AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 2002
REGISTRATION NO. 333-
===========================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
-----------------------------------
SPX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 38-1016240
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
-----------------------------------
2300 ONE WACHOVIA CENTER
301 SOUTH COLLEGE STREET
CHARLOTTE, NC 28202-6039
(704) 347-6800
(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
2300 ONE WACHOVIA CENTER
301 SOUTH COLLEGE STREET
CHARLOTTE, NC 28202-6039
(704) 347-6800
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
-----------------------------------
COPIES TO:
STUART H. 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: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please 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, other than securities offered only in connection
with dividend or interest reinvestment plans, 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(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] _______________
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 CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED UNIT (1) PRICE (1) FEE
- ------------------------- ---------------------- --------------------- --------------------- ---------------
Common stock, par value 379,229 $131.98 $50,050,643 $4,604.66
$10.00 per share,
underlying warrants (2)
========================= ====================== ===================== ===================== ===============
(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 share sale price on the
New York Stock Exchange on January 16, 2002.
(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.
----------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The information in this prospectus is not complete and may be changed.
The shares of common stock discussed in this prospectus may not be
sold or otherwise transferred until the registration statement filed
with the Securities and Exchange Commission is declared 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.
SUBJECT TO COMPLETION, DATED JANUARY 18, 2002
PROSPECTUS
SPX CORPORATION
379,229 SHARES OF
COMMON STOCK
--------------------
This prospectus relates to the sale, from time to time, of up to
379,229 shares of our common stock by certain selling securityholders who
hold warrants issued by GCA Corporation in 1987. In June 1988 GCA was
acquired by General Signal Corporation, and in 1998 General Signal was
acquired by us, and, as a result, the warrants became exercisable for
shares of our common stock. The warrants represent the right to purchase an
aggregate of 379,229 shares of our common stock at an exercise price of
$94.5114 per share. Warrants to purchase 308,762 shares will expire on
April 23, 2002, and warrants to purchase 70,467 shares will expire on
September 1, 2002. For a further discussion of the warrants and the
applicable terms, see "The Offering--The Selling Securityholders" and
"Common Stock We May Issue Under the Warrants."
We do not know when or how the selling securityholders intend to sell
the shares of our common stock or what the price, terms or conditions of
any sales will be. The selling securityholders may sell the shares of our
common stock directly or through underwriters, dealers or agents, who may
receive compensation. The selling securityholders may sell the shares of
our common stock in privately negotiated transactions and may also sell the
shares in market transactions. See "Plan of Distribution." We will not
receive any proceeds from the sale of our common stock by the selling
securityholders. However, we will receive the exercise price of the
warrants if and when they are exercised.
Our common stock trades on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "SPW." On January 17, 2002, the last
reported sale price of our common stock on the NYSE was $128.50.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
--------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these 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 , 2002
TABLE OF CONTENTS
Page
----
WHERE YOU CAN FIND MORE INFORMATION.....................................1
FORWARD-LOOKING STATEMENTS..............................................2
PROSPECTUS SUMMARY......................................................2
SPX CORPORATION.........................................................3
THE OFFERING............................................................3
RISK FACTORS............................................................5
USE OF PROCEEDS........................................................12
BUSINESS...............................................................12
COMMON STOCK WE MAY ISSUE UNDER THE WARRANTS...........................14
SELLING SECURITYHOLDERS................................................17
PLAN OF DISTRIBUTION...................................................18
LEGAL MATTERS..........................................................19
EXPERTS................................................................19
--------------------
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, 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-3 to register with the SEC
the sale of the common stock 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 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 subsequently incorporated by reference.
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 Form 10-Q for the fiscal quarters ended
March 31, 2001, June 30, 2001 and September 30, 2001;
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; and
4. Our Definitive Proxy Statement on Schedule 14A filed on March 27,
2001.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Investor Relations
SPX Corporation
2300 One Wachovia Center
301 South College Street
Charlotte, North Carolina 28202-6039
Tel: (704) 347-6800, Fax: (704) 347-6900
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 Exchange Act
of 1934 (i) on or after the date of the filing of the registration
statement containing this prospectus and prior to the effectiveness of such
registration statement and (ii) on or after the date of this prospectus
until all of the shares of our common stock offered by selling
securityholders have been sold. 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.
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 the
prospectus, "Other Matters" in "Management's Discussion and Analysis of
Results of Operations and Financial Condition" in our Form 10-Q for the
fiscal quarters ended March 31, 2001 and June 30, 2001 (each incorporated
by reference in this prospectus) and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in our Form 10-Q
for the fiscal quarter ended September 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
incorporate 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.
PROSPECTUS SUMMARY
You should read the following summary together with the more detailed
information appearing elsewhere in this prospectus. The following summary
is qualified in its entirety by the information contained elsewhere or
incorporated by reference in this prospectus.
In this prospectus:
o "SPX," "the company," "we," "us," and "our" refer to SPX
Corporation, a Delaware corporation, and its consolidated
subsidiaries, unless the context otherwise requires;
o "UDI" refers to United Dominion Industries Limited and its
subsidiaries, all of which are subsidiaries of SPX
Corporation, unless the context otherwise requires;
o "February LYONs" refers to our Liquid Yield Option
Notes(TM) due 2021 issued in February 2001; and
o "May LYONs" refers to our Liquid Yield Option Notes(TM) due
2021 issued in May 2001.
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. Our common stock is publicly traded on
the New York Stock Exchange and the Pacific Stock Exchange under the symbol
"SPW."
We are a global multi-industry company that is focused on profitably
growing our businesses that have scale and growth potential. Our strategy
is to create market advantages through product and technology leadership,
by expanding our service offerings to full customer solutions and by
building critical mass through strategic acquisitions. We continually
review each of our businesses pursuant to our "fix, sell or grow" strategy.
These reviews could result in selected acquisitions to expand an existing
business or result in the disposition of an existing business. At any given
time, we may engage in discussions with respect to potential acquisitions
in related or unrelated industries, asset sales and joint ventures, some of
which may be material.
On May 24, 2001, we completed the acquisition of United Dominion
Industries Limited, or 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 manufactures 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
our company.
We are a Delaware corporation. Our principal executive offices are
located at 2300 One Wachovia Center, 301 South College Street, Charlotte,
North Carolina 28202-6039, and our telephone number is (704) 347-6800.
--------------------
THE OFFERING
Common stock outstanding as of
December 26, 2001........................ 40,420,975 shares.*
Common stock being registered for selling
securityholders.......................... 379,229 shares.
Use of Proceeds.......................... We will not receive any of the
proceeds from the sales of
common stock by the selling
securityholders. However, if
one or more of the selling
securityholders exercises its
rights under the warrants, we
could receive up to
$35,841,463 in gross proceeds
representing the exercise
price for the shares of common
stock underlying the warrants.
All of the proceeds that we
receive, if any, will be used
for general corporate
purposes.
NYSE and PSE symbol...................... SPW.
* The common stock outstanding as of December 26, 2001 excludes the
following: (A) approximately 6.6 million shares issuable upon conversion of
our February LYONs and our May LYONs; (B) approximately 8.7 million shares
issuable upon exercise of outstanding stock options by employees and
non-employee directors; and (C) approximately 5.7 million shares of our
common stock reserved for future issuance of additional options and shares
under our employee stock option plan and non-employee director stock option
plan. Each of the amounts is subject to adjustment as specified in the
appropriate documents.
THE SELLING SECURITYHOLDERS
We have prepared this prospectus in connection with the registration
of the resale of shares of our common stock underlying warrants issued in
1987 by GCA Corporation, a company acquired by General Signal Corporation
in 1988. The warrants were issued to GCA's bank and insurance company
lenders and to one vendor and represented the right to purchase GCA common
stock. As a result of the acquisition of GCA by General Signal and the
subsequent acquisition of General Signal by us, the warrants now represent
the right to purchase shares of our common stock at an exercise price of
$94.5114 per share. The warrants issued to GCA's bank and insurance company
lenders presently represent the right to purchase 308,762 shares of our
common stock and are exercisable through April 23, 2002. The warrants
issued to the vendor presently represent the right to purchase 70,467
shares of our common stock and are exercisable through September 1, 2002.
We are registering these shares in satisfaction of GCA's obligation to
register these shares under registration agreements entered into between
these selling securityholders and GCA in connection with the issuance of
the warrants described above.
RISK FACTORS
In evaluating an investment in our common stock, you should carefully
consider all the information included or incorporated by reference in this
prospectus. In particular, you should evaluate the specific risk factors
set forth under "Risk Factors," beginning on page 5 of the prospectus as
updated by information under the caption "Legal Proceedings" in our Form
10-Q for the fiscal quarter ended September 30, 2001.
--------------------
RISK FACTORS
You should carefully consider the risks described below before making
a decision to invest in our common stock. 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 common stock.
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 September 30, 2001, we had approximately $2,709.1 million in total
indebtedness. At such date, we had $530.1 million of available borrowing
capacity under our revolving senior credit facility after giving effect to
$69.9 million reserved for letters of credit outstanding which reduce the
availability under our revolving senior credit facility. In addition, at
September 30, 2001, our cash balance was $340.5 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
Form 10-Q for the fiscal quarters ended March 31, 2001 and June 30, 2001
and in "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in our Form 10-Q for the fiscal quarter ended
September 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:
o limit cash flow available for general corporate purposes,
such as acquisitions and capital expenditures, due to the
ongoing cash flow requirements for debt service;
o limit our ability to obtain, or obtain on favorable terms,
additional debt financing in the future for working capital,
capital expenditures or acquisitions;
o limit our flexibility in reacting to competitive and other
changes in the industry and economic conditions generally;
o 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
o 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
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 or may 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 nine months of 2001, we made thirteen
acquisitions of businesses for an aggregate purchase price of approximately
$453.6 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:
o adverse effects on our reported operating results due to
charges to earnings and the amortization of goodwill
associated with acquisitions;
o diversion of management attention from running our existing
businesses;
o difficulty with integration of personnel and financial and
other systems;
o increased expenses, including compensation expenses
resulting from newly-hired employees;
o increased foreign operations which may be difficult to
assimilate;
o assumption of known and unknown liabilities and increased
litigation; and
o potential disputes with the sellers of acquired businesses,
technologies, services or products.
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 to pay for the
acquisitions, significantly dilute our existing securityholders.
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
$120.0 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 and significant cost reductions have been achieved
to date, 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.
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 ATTACKS 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.
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
and may 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 September 30, 2001, we had goodwill and intangible assets of
approximately $2,994.8 million and shareholders' equity of approximately
$1,617.9 million. 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. Based on this method, we expect
to recover the carrying value of goodwill through our future cash flows. 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.
In July 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 impact that adoption of SFAS 141 and SFAS 142 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 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. In particular, we assumed additional
environmental liabilities in connection with the UDI acquisition. 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 either 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 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 or about October 29, 2001, we were served with a complaint by VSI
Holdings, Inc. seeking enforcement of a merger agreement that we had
terminated. In its complaint, VSI asked the court to require us to complete
the $197.0 million acquisition of VSI, and/or award damages to VSI and its
shareholders. We do not believe the suit has merit and are defending the
claim vigorously. On December 26, 2001, we filed our answer denying VSI's
allegations, raising affirmative defenses, and asserting a counterclaim
against VSI for breach of contract. 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 January 15, 2002, Inrange's
market capitalization was approximately $1,095.8 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.
The terrorist events of September 11, 2001 have had a material effect
on Inrange's business. Inrange's near-term business may be impacted by the
following factors:
o customer buying decisions being delayed;
o travel restrictions, which impacts sales efforts; and
o Inrange's largest world-wide sales office adjacent to the
World Trade Center was closed indefinitely which has
required us to relocate our sales force to a newly acquired
operation in New Jersey.
The impact to Inrange's business subsequent to the events on September 11,
2001 reduced its third quarter 2001 results and as a consequence, will
negatively affect the full 2001 year results. Inrange's business could be
adversely impacted by the continued economic softening. Any adverse effect
on Inrange could affect us.
In addition to the risks described herein for our business as a whole,
Inrange is subject to the following risks:
o 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;
o 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
o 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:
o difficulty in managing, operating and marketing our
international operations because of distance, as well as
language and cultural differences;
o 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;
o difficulty entering new international markets due to greater
regulatory barriers than the United States and differing
political systems;
o 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;
o credit risk or financial condition of local customers and
distributors;
o potential difficulties in staffing and labor disputes;
o risk of nationalization of private enterprises;
o increased costs of transportation or shipping;
o ability to obtain supplies from foreign vendors and ship
products internationally during times of crisis or
otherwise;
o potential difficulties in protecting intellectual property;
o potential imposition of restrictions on investments; and
o 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 and the May LYONs
have been registered under the Securities Act. Subject to adjustment, the
February LYONs and May LYONs could be converted into an aggregate of
approximately 6.6 million shares of our common stock. In addition, as of
December 26, 2001, approximately 8.7 million shares of our common stock are
issuable upon exercise of outstanding stock options by employees and
non-employee directors. As of December 26, 2001, under our employee stock
option plan and non-employee director stock option plan, approximately 5.7
million 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. We have also filed a shelf registration statement for 4.3
million shares of common stock which may be issued in acquisitions and we
have also filed a shelf registration statement for a total of $1,000
million which may be used in connection with an offering of debt securities
and/or common stock for general corporate purposes. 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
We will not receive any of the proceeds from the sales of common stock
by the selling securityholders. However, if one or more of the selling
securityholders exercises its rights under the warrants, we could receive
up to $35.8 million in gross proceeds representing the exercise price for
the shares of common stock underlying the warrants. All of the proceeds
that we receive, if any, will be used for general corporate purposes.
BUSINESS
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. Our common stock is publicly traded on
the New York Stock Exchange and the Pacific Stock Exchange under the symbol
"SPW."
We are a global multi-industry company that is focused on profitably
growing our businesses that have scale and growth potential. Our strategy
is to create market advantages through product and technology leadership,
by expanding our service offerings to full customer solutions and by
building critical mass through strategic acquisitions. We continually
review each of our businesses pursuant to our "fix, sell or grow" strategy.
These reviews could result in selected acquisitions to expand an existing
business or result in the disposition of an existing business. At any given
time, we may be in discussions with one or more parties which discussions
may be material.
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 manufactures 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 our company.
In the second quarter of 2001, following the UDI acquisition, we began
operating and reporting our results of operations in four segments,
Technical Products and Systems, Industrial Products and Services, Flow
Technology and Service Solutions. The new structure aligns our financial
reporting with the current structure of our organization.
TECHNICAL PRODUCTS AND SYSTEMS
The Technical Products and Systems segment is focused on solving
customer problems with complete technology-based systems. This segment
includes operating units that design and manufacture networking and
switching products for storage, data and telecommunications networks, fire
detection and integrated building life-safety systems, TV and radio
transmission systems, automated fare collection systems, laboratory and
industrial ovens and freezers, electrical test and measurement solutions,
cable and pipe locating devices, laboratory testing chambers, sample
preparation and processing equipment, and electrodynamic shakers.
INDUSTRIAL PRODUCTS AND SERVICES
The Industrial Products and Services segment emphasizes introducing
new related services and products, as well as focusing on the replacement
parts and service elements of the segment. This segment includes operating
units that design, manufacture, and market power transformers, hydraulic
systems, high-integrity aluminum and magnesium die-castings, forgings,
automatic transmission filters, industrial filtration products, dock
equipment, material handling devices, electric resistance heaters, soil,
asphalt and landfill compactors, specialty farm machinery, as well as
components for the aerospace industry.
FLOW TECHNOLOGY
The Flow Technology segment designs, manufactures, and markets
solutions and products that are used to process or transport fluids and in
heat transfer applications. This segment includes operating units that
manufacture pumps and other fluid handling machines, valves, cooling
towers, boilers, leak detection equipment, and industrial mixers.
SERVICE SOLUTIONS
The Service Solutions segment includes operations that design,
manufacture, and market a wide range of specialty tools, hand-held
diagnostic systems and service equipment, inspection gauging systems,
precision scales, and technical and training information.
COMMON STOCK WE MAY ISSUE UNDER THE WARRANTS
The selling securityholders are selling under this prospectus an
aggregate of up to 379,229 shares of our common stock issuable upon
exercise of the warrants. Of the warrants, 308,762 warrants are exercisable
through April 23, 2002, and 70,467 warrants are exercisable through
September 1, 2002, all at an exercise price of $94.5114 per share.
The exercise price and number of shares of our common stock which
may be purchased upon exercise of any of the warrants are subject to
certain "anti-dilution" adjustments in the event of any:
o dividend or distribution on shares of common stock payable
in our common stock;
o subdivision, reclassification, combination or consolidation
of our common stock; or
o consolidation or merger, conveyance or transfer of all or
substantially all of our property.
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 December 26, 2001, 40.4 million shares of common
stock were issued and outstanding (not including treasury shares) and 0.5
million 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 BYLAW 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:
o 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;
o upon consummation of the transaction that resulted in the
stockholder becoming an "interested stockholder," the
"interested stockholder" owned at least 85% of the voting
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
o 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:
o a staggered Board of Directors so that it would take three
successive annual meetings to replace all directors;
o a prohibition on stockholder action through written
consents;
o a requirement that special meetings of stockholders be
called only by our Chairman, President and Chief Executive
Officer or our Board;
o advance notice requirements for stockholder proposals and
nominations;
o limitations on the ability of stockholders to amend, alter
or repeal the By-laws;
o enhanced voting requirements for certain business
combinations involving substantial stockholders;
o the authority of our Board of Directors to issue, without
stockholder approval, preferred stock with such terms as our
Board may determine; and
o 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:
o for any breach of the director's duty of loyalty to us or
our stockholders;
o for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law;
o under Section 174 of the Delaware General Corporation Law,
which concerns unlawful payments of dividends, stock
purchases or redemptions; or
o 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.
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.
SELLING SECURITYHOLDERS
This prospectus covers offers and sales by the selling securityholders
of shares of our common stock issued upon exercise of the warrants. The
following table sets forth, as of the date of the prospectus, a list of
each selling securityholder who has completed a questionnaire and requested
inclusion in this prospectus and the number of shares of our common stock
beneficially owned by each of these selling securityholders, as well as the
number of shares offered for resale by each of these selling
securityholders. Shares that are beneficially owned include shares which
the selling securityholders can acquire upon exercise of the warrants (all
of which are currently exercisable) as well as shares they have already
acquired upon exercise, if any, of the warrants and shares they may have
otherwise acquired (although only sales of shares acquired upon exercise of
the warrants are covered by this prospectus). Our registration of these
shares does not necessarily mean that any named selling securityholder will
exercise its warrants or will sell all or any of its shares of common
stock. The "Shares Beneficially Owned After Offering" columns in the table
assumes that all shares covered by this prospectus will be sold by the
selling securityholders and that no additional shares of common stock are
bought or sold by any selling securityholder since the date that it
provided us with the information for the table.
Except as may be set forth in a prospectus supplement, none of the
selling securityholders has held any position or office or had a material
relationship with us or any of its affiliates within the past three years
other than as a result of the ownership of our common stock and warrants to
purchase our common stock.
Information about the selling securityholders may change over time.
Relevant changed or new information about selling securityholders of which
we have knowledge will be set forth in prospectus supplements. Additional
selling securityholders may also be set forth in prospectus supplements.
From time to time, additional information concerning ownership of the
shares of common stock may rest with certain holders thereof not named in
the table below and of whom we are unaware.
SHARES BENEFICIALLY OWNED PRIOR TO OFFERING (1) SHARES TO BE SHARES BENEFICIALLY OWNED AFTER
SOLD OFFERING (1) (3)
BENEFICIAL OWNER NUMBER OF PERCENT NUMBER OF PERCENT
SHARES (2) SHARES
* *
TOTAL __________
379,229
* Less than one percent (1%), based upon 40,420,975 shares of common stock
outstanding as of December 26, 2001.
(1) Except as otherwise noted herein, the number and percentage of shares
beneficially owned is determined in accordance with Rule 13d-3 of the
Securities Exchange Act, and the information is not necessarily indicative
of beneficial ownership for any other purpose. Under such rule, beneficial
ownership includes any shares as to which the individual or entity has sole
or shared voting power or investment power and also any shares which the
individual or entity has the right to acquire within 60 days of the date of
this prospectus through the exercise of any stock option or other right.
(2) Includes the shares of common stock underlying the warrants which may
be sold under this prospectus.
(3) Assumes the sale of all the shares which may be sold under this prospectus.
PLAN OF DISTRIBUTION
As used in this prospectus, selling securityholder includes donees,
pledgees, transferees and other successors-in-interest who sell shares
received from the selling securityholder after the date of this prospectus
as a gift, pledge, partnership distribution or other non-sale transfer.
The selling securityholders may offer and sell the shares of our
common stock covered by this prospectus from time to time, subject to
certain restrictions. The selling securityholders will act independently of
us in making decisions with respect to the timing, manner and size of each
sale. Sales may be made:
o in the open market;
o on the New York Stock Exchange or the Pacific Stock
Exchange;
o in privately negotiated transactions;
o in an underwritten offering; or
o a combination of such methods.
Such sales may be made at varying prices determined by reference to,
among other things:
o market prices prevailing at the time of sale;
o prices related to the then-prevailing market price; or
o negotiated prices.
Each selling securityholder may also transfer shares owned by it by
gift, and upon any such transfer, the donee would have the same rights as
the selling securityholder. Some of the selling securityholders may
distribute their shares, from time to time, to their limited or general
partners, members or stockholders who may sell shares pursuant to this
prospectus.
Negotiated transactions may include purchases by a broker-dealer as
principal and resale by such broker-dealer for its account pursuant to this
prospectus, ordinary brokerage transactions and transactions in which a
broker solicits purchasers, or block trades in which a broker-dealer so
engaged will attempt to sell the shares as agent but may take a position
and resell a portion of the block as principal to facilitate the
transaction.
Distribution by the selling securityholders of the common stock
covered by this prospectus may occur over an extended period of time. In
effecting sales, broker-dealers hired by the selling securityholders may
arrange for other broker-dealers to participate. Broker-dealers may receive
commissions or discounts from the selling securityholders in amounts to be
negotiated immediately prior to the sale.
In connection with the sale of common stock covered by this
prospectus, underwriters or agents may receive compensation from the
selling securityholders or from purchasers of the common stock, for which
they may act as agent. Their compensation may be in the form of discounts,
concessions or commissions. If underwriters sell common stock to or through
dealers, then the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they act as agents. Neither we nor
any selling securityholder can presently estimate the amount of that
compensation. We know of no existing arrangements between any selling
securityholders, any other securityholders, brokers, dealers, underwriters
or agents relating to the sale or distribution of the shares of our common
stock.
We will bear the expenses of registration under the Securities Act of
1933 as well as certain other fees and expenses. The selling
securityholders will bear the cost of any commissions or selling expenses.
LEGAL MATTERS
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.
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..... $ 4,605
New York Stock Exchange listing fee..................... 1,650
Pacific Stock Exchange listing fee...................... 950
Legal fees and expenses................................. 40,000
Transfer Agent's fees and expenses...................... 5,000
Accounting fees and expenses............................ 15,000
Miscellaneous........................................... 795
Total................................................... $ 68,000
==========
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 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 Company 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;
provided, however, that the undertakings set forth in
clauses (i) and (ii) above do not apply if the
registration statement is on Form S-3 and 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 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Charlotte, State of North
Carolina, on the 17th day of January, 2002.
SPX CORPORATION
/s/ Patrick J. O'Leary
------------------------------------
Patrick J. O'Leary
Vice President Finance, Treasurer
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
constitutes and appoints Patrick O'Leary, Charles Bowman and Christopher
Kearney, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign this
registration statement (including all pre-effective and post-effective
amendments thereto and all registration statements filed pursuant to Rule
462(b) which incorporate this registration statement by reference), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following
persons on January 17, 2002 in the capacities indicated below.
Signature Title
/s/ John B. Blystone Chairman, President and
--------------------- Chief Executive Officer
John B. Blystone (Principal Executive Officer)
/s/ Patrick J. O'Leary Vice President Finance, Treasurer
---------------------- and Chief Financial Officer
Patrick J. O'Leary (Principal Financial Officer)
/s/ Ron Winowiecki Corporate Controller and
------------------ Chief Accounting Officer
Ron Winowiecki (Principal Accounting Officer)
/s/ J. Kermit Campbell Director
-----------------------
J. Kermit Campbell
/s Sarah R. Coffin Director
-------------------
Sarah R. Coffin
/s/ Frank A. Ehmann Director
-------------------
Frank A. Ehmann
/s Emerson U. Fullwood Director
-------------------------
Emerson U. Fullwood
/s/ Charles E. Johnson II Director
--------------------------
Charles E. Johnson II
/s/ David P. Williams Director
----------------------
David P. Williams
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------ ----------------------
*4.1 Rights Agreement dated as of June 25, 1996 (the "Rights
Agreement") between SPX Corporation and The Bank of New
York, 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 Bank
of New York, incorporated herein by reference from SPX
Corporation's Registration Statement on Form 8-A, filed on
January 9, 1998.
4.3 Warrant Agreement, dated as of April 23, 1987 (the
"Warrant Agreement"), among GCA Corporation, The Hallwood
Group Incorporated, and the banks and insurance companies
set forth therein.
4.4 Warrant Agreement, dated as of September 1, 1987 (the
"Zeiss Warrant Agreement"), between GCA Corporation and
Carl Zeiss, Inc.
4.5 Registration Agreement, dated as of April 23, 1987, among
GCA Corporation, the banks and insurance companies set
forth therein and Carl Zeiss, Inc.
4.6 Registration Agreement, dated as of September 1, 1987,
among GCA Corporation and Carl Zeiss, Inc.
4.7 Form of Warrant Certificate pursuant to the Warrant Agreement.
4.8 Form of Warrant Certificate for Carl Zeiss, Inc. pursuant
to the Zeiss Warrant Agreement.
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).
- ------------
* Incorporated by reference.
Exhibit 4.3
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of April 23, 1987, among GCA
Corporation, a Delaware corporation (the "Company"), The Hallwood Group
Incorporated, a Delaware corporation ("Hallwood"), and each of the banks
and insurance companies listed on Schedule I hereto (other than TIAA) and
Teachers Insurance and Annuity Association of America ("TIAA")
(collectively, the "Lender Group").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Hallwood and the Lender Group (other than TIAA) are
parties to that certain Restructuring Agreement, dated as of December 5,
1986 (the "Restructuring Agreement"), as amended; and
WHEREAS, Hallwood and TIAA are parties to that certain letter
agreement dated December 5, 1986 (the "TIAA Agreement"); and
WHEREAS, it is a condition, among others, to the obligations of
the Lender Group (other than TIAA) under the Restructuring Agreement that,
prior to the Closing under the Restructuring Agreement, the Company execute
and deliver this Agreement relating to the issuance and sale of warrants
(the "Warrants") to purchase shares of common stock, par value $.01 per
share (the "Common Stock"), of the Company; and
WHEREAS, it is a condition, among others, to the obligations of
TIAA under the TIAA Agreement that prior to the Closing under the TIAA
Agreement, the Company execute and deliver this Agreement relating to the
issuance and sale of the Warrants;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company, Hallwood and the
Lender Group agree as follows:
Section 1. Defined Terms. Capitalized terms used in this
Agreement, unless separately defined herein, shall have the meanings
ascribed to such terms in the Restructuring Agreement.
Section 2. Form of Warrant. The Warrants shall be substantially
in the form attached as Exhibit A hereto.
Section 3. Number of Warrant Shares. The aggregate number of
Common Shares issuable upon the exercise of Warrants ("Warrant Shares")
shall be 2,190,806 (after giving effect to the 1-for-50 reverse stock split
of the Common Stock contemplated to occur on April 24, 1987), allocated
among the Lender Group as set forth on Schedule I hereto. The Warrants will
be exercisable at any time or from time to time until April 23, 2002 at an
exercise price per share equal to 150% of the book value per share of the
Common Stock, determined in accordance with generally accepted accounting
principles, on the last day of the fiscal month of the Company in which the
Closing takes place. Promptly (and in any event within 15 days) following
the last fiscal day of such month, the Company shall give notice to each
holder of the Warrants of the exercise price thereof, and if requested, a
new Warrant certificate confirming such price. The number of Warrant Shares
and the exercise price thereof shall be subject to adjustment as provided
in the Warrants.
Section 4. Issuance and Delivery of Warrants. (a) At the Closing,
the Company shall execute, issue and deliver to each of the Banks and the
Insurance Companies and to TIAA a Warrant for the exercise of that number
of shares of Common Stock set forth opposite its name on Schedule I hereto.
(b) Hallwood hereby agrees that each of the Insurance
Companies (which term does not include TIAA) shall have the right,
exercisable upon not less than 30 days' prior written notice to Hallwood,
given at any time or times within one year following the date of the
Closing, to require Hallwood to purchase from such Insurance Company for
cash, on such date as shall be specified in such notice, such number of
Warrants as shall be listed opposite the name of such member of the Lender
Group on Schedule I hereto. The amount that Hallwood shall pay to any such
Insurance Company for each Warrant shall be (i) $750,000 multiplied by (ii)
a fraction, (A) the numerator of which shall be the outstanding principal
amount of Insurance Company Debt owed to such Insurance Company by the
Company at August 31, 1986 and (B) the denominator of which shall be the
aggregate outstanding principal amount of Insurance Company Debt at such
date, (iii) divided by the maximum number of Warrants that Hallwood is
obligated to repurchase pursuant to this Section 4(b). In connection with
each of its sales and purchases of any Warrants from an Insurance Company
pursuant hereto, Hallwood shall deliver upon the purchase of any Warrant to
such Insurance Company all such additional written assurances and other
documents as may be reasonably requested by such Insurance Company with
respect to such matters as the exemption of such purchase transaction from
the registration, prospectus delivery and qualification requirements of
Federal and applicable state securities laws, including, without
limitation, an opinion of Hallwood's counsel reasonably satisfactory to the
seller of the Warrants to such effect together with a written
representation and warranty by Hallwood that it is acquiring all such
Warrants which it receives pursuant to this section 4(b) for investment
purposes only and not with a view to the resale or distribution thereof.
Hallwood hereby acknowledges the absolute and unconditional nature of its
obligation to purchase Warrants pursuant to this paragraph notwithstanding
the existence of any and all defenses, set-offs, counterclaims or any other
basis for non-fulfillment of such obligation, it being the intent of the
parties hereto that Hallwood be and remain bound to the Insurance Companies
to purchase the Warrants as provided in this Section, notwithstanding any
agreement between it and any other party.
Section 5. Reservation of Warrant Shares, Etc. The Company
covenants and agrees that, at all times following the issuance of the
Warrants to the Lender Group, it shall cause to be reserved out of its
holdings of authorized and unissued Common Stock such number of shares of
Common Stock as shall be issuable upon the exercise of the Warrants then
outstanding in accordance with the terms of such Warrants and this Warrant
Agreement.
Section 6. Replacement Warrants. In case any Warrant shall be at
any time mutilated, lost or destroyed, then, upon the production of such
mutilated Warrant (or the receipt of an affidavit of an officer of the
Holder as to the circumstances surrounding the loss or destruction of such
Warrant) and, in the case of the loss of a Warrant, the receipt of an
unsecured written agreement to indemnify the Company in the event of a loss
suffered by it as a result of the loss of a Warrant, the Company shall
execute and deliver a new Warrant of like tenor for that number of shares
of Common Stock for which such lost or mutilated Warrant could have been
exercised. Any stamp tax or other governmental charge payable upon the
issuance of any replacement Warrant shall be borne by the holder thereof.
Any replacement Warrants executed and delivered pursuant to this Section 6
shall be entitled to equal and proportionate benefits of this Warrant
Agreement with all other Warrants issued hereunder, whether or not the
allegedly lost or destroyed Warrant shall be enforceable by any person,
firm, corporation or other entity.
Section 7. Certain Expenses. The Company shall pay when due any
and all federal, state and local issue or transfer taxes which may be
payable in respect to the initial issuance by the Company of the Warrants,
and all federal, state or local issue or transfers taxes that may be
payable with respect to the initial issuance of the Warrant Shares. The
Company shall not be required to pay any tax that may be payable in respect
of any transfer of Warrants or Warrant Shares or in respect of the issuance
of Warrant Shares to any person other than the registered holder of such
Warrant at the time of such exercise.
Section 8. Representation and Agreement of the Lender Group;
Transfers. (a) Each of the Banks and the Insurance Companies and TIAA
hereby represents and warrants to the Company and Hallwood that it is
acquiring its Warrants for investment purposes only and not with a view to
the resale or distribution thereof.
(b) Each member of the Lender Group and each holder of a
Warrant, by the acceptance thereof, agrees that prior to the exercise of
any Warrant, unless the Warrant Shares have been registered under the
Securities Act of 1933, as amended (the "Act"), or any similar Federal
statute for sale or other disposition by such holder and a prospectus with
respect thereto is current, or unless such holder shall have delivered to
the Company an opinion of counsel reasonably satisfactory to the Company to
the effect that no such registration is required, it will deliver to the
Company a written representation that it is acquiring the Warrant Shares
for its own account for investment purposes only and not with a view to the
resale or distribution thereof, subject to any requirement of law that its
disposition of such property be at all times within its control.
(c) Each member of the Lender Group and each holder of a
Warrant, by acceptance thereof, covenants and agrees that it will not sell,
transfer or dispose (hereinafter, a "Disposition") of any Warrant (or any
interest in any Warrant) or any Common Stock issuable or issued upon the
exercise of any Warrant (or any interest in any such Common Stock), except
in compliance with the provisions of the Act and the rules and regulations
promulgated thereunder, or any similar Federal statute and rules and
regulations promulgated thereunder. With respect to any Disposition of a
Warrant or any Common Stock issued pursuant to the exercise of a Warrant or
any interest therein, unless a registration statement under the Act is
effective and the prospectus included therein is current, the holder of
such Warrant or Common Stock shall, as a condition of such Disposition,
provide the Company with (i) an appropriate opinion of counsel that the
proposed Disposition may be made without registration in form and substance
satisfactory to the Company, or (ii) a letter from the staff of the
Securities and Exchange Commission (the "Commission") or any similar
Federal regulatory body, to the effect that the staff will not recommend
that the Commission take any action if the proposed Disposition is made
without registration under the Act, or (iii) evidence satisfactory to the
Company (which, in appropriate circumstances, may include an opinion of
counsel) that such Disposition is in compliance with the provisions of Rule
144 (or any similar rule then in effect) promulgated under the Act.
(d) Each Warrant and each certificate for shares of Common
Stock that is the subject of such Warrant shall, bear an appropriate legend
to reflect that the issuance thereof has not been registered under the Act
and each member of the Lender Group and each holder of Warrant, by
acceptance thereof, acknowledges the same.
(e) The Company shall be required to issue promptly a new
Warrant or Common Stock issued upon exercise of a Warrant (such Common
Stock or Warrant not to bear a restrictive legend if the Company reasonably
determines that such legend is not required in order to comply with
applicable federal and state securities laws) if (i) a Disposition of a
Warrant or the Common Stock issued upon exercise of a Warrant is made
pursuant to a registration statement (including a current prospectus) that
is effective under the Act (such Warrant or Common Stock, as the case may
be, to be without a restrictive legend), (ii) the staff of the Commission
shall have issued a letter to the effect that it will not recommend that
the Commission take any action if the proposed Disposition is made without
registration under the Act, or (iii) counsel to the holder thereof shall
have rendered its opinion, which opinion shall be reasonably acceptable to
the Company, that the Disposition of such securities may be made without
registration under the Act, or (iv) the Company shall have been furnished
with evidence satisfactory to the Company (which, in appropriate
circumstances, may include an opinion of counsel) that the Disposition of
such securities is in compliance with Rule 144 (or any similar rule then in
effect) promulgated under the Act.
Section 9. Representations and Warranties of the Company. The
Company represents and warrants to the Lender Group as follows:
(a) Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has full corporate power and authority
to own its properties and carry on its business as it is now being
conducted. The Company is duly qualified as a foreign corporation and is in
good standing under the laws of each jurisdiction in which the conduct of
its business or the ownership of its assets requires such qualification,
except where its failure to be so qualified would not have a material
adverse effect on the business, properties, assets or financial condition
of the Company and its subsidiary, taken as a whole.
(b) Due Authorization; No Conflicts; Governmental Consents.
This Agreement has been duly authorized, executed and delivered by the
Company and this Agreement constitutes, and, upon execution, issuance and
delivery thereof each of the Warrants will constitute, a valid and binding
agreement of the Company, enforceable in accordance with its terms. Neither
the performance of this Agreement and the consummation of the transactions
contemplated hereby, nor the issuance of any of the Warrant Shares upon
exercise of the Warrants, will result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company is a party
or by which the Company or any of its properties is bound, or under the
Articles of Incorporation or By-Laws of the Company or under any statute,
rule, regulation or order of any governmental body or court applicable to
the Company, and no consent, approval, authorization or order of any court
or governmental body is required for the consummation by the Company of the
transactions on its part herein contemplated.
(c) Capitalization. The authorized capital stock of the
Company consists of (a) 750,000,000 shares of common stock, par value $.01
per share (hereinafter referred to as the "Common Stock"), 9,464,295 shares
of which are validly issued and outstanding as of the date hereof (after
giving effect to the 1-for-50 reverse stock split contemplated to occur on
April 24, 1987), and (b) 1,000,000 shares of preferred stock, par value
$1.00 per share, no shares of which are issued or outstanding. All of the
issued and outstanding shares of Common Stock are fully paid,
non-assessable and free of preemptive rights and no personal liability
attaches to the ownership thereof. Except (i) as disclosed in the Company's
prospectus dated February 11, 1987, and (ii) for the transactions
contemplated by the Restructuring Agreement and the TIAA Agreement, there
is no existing option, warrant, call, commitment or other agreement to
which the Company is a party requiring, and there are no convertible
securities of the Company outstanding which upon conversion would require,
the issuance of any additional shares of Common Stock of the Company or
other securities convertible into shares of Common Stock or any other
equity security of the Company. The Warrants and the Warrant Shares have
been duly and validly authorized and reserved for issuance and, upon
issuance and payment for the Warrant Shares as provided in the Warrants,
the Warrant Shares will be duly and validly issued, fully-paid,
nonassessable and free of preemptive rights and no personal liability will
attach to the ownership thereof.
Section 10. Registration Rights. On the terms and subject to the
conditions of the Registration Agreement attached as Exhibit B hereto, the
Company agrees to provide the registration rights provided therein with
respect to the Warrant Shares. At the Closing, the Company and the Lender
Group shall execute and deliver the Registration Agreement.
Section 11. Governing Law. This agreement shall be governed by
the laws of the State of New York.
Section 12. Notices. All notices provided for herein shall be
given or made by certified mail or hand delivery, mailed or delivered to
the intended recipient at the "Address for Notices" specified below its
name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when deposited in
the mails or personally delivered.
Section 13. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts and each of said counterparts shall
for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument. This Agreement
shall become effective upon the Closing.
Section 14. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Company, Hallwood and the
Lender Group and their respective successors and assigns.
Section 15. Amendment; Waiver. This Agreement may be amended or
modified, and any provision of this Agreement may be waived, by a writing
executed by all of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above
written.
GCA CORPORATION
By
----------------------------------------
7 Shattuck Road
Andover, Massachusetts 01810
Attention: General Counsel
THE HALLWOOD GROUP INCORPORATED
By
----------------------------------------
767 Third Avenue
New York, New York 10017
BANK OF NEW ENGLAND, N.A.
By
----------------------------------------
28 State Street
Boston, Massachusetts 02109
Attn: Cynthia Sackett
Assistant Vice President
BARCLAYS BANK PLC (formerly known as
"Barclays Bank International Limited")
By
----------------------------------------
75 Wall Street
New York, New York 10265
Attn: Advance Department
MANUFACTURERS HANOVER TRUST COMPANY
By
----------------------------------------
270 Park Avenue, 29th Floor
New York, New York 10017
Attn: Gregory Harbaugh
Vice President
MANUFACTURERS HANOVER LEASING CORPORATION
By
----------------------------------------
270 Park Avenue
New York, New York 10017
Attn: Margaret A. Gillis
Vice President
MELLON FINANCIAL SERVICES CORPORATION
LEASING GROUP (formerly known as
"Mellon National Leasing Corporation")
By
----------------------------------------
3030 One Mellon Bank Center
Pittsburgh, Pennsylvania 15258
Attn: Ann Richardson
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By
----------------------------------------
730 Third Avenue
New York, New York 10017
Attn: Securities Division
GENERAL AMERICAN LIFE INSURANCE COMPANY
By
----------------------------------------
P.O. Box 396
St. Louis, Missouri 63166
HOME LIFE INSURANCE COMPANY
By
----------------------------------------
253 Broadway
New York, New York 10007
Attn: Securities Department
THE PENN MUTUAL LIFE INSURANCE COMPANY
By
----------------------------------------
530 Walnut Street
Philadelphia, Pennsylvania 19172
Attn: Securities Department
THE UNION CENTRAL LIFE INSURANCE COMPANY
By
----------------------------------------
P.O. Box 179
Cincinnati, Ohio 45201
THE UNION LABOR LIFE INSURANCE COMPANY
By
----------------------------------------
111 Massachusetts Ave., N.W.
Washington, D.C. 20001
Attn: Barbara Riley
PAN AMERICAN LIFE INSURANCE COMPANY
By
----------------------------------------
601 Poybras Street
Pan American Life Center
New Orleans, Louisiana 70130
Attn: 28th Floor Investments
BERKSHIRE LIFE INSURANCE COMPANY
By
----------------------------------------
700 South Street
Pittsfield, Massachusetts 01201
Attn: Securities Department
Exhibit 4.4
WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of September 1, 1987, among GCA
Corporation (the "Company"), a Delaware corporation, having its principal
place of business at 7 Shattuck Road, Andover, Massachusetts 01810, and
Carl Zeiss, Inc. ("Zeiss"), a New York corporation having its principal
place of business at 1 Zeiss Drive, Thornwood, New York 10594.
WITNESSETH:
----------
WHEREAS, GCA and Zeiss are parties to a certain Agreement dated
as of September 1, 1987 (the "Lens Supply Agreement"); and
WHEREAS, it is a condition, among others, to the obligations of
Zeiss under the Lens Supply Agreement that GCA execute and deliver this
agreement relating to the issuance and sale of warrants ("Warrants") to
purchase shares of common stock, par value $.01 per share (the "Common
Stock"), of the Company;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company and Zeiss agree as
follows:
Section 1. Defined Terms. Capitalized terms used in this
Agreement, unless separately defined herein, shall have the meanings
ascribed to such terms in the Restructuring Agreement dated as of December
5, 1986 among the Company, Zeiss, The Hallwood Group Incorporated and
certain lenders to the Company.
Section 2. Form of Warrant. The Warrant shall be substantially in
the form attached as Exhibit A hereto.
Section 3. Number of Warrant Shares. The aggregate number of
Common Shares issuable upon the exercise of the Warrant ("Warrant Shares")
shall be 500,000. The Warrant will be exercisable at any time or from time
to time until September 1, 2002 at an exercise price of $13.32 per Warrant
Share. The number of Warrant Shares and the exercise price of the Warrant
Shares shall be subject to adjustment as provided in the Warrant.
Section 4. Issuance and Delivery of Warrant. Simultaneously with
the execution hereof, the Company shall execute, issue and deliver to Zeiss
a warrant for the exercise of 500,000 shares of Common Stock of the
Company.
Section 5. Reservation of Warrant Shares, Etc. The Company
covenants and agrees that, at all times following the issuance of the
Warrant to Zeiss, it shall cause to be reserved out of its holdings of
authorized and unissued Common Stock such number of shares of Common Stock
as shall be issuable upon the exercise of the Warrant then outstanding in
accordance with the terms of such Warrant and this Warrant Agreement.
Section 6. Replacement Warrants. In case any Warrant shall be at
any time mutilated, lost or destroyed, then, upon the production of such
mutilated Warrant (or the receipt of an affidavit of an officer of the
Holder as to the circumstances surrounding the loss or destruction of such
Warrant) and, in the case of the loss of a Warrant, the receipt of an
unsecured written agreement to indemnify the Company in the event of a loss
suffered by it as a result of the loss of such Warrant, the Company shall
execute and deliver a new Warrant of like tenor for that number of shares
of Common Stock for which such lost or mutilated Warrant could have been
exercised. Any stamp tax or other governmental charge payable upon the
issuance of any replacement Warrant shall be borne by the holder thereof.
Any replacement Warrants executed and delivered pursuant to this Section 6
shall be entitled to equal and proportionate benefits of this Warrant
Agreement with all other Warrants issued hereunder, whether or not the
allegedly lost or destroyed Warrant shall be enforceable by any person,
firm, corporation or other entity.
Section 7. Certain Expenses. The Company shall pay when due any
and all federal, state and local issue or transfer taxes which may be
payable in respect to the initial issuance by the Company of the Warrant,
and all federal, state or local issue or transfers taxes that may be
payable with respect to the initial issuance of the Warrant Shares. The
Company shall not be required to pay any tax that may be payable in respect
of any transfer of the Warrant or Warrant Shares or in respect of the
issuance of Warrant Shares to any person other than the registered holder
of such Warrant at the time of such exercise.
Section 8. Representation and Agreement of Zeiss; Transfers.
------------------------------------------------
(a) Zeiss hereby represents and warrants to the Company that it
is acquiring its Warrant for investment purposes only and not with a view
to the resale or distribution thereof.
(b) Zeiss and each successor holder of the Warrant, by the
acceptance thereof, agrees that prior to the exercise thereof, unless the
Warrant Shares have been registered under the Securities Act of 1933, as
amended (the "Act"), or any similar Federal statute for sale or other
disposition by such holder and a prospectus with respect thereto is
current, or unless such holder shall have delivered to the Company an
opinion of counsel reasonably satisfactory to the Company to the effect
that no such registration is required, it will deliver to the Company a
written representation that it is acquiring the Warrant Shares for its own
account for investment purposes only and not with a view to the resale or
distribution thereof, subject to any requirement of law that its
disposition of such property be at all times within its control.
(c) Zeiss and each successor holder of the Warrant, by acceptance
thereof, covenants and agrees that it will not sell, transfer or dispose
(hereinafter, a "Disposition") of the Warrant (or any interest in any
Warrant) or any Common Stock issuable or issued upon the exercise of any
Warrant (or any interest in any such Common Stock), except in compliance
with the provisions of the Act and the rules and regulations promulgated
thereunder, or any similar Federal statute and rules and regulations
promulgated thereunder. With respect to any Disposition of the Warrant or
any Common Stock issued pursuant to the exercise of the Warrant or any
interest therein, unless a registration statement under the Act is
effective and the prospectus included therein is current, the holder of
such Warrant or Common Stock shall, as a condition of such Disposition,
provide the Company with (i) an appropriate opinion of counsel that the
proposed Disposition may be made without registration in form and substance
satisfactory to the Company, or (ii) a letter from the staff of the
Securities and Exchange Commission (the "Commission") or any similar
Federal regulatory body, to the effect that the staff will not recommend
that the Commission take any action if the proposed Disposition is made
without registration under the Act, or (iii) evidence satisfactory to the
Company (which, in appropriate circumstances, may include an opinion of
counsel, that such Disposition is in compliance with the provisions of Rule
144 (or any similar rule then in effect) promulgated under the Act.
(d) Each Warrant and each certificate for shares of Common Stock
that is the subject of such Warrant shall bear an appropriate legend to
reflect that the issuance thereof has not been registered under the Act,
and Zeiss and each successor holder of the Warrant, by acceptance thereof,
acknowledges the same.
(e) The Company shall be required to issue promptly a new Warrant
or Common Stock issued upon exercise of the Warrant (such Common Stock or
Warrant not to bear a restrictive legend if the Company reasonably
determines that such legend is not required in order to comply with
applicable federal and state securities laws) if (i) a Disposition of a
Warrant or the Common Stock issued upon exercise of the Warrant is made
pursuant to a registration statement (including a current prospectus) that
is effective under the Act (such Warrant or Common Stock, as the case may
be, to be without a restrictive legend), or (ii) the staff of the
Commission shall have issued a letter to the effect that it will not
recommend that the Commission take any action if the proposed Disposition
is made without registration under the Act, or (iii) counsel to the holder
thereof shall have rendered its opinion, which opinion shall be reasonably
acceptable to the Company, that the Disposition of such securities may be
made without registration under the Act, or (iv) the Company shall have
been furnished with evidence satisfactory to the Company (which, in
appropriate circumstances, may include an opinion of counsel) that the
Disposition of such securities is in compliance with Rule 144 (or any
similar rule then in effect) promulgated under the Act.
Section 9. Representations and Warranties of the Company. The
Company represents and warrants to Zeiss as follows:
(a) Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full corporate power and authority to own its
properties and carry on its business as it is now being conducted. The
Company is duly qualified as a foreign corporation and is in good standing
under the laws of each jurisdiction in which the conduct of its business or
the ownership of its assets requires such qualification, except where its
failure to be so qualified would not have a material adverse effect on the
business, properties, assets or financial condition of the Company and its
subsidiary, taken as a whole.
(b) Due Authorization; No Conflicts; Governmental Consents. This
Agreement has been duly authorized, executed and delivered by the Company
and this Agreement constitutes, and, upon execution, issuance and delivery
thereof, the Warrant will constitute, a valid and binding agreement of the
Company, enforceable in accordance with its terms. Neither the performance
of this Agreement and the consummation of the transactions contemplated
hereby, nor the issuance of any of the Warrant Shares upon exercise of the
Warrant, will result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which the Company is a party or by which the
Company or any of its properties is bound, or under Articles of
Incorporation or By-Laws of the Company or under any statute, rule,
regulation or order of any governmental body or court applicable to the
Company, and no consent, approval, authorization or order of any court or
governmental body is required for the consummation by the Company of the
transactions on its part herein contemplated.
(c) Capitalization. The authorized capital stock of the Company
consists of (a) 750,000,000 shares of common stock, par value $.01 per
share (hereinafter referred to as the "Common Stock"), 9,467,642 shares of
which are validly issued and outstanding as of July 1, 1987, and (b)
1,000,000 shares of preferred stock, par value $1.00 per share, no shares
of which are issued or outstanding as of the date hereof. All of the issued
and outstanding shares of Common Stock are fully paid, non-assessable and
free of preemptive rights and no personal liability attaches to the
ownership thereof. Except (i) as disclosed in the Company's prospectus
dated February 11, 1987, (ii) as disclosed in the Company's Proxy Statement
dated April 27, 1987, (iii) for options to purchase an aggregate of 300,000
shares of the Common Stock of the Company dated July, 1987 granted to an
officer of the Company, and (iv) for outstanding warrants to purchase an
aggregate of 2,190,800 shares of the Common Stock of the Company issued
pursuant to the Restructuring Agreement dated as of December 5, 1986, among
the Company, The Hallwood Group Incorporated, certain lenders to the
Company and Zeiss, there is no existing option, warrant, call, commitment
or other agreement to which the Company is a party requiring, and there are
no convertible securities of the Company outstanding which upon conversion
would require, the issuance of any additional shares of Common Stock of the
Company or other securities convertible into shares of Common Stock or any
other equity security of the Company. The Warrant and the Warrant Shares
have been duly and validly authorized and reserved for issuance and, upon
issuance and payment for the Warrant Shares as provided in the Warrant, the
Warrant Shares will be duly and validly issued, fully-paid, non-assessable
and free of preemptive rights and no personal liability will attach to the
ownership thereof.
Section 10. Registration Rights. On the terms and subject to the
conditions of the Registration Agreement executed simultaneously herewith,
the Company agrees to provide the registration rights provided therein with
respect to the Warrant Shares.
Section 11. Rights of Parties Upon Sale of Warrant Shares. In the
event that the Warrant is exercised at any time by any Holder thereof, and
the Warrant Shares which are issued upon exercise thereof are subsequently
sold by the Warrant Holder for a price in excess of $24.00 per share,
subject to adjustment in accordance with Section 4 of Exhibit A hereto,
then in such event 50% of the net sales proceeds, after deducting fees and
commissions of sale and reasonable legal expenses borne by the Warrant
Holder, shall be remitted to the Company within thirty days after receipt
thereof by the Seller of the Warrant Shares.
Section 12. Governing Law. This agreement shall be governed by
the laws of the State of New York.
Section 13. Notices. All notices provided for herein shall be
given or made by certified mail or hand delivery, mailed or delivered to
the intended recipient at the address specified below its name on the
signature page hereof; or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when deposited in the mails or personally
delivered.
Section 14. Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts and each of said counterparts shall
for all purposes be deemed to be an original, and all such counterparts
shall constitute but one and the same instrument. This Agreement shall
become effective upon execution by both parties.
Section 15. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns.
Section 16. Amendment; Waiver. This Agreement may be amended or
modified, and any provision of this Agreement may be waived, only by a
writing executed by both of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above
written.
GCA CORPORATION
By
--------------------------------
(Name and Title)
7 Shattuck Road
Andover, Massachusetts 01810
Attention: General Counsel
CARL ZEISS, INC.
By
--------------------------------
(Name and Title)
1 Zeiss Drive
Thornwood, New York 10549
Attention: Corporation Secretary
Exhibit 4.5
GCA CORPORATION
REGISTRATION AGREEMENT
----------------------
Registration Agreement, dated as of April 23, 1987, among GCA
Corporation, a Delaware corporation (the "Company"), and each of the banks
and insurance companies listed on the signature pages hereof, and Carl
Zeiss, Inc. (individually, a "Lender" and collectively, the "Lender
Group"). Terms not otherwise defined herein shall have the meaning ascribed
to them in the Warrant Agreement.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, The Hallwood Group Incorporated, a Delaware corporation
("Hallwood"), and the Lender Group (other than TIAA) are parties to that
certain Restructuring Agreement, dated as of December 5, 1986 (the
"Restructuring Agreement"), as amended; and
WHEREAS, Hallwood and Teachers Insurance & Annuity Association of
America ("TIAA") are parties to that certain letter agreement dated
December 5, 1986; and
WHEREAS, the Company and the Lender Group are parties to that
certain Warrant Agreement of even date herewith (the "Warrant Agreement"),
pursuant to which the Company has issued to the Lender Group warrants (the
"Warrants") to purchase 2,190,806 shares (after giving effect to the
1-for-50 reverse stock split of the common stock (as hereinafter defined)
contemplated to occur on April 24, 1987) of common stock, $.01 par value
per share, of the Company (the "Common Stock"); and
WHEREAS, the Warrant Agreement provides that at the Closing the
Company and the Lender Group shall execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company and the Lender Group
agree as follows:
1. Defined Terms. Capitalized terms used in this Agreement,
unless separately defined herein, shall have the meanings ascribed to such
terms in the Restructuring Agreement or the Warrant Agreement.
2. Demand Registrations. (a) At any time after the Closing, the
holders of at least 20% of the Warrant Shares outstanding at the time
(equitably adjusted to reflect stock splits, stock dividends, combinations
or similar events and adjustments pursuant to Paragraph 5 of the Warrants)
may request registration under the Securities Act of 1933, as amended (the
"Securities Act"), of all or part of their Warrant Shares on Form S-1 or
any other form available for the registration of the Warrant Shares
("Demand Registrations"). Within 10 days after receipt of any such request,
the Company shall give written notice of such request to all other holders
of the Warrant Shares and shall, subject to the provisions of Section 2(c)
hereof, include in such registration all Warrant Shares with respect to
which the Company has received written requests for inclusion therein
within 30 days after the receipt of the Company's notice.
(b) Subject to the provisions of Section 2(a), the holders of the
Warrant Shares shall be entitled to request three Demand Registrations, and
the Company shall pay all Registration Expenses (as defined in Section 6
hereof) in connection therewith. A registration shall not count as one of
the three permitted Demand Registrations (i) until the registration has
become effective, or (ii) if the holders initiating the request for such
registration are not able to register and sell at least 66-2/3% of the
shares of Common Stock requested by such holders to be included in such
registration. In any event, the Company shall pay all Registration Expenses
in connection with any registration initiated as a Demand Registration,
whether or not consummated.
(c) In the event that the managing underwriters of the requested
Demand Registration advise the Company in writing that in their judgment in
order to effect an orderly public distribution the number of Warrant Shares
proposed to be included in any such Demand Registration must be limited,
the Company shall include in such registration only the number of Warrant
Shares which, in the opinion of such underwriters, can be sold in an
orderly public distribution, such limitation to be imposed pro rata among
the holders of the Warrant Shares who are participating in such
registration on the basis of the amount of such securities initially
proposed to be registered by such holder.
(d) The Company shall not be obligated to effect any Demand
Registration within six months after the effective date of a previous
Demand Registration or a previous registration under which each holder of
Warrant Shares was given piggyback rights (and was able to include a
minimum of 66-2/3% of the shares of Warrant Shares requested by it to be
included in such registration) pursuant to Section 3 hereof. The Company
may postpone for up to six months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company reasonably
believes that such Demand Registration might reasonably be expected to have
an adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets (other than in the ordinary course of business) or
any merger, consolidation, tender offer or similar transaction; provided,
however, that in such event, the holders of the Warrant Shares initiating
the request for such Demand Registration shall be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration shall
not count as one of the permitted Demand Registrations. If the Company
elects to postpone the filing or effectiveness of a Demand Registration, it
shall promptly notify each member of the Lender Group. In any event, the
Company shall pay all Registration Expenses in connection with any
registration initiated as a Demand Registration.
(e) The holders of a majority of the Warrant Shares participating
in any Demand Registration shall have the right to select the investment
banker(s) and manager(s) to administer the offering, subject to the
Company's approval, which shall not be unreasonably withheld.
3. Piggyback Registrations. (a) Whenever the Company proposes to
register any of its equity securities under the Securities Act (other than
pursuant to a Demand Registration) and the registration form to be used may
be used for the registration of Warrant Shares (a "Piggyback
Registration"), the Company shall give prompt written notice to all holders
of Warrant Shares of its intention to effect such a registration and shall
include in such registration all Warrant Shares with respect to which the
Company has received written requests for inclusion therein within 30 days
after the receipt of the Company's notice.
(b) The Registration Expenses of the holders of Warrant Shares
shall be paid by such holders in all Piggyback Registrations.
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise
the Company in writing that in their judgment the number of securities
requested to be included in such registration must be limited in order to
effect an orderly public distribution, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Warrant Shares requested to be included in such registration,
pro rata among the holders of such securities on the basis of the number of
shares initially proposed to be registered by such holders, and (iii)
third, any other securities requested to be included in such registration.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities other than
the holders of the Warrant Shares, and the managing underwriters advise the
Company in writing that in their judgment the number of securities
requested to be included in such registration must be limited in order to
effect an orderly public distribution, the Company shall include in such
registration (i) first, the securities requested to be included therein by
the holders requesting such registration (ii) second, the Warrant Shares
requested to be included in such registration, pro rata among the holders
of such securities on the basis of the number of shares initially proposed
to registered by such holders, and (iii) third, any other securities
requested to be included in such registration.
4. Holdback Agreements. (a) Each holder of Warrant Shares agrees
not to effect any public sale or distribution of the Warrant Shares owned
by such holder, including, without limitation, sales pursuant to Rule 144
(or any similar rule then in effect), during the 10 days prior to and the
90 days beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Warrant
Shares owned by such holder, are included (except as part of such
underwritten registration) unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities, or any securities convertible into
or exchangeable or exercisable for such securities, during the 10 days
prior to and during the 90 days beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form) unless the underwriters
managing the registered public offering otherwise agree.
5. Registration Procedures. Whenever the holders of the Warrant
Shares have requested that any Warrant Shares be registered pursuant to
this Agreement, the Company shall use its best efforts to effect the
registration of such Warrant Shares in accordance with the intended method
of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Warrant Shares and use its
best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to the counsel
selected by the holders of a majority of the Warrant Shares requesting such
registration statement copies of all documents proposed to be filed, which
documents will be subject to the review of such counsel);
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 90 days and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Warrant Shares such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Warrant
Shares owned by such seller;
(d) use its best efforts to register or qualify such Warrant
Shares under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Warrant Shares
owned by such seller (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Warrant Shares at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and shall prepare in sufficient
quantities a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Warrant Shares such
prospectus shall not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading;
(f) use its best efforts to cause all such Warrant Shares to be
listed on each securities exchange on which similar securities issued by
the Company are then listed, and provide a transfer agent and registrar for
such securities not later than the effective date of the applicable
registration statement;
(g) in the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Warrant
Shares being sold or the underwriters, reasonably request in order to
expedite or facilitate the disposition of such Warrant Shares (including,
without limitation, effecting a stock split or a combination of shares);
(h) make available for inspection by any seller of Warrant
Shares, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement; and
(i) use its best efforts to obtain an appropriate opinion from
the Company's counsel and a comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by opinions of Company counsel and comfort letters in
similar registrations as the holders of a majority of the Warrant Shares
being sold reasonably request (provided that such holders constitute the
holders of a majority of the securities covered by such registration
agreement).
If any such registration statement refers to any holder by name
or otherwise as the holder of any securities of the Company, such holder
shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such holder, to the effect
that the holding by such holder of such securities is not to be construed
as a recommendation of such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements
of the Company, or (ii) in the event that such reference to such holder by
name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, the deletion of the reference to such
holder.
6. Registration Expenses. (a) All expenses incident to the
Company's performance of or compliance with this Agreement, including
without limitation, all registration and filing fees, National Association
of Securities Dealers, Inc. fees and expenses of compliance with securities
or blue sky laws, printing expenses, messenger and delivery expenses, and
fees and disbursements of counsel for the Company, all independent
certified public accountants, and underwriters (excluding discounts and
commissions) (all such expenses being herein called "Registration
Expenses"), shall be borne as provided in this Agreement, except that the
Company shall, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses
and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed.
(b) In connection with each Registration initiated as a Demand
Registration, the Company shall reimburse the holders of the Warrant Shares
covered by such registration for the reasonable fees and disbursements of
one law firm chosen by the holders of a majority of the Warrant Shares
included in such registration.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay the Registration Expenses allocable to the registration
of such holder's securities so included, and any Registration Expenses not
so allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities
to be so registered.
7. Indemnification. (a) The Company agrees to indemnify, to the
extent permitted by law, each holder of Warrant Shares, its officers and
directors and each Person who controls such holder (within the meaning of
the Securities Act), against all losses, claims, damages, liabilities and
expenses caused by, resulting from, arising out of or based upon any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by, resulting from,
arising out of or based upon or contained in any information furnished in
writing to the Company by such holder expressly for use therein or by such
holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the holders
of Warrant Shares.
(b) In connection with any registration statement in which a
holder of Warrant Shares is participating, each such holder shall furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, shall
indemnify each other holder of Warrant Shares, the Company, its directors
and officers and each person who controls the Company (within the meaning
of the Securities Act) against any losses, claims, damages, liabilities and
expenses caused by, resulting from, arising out of or based upon any untrue
or alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in
writing by such holder expressly for use in the registration statement;
provided, however, that the obligation to indemnify shall be several, not
joint and several, among such holders of Warrant Shares and the liability
of each such holder of Warrant Shares, shall be in proportion to and
limited to the net amount received by such holder from the sale of Warrant
Shares pursuant to such registration statement.
(c) Any person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other
of such indemnified parties with respect to such claim. Failure to give
prompt written notice shall not release the indemnifying party from its
obligations hereunder.
(d) To the extent permitted by law, the indemnification provided
for under this Agreement shall remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party or any
officer, director or controlling person of such indemnified party and shall
survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this
Section 7 is due in accordance with the terms thereof, but is for any
reason unavailable or unenforceable or insufficient in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified person as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the indemnifying party or by the indemnified party, by such party's
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement, or omission. In no event shall the
liability of any selling holder of Warrant Shares be greater in amount than
the amount of proceeds received by such holder upon such sale.
8. Participation in Underwritten Registrations. No Lender may
participate in any registration hereunder which is underwritten unless such
Lender (a) agrees to sell such Lender's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting
arrangements.
9. Miscellaneous. (a) Except as otherwise provided herein, the
provisions of this Agreement may be amended only with the written consent
of the Company and the holders of 66-2/3% of the Warrant Shares.
(b) All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
their respective successors and assigns whether so expressed or not. Each
successor and assign shall agree to be bound by the terms hereof as if
originally a party hereto. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for
the benefit of purchasers or holders of the Warrant Shares are also for the
benefit of, and enforceable by, any subsequent holder of such Warrant
Shares, provided that each such transferee shall agree in writing to be
bound by the terms and conditions of this Agreement.
(c) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or this Agreement.
(d) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one and the same Agreement.
(e) The headings of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
(f) This Agreement shall be governed by the law of the State of
New York.
(g) All notices provided for herein shall be given or made by
certified mail or hand delivery, mailed or delivered to the intended
recipient at the "Address of Notices" specified below its name on the
signature pages hereof; or as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when mailed or personally delivered.
(h) The Company will not hereafter enter into any agreement with
respect to its securities which is inconsistent with the rights granted
under this Agreement to the holders of Warrant Shares.
(i) Any person having rights under any provisions of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law.
(j) In any action or proceeding brought to enforce any provision
of this Agreement, or where any provision of such Agreement is validly
asserted as a defense, the successfuly party shall receive attorneys fees
in addition to any other available remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
GCA CORPORATION
By
------------------------------------
7 Shattuck Road
Andover, Massachusetts 01810
Attention: General Counsel
THE BANK OF NEW ENGLAND, N.A.
By
------------------------------------
28 State Street
Boston, Massachusetts 02109
Attn: Cynthia Sackett
Assistant Vice President
BARCLAYS BANK PLC (formerly known as
"Barclays Bank International Limited")
By
------------------------------------
420 Lexington Avenue
New York, New York
Attn: Advance Department
MANUFACTURERS HANOVER TRUST COMPANY
By
------------------------------------
270 Park Avenue
New York, New York 10017
Attn: Gregory Harbaugh
Assistant Secretary
MANUFACTURERS HANOVER LEASING CORPORATION
By
------------------------------------
270 Park Avenue, 29th Floor
New York, New York 10017
Attn: Robert Michael
Vice President
MELLON BANK, N.A.
By
------------------------------------
One Mellon Bank Center, Room 4321
Pittsburgh, Pennsylvania 15258
Attn: Robert W. Goode
Senior Vice President
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By
------------------------------------
730 Third Avenue
New York, New York 10017
Attn: Securities Division
GENERAL AMERICAN LIFE INSURANCE COMPANY
By
------------------------------------
P.O. Box 396
St. Louis, Missouri 63166
HOME LIFE INSURANCE COMPANY
By
------------------------------------
253 Broadway
New York, New York 10007
Attn: Securities Department
THE PENN MUTUAL LIFE INSURANCE COMPANY
By
------------------------------------
530 Walnut Street
Philadelphia, Pennsylvania 19172
Attn: Securities Department
THE UNION CENTRAL LIFE INSURANCE COMPANY
By
------------------------------------
P.O. Box 179
Cincinnati, Ohio 45201
THE UNION LABOR LIFE INSURANCE COMPANY
By
------------------------------------
111 Massachusetts Ave., N.W.
Washington, D.C. 20001
Attn: Barbara Riley
PAN AMERICAN LIFE INSURANCE COMPANY
By
------------------------------------
601 Poybras Street
Pan American Life Center
New Orleans, Louisiana 70130
Attn: 28th Floor Investments
BERKSHIRE LIFE INSURANCE COMPANY
By
------------------------------------
700 South Street
Pittsfield, Massachusetts 01201
Attn: Securities Department
Exhibit 4.6
GCA CORPORATION
REGISTRATION AGREEMENT
----------------------
Registration Agreement, dated as of September 1, 1987, among GCA
Corporation, a Delaware corporation (the "Company"), and Carl Zeiss, Inc.
("Zeiss"). Terms not otherwise defined herein shall have the meaning
ascribed to them in the Warrant Agreement.
WITNESSETH
----------
WHEREAS, the Company and Zeiss are parties to that certain
Warrant Agreement of even date herewith (the "Warrant Agreement"), pursuant
to which the Company has issued to Zeiss a warrant (the "Warrant") to
purchase 500,000 shares of common stock, $.01 par value per share, of the
Company (the "Common Stock"); and
WHEREAS, the Warrant Agreement provides that Zeiss and subsequent
holders of the Warrant or portions thereof outstanding and unexercised from
time to time shall have certain registration rights with respect to the
Warrant Shares issuable pursuant to the exercise of the Warrant;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the Company and Zeiss agree as
follows:
1. Defined Terms. Capitalized terms used in this Agreement,
unless separately defined herein, shall have the meanings ascribed to such
terms in the Warrant Agreement.
2. Demand Registrations. (a) At any time after the date hereof,
the holder of the Warrant representing the right to purchase at least
200,000 shares of Common Stock of the Company or the holder of at least
200,000 Warrant Shares (equitably adjusted to reflect stock splits, stock
dividends, combinations or similar events and adjustments pursuant to
Section 4 of the Warrant) may request registration under the Securities Act
of 1933, as amended (the "Securities Act"), of all or part of their Warrant
Shares on Form S-1 or any other form available for the registration of the
Warrant Shares ("Demand Registrations"), by written notice to the Company
of such request accompanied by the simultaneous exercise of the Warrant to
the extent of not less than Twenty Thousand (20,000) shares of Common Stock
of the Company, $.01 Par Value, less the number of previously exercised
shares which have not been registered. Within 10 days after receipt of any
such request, the Company shall give written notice of such request to all
other holders of the Warrant and of the Warrant Shares and shall, subject
to the provisions of Section 2(c) hereof, include in such registration all
Warrant Shares with respect to which the Company has received written
requests for inclusion therein within 30 days after the receipt of the
Company's notice.
(b) Subject to the provisions of Section 2(a), the Company
shall pay all Registration Expenses (as defined in Section 6 hereof) in
connection with each such registration. The Company shall pay all
Registration Expenses in connection with any registration initiated as a
Demand Registration, whether or not consummated.
(c) In the event that the managing underwriters of the
requested Demand Registration advise the Company in writing that in their
judgment in order to effect an orderly public distribution the number of
Warrant Shares proposed to be included in any such Demand Registration must
be limited, the Company shall include in such registration only the number
of Warrant Shares which, in the opinion of such underwriters, can be sold
in an orderly public distribution, such limitation to be imposed pro rata
among the holders of the Warrant or of the Warrant Shares, as the case may
be, who are participating in such registration on the basis of the amount
of such securities initially proposed to be registered by such holder.
(d) The Company shall not be obligated to effect any Demand
Registration within six months after the effective date of a previous
Demand Registration or a previous registration under which each holder of
Warrant Shares was given piggyback rights (and was able to include a
minimum of 66-2/3% of the shares of Warrant Shares requested by it to be
included in such registration) pursuant to Section 3 hereof. The Company
may postpone for up to six months the filing or the effectiveness of a
registration statement for a Demand Registration if the Company reasonably
believes that such Demand Registration might reasonably be expected to have
an adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets (other than in the ordinary course of business) or
any merger, consolidation, tender offer or similar transaction. If the
Company elects to postpone the filing or effectiveness of a Demand
Registration, it shall promptly notify each holder of the Warrant and of
Warrant Shares.
(e) The holders of a majority of the Warrant Shares
participating in any Demand Registration shall have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to
the Company's approval, which shall not be unreasonably withheld.
3. Piggyback Registrations. (a) Whenever the Company proposes to
register any of its equity securities under the Securities Act (other than
pursuant to a Demand Registration) and the registration form to be used may
be used for the registration of the Warrant Shares (a "Piggyback
Registration"), the Company shall give prompt written notice to all holders
of the Warrant and of Warrant Shares of its intention to effect such a
registration and shall include in such registration all Warrant Shares with
respect to which the Company has received written requests for inclusion
therein within 30 days after the receipt of the Company's notice.
(b) The Registration Expenses of the holders of Warrant
Shares shall be paid by such holders in all Piggyback Registrations.
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise
the Company in writing that in their judgment the number of securities
requested to be included in such registration must be limited in order to
effect an orderly public distribution, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Warrant Shares requested to be included in such registration,
pro rata among the holders of such securities on the basis of the numbers
of shares initially proposed to be registered by such holders, and (iii)
third, any other securities requested to be included in such registration.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities other than
the holders of the Warrant Shares, and the managing underwriters advise the
Company in writing that in their judgment the number of securities
requested to be included in such registration must be limited in order to
effect an orderly public distribution, the Company shall include in such
registration (i) first, the securities requested to be included therein by
the holders requesting such registration (ii) second, the Warrant Shares
requested to be included in such registration, pro rata among the holders
of such securities on the basis of the number of shares initially proposed
to registered by such holders, and (iii) third, any other securities
requested to be included in such registration.
4. Holdback Agreements. (a) Each holder of Warrant Shares agrees
not to effect any public sale or distribution of the Warrant Shares owned
by such holder, including, without limitation, sales pursuant to Rule 144
(or any similar rule then in effect), during the 10 days prior to, and the
90 days beginning on, the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which Warrant
Shares owned by such holder are included (except as part of such
underwritten registration) unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities, or any securities convertible into
or exchangeable or exercisable for such securities, during the 10 days
prior to, and during the 90 days beginning on, the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form) unless the underwriters
managing the registered public offering otherwise agree.
5. Registration Procedures. Whenever the holders of the Warrant
or of the Warrant Shares have requested that any Warrant Shares be
registered pursuant to this Agreement, the Company shall use its best
efforts to effect the registration of such Warrant Shares in accordance
with the intended method of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Warrant Shares and
use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will
furnish to the counsel selected by the holders of a majority of the Warrant
Shares requesting such registration statement copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel);
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of not less than 180
days and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition
by the sellers thereof as set forth in such registration statement;
(c) furnish to each seller of Warrant Shares such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Warrant
Shares owned by such seller;
(d) use its best efforts to register or qualify such Warrant
Shares under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Warrant Shares
owned by such seller (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Warrant Shares at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and shall prepare in sufficient
quantities a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchaser of such Warrant Shares such
prospectus shall not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading;
(f) use its best efforts to cause all such Warrant Shares to
be listed on each securities exchange on which similar securities issued by
the Company are then listed, and provide a transfer agent and registrar for
such securities not later than the effective date of the applicable
registration statement;
(g) in the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Warrant
Shares being sold or the underwriters, reasonably request in order to
expedite or facilitate the disposition of such Warrant Shares (including,
without limitation, effecting a stock split or a combination of shares);
(h) make available for inspection by any seller of Warrant
Shares, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement; and
(i) use its best efforts to obtain an appropriate opinion
from the Company's counsel and a comfort letter from the Company's
independent public accountants in customary from and covering such matters
of the type customarily covered by opinions of Company counsel and comfort
letters in similar registrations as the holders of a majority of the
Warrant Shares being sold reasonably request (provided that such holders
constitute the holders of a majority of the securities covered by such
registration agreement).
If any such registration statement refers to any holder by name
or otherwise as the holder of any securities of the Company, such holder
shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such holder, to the effect
that the holding by such holder of such securities is not to be construed
as a recommendation of such holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements
of the Company, or (ii) in the event that such reference to such holder by
name or otherwise is not required by the Securities Act or any similar
Federal statute then in force, the deletion of the reference to such
holder.
6. Registration Expenses. (a) All expenses incident to the
Company's performance of or compliance with this Agreement, including
without limitation, all registration and filing and listing fees, National
Association of Securities Dealers, Inc. fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the Company, all
independent certified public accountants, and underwriters (excluding
discounts and commissions) (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the Company
are then listed.
(b) In connection with each Registration initiated as a
Demand Registration, the Company shall reimburse the holders of the Warrant
Shares covered by such registration for the reasonable fees and
disbursements of one law firm chosen by the holders of a majority of the
Warrant Shares included in such registration.
(c) To the extent Registration Expenses are not required to
be paid by the Company, each holder of securities included in any
registration hereunder shall pay the Registration Expense allocated to the
registration of such holder's securities so included, and any Registration
Expenses not so allocable shall be borne by all sellers of securities
included in such registration in proportion to the aggregate selling price
of the securities to be so registered.
7. Indemnification. (a) The Company agrees to indemnify, to the
extent permitted by law, each holder of the Warrant and of Warrant Shares,
its officers and directors and each Person who controls such holder (within
the meaning of the Securities Act), against all losses, claims, damages,
liabilities and expenses caused by, resulting from, arising out of or based
upon any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused
by, resulting from, arising out of or based upon or contained in any
information furnished in writing to the Company by such holder expressly
for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such holder with a sufficient
number of copies of the same. In connection with an underwritten offering,
the Company shall indemnify such underwriters, their officers and directors
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of the Warrant and of Warrant Shares.
(b) In connection with any registration settlement in which
a holder of a Warrant or of Warrant Shares is participating, each such
holder shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with
any such registration statement or prospectus and, to the extent permitted
by law, shall indemnify each other holder of a Warrant and of Warrant
Shares, the Company, its directors and officers and each person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses caused by, resulting
from, arising out of or based upon any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in
any information or affidavit so furnished in writing by such holder
expressly for use in the registration statement; provided, however, that
the obligation to indemnify shall be several, not joint and several, among
such holders of a Warrant and of Warrant Shares and the liability of each
such holder of a Warrant and of Warrant Shares, shall be in proportion to
and limited to the net amount received by such holder from the sale of
Warrant Shares pursuant to such registration statement.
(c) Any person entitled to indemnification hereunder shall
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party shall not be subject to any liability
for any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other
of such indemnified parties with respect to such claim. Failure to give
prompt written notice shall not release the indemnifying party from its
obligations hereunder.
(d) To the extent permitted by law, the indemnification
provided for under this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person of such indemnified
party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to
this Section 7 is due in accordance with the terms thereof, but is for any
reason unavailable or unenforceable or insufficient in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified person as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified person on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the indemnifying party or by the indemnified party, by such party's
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement, or omission. In no event shall the
liability of any selling holder of Warrant Shares be greater in amount than
the amount of proceeds received by such holder upon such sale.
8. Participation in Underwritten Registrations. No holder of
Warrant Shares may participate in any registration hereunder which is
underwritten unless such holder (a) agrees to sell such holder's securities
on the basis provided in any underwriting arrangements approved by the
Person or Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents require under the terms of such
underwriting arrangements.
9. Miscellaneous. (a) Except as otherwise provided herein, the
provisions of this Agreement may be amended only with the written consent
of the Company and the holders of a Warrant to purchase at least 50% of the
then unexercised Warrant Shares.
(b) All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of
their respective successors and assigns whether so expressed or not. Each
successor and assign shall agree to be bound by the terms hereof as if
originally a party hereto. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for
the benefit of purchasers or holders of the Warrant Shares are also for the
benefit of, and enforceable by, any subsequent holder of such Warrant
Shares, provided that each such transferee shall agree in writing to by
bound by the terms and conditions of this Agreement.
(c) Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision of this Agreement.
(d) This Agreement may be executed simultaneously in two or
more counterparts, each of which shall constitute an original, but all of
which taken together shall constitute one and the same Agreement.
(e) The headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(f) This Agreement shall be governed by the law of the State
of New York.
(g) All notices provided for herein shall be given or made
by certified mail or hand delivery, mailed or delivered to the intended
recipient at the address specified below its name on the signature page
hereof; or as to any party, at such other address as shall be designated by
such party in a notice to each other party. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have been duly
given when mailed or personally delivered.
(h) The Company will not hereafter enter into any agreement
with respect to its securities which is inconsistent with the rights
granted under this Agreement to the holders of Warrant Shares.
(i) Any person having rights under any provisions this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law.
(j) In any action of proceeding brought to enforce any
provision of this Agreement, or where any provision of such Agreement is
validly asserted as a defense, the successfully party shall receive
attorneys fees in addition to any other available remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
GCA CORPORATION
By
-------------------------------
(Name and Title)
7 Shattuck Road
Andover, Massachusetts 01810
Attention: General Counsel
CARL ZEISS, INC.
By
-------------------------------
(Name and Title)
1 Zeiss Drive
Thornwood, New York 10549
Attention: Corporate Secretary
Exhibit 4.7
THE ISSUANCE OF THIS WARRANT AND ANY SHARES OF COMMON STOCK
ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. ACCORDINGLY, NO TRANSFER OF THIS
WARRANT OR ANY SHARES OF COMMON STOCK ISSUABLE OR ISSUED UPON THE EXERCISE
HEREOF MAY BE MADE EXCEPT IN COMPLIANCE WITH SUCH STATUTE AND THE TERMS OF
THE WARRANT AGREEMENT REFERRED TO BELOW, A COPY OF WHICH IS ON FILE AT THE
OFFICE OF GCA CORPORATION.
Void After 4:00 P.M., Boston Time, on April 23, 2002
GCA CORPORATION WARRANT
Number ____________ Warrant to Purchase _______
Shares of Common Stock
This is to certify that _____________________________ , or
registered assigns (the "Holder"), is entitled to purchase from GCA
Corporation, a Delaware corporation (the "Company"), at an exercise price
(the "Warrant Price") of ________________,(1) at any time prior to 4:00
p.m. (Boston time) on April 23, 2002, _________ fully paid and
non-assessable shares (after giving effect to the 1-for-50 reverse stock
split (the "Reverse Split") of the Common Stock (as hereinafter defined)
contemplated to occur on April 24, 1987) of the Company's common stock, par
value $.01 per share (the "Common Stock"), subject to adjustment as
hereinafter provided.
- ------------------------
(1). SUCH AMOUNT SHALL BE 150% OF THE BOOK VALUE PER SHARE OF THE COMPANY'S
COMMON STOCK AS OF THE LAST DAY OF THE FISCAL MONTH IN WHICH THE CLOSING,
AS DEFINED IN THAT CERTAIN RESTRUCTURING AGREEMENT, DATED AS OF DECEMBER 5,
1986, AMONG THE COMPANY, THE HALLWOOD GROUP INCORPORATED, AND THE LENDERS
NAMED THEREIN, OCCURS.
1. This Warrant is one of a series of Warrants (the "Warrants"),
for the purchase of an aggregate of 2,190,806 shares of Common Stock,
subject to adjustment, issued by the Company pursuant to that certain
Warrant Agreement, dated as of April 23, 1987, among the Company, The
Hallwood Group Incorporated, a Delaware corporation, and the Lender Group
referred to therein, a copy of which is on file at the office of the
Company referred to below, and is subject to the terms of such Warrant
Agreement, to all of which terms every Holder consents by acceptance
hereof.
2. The rights represented by this Warrant may be exercised by the
Holder hereof at any time or from time to time prior to 4:00 p.m. (Boston
time) on April 23, 2002, as to the whole or any part of the shares of
Common Stock covered hereby, by the surrender of this Warrant, together
with (i) the Subscription Form attached hereto appropriately completed, and
(ii) payment (in cash, by certified check or by wire transfer, in each case
of immediately available funds) of the Warrant Price for the share or
shares of Common Stock so purchased, to the Company at its office at 7
Shattuck Road, Andover, Massachusetts 01810 (or at such other office as the
Company may designate by written notice to the holder hereof). Thereupon,
this Warrant shall be deemed to have been exercised and the person
exercising the same shall be deemed to have become a holder of record of
the shares of Common Stock purchased hereunder for all purposes, and
certificates for such shares of Common Stock so purchased shall be
delivered to the purchaser within a reasonable time after this Warrant
shall have been exercised as set forth hereinabove. If this Warrant shall
be exercised in respect of only a part of the shares of Common Stock
subject hereto, the Company shall deliver to the Holder a Warrant
registered in the name of the Holder (or his designee) with respect to that
number of shares of Common Stock in respect of which this Warrant shall not
have been exercised.
3. No certificate for a fraction of a share of Common Stock will
be issued. As to any fractions of a share of Common Stock that would
otherwise be purchasable on exercise of a Warrant, the Company shall make
payment in lieu thereof in an amount of cash equal to the current value of
such fraction computed on the basis of the last reported sale price on the
day upon which the exercise of the Warrant shall have taken place or, in
case no such reported sale takes place on such day, the average of the last
reported bid and asked prices on such day, in either case on the principal
national securities exchange (which, for purposes hereof, shall be deemed
to include the NASDAQ National Market System) on which the Common Stock is
listed or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average mean of the bid and asked
prices in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or if such
organization is not in existence, by an organization providing similar
services.
4. Subject to the terms and conditions of the Warrant Agreement,
this Warrant and any interest therein or in the shares of Common Stock
issuable upon exercise thereof is transferable on the books of the Company
at its office at 7 Shattuck Road, Andover, Massachusetts 01810 (or such
other office as the Company may designate by written notice to the holder
hereof), by the Holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form attached
hereto, duly executed, whereupon this Warrant (and any interest therein or
in the shares of Common Stock issuable upon exercise hereof) shall be
deemed to have been transferred and the transferee to have become the
holder of record thereof. Promptly following such surrender, the Company
shall issue a new Warrant (or certificate of shares) registered in the name
of the transferee.
5. The rights of the Holder of this Warrant shall be subject to
the following further terms and conditions:
(a) The Warrant Price and the number of shares of Common Stock
purchasable pursuant to this Warrant shall be subject to adjustment from
time to time as follows. In case the Company shall (i) declare a dividend
or make a distribution on shares of its Common Stock payable in shares of
Common Stock, or (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares of Common Stock (a "stock
split"), the Warrant Price shall be adjusted by multiplying it by a
fraction, (A) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such stock dividend or stock
split, and (B) the denominator of which shall be the number of shares of
Common Stock outstanding immediately following such stock dividend or stock
split and the number of shares of Common Stock purchasable upon the
exercise of this Warrant immediately prior thereto shall be multiplied by
the inverse of such fraction. Conversely, in case of any combination,
reclassification or consolidation (other than the Reverse Split) of the
number of outstanding shares of Common Stock into a lesser number of
shares, the Warrant Price shall be adjusted by multiplying it by a
fraction, (x) the numerator of which shall be the number of shares of
Common Stock outstanding immediately prior to such combination,
reclassification or consolidation, and (y) the denominator of which shall
be the number of shares of Common Stock outstanding immediately following
such combination, reclassification or consolidation and the number of
shares of Common Stock purchaseable upon the exercise of this Warrant
immediately prior thereto shall be multiplied by the inverse of such
fraction. Such adjustments shall be made successively whenever any event
listed above shall occur.
(b) In case of any reclassification or change in the outstanding
shares of Common Stock (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination, but including any change of the shares of
Common Stock into two or more classes or series of common stock), or in
case of any consolidation of the Company with, or merger of the Company
with or into, another Person (other than a consolidation or merger in which
the Company is the continuing entity and which does not result in any
reclassification or change in the outstanding shares of Common Stock), or
in case of any conveyance or transfer to another Person of the property of
the Company as an entirety or substantially as an entirety, the Company, or
such successor purchasing Person, shall provide that the Holder of this
Warrant shall have the right to obtain, upon the same terms and conditions,
the kind and amount of shares and other securities, cash and property that
would have been receivable by such Holder upon such reclassification,
change, consolidation, merger, conveyance or transfer if the rights
represented by such Warrant had been exercised to purchase Common Stock
immediately prior thereto. Such other Person, which shall thereafter be
deemed to be the Company for purposes of this Warrant, shall provide for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for hereinabove.
(c) In case at any time the Company shall propose
(i) to declare any dividend or make any distribution on
shares of Common Stock payable in shares of Common Stock or fix a record
date for the making of any other distribution (other than a cash dividend)
to all holders of shares of Common Stock; or
(ii) to fix a record date for the issuance of rights or
warrants to all holders of its Common Stock entitling them to purchase any
additional shares or beneficial interest of any class or any other rights
or warrants; or
(iii) to consolidate or merge with or into any Person or
convey or transfer its properties and assets substantially as an entirety
to any Person; or
(iv) to effect any reorganization, reclassification,
liquidation, dissolution, or winding-up of the Company; then, in any one or
more of such cases, the Company shall give 30 days prior written notice to
the Holder of this Warrant of the date on which (A) the books of the
Company shall close or a record shall be taken for such dividend on shares
of Common Stock, distribution or offering of rights or warrants, or (B)
such consolidation, merger, conveyance, transfer, reorganization,
reclassification, liquidation, dissolution or winding-up shall take place,
as the case may be.
(d) As used in this paragraph 5,
(i) "Common Stock" shall mean the Common Stock of the
Company as constituted on the date hereof, and shares of any class or
classes resulting from any reclassification thereof that have no preference
in respect of dividends or amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which
are not subject to redemption by the Company;
(ii) "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
(e) Except as otherwise provided herein, the Holder hereof shall
not be entitled on account of holding this Warrant to any rights of a
stockholder of the Company either at law or in equity, or to any notice of
meetings of stockholders or of any other proceedings of the Company.
(f) The Holder of this Warrant shall, upon demand, disclose to
the Company in writing such information as is readily available to the
Holder with respect to direct, indirect, actual and/or constructive
ownership of shares of Common Stock and/or Warrants as the Company may deem
necessary to comply with the provisions of the Internal Revenue Code of
1986 (the "Code") or with the requirements of any other taxing authority.
For the purpose of this subparagraph (f), "ownership" of shares of Common
Stock shall be determined as provided in Section 544 of the Code or any
successor provisions as then in effect and the number of shares of Common
Stock owned shall include all shares of Common Stock that may then be
acquired upon conversion, exchange or exercise of rights under other
securities.
(g) Each Holder of this Warrant shall furnish the Company with
the address to which all notices provided for herein to be given to such
holder shall be sent. The Company shall be entitled for all purposes to
consider the Person in whose name this Warrant is issued as the lawful
owner of this Warrant and as entitled to exercise all his rights hereunder,
and no other Person shall have any rights with respect thereto.
Dated: Apri1 23, 1987 GCA CORPORATION
By
----------------------------
ASSIGNMENT FORM TO BE EXECUTED
UPON TRANSFER OR WARRANT
FOR VALUE RECEIVED, ______________________________________ here-
by sell(s), assign(s) and transfer(s) unto __________________________
______________ the right to purchase ______________ shares of Common Stock
covered by the within Warrant, and do hereby irrevocably constitute and
appoint said Attorney, to transfer said right on the books of GCA
Corporation, with full power of substitution in the premises.
Dated: [ ]
----------------------- ----------------------------------
By:
--------------------------------
Title:
-----------------------------
SUBSCRIPTION FORM TO BE EXECUTED
UPON EXERCISE OR WARRANT
The undersigned hereby exercises, according to the terms and
conditions thereof, the right to purchase ________ shares of Common Stock
evidenced by the within Warrant, and herewith makes payment of the purchase
price in full.
Dated: [ ]
----------------------- ----------------------------------
By:
--------------------------------
Title:
-----------------------------
Exhibit 4.8
THE ISSUANCE OF THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE
UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. ACCORDINGLY, NO TRANSFER OF THIS WARRANT OR ANY SHARES
OF COMMON STOCK ISSUABLE OR ISSUED UPON THE EXERCISE HEREOF MAY BE MADE
EXCEPT IN COMPLIANCE WITH SUCH STATUTE AND THE TERMS OF THE WARRANT
AGREEMENT REFERRED TO BELOW, A COPY OF WHICH IS ON FILE AT THE OFFICE OF
GCA CORPORATION.
Void After 4:00 P.M., Boston Time, on September 1, 2002
GCA Corporation Warrant
Number -14- Warrant to Purchase 500,000
Shares of Common Stock
This is to certify that Carl Zeiss, Inc., or registered assigns (the
"Holder"), is entitled to purchase from GCA Corporation, a Delaware
corporation (the "Company"), at an exercise price (the "Warrant Price") of
$12.32 per share, at any time prior to 4:00 p.m. (Boston time) on September
1, 2002, 500,000 fully paid and non-assessable shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), subject to
adjustment as hereinafter provided.
1. The rights represented by this Warrant may be exercised by the
Holder hereof at any time or from time to time prior to 4:00 p.m. (Boston
time) on September 1, 2002, as to the whole or any part of the shares of
Common Stock covered hereby, by the surrender of this Warrant, together
with (i) the Subscription Form attached hereto appropriately completed, and
(ii) payment (in cash, by certified check or by wire transfer, in each case
of immediately available funds) of the Warrant Price for the share or
shares of Common Stock so purchased, to the Company at its office at 7
Shattuck Road, Andover, Massachusetts 01810 (or at such other office as the
Company may designate by written notice to the holder hereof). Thereupon,
this Warrant shall be deemed to have been exercised and the person
exercising the same shall be deemed to have become a holder of record of
the shares of Common Stock purchased hereunder for all purposes, and
certificates for such shares of Common Stock so purchased shall be
delivered to the purchaser within a reasonable time after this Warrant
shall have been exercised as set forth hereinabove. If this Warrant shall
be exercised in respect of only a part of the shares of Common Stock
subject hereto, the Company shall deliver to the Holder a Warrant
registered in the name of the Holder (or his designee) with respect to that
number of shares of Common Stock in respect of which this Warrant shall not
have been exercised.
2. No certificate for a fraction of a share of Common Stock will be
issued. As to any fractions of a share of Common Stock that would otherwise
be purchasable on exercise of a Warrant, the Company shall make payment in
lieu thereof in an amount of cash equal to the current value of such
fraction computed on the basis of the last reported sale price on the day
upon which the exercise of the Warrant shall have taken place or, in case
no such reported sale takes place on such day, the average of the last
reported bid and asked prices on such day, in either case on the principal
national securities exchange (which, for purposes hereof, shall be deemed
to include the NASDAQ National Market System) on which the Common Stock is
listed or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average mean of the bid and asked
prices in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or if such
organization is not in existence, by an organization providing similar
services.
3. Subject to the terms and conditions of the Warrant Agreement, this
Warrant and any interest therein or in the shares of Common Stock issuable
upon exercise thereof is transferable on the books of the Company at its
offices at 7 Shattuck Road, Andover, Massachusetts 01810 (or such other
office as the Company may designate by written notice to the holder
hereof), by the Holder hereof in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form attached
hereto, duly executed, whereupon this Warrant (and any interest therein or
in the shares of Common Stock issuable upon exercise hereof) shall be
deemed to have been transferred and the transferee to have become the
holder of record thereof. Promptly following such surrender, the Company
shall issue a new Warrant (or certificate of shares) registered in the name
of the transferee.
4. The rights of the Holder of this Warrant shall be subject to the
following further terms and conditions:
(a) The Warrant Price and the number of shares of Common Stock
purchasable pursuant to this Warrant shall be subject to adjustment from to
time as follows. In case the Company shall (i) declare a dividend or make a
distribution on shares of its Common Stock payable in shares of Common
Stock, or (ii) subdivide or reclassify its outstanding shares of Common
Stock into a greater number of shares of Common Stock (a "stock split"),
the Warrant Price shall be adjusted by multiplying it by a fraction, (A)
the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such stock dividend or stock split, and
(B) and the denominator of which shall be the number of shares of Common
Stock outstanding immediately following such stock dividend or stock split
and the number of shares of Common Stock purchasable upon the exercise of
this Warrant immediately prior thereto shall be multiplied by the inverse
of such fraction. Conversely, in case of any combination, reclassification
or consolidation of the number of outstanding shares of Common Stock into a
lesser number of shares, the Warrant Price shall be adjusted by multiplying
it by a fraction, (x) the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such combination,
reclassification or consolidation, and (y) the denominator of which shall
be the number of shares of Common Stock outstanding immediately following
such combination, reclassification or consolidation and the number of
shares of Common Stock purchasable upon the exercise of this Warrant
immediately prior thereto shall be multiplied by the inverse of such
fraction. Such adjustments shall be made successively whenever any event
listed above shall occur.
(b) in case of any reclassification or change in the outstanding
shares of Common Stock (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination, but including any change of the shares of
Common Stock into two or more classes or series of common stock), or in
case of any consolidation of the Company with, or merger of the Company
with or into, another Person (other than a consolidation or merger in which
the Company is the continuing entity and which does not result in any
reclassification or change in the outstanding shares of Common Stock), or
in case of any conveyance or transfer to another Person of the property of
the Company as an entirety or substantially as an entirety, the Company, or
such successor purchasing Person, shall provide that the Holder of this
Warrant shall have the right to obtain, upon the same terms and conditions,
the kind and amount of shares and other securities, cash and property that
would have been receivable by such Holder upon such reclassification,
change, consolidation, merger, conveyance or transfer if the rights
represented by such Warrant had been exercised to purchase Common Stock
immediately prior thereto. Such other Person, which shall thereafter be
deemed to be the Company for purposes of this Warrant, shall provide for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for hereinabove.
(c) In case at any time the Company shall propose
(i) to declare any dividend or make any distribution on
shares of Common Stock payable in shares of Common Stock or fix a record
date for the making of any other distribution (other than a cash dividend)
to all holders of shares of Common Stock; or
(ii) to fix a record date for the issuance of rights or
warrants to all holders of its Common Stock entitling them to purchase any
additional shares or beneficial interest of any class or any other rights
or warrants; or
(iii) to consolidate or merge with or into any Person or
convey or transfer its properties and assets substantially as an entirety
to any Person; or
(iv) to effect any reorganization, reclassification,
liquidation, dissolution, or winding-up of the Company;
then, in any one or more of such cases, the Company shall give 30 days
prior written notice to the Holder of this Warrant of the date on which (A)
the books of the Company shall close or a record shall be taken for such
dividend on shares of Common Stock, distribution or offering of rights or
warrants, or (B) such consolidation, merger, conveyance, transfer,
reorganization, reclassification, liquidation, dissolution or winding-up
shall take place, as the case may be.
(d) As used in this paragraph 4,
(i) "Common Stock" shall mean the Common Stock of the
Company as constituted on the date hereof, and shares of any class or
classes resulting from any reclassification thereof that have no preference
in respect of dividends or amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which
are not subject to redemption by the Company;
(ii) "Persons" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
(e) Except as otherwise provided herein, the Holder hereof shall
not be entitled on account of holding this Warrant to any rights of a
stockholder of the Company either at law or in equity, or to any notice of
meetings of stockholders or of any other proceedings of the Company.
(f) The Holder of this Warrant shall, upon demand, disclose to
the Company in writing such information as is readily available to the
Holder with respect to direct, indirect, actual and/or constructive
ownership of shares of Common Stock and/or Warrants as the Company may deem
necessary to comply with the provisions of the Internal Revenue Code of
1986 (the "Code") or with the requirements of any other taxing authority.
For the purpose of this subparagraph (f), "ownership" of shares of Common
Stock shall be determined as provided in Section 544 of the Code or any
successor provisions as then in effect and the number of shares of Common
Stock owned shall include all shares of Common Stock that may then be
acquired upon conversion, exchange or exercise of rights under other
securities.
(g) Each Holder of this Warrant shall furnish the Company with
the address to which all notices provided for herein to be given to such
holder shall be sent. The Company shall be entitled for all purposes to
consider the Person in whose name this Warrant is issued as the lawful
owner of this Warrant and is entitled to exercise all his rights hereunder,
and no other Person shall have any rights with respect thereto.
Dated: September 1, 1987 GCA CORPORATION
By
-------------------------------
(Name and Title)
ASSIGNMENT FORM TO BE EXECUTED
UPON TRANSFER OR WARRANT
FOR VALUE RECEIVED, ___________________________________ hereby
sell(s), assign(s) and transfer(s) unto _________________ _________________
the right to purchase _______ shares of Common Stock covered by the within
Warrant, and do hereby irrevocably constitute and appoint said Attorney, to
transfer said right on the books of GCA Corporation, with full power of
substitution in the premises.
Dated: [ ]
----------------------- ----------------------------------
By:
--------------------------------
Title:
-----------------------------
SUBSCRIPTION FORM TO BE EXECUTED
UPON EXERCISE OR WARRANT
The undersigned hereby exercises, according to the terms and
conditions thereof, the right to purchase ___________ shares of Common
Stock evidenced by the within Warrant; and herewith makes payment of the
purchase price in full.
Dated: [ ]
----------------------- ----------------------------------
By:
--------------------------------
Title:
-----------------------------
212-859-8272
January 18, 2002 (FAX: 212-859-8589)
SPX Corporation
2300 One Wachovia Center
301 South College Street
Charlotte, NC 28202-6039
Ladies and Gentlemen:
We are acting as counsel to SPX Corporation, a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-3
(the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Securities Act") being filed with the Securities and Exchange
Commission (the "Commission") relating to an issuance from time to time,
pursuant to Rule 415 of the General Rules and Regulations of the Commission
promulgated under the Securities Act, of up to 379,229 shares of common
stock of the Company, par value $10.00 per share (the "Common Stock") which
may be issued in connection with the exercise of two warrants issued by GCA
Corporation ("GCA") in 1987. GCA was acquired by General Signal Corporation
("General Signal") in June 1988, and in 1998 General Signal was acquired by
the Company. As a result of the Company's acquisition of General Signal,
the warrants represent the right to purchase an aggregate of 379,229 shares
of Common Stock. All capitalized terms used herein that are defined in the
Registration Statement have the meanings assigned to such terms therein,
unless otherwise defined herein. With your permission, all assumptions and
statements of reliance herein have been made without any independent
investigation or verification on our part except to the extent otherwise
expressly stated, and we express no opinion with respect to the subject
matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion.
In all such examinations, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
certificates and oral or written statements and other information of or
from representatives of the Company and others.
To the extent relevant to the opinion expressed below, we have assumed
that the Company will have sufficient authorized but unissued shares of
Common Stock on the date of any issuance of shares registered pursuant to
the Registration Statement.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion
that:
The Common Stock has been duly authorized and, when certificates
representing the Common Stock have been duly executed by the Company and
delivered to and paid for by the purchasers thereof for an amount in excess
of the par value thereof and in accordance with the terms of the agreement
under which they are sold, the Common Stock will be validly issued, fully
paid and non-assessable.
The opinion expressed herein is limited to the federal laws of the
United States of America, the laws of the State of New York and, to the
extent relevant to the opinions expressed herein, the General Corporation
Law of the State of Delaware (the "DGCL") and applicable provisions of the
Delaware Constitution, in each case as currently in effect, and reported
judicial decisions interpreting the DGCL and such provisions of the
Delaware Constitution. The opinion expressed herein is given as of the date
hereof, and we undertake no obligation to supplement this letter if any
applicable laws change after the date hereof or if we become aware of any
facts that might change the opinion expressed herein after the date hereof
or for any other reason.
We hereby consent to the use of our name on the cover of the
Registration Statements, the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the
captions "Legal Matters" in the prospectus contained in the Registration
Statement and "Legal Matters" in any prospectus supplement forming a part
of the Registration Statement. In giving these consents, we do not hereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ Stuart Gelfond
------------------------------------
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-3 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
January 16, 2002
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-3 dated January 18, 2002 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 and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG LLP
Chartered Accountants
Toronto, Canada
January 17, 2002