As filed with the Securities and Exchange Commission on May 14, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
2445 Technology Forest Blvd.
Building 4, Floor 12
The Woodlands, Texas
|(Address of Principal Executive Offices)||(Zip Code)|
Apergy Corporation 2018 Equity and Cash Incentive Plan
(Full title of the plan)
Senior Vice President, General Counsel & Secretary
2445 Technology Forest Blvd., Bldg. 4, Fl. 12
The Woodlands, Texas 77381
(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act. (Check one):
|Large accelerated filer||☐||Accelerated filer||☐|
|Non-accelerated filer||☒ (Do not check if a smaller reporting company)||Smaller reporting company||☐|
|Emerging growth company||☒|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
CALCULATION OF REGISTRATION FEE
Title of securities
to be registered
per share (2)
offering price (2)
Common Stock, $0.01 par value
|(1)||Represents 6,500,000 shares of common stock, par value $0.01 per share (the Common Stock), of Apergy Corporation (the Registrant) issuable under the Apergy Corporation 2018 Equity and Cash Incentive Plan (the Plan). Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also registers such number of additional shares of Common Stock as may be offered pursuant to the terms of the Plan, which provides for a change in the number or class of securities being offered or issued to prevent dilution as a result of stock splits, stock dividends or similar transactions.|
|(2)||Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act and based upon the average of the high and low sales prices of the Common Stock in the when-issued trading market as reported on the New York Stock Exchange on May 7, 2018.|
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement will be sent or given to the participants in the Plan as specified by Rule 428(b)(1) under the Securities Act.
(b) Upon written or oral request, the Registrant will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Registrant will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b) under the Securities Act. Requests for the above-mentioned information should be directed to the Secretary of the Registrant at the address and telephone number on the cover of this Registration Statement.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that have been filed with the Securities and Exchange Commission (the Commission) by the Registrant are incorporated herein by reference:
|(a)||the Registrants effective Registration Statement on Form 10 initially filed with the Commission on March 26, 2018 (as amended, the Form 10);|
|(b)||the Registrants Current Reports on Form 8-K filed with the Commission on April 25, 2018, May 7, 2018 and May 11, 2018; and|
|(c)||the description of the Registrants Common Stock set forth under the heading Description of Apergy Capital Stock in the Registrants Information Statement, filed as Exhibit 99.1 to the Form 10, including any amendment or report filed for the purpose of updating such description.|
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), after the date of this Registration Statement, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as the Incorporated Documents).
Any statement contained herein or in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, that the Registrant may from time to time furnish to the Commission will be incorporated by reference into, or otherwise included in, this Registration Statement.
Item 4. Description of Securities.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law (DGCL) authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors fiduciary duties as directors, and the Registrants amended and restated certificate of incorporation includes such an exculpation provision. The Registrants amended and restated certificate of incorporation and by-laws include provisions that indemnify, to the fullest extent allowable under the DGCL, the personal liability of directors or officers for monetary damages for actions taken as a director or officer of the Registrant, or for serving at the Registrants request as a director or officer or another position at another corporation or enterprise, as the case may be. The Registrants amended and restated certificate of incorporation and by-laws also provide that the Registrant must indemnify and advance reasonable expenses to its directors and officers, subject to its receipt of an undertaking from the indemnified party as may be required under the DGCL. The Registrants amended and restated certificate of incorporation expressly authorizes the Registrant to carry directors and officers insurance to protect the Registrant, its directors, officers and certain employees for some liabilities.
The limitation of liability and indemnification provisions that are in the Registrants amended and restated certificate of incorporation and by-laws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against the Registrants directors and officers, even though such an action, if successful, might otherwise benefit the Registrant and its stockholders. However, these provisions do not limit or eliminate the Registrants rights, or those of any stockholder, to seek non-monetary relief such as injunction or rescission in the event of a breach of a directors duty of care. The provisions do not alter the liability of directors under the federal securities laws.
Item 7. Exemption From Registration Claimed.
Item 8. Exhibits.
|4.1||Amended and Restated Certificate of Incorporation of Apergy Corporation, incorporated by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K filed with the Commission on May 11, 2018.|
|4.2||Amended and Restated By-Laws of Apergy Corporation, incorporated by reference to Exhibit 3.2 to the Registrants Current Report on Form 8-K filed with the Commission on May 11, 2018.|
|4.3||Apergy Corporation 2018 Equity and Cash Incentive Plan, incorporated by reference to Exhibit 10.5 to the Registrants Current Report on Form 8-K filed with the Commission on May 11, 2018.|
|5.1*||Opinion of Sidley Austin LLP as to the legality of the securities being offered.|
|23.1*||Consent of Sidley Austin LLP (included in its opinion filed as Exhibit 5.1).|
|23.2*||Consent of PricewaterhouseCoopers LLP.|
|24.1*||Powers of Attorney (contained on the signature page of this Registration Statement).|
Item 9. Undertakings.
|(a)||The undersigned Registrant hereby undertakes:|
|(1)||To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:|
|(i)||To include any prospectus required by Section 10(a)(3) of the Securities Act;|
|(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the 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 this effective Registration Statement; and|
|(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 paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission 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 undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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 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.|
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 Woodlands, State of Texas, on May 14, 2018.
|By:||/s/ Sivasankaran Somasundaram|
|President & Chief Executive Officer|
POWERS OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears immediately below constitutes and appoints Sivasankaran Somasundaram, Jay A. Nutt and Julia Wright, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her 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 other documents in connection therewith with the Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his or her substitute or 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 by the following persons in the capacities and on the dates indicated.
|/s/ Sivasankaran Somasundaram||President, Chief Executive Officer and Director (principal executive officer)||May 14, 2018|
|/s/ Jay A. Nutt||Senior Vice President and Chief Financial Officer (principal financial officer and principal accounting officer)||May 14, 2018|
|Jay A. Nutt|
|/s/ Daniel W. Rabun||Director||May 14, 2018|
|Daniel W. Rabun|
|/s/ Stephen M. Todd||Director||May 14, 2018|
|Stephen M. Todd|
|/s/ Stephen K. Wagner||Director||May 14, 2018|
|Stephen K. Wagner|
|/s/ Gary P. Luquette||Director||May 14, 2018|
|Gary P. Luquette|
|/s/ Kenneth M. Fisher||Director||May 14, 2018|
|Kenneth M. Fisher|
|/s/ Mamatha Chamarthi||Director||May 14, 2018|
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
+1 312 853 7000
+1 312 853 7036
AMERICA ASIA PACIFIC EUROPE
May 14, 2018
2445 Technology Forest Blvd.
Building 4, Floor 12
The Woodlands, Texas 77381
|Re:||6,500,000 Shares of Common Stock, $0.01 par value per share|
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the Registration Statement) being filed by Apergy Corporation, a Delaware corporation (the Company), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Securities Act), relating to the registration of 6,500,000 shares of common stock, $0.01 par value per share (the Registered Shares), of the Company which may be issued under the Apergy Corporation 2018 Equity and Cash Incentive Plan (the Plan).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the Companys Amended and Restated Certificate of Incorporation, the Companys Amended and Restated By-laws, the Plan, the resolutions adopted by the board of directors of the Company relating to the Registration Statement and the Plan and the resolutions adopted by the then sole stockholder of the Company relating to the Plan. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on the foregoing, we are of the opinion that each Registered Share that is newly issued pursuant to the Plan will be validly issued, fully paid and non-assessable when: (i) the
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships.
May 14, 2018
Registration Statement, as finally amended, shall have become effective under the Securities Act; (ii) such Registered Share shall have been duly issued and delivered in accordance with the Plan; and (iii) certificates representing such Registered Share shall have been duly executed, countersigned and registered and duly delivered to the person entitled thereto against payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any Registered Share is to be issued in uncertificated form, the Companys books shall reflect the issuance of such Registered Share to the person entitled thereto against payment of the agreed consideration therefor in an amount not less than the par value thereof, all in accordance with the Plan.
This opinion letter is limited to the General Corporation Law of the State of Delaware. We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Sidley Austin LLP
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Apergy Corporation of our report dated March 5, 2018 relating to the combined financial statements and financial statement schedule of Apergy Corporation (formerly known as Wellsite Corporation), which appears in Apergy Corporations effective Registration Statement on Form 10 filed with the Securities and Exchange Commission on March 26, 2018, as amended.
/s/ PricewaterhouseCoopers LLP
May 14, 2018