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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 26, 2001
REGISTRATION NO. 333-68650
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-4
AMENDMENT NO. 1
to
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 3429 38-1016240
(State or Other (Primary Standard Industrial (IRS Employer
Jurisdiction of Classification Code Number) Identification Number)
Incorporation or
Organization)
700 TERRACE POINT DRIVE
MUSKEGON, MI 49440
(231) 724-5000
(Address, Including Zip Code, and
Telephone Number, Including Area
Code, of Registrant's Principal
Executive Offices)
CHRISTOPHER J. KEARNEY, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
SPX CORPORATION
700 TERRACE POINT DRIVE
MUSKEGON, MI 49440
(231) 724-5000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
COPIES TO:
STUART GELFOND, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If 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, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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. [ ] _______________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ] _______________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
TITLE OF EACH AMOUNT TO BE PROPOSED PROPOSED AMOUNT
CLASS OF REGISTERED MAXIMUM MAXIMUM OF
SECURITIES TO BE OFFERING AGGREGATE REGISTRATION
REGISTERED PRICE PER OFFERING PRICE FEE
UNIT (1) (1)
---------------- ------------ --------- -------------- -----------
Common stock, par
value $10.00
per share (2) 4,300,000 $116.257 $499,905,100 $124,977(3)
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(1)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
on the average of the high and low per sale share price on the New York Stock
Exchange on August 24, 2001.
(2)The shares of our common stock being registered hereunder include the
associated rights to purchase our Series A Preferred Stock. The rights to
purchase our Series A Preferred Stock initially are attached to and trade
with the shares of our common stock being registered hereby.
(3)Previously paid.
THE REGISTRANT HEREBY AMENDS THE 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE 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 IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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Subject to completion, dated September 26, 2001
PROSPECTUS
4,300,000 SHARES
SPX CORPORATION
COMMON STOCK
By this prospectus, we may issue up to 4,300,000 shares of our common
stock from time to time in connection with acquisitions of businesses, assets or
securities whether by purchase, merger or any other form of acquisition or
business combination.
The amount and type of consideration we will offer and the other specific
terms of each acquisition will be determined by negotiations with the owners or
the persons who control the businesses, assets or securities to be acquired. We
may structure business acquisitions in a variety of ways, including acquiring
stock, other equity interests or assets of the acquired business, merging the
acquired business with us or one of our subsidiaries, or acquiring the acquired
business through one of our subsidiaries. We expect that the price of the
shares we issue will be related to their market price, either when we
tentatively or finally agree to the particular terms of the acquisition, when
we issue the shares, when the acquisition is completed, or during some other
negotiated period and may be based on average market prices or otherwise.
Securities may be sold at fixed offering prices, which may be changed, or at
other negotiated prices. We may be required to provide further information by
means of a post-effective amendment to the registration statement or a
supplement to this prospectus once we know the actual information concerning a
specific acquisition.
We will pay all expenses of this offering. We do not expect to pay any
underwriting discounts or commissions in connection with issuing these shares,
although we may pay finder's fees in connection with certain acquisitions. Any
person receiving a finder's fee may be deemed an underwriter within the meaning
of the Securities Act of 1933.
We may also permit individuals or entities who have received or will
receive shares of our common stock in connection with the acquisitions described
above to use this prospectus to cover resales of those shares. If this happens,
we will not receive any proceeds from such resales. See "Reselling Securities."
Our common stock is quoted on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "SPW." We will make application to list these
shares on the New York Stock Exchange and Pacific Stock Exchange. The last
reported sales price of our common stock on the New York Stock Exchange on
September 25, 2001 was $85.50 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2001
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TABLE OF CONTENTS
Page
----
ABOUT THIS PROSPECTUS................................................. 1
WHERE YOU CAN FIND MORE INFORMATION................................... 1
FORWARD-LOOKING STATEMENTS............................................ 3
SPX CORPORATION....................................................... 3
RISK FACTORS.......................................................... 4
USE OF PROCEEDS....................................................... 10
DESCRIPTION OF COMMON STOCK........................................... 11
DISTRIBUTION OF SECURITIES............................................ 15
RESELLING SECURITIES.................................................. 15
LEGAL MATTERS......................................................... 17
EXPERTS............................................................... 17
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, which we refer to as the SEC, using the
SEC's shelf registration rules. Under the shelf registration rules, using this
prospectus, together with a prospectus supplement, if one is required, we may
sell from time to time, in one or more offerings, up to 4,300,000 shares of our
common stock in connection with the acquisition of various businesses. We may
issue the securities directly or through our subsidiaries in connection with
our acquisition of the assets, business or securities of other companies
whether by purchase, merger or any other form of acquisition or business
combination.
For each acquisition, we expect to negotiate the terms with the owner or
controlling persons of the assets, businesses, or securities we plan to acquire.
We expect that the price of the shares we issue will be related to their market
price, either when we tentatively or finally agree to the particular terms of
the acquisition, when we issue the shares, when the acquisition is completed, or
during some other negotiated period and may be based on average market prices or
otherwise. Securities may be sold at a fixed offering price, which may be
changed, or at other negotiated prices.
With our consent, persons who have received or will receive securities
under this prospectus in connection with acquisitions may use this prospectus to
sell such securities at a later date. We refer to these persons in the
prospectus as selling security holders or selling shareholders. If required by
the securities laws, these selling security holders will be named in a
prospectus supplement. Please see the information described under the heading
"Reselling Securities" to find out more information about resales of the
securities by the selling security holders.
In this prospectus:
- "SPX," "the company," "we," "us," and "our" refer to SPX
Corporation, a Delaware corporation, and its consolidated
subsidiaries, unless the context otherwise requires;
- "UDI" refers to United Dominion Industries Limited and its
subsidiaries, all of which are subsidiaries of SPX Corporation,
unless the context otherwise requires;
- "February LYONs" refers to our Liquid Yield Option Notes(TM) due
2021 issued in February 2001; and
- "May LYONs" refers to our Liquid Yield Option Notes(TM) due 2021
issued in May 2001.
This prospectus provides you with a general description of the securities
we may sell. Depending on the terms of the transaction, when we sell securities
under this prospectus, we may provide a prospectus supplement that will contain
specific information about the terms of that offering if required by the
securities laws. The prospectus supplement may also add, update or change
information contained in this prospectus. Market information in the incorporated
documents is generally based on company estimates and not third party sources.
You should read this prospectus, the applicable prospectus supplement and the
additional information described below under "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information we file with the SEC at its public reference rooms at 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our filings are also
available to the public on the Internet, through a database maintained by the
SEC at http://www.sec.gov. In addition, you can inspect and copy our reports,
proxy statements and other information at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005 or at the offices of
the Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
We filed a registration statement on Form S-4 to register with the SEC the
securities described in this prospectus. This prospectus is part of that
registration statement. As permitted by SEC rules, this prospectus does not
contain all the information contained in the registration statement or the
exhibits to the
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registration statement. You may refer to the registration statement and
accompanying exhibits for more information about us and our securities.
The SEC allows us to incorporate by reference into this document the
information we filed with it. This means that we can disclose important
business, financial and other information to you by referring you to other
documents separately filed with the SEC. All information incorporated by
reference is part of this document, unless and until that information is updated
and superseded by the information contained in this document or any information
incorporated later.
We incorporate by reference the documents listed below:
1. Our annual report on Form 10-K/A for the fiscal year ended December
31, 2000;
2. Our quarterly reports on Forms 10-Q for the fiscal quarters ended
March 31, 2001 and June 30, 2001; and
3. Our current reports on Form 8-K filed on March 12, 2001, April 12,
2001, April 13, 2001, May 8, 2001, June 7, 2001 and September 26,
2001 and on Form 8K/A filed on August 6, 2001.
You may request a copy of these filings, no later than five business days
before the date you must make your investment decision, at no cost, by writing
or telephoning us at the following address:
Investor Relations
SPX Corporation
700 Terrace Point Drive
Muskegon, Michigan 49440
Tel: (231) 724-5000, Fax: (231) 724-5302
Exhibits to the filings will not be sent, however, unless those exhibits
have specifically been incorporated by reference.
We also incorporate by reference all future filings we make with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of
1934 on or (i) after the date of the filing of the registration statement
containing this prospectus and prior to the effectiveness of such registration
statement and (ii) after the date of this prospectus and prior to the closing of
the offering made hereby or in connection with resales by selling security
holders, prior to the closing of the relevant resale. Such documents will become
a part of this prospectus from the date that the documents are filed with the
SEC.
Our subsidiary, Inrange Technologies Corporation, completed its initial
public offering on September 27, 2000. Inrange's common stock is traded on the
Nasdaq National Market under the symbol "INRG." You may obtain information about
Inrange from the SEC at the address or website specified above.
You should rely only on the information contained or incorporated by
reference in this prospectus and any prospectus supplement. We have not
authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not making an offer to sell these securities in any jurisdiction
where the offer and sale is not permitted. You should assume that the
information appearing or incorporated by reference in this prospectus, is
accurate only as of the date of the documents containing the information. Our
business, financial condition, results of operation and prospects may have
changed since that date.
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FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus and any documents incorporated
by reference constitute "forward looking statements" within the meaning of the
U.S. Private Securities Litigation Reform Act of 1995. These statements relate
to future events or our future financial performance, including, but not limited
to, cost savings and other benefits of acquisitions, including the acquisition
of UDI, which involve known and unknown risks, uncertainties and other factors
that may cause our or our businesses' actual results, levels of activity,
performance or achievements to be materially different from those expressed or
implied by any forward looking statements. In some cases, you can identify
forward looking statements by terminology such as "may," "will," "could,"
"would," "should," "expect," "plan," "anticipate," "intend," "believe,"
"estimate," "predict," "potential" or "continue" or the negative of those terms
or other comparable terminology. These statements are only predictions. Actual
events or results may differ materially because of market conditions in our
industries or other factors. Moreover, we do not, nor does any other person,
assume responsibility for the accuracy and completeness of those statements. We
have no duty to update any of the forward looking statements after the date of
this prospectus to conform them to actual results. All of the forward looking
statements are qualified in their entirety by reference to the factors discussed
under the captions "Risk Factors" in this prospectus and any applicable
prospectus supplement, "Other Matters" in "Management's Discussion and Analysis
of Results of Operations and Financial Condition" in our Forms 10-Q for the
fiscal quarters ended March 31, 2001 and June 30, 2001 (incorporated by
reference in this prospectus) and "Factors That May Affect Future Results" in
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" of our most recent Form 10-K/A (incorporated by reference in this
prospectus) and similar sections in our future filings which we incorporated by
reference in this prospectus, which describe risks and factors that could cause
results to differ materially from those projected in such forward looking
statements.
We caution the reader that these risk factors may not be exhaustive. We
operate in a continually changing business environment, and new risk factors
emerge from time to time. Management cannot predict such new risk factors, nor
can it assess the impact, if any, of such new risk factors on our businesses or
the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those projected in any forward looking
statements. Accordingly, forward looking statements should not be relied upon as
a prediction of actual results. In addition, management's estimates of future
operating results are based on our current complement of businesses, which is
constantly subject to change as management implements its fix, sell or grow
strategy.
SPX CORPORATION
We are a global provider of technical products and systems, industrial
products and services, flow technology and service solutions. We offer a
diversified collection of products that includes networking and switching
products, fire detection and building life-safety products, TV and radio
broadcast antennas and towers, life science products and services, transformers,
compaction equipment, high-integrity castings, dock products and systems,
cooling towers, air filtration products, valves, back-flow protection devices
and fluid handling, metering and mixing solutions. Our products and services
also include specialty service tools, diagnostic systems, service equipment and
technical information services. Our products are used by a broad group of
customers that serve a diverse group of industries including chemical
processing, pharmaceuticals, infrastructure, mineral processing, petrochemical,
telecommunications, financial services, transportation and power generation.
On May 24, 2001, we completed the acquisition of UDI in an all-stock
transaction valued at $1,066.9 million. A total of 9.385 million shares were
issued (3.890 million from treasury) to complete the transaction. We also
assumed or refinanced $884.1 million of UDI debt bringing the total transaction
value to $1,951.0 million. UDI manufactured proprietary engineered and flow
technology products primarily for industrial and commercial markets worldwide.
UDI, which had sales of $2,366.2 million in 2000, is included in our financial
statements beginning May 25, 2001 and is represented in the description of the
company above.
We are a Delaware corporation. Our principal executive offices are
located at 700 Terrace Point Drive, Muskegon, Michigan 49440, and our telephone
number is (231) 724-5000.
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RISK FACTORS
You should carefully consider the risks described below before making a
decision to invest in our securities. Some of the following factors relate
principally to our business and the industry in which we operate. Other factors
relate principally to your investment in our securities. The risks and
uncertainties described below are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also adversely affect our business and operations.
If any of the matters included in the following risks were to occur, our
business, financial condition, results of operations, cash flows or prospects
could be materially adversely affected. In such case, the trading price of our
common stock could decline and you could lose all or part of your investment.
OUR LEVERAGE MAY AFFECT OUR BUSINESS AND MAY RESTRICT OUR OPERATING FLEXIBILITY.
At June 30, 2001, we had approximately $2,513.2 million in total
indebtedness. At such date, we had $534.0 million of available borrowing
capacity under our revolving senior credit facility after giving effect to $66.0
million reserved for letters of credit outstanding which reduce the availability
under our revolving senior credit facility. In addition, at June 30, 2001, our
cash balance was $360.3 million. For a description of our indebtedness, please
see "Management's Discussion and Analysis of Results of Operations and Financial
Condition" in our quarterly reports on Forms 10-Q for the fiscal quarters ended
March 31, 2001 and June 30, 2001 and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in our annual report on Form
10-K/A for the fiscal year ended December 31, 2000 and any future Forms 10-Q and
10-K which we file, which are incorporated by reference in this prospectus.
Subject to certain restrictions set forth in the senior credit facility, we may
incur additional indebtedness in the future, including indebtedness incurred to
finance, or which is assumed in connection with, acquisitions. We may in the
future renegotiate or refinance our senior credit facility with agreements that
have different or more stringent terms or split our senior credit facility into
two or more facilities with different terms. The level of our indebtedness
could:
- limit cash flow available for general corporate purposes, such as
acquisitions and capital expenditures, due to the ongoing cash flow
requirements for debt service;
- limit our ability to obtain, or obtain on favorable terms,
additional debt financing in the future for working capital, capital
expenditures or acquisitions;
- limit our flexibility in reacting to competitive and other changes
in the industry and economic conditions generally;
- expose us to a risk that a substantial decrease in net operating
cash flows due to economic developments or adverse developments in
our business could make it difficult to meet debt service
requirements; and
- expose us to risks inherent in interest rate fluctuations because
the existing borrowings are and any new borrowings may be at
variable rates of interest, which could result in higher interest
expense in the event of increases in interest rates.
Our ability to make scheduled payments of principal of, to pay interest
on, or to refinance our indebtedness and to satisfy our other debt obligations
will depend upon our future operating performance, which may be affected by
general economic, financial, competitive, legislative, regulatory, business and
other factors beyond our control. We will not be able to control many of these
factors, such as the economic conditions in the markets in which we operate and
initiatives taken by our competitors. In addition, there can be no assurance
that future borrowings or equity financing will be available for the payment or
refinancing of our indebtedness. If we are unable to service our indebtedness,
whether in the ordinary course of business or upon acceleration of such
indebtedness, we may be forced to pursue one or more alternative strategies,
such as restructuring or refinancing our indebtedness, selling assets, reducing
or
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delaying capital expenditures or seeking additional equity capital. There can
be no assurance that any of these strategies could be effected on satisfactory
terms, if at all.
WE MAY NOT BE ABLE TO FINANCE FUTURE NEEDS OR ADAPT OUR BUSINESS PLAN TO CHANGES
IN ECONOMIC OR BUSINESS CONDITIONS BECAUSE OF RESTRICTIONS PLACED ON US BY OUR
SENIOR CREDIT FACILITY AND THE INSTRUMENTS GOVERNING OUR OTHER INDEBTEDNESS.
Our senior credit facility and other agreements governing our other
indebtedness contain covenants that restrict our ability to make distributions
or other payments to our investors and creditors unless certain financial tests
or other criteria are satisfied. We must also comply with certain specified
financial ratios and tests. In some cases, our subsidiaries are subject to
similar restrictions which may restrict their ability to make distributions to
us. In addition, our senior credit facility and these other agreements contain
or may contain additional affirmative and negative covenants. All of these
restrictions could affect our ability to operate our business and may limit our
ability to take advantage of potential business opportunities such as
acquisitions as they arise.
If we do not comply with these or other covenants and restrictions
contained in our senior credit facility and other agreements governing our
indebtedness, we could be in default under those agreements, and the debt,
together with accrued interest, could then be declared immediately due and
payable. If we default under our senior credit facility, the lenders could cause
all of our outstanding debt obligations under our senior credit facility to
become due and payable, require us to apply all of our cash to repay the
indebtedness or prevent us from making debt service payments on any other
indebtedness we owe. In addition, any default under our senior credit facility
or agreements governing our other indebtedness could lead to an acceleration of
debt under other debt instruments that contain cross-acceleration or
cross-default provisions. If the indebtedness under our senior credit facility
is accelerated, we may not have sufficient assets to repay amounts due under our
senior credit facility, the February LYONs, the May LYONs or under other debt
securities then outstanding. Our ability to comply with these provisions of our
senior credit facility and other agreements governing our other indebtedness may
be affected by changes in the economic or business conditions or other events
beyond our control.
OUR FAILURE TO SUCCESSFULLY INTEGRATE UDI AND OTHER RECENT ACQUISITIONS, AS WELL
AS ANY FUTURE ACQUISITIONS, COULD HAVE A NEGATIVE EFFECT ON OUR OPERATIONS; OUR
ACQUISITIONS COULD CAUSE UNEXPECTED FINANCIAL DIFFICULTIES.
As part of our business strategy, we evaluate potential acquisitions in
the ordinary course. In 2000, we made 21 acquisitions of businesses for an
aggregate price of approximately $226.8 million. Excluding the UDI acquisition,
in the first half of 2001, we made nine acquisitions of businesses for an
aggregate purchase price of approximately $130.8 million. Our past acquisitions,
particularly the acquisition of UDI which had sales of approximately $2,366.2
million for the year ended December 31, 2000, and any potential future
acquisitions, involve a number of risks and present financial, managerial and
operational challenges, including:
- adverse effects on our reported operating results due to charges to
earnings and the amortization of goodwill associated with
acquisitions;
- diversion of management attention from running our existing
businesses;
- difficulty with integration of personnel and financial and other
systems;
- increased expenses, including compensation expenses resulting from
newly-hired employees;
- increased foreign operations which may be difficult to assimilate;
- assumption of known and unknown liabilities and increased
litigation; and
- potential disputes with the sellers of acquired businesses,
technologies, services or products.
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We may not be able to integrate successfully the technology, operations
and personnel of any acquired business. Customer dissatisfaction or performance
problems with an acquired business, technology, service or product could also
have a material adverse effect on our reputation and business. In addition, any
acquired business, technology, service or product could underperform relative to
our expectations. We could also experience financial or other setbacks if any of
the businesses that we have acquired or may acquire in the future have problems
or liabilities of which we are not aware or which are substantially greater than
we anticipate. In addition, as a result of future acquisitions, we may further
increase our leverage or, if we issue equity securities, including pursuant to
this prospectus, to pay for the acquisitions, significantly dilute our existing
stockholders.
WE MAY NOT ACHIEVE THE EXPECTED COST SAVINGS AND OTHER BENEFITS OF OUR
ACQUISITIONS, INCLUDING UDI.
As a result of our acquisitions, including the acquisition of UDI, we
incur integration expenses for the incremental costs to exit and consolidate
activities, to involuntarily terminate employees, and for other costs to
integrate operating locations and other activities of these companies with SPX.
Generally accepted accounting principles require that these acquisition
integration expenses, which are not associated with the generation of future
revenues and have no future economic benefit, be reflected as assumed
liabilities in the allocation of the purchase price to the net assets acquired.
On the other hand, these same principles require that acquisition integration
expenses associated with integrating SPX operations into locations of the
acquired company's must be recorded as expense. Accordingly, these expenses are
not included in the allocation of purchase price of the company acquired. Over
the past five years, we have recorded several special charges to our results of
operations associated with cost reductions, integrating acquisitions and
achieving operating efficiencies. We believe that our actions have been required
to improve our operations and, as described above, we will, if necessary, record
future charges as appropriate to address costs and operational efficiencies at
the combined company.
We believe our anticipated savings from the cost reduction and integration
actions associated with the UDI acquisition should exceed $100.0 million on an
annualized basis. Our current integration plan focuses on three key areas of
cost savings: (1) manufacturing process and supply chain rationalization,
including plant closings, (2) elimination of redundant administrative overhead
and support activities, and (3) restructuring and repositioning sales and
marketing organizations to eliminate redundancies in these activities. While we
believe these cost savings to be reasonable, they are inherently estimates which
are difficult to predict and are necessarily speculative in nature. In addition,
we cannot assure you that unforeseen factors will not offset the estimated cost
savings or other benefits from the acquisition. As a result, our actual cost
savings, if any, and other anticipated benefits could differ or be delayed,
compared to our estimates and from the other information contained in this
prospectus.
WE MAY NOT BE ABLE TO CONSUMMATE ACQUISITIONS AT OUR PRIOR RATE WHICH COULD
NEGATIVELY IMPACT US.
We may not be able to consummate acquisitions at similar rates to our past
acquisition rates, which could materially impact our growth rate, results of
operations and stock price. Our ability to continue to achieve our goals may
depend upon our ability to identify and successfully acquire companies,
businesses and product lines, to effectively integrate these businesses and
achieve cost effectiveness. We may also need to raise additional funds to
consummate these acquisitions. In addition, changes in our stock price may
adversely affect our ability to consummate acquisitions.
THE LOSS OF KEY PERSONNEL AND ANY INABILITY TO ATTRACT AND RETAIN QUALIFIED
EMPLOYEES COULD MATERIALLY ADVERSELY IMPACT OUR OPERATIONS.
We are dependent on the continued services of our management team,
including our Chairman of the Board, President and Chief Executive Officer. The
loss of such personnel without adequate replacement could have a material
adverse effect on us. Additionally, we need qualified managers and skilled
employees with technical and manufacturing industry experience in order to
operate our business successfully. From time to time there may be a shortage of
skilled labor which may make it more difficult and expensive for us to attract
and retain qualified employees. If we are unable to attract and retain qualified
individuals or our costs to do so increase significantly, our operations would
be materially adversely affected.
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MANY OF THE INDUSTRIES IN WHICH WE OPERATE ARE CYCLICAL AND, ACCORDINGLY, OUR
BUSINESS IS SUBJECT TO CHANGES IN THE ECONOMY; PRESSURE FROM ORIGINAL EQUIPMENT
MANUFACTURERS TO REDUCE COSTS COULD ADVERSELY AFFECT OUR BUSINESS; OUR
BUSINESS WAS IMPACTED BY THE TERRORIST ATTACK ON SEPTEMBER 11, 2001.
Many of the business areas in which we operate are subject to specific
industry and general economic cycles. Certain businesses are subject to industry
cycles, including, but not limited to, the automotive industries which influence
our Service Solutions and Industrial Products and Services segments, the
electric power and construction and infrastructure markets which influence our
Industrial Products and Services segment, the telecommunications networks and
building construction industries which influence our Technical Products and
Systems segment, and process equipment, chemical and petrochemical markets which
influence our Flow Technology segment. Accordingly, any downturn in these or
other markets in which we participate could materially adversely affect us. A
decline in automotive sales and production may also affect not only sales of
components, tools and services to vehicle manufacturers and their dealerships,
but also sales of components, tools and services to aftermarket customers, and
could result in a decline in our results of operations or a deterioration in our
financial condition. Similar cyclical changes could also affect aftermarket
sales of products in our other segments. If demand changes and we fail to
respond accordingly, our results of operations could be materially adversely
affected in any given quarter. The business cycles of our different operations
may occur contemporaneously. Consistent with most multi-industry, capital goods
companies, our businesses have been impacted in 2001 by the soft economic
conditions. Additionally, customer demand and international shipping
restrictions related to the events of September 11, 2001 have impacted our
business and may continue to impact our financial performance. In particular,
our auto-related businesses and Inrange subsidiary may be adversely impacted by
these events to a greater extent than our other businesses. There can be no
assurance that the economic downturn will not worsen or that we will be able to
sustain existing or create additional cost reductions to offset economic
conditions and the unpredictability and changes in the industrial markets in the
current environment could continue to adversely impact our results.
There is also substantial and continuing pressure from the major original
equipment manufacturers, particularly in the automotive industry, to reduce
costs, including the cost of products and services purchased from outside
suppliers such as us. If in the future we were unable to generate sufficient
cost savings to offset price reductions, our gross margins could be materially
adversely affected.
IF FUTURE CASH FLOWS ARE INSUFFICIENT TO RECOVER THE CARRYING VALUE OF OUR
GOODWILL, A MATERIAL NON-CASH CHARGE TO EARNINGS COULD RESULT.
At June 30, 2001, we had goodwill and intangible assets of approximately
$2,546.0 million and shareholders' equity of approximately $1,617.0 million. We
expect to recover the carrying value of goodwill through our future cash flows.
On an ongoing basis, we evaluate, based on projected undiscounted cash flows,
whether we will be able to recover all or a portion of the carrying value of
goodwill. If future cash flows are insufficient to recover the carrying value of
our goodwill, we must write off a portion of the unamortized balance of
goodwill. There can be no assurance that circumstances will not change in the
future that will affect the useful life or carrying value of our goodwill and
accordingly require us to take a charge to write off a portion of our goodwill.
On July 20, 2001 the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 141 "Business Combinations" ("SFAS 141")
and Statement of Financial Accounting Standards No. 142 "Goodwill and Other
Intangible Assets" ("SFAS 142"). We will adopt SFAS 141 and SFAS 142 for our
fiscal year beginning on January 1, 2002. We are currently evaluating the
provisions of SFAS 141 and SFAS 142 and the impact that adoption will have on
our financial position and results of operations.
WE ARE SUBJECT TO ENVIRONMENTAL AND SIMILAR LAWS AND POTENTIAL LIABILITY
RELATING TO CERTAIN CLAIMS, COMPLAINTS AND PROCEEDINGS, INCLUDING THOSE
RELATING TO ENVIRONMENTAL AND OTHER MATTERS, ARISING IN THE ORDINARY COURSE OF
BUSINESS.
We are subject to various environmental laws, ordinances, regulations, and
other requirements of government authorities in the United States and other
nations. Such requirements may include, for example, those governing discharges
from and materials handled as part of, our operations, the remediation of soil
and groundwater contaminated by petroleum products or hazardous substances or
wastes, and the health and safety of our employees. Under certain of these laws,
ordinances or regulations, a current or previous owner or operator of property
may be liable for the costs of investigation, removal or remediation of certain
hazardous substances or petroleum products on, under, or in its property,
without regard to whether the
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owner or operator knew of, or caused, the presence of the contaminants, and
regardless of whether the practices that resulted in the contamination were
legal at the time they occurred. The presence of, or failure to remediate
properly, such substances may have adverse effects, including, for example,
substantial investigative or remedial obligations, and limits on the ability to
sell or rent such property or to borrow funds using such property as collateral.
In connection with our acquisitions and divestitures, we may assume or retain
significant environmental liabilities some of which we may not be aware. Future
developments related to new or existing environmental matters or changes in
environmental laws or policies could lead to material costs for environmental
compliance or cleanup. There can be no assurance that such liabilities and costs
will not have a material adverse effect on our results of operations or
financial position in the future.
Numerous claims, complaints and proceedings arising in the ordinary course
of business, including but not limited to those relating to environmental
matters, competitive issues, contract issues, intellectual property matters,
personal injury and product liability claims, and workers' compensation have
been filed or are pending against us and certain of our subsidiaries. We have
insurance and indemnification for a portion of such items. In our opinion, these
matters are individually or in the aggregate without merit or are of a kind as
should not have a material adverse effect on our financial position, results of
operations, or cash flows if disposed of unfavorably. However, there can be no
assurance that recoveries for insurance and indemnification will be available or
that any such claims or other matters could not have a material adverse effect
on our financial position, results of operations or cash flows. Additionally, in
connection with our acquisitions, we may become subject to significant claims of
which we were unaware at the time of the acquisition or the claims that we were
aware of may result in our incurring a significantly greater liability than we
anticipated.
On September 21, 2001, VSI Holdings, Inc. issued a press release
announcing that it had filed a lawsuit against us seeking enforcement of a
merger agreement that we had terminated. In its press release, VSI stated that
it has asked the court to require us to complete the $197 million acquisition of
VSI, and/or award damages to VSI and its shareholders. We do not believe the
suit has merit and are planning to defend the claim vigorously. There can be no
assurance that we will be successful in the litigation. If we are not
successful, the outcome could have a material adverse effect on our financial
condition and results of operations.
OUR INRANGE SUBSIDIARY IS SUBJECT TO VARIOUS RISKS AND ANY MATERIAL ADVERSE
EFFECT ON INRANGE COULD MATERIALLY ADVERSELY AFFECT OUR FINANCIAL RESULTS.
We own approximately 89.5% of the total number of outstanding shares of
common stock of Inrange Technologies Corporation. Based on the closing price of
Inrange's Class B common stock on September 24, 2001, Inrange's market
capitalization was approximately $490.877 million on such date. Inrange is a
high technology company and is subject to additional and different risks, and
its public equity trades similar to other technology businesses. Any adverse
effect on Inrange could affect us.
The terrorist events of September 11, 2001 will have a material effect on
Inrange's business. Inrange's near-term business will be impacted by the
following factors:
- customer buying decisions being delayed;
- travel restrictions, which impacts sales efforts;
- Inrange's largest world-wide sales office adjacent to the World
Trade Center is closed indefinitely which has required us to
relocate our sales force to a newly acquired operation in New
Jersey; and
- international shipments, which represents approximately 40% of
Inrange's revenues, have been delayed due to limited airfreight
availability.
The impact to Inrange's business subsequent to the events on September 11, 2001
will reduce its third quarter 2001 results and are expected to impact the fourth
quarter and full year 2001 results although the magnitude and length of time of
the impact is uncertain but could be significant.
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In addition to the risks described herein for our business as a whole,
Inrange is subject to the following risks:
- Inrange's business will suffer if it fails to develop, successfully
introduce and sell new and enhanced high quality, technologically
advanced cost-effective products that meet the changing needs of its
customers on a timely basis. Inrange's competitors may develop new
and more advanced products on a regular basis;
- Inrange relies on a sole manufacturer to produce one of its key
products and on sole sources of supply for some key components in
its products. Any disruption in these relationships could increase
product costs and reduce Inrange's ability to provide its products
or develop new products on a timely basis; and
- The price for Inrange's products may decrease in response to
competitive pricing pressures, maturing life cycles, new product
introductions and other factors. Accordingly, Inrange's
profitability may decline unless it can reduce its production and
sales costs or develop new higher margin products.
The foregoing is a summary of the risk factors applicable to Inrange. For
a more complete description of those risks, please see "Risk Factors" in
Inrange's annual report of Form 10-K for the fiscal year ended December 31,
2000, which section is hereby incorporated by reference in this prospectus. See
"Where You Can Find More Information."
DIFFICULTIES PRESENTED BY INTERNATIONAL ECONOMIC, POLITICAL, LEGAL, ACCOUNTING
AND BUSINESS FACTORS COULD NEGATIVELY AFFECT OUR INTERESTS AND BUSINESS EFFORT.
In 2000, on a pro forma basis for our acquisition of UDI, approximately
27% of our sales were international, including export sales. In addition, in
2000, approximately 40% of Inrange's sales were international, including export
sales. We are seeking to increase our sales outside the United States. Our
international operations require us to comply with the legal requirements of
foreign jurisdictions and expose us to the political consequences of operating
in foreign jurisdictions. Our foreign business operations are also subject to
the following risks:
- difficulty in managing, operating and marketing our international
operations because of distance, as well as language and cultural
differences;
- increased strength of the U.S. dollar will increase the effective
price of our products sold in U.S. dollars which may have a material
adverse effect on sales or require us to lower our prices and also
decrease our reported revenues or margins in respect of sales
conducted in foreign currencies to the extent we are unable or
determine not to increase local currency prices; likewise, decreased
strength of the U.S. dollar could have a material adverse effect on
the cost of materials and products purchased overseas;
- difficulty entering new international markets due to greater
regulatory barriers than the United States and differing political
systems;
- increased costs due to domestic and foreign customs and tariffs,
potentially adverse tax consequences, including imposition or
increase of withholding and other taxes on remittances and other
payments by subsidiaries, and transportation and shipping expenses;
- credit risk or financial condition of local customers and
distributors;
- potential difficulties in staffing and labor disputes;
- risk of nationalization of private enterprises;
- increased costs of transportation or shipping;
- ability to obtain supplies from foreign vendors and ship products
internationally during times of crisis or otherwise;
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- potential difficulties in protecting intellectual property;
- potential imposition of restrictions on investments; and
- local political and social conditions, including the possibility of
hyperinflationary conditions and political instability in certain
countries.
As we continue to expand our international operations, including as a
result of the UDI acquisition, these and other risks associated with
international operations are likely to increase. In addition, as we enter new
geographic markets, we may encounter significant competition from the primary
participants in such markets, some of which may have substantially greater
resources than we do.
FUTURE INCREASES IN THE NUMBER OF SHARES OF OUR OUTSTANDING COMMON STOCK COULD
ADVERSELY AFFECT OUR COMMON STOCK PRICE OR DILUTE OUR EARNINGS PER SHARE.
Sales of a substantial number of shares of common stock into the public
market, or the perception that these sales could occur, could have a material
adverse effect on our stock price. If certain conditions are met, the February
LYONs and May LYONs could be converted into shares of our common stock. The
shares covered by the February LYONs have been registered under the Securities
Act and the shares under the May LYONs will be covered by a registration
statement. Subject to adjustment, the February LYONs and the May LYONs could be
converted into an aggregate of 6,624,540 shares of common stock. In addition, as
of June 30, 2001, approximately 8,778,229 shares of our common stock are
issuable upon exercise of outstanding stock options by employees and
non-employee directors. As of June 30, 2001, under our employee stock option
plan and non-employee director stock option plan, approximately 5,845,821 shares
of our common stock are reserved for future issuance of additional options and
shares under these plans. Additionally, we may issue a significant number of
additional shares in connection with our acquisitions, including pursuant to
this prospectus. We have also filed a shelf registration statement pursuant to
which we would be able to issue up to $1,000,000,000 in common stock or debt
securities. Any such additional shares could also have a dilutive effect on our
earnings per share.
PROVISIONS IN OUR CORPORATE DOCUMENTS AND DELAWARE LAW MAY DELAY OR PREVENT A
CHANGE IN CONTROL OF OUR COMPANY, AND ACCORDINGLY, WE MAY NOT CONSUMMATE A
TRANSACTION THAT OUR STOCKHOLDERS CONSIDER FAVORABLE.
Provisions of our Certificate of Incorporation and By-laws may inhibit
changes in our control not approved by our Board. We also have a rights plan
designed to make it more costly and thus more difficult to gain control of us
without the consent of our Board. We are also afforded the protections of
Section 203 of the Delaware General Corporation Law, which could have similar
effects. See "Description of Common Stock."
USE OF PROCEEDS
This prospectus relates to securities that may be offered and issued by us
from time to time in connection with the acquisition of various assets,
businesses or securities. Other than the assets, business, or securities
acquired, there usually will be no proceeds to us from these offerings. When
this prospectus is used by a selling security holder in a public reoffering or
resale of securities acquired pursuant to this prospectus, we will usually not
receive any proceeds from such sale by the selling security holder. However, any
proceeds received by us from the offering of securities pursuant to this
prospectus or upon any resale of securities acquired pursuant to this prospectus
will be used for general corporate purposes.
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DESCRIPTION OF COMMON STOCK
GENERAL
Our authorized capital stock consists of 100 million shares of common
stock, par value $10.00 per share, and 3 million shares of preferred stock,
without par value. As of September 21, 2001, 40,075,136 shares of common stock
were issued and outstanding (not including treasury shares) and 500,000 shares
have been designated as Series A Preferred Stock, of which none are issued and
outstanding. The following description of our common stock and provisions of our
Certificate of Incorporation and By-laws are only summaries and we encourage you
to review complete copies of our Certificate of Incorporation and By-laws, which
we have previously filed with the SEC.
The holders of our common stock are entitled to have dividends declared
in cash, property, or other securities out of any of our net profits or net
assets legally available therefor as and when declared by our Board of
Directors. In the event of the liquidation or dissolution of our business, the
holders of common stock will be entitled to receive ratably the balance of net
assets available for distribution after payment of any liquidation or
distribution preference payable with respect to any then outstanding shares of
our preferred stock. Each share of common stock is entitled to one vote with
respect to matters brought before the stockholders, except for the election of
any directors who may be elected by vote of any outstanding shares of preferred
stock voting as a class.
The rights and privileges of our common stock may be subordinate to the
rights and preferences of any of our preferred stock. The Board is authorized to
fix by resolution the designation of each series of preferred stock, and, with
respect to each series, the stated value of the shares, the dividend rate and
the dates and other provisions respecting the payment of dividends, the
provisions, if any, for a sinking fund, the preferences of the shares in the
event of the liquidation or dissolution, the provisions, if any, respecting the
redemption of the shares, subject to applicable law, the voting rights (except
that such shares shall not have more than one vote per share), the terms, if
any, upon which the shares would be convertible into or exchangeable for any
other shares, and any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions. All shares of any series of
preferred stock, as between themselves, rank equally and are identical; and all
series of preferred stock, as between themselves, rank equally and are identical
except as set forth in resolutions of the Board authorizing the issuance of a
particular series.
Our common stock is traded on the New York Stock Exchange and the
Pacific Stock Exchange under the symbol "SPW."
DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CERTIFICATE OF INCORPORATION AND BY-LAW
PROVISIONS
The provisions of Delaware law, our Certificate of Incorporation and
By-Laws may have the effect of delaying, deferring or discouraging another
person from acquiring control of our company, including takeover attempts that
might result in a premium over the market price for the shares of common stock.
Delaware Law
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law regulating corporate takeovers. In general, Section 203
prohibits a publicly-held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the time that the person became an interested stockholder, unless:
- before the person became an "interested stockholder," the board of
directors of the corporation approved the transaction in which the
"interested stockholder" became an "interested stockholder" or
approved the business combination;
- upon consummation of the transaction that resulted in the
stockholder becoming an "interested stockholder," the "interested
stockholder" owned at least 85% of the voting
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stock of the corporation that was outstanding at the time the
transaction commenced. For purposes of determining the number of
shares outstanding, shares owned by directors who are also
officers of the corporation and shares owned by employee stock
plans, in specified instances, are excluded; or
- at or after the time the person became an "interested
stockholder," the business combination is approved by the board of
directors of the corporation and authorized at an annual or
special meeting of the stockholders by the affirmative vote of at
least 66 2/3% of the outstanding voting stock which is not owned
by the "interested stockholder."
A "business combination" is defined generally to include mergers or
consolidations between a Delaware corporation and an "interested stockholder,"
transactions with an "interested stockholder" involving the assets or stock of
the corporation or any majority-owned subsidiary, transactions which increase an
"interested stockholder's" percentage ownership of stock of the corporation or
any majority-owned subsidiary, and receipt of various financial benefits from
the corporation or any majority-owned subsidiary. In general, an "interested
stockholder" is defined as any person or entity that is the beneficial owner of
at least 15% of a corporation's outstanding voting stock or is an affiliate or
associate of the corporation and was the beneficial owner of 15% or more of the
outstanding voting stock of the corporation at any time within the past three
years.
A Delaware corporation may opt out of this provision with an express
provision in its original certificate of incorporation or an express provision
in its certificate of incorporation or by-laws resulting from a stockholders'
amendment approved by at least a majority of the outstanding voting shares.
However, we have not opted out of this provision. The statute could prohibit or
delay mergers or other takeover or change-in-control attempts and, accordingly,
may discourage attempts to acquire us.
Certificate of Incorporation and By-Law Provisions
Our Certificate of Incorporation and By-Laws provide:
- a staggered Board of Directors so that it would take three
successive annual meetings to replace all directors;
- a prohibition on stockholder action through written consents;
- a requirement that special meetings of stockholders be called
only by our Chairman, President and Chief Executive Officer or
our Board;
- advance notice requirements for stockholder proposals and
nominations;
- limitations on the ability of stockholders to amend, alter or
repeal the By-laws;
- enhanced voting requirements for certain business combinations
involving substantial stockholders;
- the authority of our Board of Directors to issue, without
stockholder approval, preferred stock with such terms as our
Board may determine; and
- limitations on the ability of stockholders to remove
directors.
Limitations of Liability and Indemnification of Directors and Officers
Our Certificate of Incorporation limits the liability of directors to
us and our stockholders to the fullest extent permitted by Delaware law.
Specifically, a director will not be personally liable for monetary damages for
breach of fiduciary duty as a director, except for liability:
- for any breach of the director's duty of loyalty to us or our
stockholders;
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- for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law;
- under Section 174 of the Delaware General Corporation Law,
which concerns unlawful payments of dividends, stock purchases
or redemptions; or
- for any transaction from which the director derived an
improper personal benefit.
The Certificate of Incorporation provides that we shall indemnify our
officers and directors to the fullest extent permitted by the Delaware General
Corporation Law. We believe that these provisions will assist us in attracting
and retaining qualified individuals to serve as directors.
RIGHTS PLAN
On June 25, 1996, our Board of Directors adopted a rights plan. Our
rights plan, as amended, is designed to make it more costly and thus more
difficult to gain control of us without the consent of our Board of Directors.
The description presented below is intended as a summary only and is qualified
in its entirety by reference to the rights agreement, as amended, which is an
exhibit to the registration statement of which this prospectus is a part.
Our rights plan provides that each of our shares of common stock will
have the right to purchase from us one one-thousandth of a share of a new Series
A Preferred Stock at a price of $200 per one-thousandth of a share, subject to
customary anti-dilution protection adjustment.
The rights are attached to all certificates representing outstanding
shares of our common stock, and no separate right certificates have been
distributed. The rights will separate from the shares of our common stock
approximately 10 days after someone acquires beneficial ownership of 20% or more
of the outstanding common stock, or commences a tender offer or exchange offer
for 20% or more of the outstanding common stock.
After rights separate from our common stock, certificates representing
the rights will be mailed to record holders of our common stock. Once
distributed, the separate right certificates alone will represent the rights.
The rights are not exercisable until the date rights separate and will
expire on June 25, 2006, unless extended or unless earlier redeemed or exchanged
by us.
The shares of Series A Preferred Stock purchasable upon exercise of the
rights are non-redeemable. Each share of Series A Preferred Stock has a minimum
preferential quarterly dividend payment of $5.00 per share and an amount equal
to 1,000 times the dividend declared per share of common stock. In the event of
liquidation, the holders of Series A Preferred Stock will be entitled to a
minimum preferential liquidation payment of $1,000 per share but will be
entitled to an aggregate amount per share equal to 1,000 times the aggregate
payment per share made to holders of common stock.
Each share of Series A Preferred Stock will have 1,000 votes, voting
together with the shares of common stock. In the event of any merger,
consolidation or other transaction in which shares of common stock are
exchanged, each share of Series A Preferred Stock will be entitled to receive
1,000 times the amount received per share of common stock. The rights are
protected by customary anti-dilution provisions.
If, after any person or group becomes an acquiring person, we are
acquired in a merger or other business combination transaction or 50% or more of
our consolidated assets or earning power are sold, each holder of a right will
have a right to receive upon exercise of a right the number of shares of common
stock of the acquiring company, having a value equal to two times the exercise
price of the right. If any person or group becomes an acquiring person, each
holder of a right will have the right to receive upon exercise that number of
shares of common stock having a market value of two times the exercise price of
the right. Following the occurrence of the events described above, rights
beneficially owned by any acquiring person at the time of such transaction will
be void and may not be exercised.
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At any time after any person or group becomes an acquiring person and
prior to the acquisition by such person or group of 50% or more of the
outstanding shares of common stock, the Board may exchange the rights (other
than rights owned by such person or group which will have become void), in whole
or in part, at an exchange ratio of one share of common stock or one
one-thousandth of a share of Series A Preferred Stock (or of a share of a class
or series of our preferred stock having equivalent rights, preferences and
privileges) per right, subject to adjustment.
At any time prior to the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 20% or more of the outstanding
shares of common stock, the Board may redeem the rights in whole, but not in
part, at a price of $0.01 per right.
The terms of the rights may generally be amended by the Board without
the consent of the holders of the rights.
Until a right is exercised, the holder will have no rights as a
stockholder.
The rights should not interfere with any merger or other business
combination approved by the Board since the rights may be redeemed by us at the
redemption price prior to the time that a person or group has acquired
beneficial ownership of 20% or more of the common stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is EquiServe.
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DISTRIBUTION OF SECURITIES
This prospectus covers shares of common stock that we may issue
directly or through our subsidiaries from time to time in connection with
acquisitions of businesses, assets or securities. In addition to the shares of
common stock offered by this prospectus, we may offer other consideration,
including stock options, cash, notes or other evidences of debt, assumption of
liabilities or a combination of these types of consideration. In addition, we
may lease property from, and enter into management agreements and consulting and
noncompetition agreements with, the former owners and key executive personnel of
the businesses to be acquired.
The terms of acquisitions involving the issuance of the shares of
common stock covered by this prospectus are expected to be determined by direct
negotiations between our representatives and the owners or controlling persons
of the businesses, assets or securities to be acquired. Factors taken into
account in acquisitions may include, among other factors, the quality and
reputation of the business to be acquired and its management, the strategic
market position of the business to be acquired, its proprietary assets, earning
power, cash flow and growth potential, and the market value of its common stock
when pertinent. We expect that the price of the shares we issue in any such
acquisition will be related to their market price, either when we tentatively
or finally agree to the particular terms of the acquisition, when we issue the
shares, when the acquisition is completed, or during some other negotiated
period and may be based on average market prices or otherwise. Securities may
be sold at a fixed offering price, which may be changed, or at other negotiated
prices. We do not expect to pay underwriting discounts or commissions, although
we may pay finders' fees from time to time in connection with certain
acquisitions. Any person receiving finders' fees may be deemed to be an
"underwriter" within the meaning of the Securities Act, and any profit on the
resale of securities purchased by them may be considered underwriting
commissions or discounts under the Securities Act.
In an effort to maintain an orderly market in our securities or for
other reasons, we may negotiate agreements with persons receiving common stock
covered by this prospectus that will limit the number of shares that they may
sell at specified intervals. These agreements may be more or less restrictive
than restrictions on sales made under the exemption from registration
requirements of the Securities Act, including the requirements under Rule 144 or
Rule 145(d), and the persons party to these agreements may not otherwise be
subject to the Securities Act requirements. We anticipate that, in general,
negotiated agreements will be of limited duration and will permit the recipients
of securities issued in connection with acquisitions to sell up to a specified
number of shares per business day or days. We may also determine to waive any
such agreements without public notice.
RESELLING SECURITIES
In general, the persons to whom we issue securities under this
prospectus will be able to resell our securities in the public market without
further registration and without being required to deliver a prospectus.
However, certain persons who receive our securities may want to resell those
securities in distributions that would require the delivery of a prospectus.
With our consent, this prospectus may be used by selling security holders who
may wish to sell securities. As used in this prospectus, "selling security
holders" may include donees and pledgees selling securities received from a
named selling security holder. We may limit our consent to a specified time
period and subject our consent to certain limitations and conditions, which
may vary by agreement.
Selling security holders may sell securities:
- through the NYSE or any national securities exchange on which our
securities have been approved for listing in the future or
otherwise;
- directly to purchasers in negotiated transactions;
- by or through brokers or dealers, in ordinary brokerage
transactions or transactions in which the broker solicits
purchases;
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- in block trades in which the broker or dealer will attempt to sell
securities as an agent but may position and resell a portion of
the block as principal;
- in transaction in which a broker or dealer purchases as principal
for resale for its own account;
- through underwriters or agents; or
- in any combination of these methods.
Resales by selling security holders may be made directly to investors
or through securities firms acting as underwriters, brokers or dealers. When
resales are to be made through a securities firm, the securities firm may be
engaged to act as the selling security holder's agent in the resale of the
shares by the selling security holder, or the securities firm may purchase
securities from the selling security holder as principal and thereafter resell
the securities from time to time. The fees earned by or paid to the securities
firm may be the normal stock exchange commission or negotiated commissions or
underwriting discounts to the extent permissible. Securities may be sold at a
fixed offering price, which may be changed, at the prevailing market price at
the time of sale, at prices related to such prevailing market price or at
negotiated prices. The securities firm may resell the securities through other
securities dealers, and commissions or concessions to those other dealers may be
allowed. We and such selling security holders may indemnify any securities firm
participating in such transactions against certain liabilities, including
liabilities under the Securities Act and may reimburse them for any expenses in
connection with an offering or sale of securities. We may also agree to
indemnify the selling security holder against any such liabilities or reimburse
them for expenses. Profits, commissions, and discounts on sales by persons who
may be deemed to be underwriters within the meaning of the Securities Act may be
deemed underwriting compensation under the Securities Act.
Selling security holders may also offer shares of common stock covered
by this prospectus by means of prospectuses under other registration statements
or pursuant to exemptions from the registration requirements of the Securities
Act, including sales that meet the requirements of Rule 144 or Rule 145(d) under
the Securities Act. Selling security holders should seek the advice of their own
counsel about the legal requirements for such sales.
The terms of the acquisition of shares of common stock by the selling
security holder may include a provision for the sharing or reallocation of the
selling security holder's costs in connection with the resale of the securities,
including the cost of registering the securities issued in the acquisition and
preparing and printing the amendment or supplement, commissions and other costs
of resale.
This prospectus will be amended or supplemented, if required by the
Securities Act and the rules of the SEC, to disclose the name of the selling
security holder, the participating securities firm, if any, the number of shares
of common stock involved and other information concerning the resale, including
the terms of any distribution, including the names of any underwriters, brokers,
dealers or agents and any discounts, commissions, concessions or other items
constituting compensation. We may agree to keep the registration statement
relating to the offering and sale by the selling security holders of our
securities continuously effective until a fixed date or the date on which the
shares may be resold without registration under the Securities Act.
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LEGAL MATTERS
Unless otherwise specified in a prospectus supplement, the validity of
any securities issued hereunder will be passed upon for our company by Fried,
Frank, Harris, Shriver & Jacobson (a partnership including professional
corporations), New York, New York.
EXPERTS
The consolidated financial statements of SPX as of December 31, 2000
and 1999 and for each of the three years in the period ended December 31, 2000,
have been audited by Arthur Andersen LLP, independent public accountants. These
financial statements and the report of the independent public accountants,
included in SPX's Annual Report on Form 10-K/A filed on April 12, 2001, are
incorporated by reference in this document.
The consolidated financial statements of UDI as of December 31, 2000
and 1999 and for each of the three years in the period ended December 31, 2000
have been audited by KPMG LLP, independent public accountants. These financial
statements and the report of the independent public accountants, included in
SPX's Current Report on Form 8-K filed on April 13, 2001, are incorporated by
reference in this document.
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23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all fees and expenses payable by the
registrant in connection with the issuance and distribution of the securities
being registered hereby (other than underwriting discounts and commissions). All
of such expenses, except the SEC registration fee, are estimated.
Securities and Exchange Commission registration fee..... $ 124,977
NYSE listing fee........................................ 22,000
Pacific Stock Exchange listing fee...................... 7,500
Legal fees and expenses................................. 50,000
Transfer Agent's fees and expenses...................... 25,000
Trustee's fees and expenses............................. 25,000
Rating agency fees...................................... 5,000
Accounting fees and expenses............................ 35,000
Blue Sky fees and expenses (including counsel fees)..... 5,000
Printing expenses....................................... 100,000
Miscellaneous........................................... 523
----------
Total................................................... $ 400,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
LIMITATION ON LIABILITY OF DIRECTORS
Section 145(a) of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably 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 cause to believe his conduct was
unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards to
those set forth above, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable 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 view of all the circumstances of the case,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against such officer
or director and incurred by him or her in any such
II-1
24
capacity or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
As permitted by Section 102(b)(7) of the DGCL, the Company's
Certificate of Incorporation provides that a director shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. However, such provision does not eliminate or
limit the liability of a director for: (i) any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) engaging in any transaction from which the director derived an
improper personal benefit. The Company's Certificate of Incorporation requires
that directors and officers be indemnified to the fullest extent authorized by
the DGCL, or any other applicable law or amendments thereunder; however, in the
case of any amendments, only to the extent such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto.
Any underwriting agreements that we may enter into will likely provide
for the indemnification of the registrant, its controlling persons, its
directors and certain of its officers by the underwriters against certain
liabilities, including liabilities under the Securities Act.
The Company has a policy of directors' liability insurance which
insures the directors and officers against the cost of defense, settlement or
payment of a judgment under certain circumstances.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES.
The exhibits to this registration statement are listed in the Exhibit
Index to this registration statement, which Exhibit Index is hereby incorporated
by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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 of 1933;
(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 the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the 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;
(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;
II-2
25
provided, however, that the undertakings set forth in
clauses (i) and (ii) above do not apply if the
information required to be included in a
post-effective amendment by those clauses is
contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934 that are incorporated by
reference in this registration statement;
(2) 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;
(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) That, for the purposes of determining any liability
under the Securities Act of 1933, each filing of our
annual report pursuant to Section 13(a) or 15(d) of
the Securities and 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 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; and
(c) To deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is
sent or given, the latest annual report, to security
holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim
financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically
incorporated by reference in the prospectus to
provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant, the registrant has been informed 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 Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
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26
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-4 and has duly caused this Amendment
No. 1 to this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Muskegon, State of
Michigan, on the 26th day of September, 2001.
SPX CORPORATION
/s/ Christopher J. Kearney
-----------------------------------
Christopher J. Kearney
Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the registration statement has been signed by the
following persons on September 26, 2001 in the capacities indicated below.
Signature Title
* Chairman, President and Chief Executive Officer
---------------------
John B. Blystone (Principal Executive Officer)
* Vice President Finance, Treasurer and Chief Financial Officer
-----------------------
Patrick J. O'Leary (Principal Financial Officer)
* Corporate Controller and Chief Accounting Officer
-------------------
Ron Winowiecki (Principal Accounting Officer)
* Director
-----------------------
J. Kermit Campbell
* Director
--------------------
Sarah R. Coffin
* Director
--------------------
Frank A. Ehmann
* Director
------------------------
Emerson U. Fullwood
* Director
--------------------------
Charles E. Johnson II
* Director
----------------------
David P. Williams
By: /s/ Christopher J. Kearney
--------------------------------
Christoher J. Kearney
as Attorney-in-Fact
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27
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------- ----------------------
*1.1 Form of Underwriting Agreement for Common Stock.
3.1 Certificate of Incorporation of SPX Corporation, incorporated
by reference to Exhibit 3(iv) to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1998.
3.3 By-Laws as amended through October 25, 1995, incorporated by
reference to Exhibit 3(iii) to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1995.
4.1 Rights Agreement dated as of June 25, 1996 (the "Rights
Agreement") between SPX Corporation and The Chase Manhattan
Bank, as Rights Agent, relating to Rights to purchase preferred
stock under certain circumstances, incorporated herein by
reference to SPX Corporation's Registration Statement on Form
8-A filed on June 26, 1996.
4.2 Form of Amendment No. 1 to Rights Agreement, effective as of
October 22, 1997, between SPX Corporation and The Chase
Manhattan Bank, incorporated herein by reference from SPX
Corporation's Registration Statement on Form 8-A, filed on
January 9, 1998.
**5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson.
**23.1 Consents of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of KPMG LLP.
**24.1 Powers of Attorney (included on signature page).
* Executed versions of this agreement, if any, will, if applicable, be filed by
Current Report on Form 8-K after the issuance of the securities to which they
relate.
** Previously filed.
1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our report dated
February 9, 2001, on the Company's consolidated financial statements as of
December 31, 2000 and 1999 and for each of the three years in the period ending
on December 31, 2000 included in the Company's Form 10-K/A for the year ended
December 31, 2000 and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
Chicago, Illinois
September 24, 2001
1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
SPX Corporation
We consent to the incorporation by reference in this Registration Statement on
Form S-4 Amendment No. 1 dated September 26, 2001 of SPX Corporation of our
report dated January 25, 2001, except as to note 14 which is as of March 11,
2001, with respect to the consolidated statements of financial position of
United Dominion Industries Limited as at December 31, 2000 and 1999 and the
related consolidated statements of income, cash flows and changes in
shareholders' equity for each of the years in the three-year period ended
December 31, 2000, which report appears in the December 31, 2000 annual report
on Form 40-F of United Dominion Industries Limited, which report is included in
the Form 8-K of SPX Corporation filed April 13, 2001.
/s/ KPMG LLP
---------------------
Chartered Accountants
Toronto, Canada
September 26, 2001