with the senior debt securities or the amount of indebtedness, secured or otherwise, that may be incurred or preferred shares that may be issued by any of our subsidiaries.
Subordination.
If our assets are distributed upon our dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any subordinated debt securities will be subordinated in right of payment, to the extent provided in the subordinated indenture and the applicable prospectus supplement, to the prior payment in full of all senior indebtedness, including senior debt securities. However, our obligation to pay the principal of (and premium, if any) or interest on the subordinated debt securities will not otherwise be affected. Unless otherwise stated in the applicable prospectus supplement, payment on account of principal (or premium, if any), sinking funds or interest on the subordinated debt securities may not be made at any time when there is a default in the payment of the principal, premium, if any, sinking funds, interest or certain other obligations on senior indebtedness. In addition, the prospectus supplement for any series of subordinated debt securities may provide that payments of the principal of (or premium, if any) or interest on the subordinated debt securities may be delayed or not paid under specified circumstances and periods. If, while we are in default on senior indebtedness, any payment is received by the trustee under the subordinated indenture or the holders of any of the subordinated debt securities before we have paid all senior indebtedness in full, the payment or distribution must be paid over to the holders of the unpaid senior indebtedness or applied to the repayment of the unpaid senior indebtedness. Subject to paying the senior indebtedness in full, the holders of the subordinated debt securities will be subrogated to the rights of the holders of the senior indebtedness to the extent that payments are made to the holders of senior indebtedness out of the distributive share of common stock ownedthe subordinated debt securities.
Due to the subordination, if our assets are distributed upon insolvency, some or all of recordour general creditors may recover more, ratably, than holders of subordinated debt securities. The subordinated indenture or applicable supplemental indenture may state that its subordination provisions will not apply to money and securities held in trust under the satisfaction and discharge and the legal defeasance provisions of the subordinated indenture.
If this prospectus is being delivered in connection with the offering of a series of subordinated debt securities, the applicable prospectus supplement or the information incorporated by reference in it will specify the approximate amount of senior indebtedness outstanding as of a recent date and any limitations on the issuance of additional senior indebtedness (or that there is not such limitation). Senior indebtedness with respect to any series of subordinated debt securities will have the meaning specified in the applicable prospectus supplement for that series.
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Corporate Existence.
Subject to the terms of the applicable indenture, we will do or cause to be done all things necessary to preserve and keep in full force and effect our corporate existence, charter and statutory rights and franchises; provided, however, that we will not be required to preserve any right or franchise if we determine that the preservation thereof is no longer desirable in the conduct of our business.
Governing Law.
The indentures and our debt securities will be governed by, and construed in accordance with, the law of the State of New York.
Guarantees.
If the applicable prospectus supplement relating to a series of debt securities provides that those debt securities will have the benefit of a guarantee by the Company’s then existing or future domestic subsidiaries, then the debt securities will be fully and unconditionally guaranteed by such guarantor subsidiaries. In the event of a bankruptcy, liquidation or reorganization of any of the non-guarantor subsidiaries, the non-guarantor subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute any of their assets to us. The guarantees will be general obligations of each guarantor. The guarantees will be joint and several obligations of the guarantors. If a series of debt securities is so guaranteed, a supplemental indenture to the applicable base indenture will be executed by each guarantor. The Subsidiary Guarantors are guarantors under the indenture governing our existing senior notes and our existing senior credit facilities. The obligations of each guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance under applicable law. The terms of any guarantee and the conditions upon which any guarantor may be released from its obligations under that guarantee will be set forth in the applicable prospectus supplement.
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The securities that may be offered by this prospectus may be sold:
Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from us, from the purchasers of the securities or from both us and the purchasers. The compensation received may be in excess of customary discounts, concessions or commissions. Any underwriters, dealers, agents or other investors participating in the distribution of the securities may be deemed to be “underwriters,” as that term is defined in the Securities Act, and compensation and profits received by them on May 29, 2009. As long as the Rights are attached to the common stock, the Company will issue one Right with each new share of common stock so that all such shares will have attached Rights. The Company has agreed that, from and after the Distribution Date, the Company will reserve 50,000 Preferred Shares initially for issuance upon exercisesale of the Rights.
Each time the securities are designed to assure that alloffered by this prospectus, the prospectus supplement, if required, will set forth:
The securities may be sold at a fixed price or prices, which may be changed, at prevailing market prices prevailing at the time of sale, at prices relatedrelating to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.
If underwriters are used in a sale, securities for whom they may act as agent;
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To comply with the securities laws of somecertain states, if applicable, the common stock maysecurities offered by this prospectus will be offered and sold in these jurisdictionsthose states only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from registration or qualification requirements is available
Agents, underwriters and is complied with.
Our common stock is listed on the NASDAQNasdaq Global Market under the symbol “CMCO.” On April 21, 2017, the closing price of our common stock as reported on the NASDAQ Global Market was $25.44 per share.
Certain persons participating in the offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. We make no representation or agents.prediction as to the direction or magnitude of any effect that such transactions may have on the price of the securities. For a description of these activities, see the information under the heading “Underwriting” in the applicable prospectus supplement.
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The validity of the securities offered in this prospectus will be passed upon for us by Hodgson Russ LLP.
The consolidated financial statements of Magnetek, Inc. appearing in Magnetek, Inc.’s Annual Report (Form 10-K) for the year ended December 28, 2014 (including the schedule appearing therein), the consolidated financial statements of Columbus McKinnon Corporation appearing in Columbus McKinnon Corporation’s Annual Report (Form 10-K)on Form 10-K for the year ended March 31, 20162019 (including the schedule appearing therein), and the effectiveness of the Columbus McKinnon Corporation’s internal control over financial reporting as of March 31, 20162019 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given uponon the authority of such firm as experts in accounting and auditing.
We have filed a registration statement on Form S-3 under the Securities Act with the SEC to register the securities offered by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules which are a part of the registration statement. For further information with respect to us and our securities, please refer to the registration statement and the exhibits and schedules filed with it. You may read and copy any document which we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
We are also subject to the information and periodic reporting requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements, and other information with the SEC and these reports, proxy statements, and other information can be inspected on the Internet site maintained by the SEC at http://www.sec.gov.
We also maintain a website at
www.cmworks.com. However, the information on our website is not part of this prospectus.15
The SEC allows us to “incorporate by reference” information into this prospectus. This means that we can disclose important information about us and our financial condition to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus except for any information superseded by information contained expressly in this prospectus, and the information we file later with the SEC will automatically supersede this information. You should not assume that (i) the information incorporated by reference in this prospectus is accurate as of any date other than the respective date of the documents incorporated by reference or (ii) the information contained in this prospectus is accurate as of any date other that the date on the front page of this prospectus.
This prospectus incorporates by reference the documents listed below that we have previously filed with the SEC:
• | our Annual Report on Form 10-K for the fiscal year ended March 31, |
• | our Current Report on Form 8-K filed | ||||
We also incorporate by reference all documents that we subsequently file with the SEC after the filing of this prospectus, including documents filed on and after the date of the initial registration statement and prior to effectiveness of the registration statement, pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the sale of all securities registered hereunder or termination of the registration statement. Nothing in this prospectus shall be deemed to incorporate information furnished but not filed with the SEC.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in the applicable prospectus supplement or in any other subsequently filed document which also is or is deemed to be incorporated by reference modifies or supersedes the statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may request a copy of the filings incorporated herein by reference, including exhibits to such documents that are specifically incorporated by reference, at no cost, by writing or calling us at the following address or telephone number:
Alan S. Korman
Statements contained in this prospectus as to the contents of any contract or other documents are not necessarily complete, and in each instance investors are referred to the copy of the contract or other document filed as an exhibit to the registration statement, each such statement being qualified in all respects by such reference and the exhibits and schedules thereto.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The following table itemizes the fees and expenses incurred or expected to be incurred by the registrant in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions.
Item | Amount | ||
Securities and Exchange Commission registration fee | $ | 36,360.00 | |
Legal fees and expenses | * | ||
Accounting fees and expenses | * | ||
Printing fees and expenses | * | ||
Rating agencies fees | * | ||
Trustee fees (including counsel fees) | * | ||
Miscellaneous fees and expenses | * | ||
Total | * |
* | ||||||
in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement. |
Item 15 | Indemnification of Directors and Officers. |
Sections 721 through 726 of the New York Business Corporation Law, or BCL, grant New York corporations broad powers to indemnify their present and former directors and officers and those of affiliated corporations against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with threatened, pending or completed actions, suits or proceedings to which they are parties or are threatened to be made parties by reason of being or having been such directors or officers, subject to specified conditions and exclusions; give a director or officer who successfully defends an action the right to be so indemnified; and permit a corporation to buy directors' and officers' liability insurance. Such indemnification is not exclusive of any other rights to which those indemnified may be entitled under any by-laws, agreement, vote of shareholders or otherwise.
Section 402(b) of the BCL permits a New York corporation to include in its certificate of incorporation a provision eliminating the potential monetary liability of a director to the corporation or its shareholders for breach of fiduciary duty as a director, provided that such provision may not eliminate the liability of a director (i) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (ii) for any transaction from which the director receives an improper personal benefit or (iii) for any acts in violation of Section 719 of the BCL. Section 719 provides that a director who votes or concurs in a corporate action will be liable to the corporation for the benefit of its creditors and shareholders for any damages suffered as a result of an action approving (i) an improper payment of a dividend, (ii) an improper redemption or purchase by the corporation of shares of the corporation, (iii) an improper distribution of assets to shareholders after dissolution of the corporation without adequately providing for all known liabilities of the corporation or (iv) the making of an improper loan to a director of the corporation.
The Registrant’s Restated Certificate of Incorporation includes the provisions permitted by Section 402(b).
The Registrant’s Restated Certificate of Incorporation also provides that we shall indemnify, to the fullest extent permitted by the BCL, each person (and the heirs, executors, or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in, any civil or criminal action, suit or proceeding, by reason of the fact that such person is or was a director or officer of our company or is or was serving at our request as a director or officer of another corporation, partnership, joint venture,
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advanced in the event it is ultimately determined that the officer or director was not entitled to be indemnified by us as authorized by our certificate of incorporation. We are not obligated to indemnify any director or officer (or his or her heirs, executors or administrators) in connection with a proceeding initiated by such person unless such proceeding was authorized or consented to by our Board of Directors. We have entered into indemnification agreements with each of our current directors to effectuate the indemnification provisions of our certificate of incorporation.
The Registrant’s by-laws also allow it to indemnify, in the same manner and under the same circumstances as set forth in Sections 721 through 726 of the BCL, any person who was or is a party or is threatened to be made a party to any action or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was the Registrant’s representative, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with the action or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the Registrant’s best interests.
The Registrant also maintains an insurance policy insuring its directors and officers against liability for certain acts and omissions while acting in their official capacities on behalf of the Registrant.
Item 16 | Exhibits. |
The Exhibits listed on the Exhibit Index of this Registration Statement are filed herewith or are incorporated herein by reference to other filings
Item 17 | Undertakings. |
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; |
(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 the 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 percent 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 (i), (ii) and (iii) 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 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) | That, for the purposes 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 the 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. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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(ii) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | 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 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. |
(7) | If and when applicable, the undersigned registrant, hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. |
(8) | 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 Securities Act of 1933 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 of 1933, and will be governed by the final adjudication of such issue. |
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EXHIBIT INDEX
Exhibit Number | Description |
1.1 | Form of Underwriting or Distribution Agreement.* |
4.1 | Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement No. 33-80687 on Form S-1 dated December 21, 1995 (file no. 0-27618)). |
Certificate of Amendment to the Certificate of Incorporation of Columbus McKinnon Corporation, dated as of May 18, 2009 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated May 18, 2009 (file no. 0-27618)). | |
Fourth Amended and Restated Bylaws (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated March 28, 2013, as filed with the Commission on March 28, 2013 (file no. 0-27618)). | |
4.4 | Form of specimen common stock certificate (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement No. 33-80687 on Form S-1 dated December 21, 1995). |
4.5 | Form of specimen preferred stock certificate.* |
4.6 | Certificate of Designations of Preferred Stock of Columbus McKinnon Corporation.* |
Form of Senior Indenture.** | |
Form of Subordinated Indenture.** | |
4.9 | Form of Senior Debt Security.* |
4.10 | Form of Subordinated Debt Security.* |
4.11 | Form of Warrant Agreement.* |
4.12 | Form of Warrant.* |
4.13 | Form of Rights Agent Agreement.* |
4.14 | Form of Rights Certificate.* |
4.15 | Form of Stock Purchase Contract.* |
4.16 | Form of Unit Agreement.* |
Opinion of Hodgson Russ LLP** | |
Consent of Independent Registered Public Accounting Firm** | |
�� | |
Consent of Hodgson Russ LLP (included in Exhibit 5.1). | |
Powers of Attorney (included on signature pages of this registration statement). | |
25.1 | Statement of Eligibility of Trustee under the Senior Indenture on Form T-1* |
25.2 | Statement of Eligibility of Trustee under the Subordinated Indenture on Form T-1* |
* | To be filed, if necessary, by amendment hereto or pursuant to a Current Report on Form 8-K to be incorporated herein by reference. |
** | Filed herewith |
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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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Amherst, State of New York, on April 24, 2017.
COLUMBUS McKINNON CORPORATION | ||
By: | /s/ Gregory P. Rustowicz | |
Gregory P. Rustowicz | ||
Vice President and Chief Financial Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, Gregory P. Rustowicz and Alan S. Korman, or either of them, as his attorney in fact, to sign any amendments to this registration statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may 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 dates indicated.
Signature | Title | Date | ||
s/ Mark D. Morelli | President and Chief Executive Officer and Director (Principal Executive Officer) | May 30, 2019 | ||
Mark D. Morelli | ||||
s/ Gregory P. Rustowicz | Vice President and Chief Financial Officer (Principal Financial Officer) | May 30, 2019 | ||
Gregory P. Rustowicz | ||||
s/ Richard H. Fleming | Chairman of the Board of Directors | May 30, 2019 | ||
Richard H. Fleming | ||||
s/ Ernest R. Verebelyi | Chairman Emeritus of the Board of Directors and Director | May 30, 2019 | ||
Ernest R. Verebelyi | ||||
s/ Liam G. McCarthy | Director | May 30, 2019 | ||
Liam G. McCarthy | ||||
s/ Heath A. Mitts | Director | May 30, 2019 | ||
Heath A. Mitts | ||||
s/ Nicholas T. Pinchuk | Director | May 30, 2019 | ||
Nicholas T. Pinchuk | ||||
s/ R. Scott Trumbull | Director | May 30, 2019 | ||
R. Scott Trumbull | ||||
s/ Kathryn V. Roedel | Director | May 30, 2019 | ||
Kathryn V. Roedel | ||||
s/ Aziz S. Aghili | Director | May 30, 2019 | ||
Aziz S. Aghili |
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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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Amherst, State of New York, on May 30, 2019.
MAGNETEK, INC. | ||
By: | /s/ Gregory P. Rustowicz | |
Gregory P. Rustowicz | ||
Vice President |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, Gregory P. Rustowicz and Alan S. Korman, or either of them, as his attorney in fact, to sign any amendments to this registration statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may 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 dates indicated.
Signature | Title | Date | ||
s/ Mark D. Morelli | President and Director (Principal Executive Officer) | May 30, 2019 | ||
Mark D. Morelli | ||||
s/ Gregory P. Rustowicz | Vice President, Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | May 30, 2019 | ||
Gregory P. Rustowicz | ||||
s/ Alan S. Korman | Secretary and Director | May 30, 2019 | ||
Alan S. Korman |
II-6
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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Amherst, State of New York, on May 30, 2019.
UNIFIED INDUSTRIES, INC. | ||
By: | /s/ Gregory P. Rustowicz | |
Gregory P. Rustowicz | ||
Vice President |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, Gregory P. Rustowicz and Alan S. Korman, or either of them, as his attorney in fact, to sign any amendments to this registration statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may 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 dates indicated.
Signature | Title | Date | ||
s/ Mark D. Morelli | Chairman of the Board of Directors (Principal Executive Officer) | May 30, 2019 | ||
Mark D. Morelli | ||||
s/ Ed Butte | President | May 30, 2019 | ||
Ed Butte | ||||
s/ Gregory P. Rustowicz | Vice President, Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | May 30, 2019 | ||
Gregory P. Rustowicz | ||||
s/ Alan S. Korman | Secretary and Director | May 30, 2019 | ||
Alan S. Korman |
II-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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Amherst, State of New York, on May 30, 2019.
YALE INDUSTRIAL PRODUCTS, INC. | |||||
By: | /s/ Gregory P. Rustowicz | ||||
Gregory P. Rustowicz | |||||
Vice President |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints, Gregory P. Rustowicz
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 dates indicated.
Signature | Title | |
Date | ||
President and Director (Principal Executive Officer) | May 30, 2019 | |
Mark D. Morelli | ||
s/ Gregory P. Rustowicz | Vice President, Treasurer and Director (Principal Financial Officer and Principal Accounting Officer) | May 30, 2019 |
Gregory P. Rustowicz | ||
s/ Alan S. Korman | Corporate Secretary and Director | May |
Alan S. Korman |
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