As filed with the Securities and Exchange Commission on November 1, 2002.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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GLOBAL POWER EQUIPMENT GROUP INC.
(Exact name of registrant as specified in its charter)
Delaware 73-1541378
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
6120 South Yale, Suite 1480
Tulsa, Oklahoma 74136
(Address of principal executive offices including zip code)
2001 Stock Option Plan
(Full title of the plan)
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John M. Matheson
General Counsel and Secretary
6120 South Yale, Suite 1480
Tulsa, Oklahoma 74136
(918) 488-0828
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(1) per share(2) offering price(2) fee
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Common Stock, 1,500,000 shares N/A $6,352,500 $584.43
$.01 par value
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(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares of common stock as may become
issuable as a result of any future anti-dilution adjustment in accordance
with the terms of the 2001 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) based on a price of $4.235 per share, which
represents the average of the high and low sale prices reported on the New
York Stock Exchange on October 29, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference and made a part of
this Registration Statement:
(1) Our Annual Report on Form 10-K for the fiscal year ended December 29,
2001;
(2) Our Quarterly Reports on Form 10-Q for the quarters ended March 30,
2002, and June 29, 2002;
(3) Our Current Reports on Form 8-K dated February 25, 2002, April 29,
2002, August 1, 2002, and November 1, 2002; and
(4) The description of our common stock contained in the Registration
Statement on Form 8-A filed with the SEC on May 18, 2001.
In addition, all documents we subsequently file pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities offered hereby then remaining unsold, shall be deemed to be
incorporated by reference and to be a part of this Registration Statement from
the date of filing of such documents. Any statement contained in this
Registration Statement, or in a document incorporated by reference herein, shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any other subsequently
filed incorporated document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed to constitute a part of
this Registration Statement, except as so modified or superseded.
We have not been able to obtain, after reasonable efforts, the written
consent of Arthur Andersen LLP to the incorporation by reference in this
Registration Statement of their report dated February 15, 2002, included in our
Annual Report on Form 10-K for the year ended December 29, 2001. Accordingly, we
have dispensed with the filing of their consent in reliance upon Rule 437a under
the Securities Act of 1933, as amended (the "Securities Act"). Because Arthur
Andersen LLP has not consented to such incorporation by reference of their
report in this Registration Statement, you may not be able to recover against
Arthur Andersen LLP under Section 11 of the Securities Act for any untrue
statement of a material fact contained in the financial statements audited by
Arthur Andersen LLP or any omission to state a material fact required to be
stated in those financial statements.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
John M. Matheson, Esq., whose legal opinion with respect to the validity of
the securities registered hereunder is filed as Exhibit 5.1 to this Registration
Statement, is an employee of Global Power Equipment Group Inc. As of October
29th 2002, Mr. Matheson owned options to purchase 20,000 shares of our common
stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides generally that a corporation may indemnify any person who was or is a
party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative in nature, by reason of the fact that he is or was a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) and, in
a proceeding not by or in the right of the corporation, judgments, fines, and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such suit or proceeding, if he acted in good faith and in a
manner believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reason to believe
his conduct was unlawful.
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Delaware law further provides that a corporation may not indemnify any person
against expenses incurred in connection with an action by or in the right of the
corporation if such person shall have been adjudged to be liable in the
performance of his duty to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine that, despite
the adjudication of liability but in the view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for the
expenses which such court shall deem proper.
Article IV of our Amended and Restated By-Laws provides that we shall, to
the full extent permitted by law, indemnify each person who is or was a
director, officer, employee or agent of our company and may indemnify each
person who is or was serving at our request as a director, officer, employee or
agent of or participant in another corporation or of a partnership, joint
venture, trust or other enterprise. Article IX of our Amended and Restated
Certificate of Incorporation also provides that we will indemnify officers,
directors, employees and agents of our company to the fullest extent permitted
under Delaware General Corporation Law and advance expenses incurred by such
directors, officers, employees and agents in relation to any action, suit or
proceeding.
Section 102(b)(7) of Delaware General Corporation Law gives each Delaware
corporation the power to eliminate or limit its directors' personal liability to
the corporation or its stockholders for monetary damages for certain breaches of
fiduciary duty as a director, except:
. for any breach of the director's duty of loyalty to the corporation
or its stockholders;
. for acts or omissions not in good faith, or which involve intentional
misconduct or a knowing violation of the law;
. under Section 174 of Delaware's General Corporation Law (providing
for liability of directors for the unlawful payment of dividends or
unlawful stock purchases or redemptions); or
. for any transaction from which a director derived an improper
personal benefit.
Our Amended and Restated Certificate of Incorporation eliminates the
personal liability of our directors to the fullest extent permitted by Section
102(b)(7) of Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation of Global
Power Equipment Group Inc. (incorporated by reference to Exhibit
3.1(b) to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001).
4.2 Amended and Restated By-Laws of Global Power Equipment Group
Inc. (incorporated by reference to Exhibit 3.2(b) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001).
5.1 Opinion of John M. Matheson, General Counsel and Secretary.
23.1 Consent of Arthur Andersen LLP (omitted pursuant to Rule 437a).
23.2 Consent of John M. Matheson, General Counsel and Secretary
(included in Exhibit 5.1).
24 Power of Attorney (included on the signature page to this
Registration Statement).
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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 of the securities registered hereby, 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 this 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 this Registration
Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in 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 periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this 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 further 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on the 1st day of
November, 2002.
GLOBAL POWER EQUIPMENT GROUP INC.
By: /s/ Larry D. Edwards
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Larry D. Edwards
Chief Executive Officer and President
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Larry D. Edwards and John M. Matheson,
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or their substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
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/s/ Larry D. Edwards Chief Executive Officer, November 1, 2002
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Larry D. Edwards President and Director
/s/ Michael H. Hackner Chief Financial Officer and November 1, 2002
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Michael H. Hackner Vice President of Finance
(Principal Financial and
Accounting Officer)
/s/ Adrian Doherty, Jr. Director November 1, 2002
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Adrian Doherty, Jr.
/s/ Stephen Eisenstein Chairman of the Board November 1, 2002
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Stephen Eisenstein
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/s/ Edgar Hotard Director November 1, 2002
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Edgar Hotard
/s/ Ira Kleinman Director November 1, 2002
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Ira Kleinman
/s/ Jerry Ryan Director November 1, 2002
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Jerry Ryan
/s/ Bengt Sohlen Director November 1, 2002
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Bengt Sohlen
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EXHIBIT INDEX
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation of
Global Power Equipment Group Inc. (incorporated by
reference to Exhibit 3.1(b) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 2001).
4.2 Amended and Restated By-Laws of Global Power Equipment
Group Inc. (incorporated by reference to Exhibit 3.2(b)
to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001).
5.1 Opinion of John M. Matheson, General Counsel and
Secretary.
23.1 Consent of Arthur Andersen LLP (omitted pursuant to Rule
437a).
23.2 Consent of John M. Matheson, General Counsel and
Secretary (included in Exhibit 5.1).