As Filed with the Securities and Exchange Registration Statement
Commission on May 2, 2002 No. 333-_______
=====================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
VALMONT INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 47-0351813
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Valmont Plaza
Omaha, Nebraska 68154-5215
(Address of principal executive offices) (Zip code)
Valmont 2002 Stock Plan
(Full title of the plan)
Terry J. McClain
Senior Vice President and Chief Financial Officer
Valmont Industries, Inc.
One Valmont Plaza
Omaha, Nebraska 68154-5215
(Name and address of agent for service)
402-963-1000
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
========================== =================== ==================== ======================== ====================
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered share (1) price (1) registration fee
-------------------------- ------------------- -------------------- ------------------------ --------------------
Common Stock (2) 1,700,000 $ 19.25 $ 32,725,000 $ 3,011
($1.00 par value)
========================== =================== ==================== ======================== ====================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average of the high and low
price of Valmont's common stock on the Nasdaq National Stock Market on
April 26, 2002.
(2) This registration statement also applies to preferred share purchase rights
which are attached to and trade with each share of common stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission
(the "Commission"), this registration statement omits the information specified
in Part I of Form S-8. The documents containing the information specified in
Part I will be delivered to the participants in the plan as required by
Securities Act Rule 428(b). Such documents are not being filed with the
Commission as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Valmont Industries, Inc. hereby incorporates by reference in this
registration statement the following documents previously filed with the
Commission:
(a) Annual Report on Form 10-K for the fiscal year ended December
29, 2001.
(b) The description of Valmont's common stock and related rights
contained in registration statements filed under the
Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by Valmont pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in the registration statement and to be a
part thereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers.
Pursuant to Article IX of the Certificate of Incorporation of Valmont,
Valmont shall, to the extent required, and may, to the extent permitted, by
Section 102 and Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify and reimburse all persons whom
it may indemnify and reimburse pursuant thereto. No director shall be liable to
Valmont or its stockholders for monetary damages for breach of fiduciary duty as
a director. A director shall continue to be liable for (1) any breach of a
director's duty of loyalty to Valmont or its stockholders; (2) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (3) paying a dividend or approving a stock repurchase which would
violate Section 174 of the General Corporation Law of the State of Delaware; or
(4) any transaction from which the director derived an improper personal
benefit.
The by-laws of Valmont provide for indemnification of Valmont officers
and directors against all expenses, liabilities or losses reasonably incurred or
suffered by the officer or director, including liability arising under the
Securities Act of 1933, to the extent legally permissible under Section 145 of
the General Corporation Law of the State of Delaware where any such person was,
is, or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact such person was serving Valmont in such capacity. Generally, under
Delaware law, indemnification will only be available where an officer or
director can establish that such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of
Valmont.
Valmont also maintains a director and officer insurance policy which
insures the officers and directors of Valmont and its subsidiaries against
damages, judgments, settlements and costs incurred by reason of certain wrongful
acts committed by such persons in their capacities as officers and directors.
Item 8. Exhibits
4.1 - Certificate of Incorporation, as amended, filed as Exhibit
3 to Valmont's Quarterly Report on Form 10-Q for the
quarter ended March 28, 1998 and incorporated herein by
reference.
4.2 - Bylaws, as amended, filed as Exhibit 3(ii) to Valmont's
Annual Report on Form 10-K for the fiscal year ended
December 26, 1998 and incorporated herein by reference.
4.3 - Rights Agreement, dated as of December 19, 1995 between
Valmont and First National Bank of Omaha as Rights Agent,
with Certificate of Adjustment, filed as Exhibit 4(i)
to Valmont's Annual Report on Form 10-K for the fiscal year
ended December 25, 1999 and incorporated herein by
reference.
4.4 - Valmont 2002 Stock Plan.
4.5 - Form of Common Stock Certificate filed as Exhibit 4.4 to
Valmont's Registration Statement on Form S-3 (333-59912)
and incorporated herein by reference.
5 - Opinion of McGrath, North, Mullin & Kratz, P.C.
23.1 - Consent of McGrath, North, Mullin & Kratz, P.C. (included
in Exhibit 5).
23.2 - Consent of Deloitte & Touche LLP.
24 - Powers of Attorney.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(1) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(2) 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
decreased 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% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(3) 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 paragraph (a)(1) and (a)(2) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and 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 Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) 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.
(d) 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 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
he deemed to be the initial bona fide offering thereof.
(e) 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 Commission such
indemnification is against public policy as expressed in the 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 of whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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
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 Omaha, State of Nebraska, on April 29, 2002.
Valmont Industries, Inc.
By /s/ Mogens C. Bay
------------------------------------
Mogens C. Bay
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on April 29, 2002.
Signature Title
/s/ Mogens C. Bay Chairman, Chief Executive Officer
------------------------------------ and Director (Principal
Mogens C. Bay Executive Officer)
/s/ Terry J. McClain Senior Vice President and Chief
------------------------------------ Financial Officer (Principal
Terry J. McClain Financial Officer)
/s/ Mark C. Jaksich Vice President & Controller
------------------------------------ (Principal Accounting Officer)
Mark C. Jaksich
Robert B. Daugherty* Director
John E. Jones* Director
Thomas F. Madison* Director
Charles D. Peebler, Jr.* Director
Bruce Rohde* Director
Walter Scott, Jr.* Director
Kenneth E. Stinson* Director
*Mogens C. Bay, by signing his name hereto, signs this registration
statement on behalf of each of the directors indicated. A Power of Attorney
authorizing such action has been filed herein as Exhibit 24.
/s/ Mogens C. Bay
----------------------------
Mogens C. Bay
Attorney-in-Fact
Index to Exhibits
Exhibit No. Exhibit Page
4.1 - Certificate of Incorporation, as amended, filed as Exhibit
3 to Valmont's Quarterly Report on Form 10-Q for the
quarter ended March 28, 1998 and incorporated herein by
reference.
4.2 - Bylaws, as amended, filed as Exhibit 3(ii) to Valmont's
Annual Report on Form 10-K for the fiscal year ended
December 26, 1998 and incorporated herein by reference.
4.3 - Rights Agreement, dated as of December 19, 1995 between
Valmont and First National Bank of Omaha as Rights Agent,
with Certificate of Adjustment, filed as Exhibit 4(i)
to Valmont's Annual Report on Form 10-K for the fiscal year
ended December 25, 1999 and incorporated herein by
reference.
4.4 - Valmont 2002 Stock Plan...................................
4.5 - Form of Common Stock Certificate filed as Exhibit 4.4 to
Valmont's Registration Statement on Form S-3 (333-59912)
and incorporated herein by reference.
5 - Opinion of McGrath, North, Mullin & Kratz, P.C............
23.1 - Consent of McGrath, North, Mullin & Kratz, P.C. (included
in Exhibit 5).
23.2 - Consent of Deloitte & Touche LLP..........................
24 - Powers of Attorney........................................