As filed with the Securities and Exchange Commission on September 25, 2003

Registration No. 333-                    

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SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

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SPX CORPORATION

(Exact name of registrant as specified in its charter)

 

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Delaware				38-1016240
(State or other jurisdiction of incorporation or organization)				(I.R.S. Employer Identification No.)

 

13515 Ballantyne Corporate Place

Charlotte, North Carolina 28277

Telephone: (704) 752-4444

(Address, including zip code, telephone number, including area code, of registrant’s principal executive offices)

 

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SPX CORPORATION EMPLOYEE STOCK PURCHASE PLAN

SPX CORPORATION 2002 STOCK COMPENSATION PLAN

(FORMERLY, THE 1992 STOCK COMPENSATION PLAN)

OPTIONS GRANTED PURSUANT TO INDIVIDUAL NON-QUALIFIED OPTION AGREEMENTS

(Full title of the plan)

 

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Christopher J. Kearney

Vice President, Secretary and General Counsel

SPX Corporation

13515 Ballantyne Corporate Place

Charlotte, North Carolina 28277

Telephone: (704) 752-4444

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

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Copies to:

 

George C. McKann, Esq.

Gardner Carton & Douglas LLP

191 N. Wacker Drive, Suite 3700

Chicago, Illinois 60606-1698

 

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CALCULATION OF REGISTRATION FEE

 

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Title of Securities to be Registered		Amount to be Registered (1)		Proposed Maximum Offering Price Per Share			Proposed Maximum Aggregate Offering Price			Amount of Registration Fee
Common Stock, par value $10 per share, saleable under SPX Corporation Employee Stock Purchase Plan (2)(3)		250,000		$	48.175		$	12,043,750.00
Common Stock, par value $10 per share, reserved under 2002 Stock Compensation Plan (2)(3)		2,200,000		$	48.175		$	105,985,000.00
Common Stock, par value $10 per share, issuable upon exercise of options granted to various executive officers under Non-Qualified Stock Option Agreements (2)(4)		748,332		$	57.23		$	42,824,457.78
Total		3,198,332					$	160,853,207.78		$	13,013

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(1)

Together with an indeterminable number of additional securities in order to adjust the number of securities reserved for issuance pursuant to the plan as the result of a stock split, stock dividend or similar transaction affecting the Common Stock, pursuant to 17 C.F.R. § 230.416.

(2)

Includes associated rights (“Rights”) to purchase Series A Junior Participating Preferred Stock of the Registrant that will not be exercisable or evidenced separately from the Common Stock of the Registrant prior to the occurrence of certain events.

(3)

Estimated in accordance with Rule 457(c) and (h)(1), the proposed maximum offering price per share, proposed maximum aggregate offering price and the amount of the registration fee are based upon the average of the high and low prices reported on September 19, 2003.

(4)

Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of the weighted average exercise price of $57.23 per share.

 

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SPX CORPORATION

 

REGISTRATION STATEMENT ON FORM S-8

 

INCORPORATION BY REFERENCE OF EARLIER REGISTRATION STATEMENTS ON FORM S-8

 

SPX Corporation (“Registrant” or the “Company”) has earlier filed registration statements on Form S-8 relating to the SPX Corporation Employee Stock Purchase Plan (File No. 333-38443) and the SPX Corporation 2002 Stock Compensation Plan, formerly known as the 1992 Stock Compensation Plan (File Nos. 33-24043, 333-29855, 333-82645 and 333-69250) (together, the “Earlier Registration Statements”). This Registration Statement registers additional shares for offering pursuant to such plans. Subject to Item 3 of Part II of this Registration Statement and except as modified or superseded herein, the contents of the Earlier Registration Statements are incorporated herein by reference.

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PART II

 

Item 3.

Incorporation of Documents by Reference.

 

There are hereby incorporated by reference into this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission (the “Commission”) by the Registrant:

 

1.

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002 (as amended by Form 10-K/A-1 and Form 10-K/A-2);

 

2.

The Registrant’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2003 (as amended by Form 10-Q/A-1) and June 30, 2003 (as amended by Form 10-Q/A-1 and Form 10-Q/A-2);

 

3.

The Registrant’s Current Reports on Form 8-K dated January 3, 2003; February 13, 2003; April 22, 2003; June 4, 2003; June 10, 2003; June 18, 2003; and July 28, 2003; and

 

4.

The description of Registrant’s capital stock contained in the Company’s Registration Statements pursuant to Section 12 of the Exchange Act and any amendments or reports filed for the purpose of updating any such descriptions.

 

In addition, each document filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold under this Registration Statement, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated herein by reference shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein or in any other subsequently filed document incorporated herein by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof.

 

Item 4.

Description of Securities.

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

 

None.

 

II-1

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Item 6.

Indemnification of Directors and Officers.

 

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 the 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 that 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 subsection (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 Registrant’s Certificate of Incorporation provides that a director shall not be personally liable to the Registrant 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: (i) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL, or (iv) for engaging in any transaction from which the director derived an improper personal benefit. The Registrant’s Certificate of Incorporation requires that directors and officers be indemnified to the maximum extent permitted by Delaware law.

 

The Registrant 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 7.

Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.

Exhibits.

 

See Index to Exhibits.

 

II-2

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Item 9.

Undertakings.

 

(a) The undersigned Registrant hereby undertakes:

 

(1) To file during any period in which offers or sales are being made, 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 the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;

 

(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in 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) The Registrant hereby undertakes that, for purposes of determining liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offering herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question 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.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on this 27th day of August, 2003.

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John B. Blystone, Christopher J. Kearney or Patrick J. O’Leary, 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, execute and file this Registration Statement and any amendments (including, without limitation, post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all documents required to be filed with respect therewith, with the Securities and Exchange Commission or any regulatory authority, granting unto such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that such attorneys-in-fact and agents or his or their substitute or substitutes, may lawfully do or cause to be done.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on this 27th day of August , 2003.

 

/s/    JOHN B. BLYSTONE				/s/    PATRICK J. O’LEARY
John B. Blystone Chairman, President and Chief Executive Officer Director				Patrick J. O’Leary Vice President Finance, Treasurer and Chief Financial Officer

 

/s/    RON WINOWIECKI				/s/    J. KERMIT CAMPBELL
Ron Winowiecki Corporate Controller and Chief Accounting Officer				J. Kermit Campbell Director

 

/s/    SARAH R. COFFIN				/s/    EMERSON U. FULLWOOD
Sarah R. Coffin Director				Emerson U. Fullwood Director

 

/s/    CHARLES E. JOHNSON II				/s/    DAVID P. WILLIAMS
Charles E. Johnson II Director				David P. Williams Director

 

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Index to Exhibits

 

Exhibit Number		Description of Document
4.1		The Registrant’s Restated Certificate of Incorporation, as amended, dated May 16, 2002, incorporated herein by reference from the Registrant’s Quarterly Report 10-Q for the quarter ended June 30, 2002.
4.2		The Registrant’s Bylaws, as amended, effective beginning April 1, 2003, incorporated herein by reference from the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
4.3		Rights Agreement dated as of June 25, 1996 between the Company and The Bank of New York, as Rights Agents, relating to Rights to purchase Preferred Stock under certain circumstances, incorporated herein by reference from the Company’s Registration Statement on Form 8-A filed on June 26, 1996.
4.4		Amendment No. 1 to Rights Agreement, effective October 22, 1997, between the Company and The Bank of New York, incorporated herein by reference from the Company’s Registration Statement on Form 8-A/A filed on January 9, 1998.
4.5		Amendment No. 2 to Rights Agreement dated as of June 26, 2002, incorporated herein by reference from our Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.
5.1*		Opinion of Gardner Carton & Douglas LLP.
23.1*		Independent Auditors’ Consent – Deloitte & Touche LLP.
23.2*		Independent Auditors’ Consent – KPMG LLP.
24.1*		Powers of Attorney (included on signature page).

 

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*Filed herewith

EXHIBIT 5.1

 

[GARDNER CARTON & DOULGAS LLP LETTERHEAD]

 

September 24, 2003

 

SPX Corporation

13515 Ballantyne Corporate Place

Charlotte, NC 28277

 

Re:      Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to SPX Corporation, a Delaware corporation (the “Corporation”), in connection with the filing of a Registration Statement on Form S-8 by the Corporation under the Securities Act of 1933, as amended (the “Registration Statement”), which Registration Statement registers 3,198,332 shares of Common Stock, par value $10 per share (the “Common Stock”), reserved for issuance under the Corporation’s 2002 Stock Compensation Plan and Options Granted Pursuant to Individual Non-Qualified Option Agreements (together, the “Plans”). In that capacity, we have reviewed the Certificate of Incorporation and Bylaws of the Corporation, both as amended to date, the Registration Statement, the Plans, originals or copies of corporate records reflecting the corporate action taken by the Corporation in connection with the approval of the Plans and the issuance of the Common Stock under the Plans and such other instruments as we have deemed necessary for the issuance of this opinion.

 

Based upon the foregoing, we are of the opinion that the shares of Common Stock to be offered under the Plans have been duly authorized by all requisite action on the part of the Corporation and, when issued in accordance with the terms and conditions of the Plans, will be legally issued, fully paid and non-assessable.

 

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended.

 

Very truly yours,

 

/s/    GARDNER CARTON & DOUGLAS LLP

EXHIBIT 23.1

 

INDEPENDENT AUDITORS’ CONSENT

 

We consent to the incorporation by reference in this Registration Statement of SPX Corporation on Form S-8 of our report dated September 4, 2003 (which report expresses an unqualified opinion and contains explanatory paragraphs relating to the adoption of Statement of Financial Accounting Standards (SFAS) No. 133, Accounting for Derivative Instruments and Hedging Activities on January 1, 2001, the adoption of SFAS No. 142, Goodwill and Other Intangible Assets on January 1, 2002, the adoption of SFAS No. 145, Recission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement No. 13 and Technical Corrections on July 1, 2002, the discontinued operations treatment of a subsidiary sold in June 2003, and the revisions of Notes 1 and 16) appearing in the Annual Report on Form 10-K/A-2 of SPX Corporation for the year ended December 31, 2002.

 

/S/ Deloitte Touche LLP

September 22, 2003

Charlotte, North Carolina

EXHIBIT 23.2

 

INDEPENDENT AUDITORS’ CONSENT

 

The Board of Members

EGS Electrical Group, LLC:

 

We consent to the use of our report dated December 18, 2000, with respect to the consolidated balance sheet of EGS Electrical Group, LLC and subsidiaries as of September 30, 2000, and the related consolidated statements of income, members’ equity and comprehensive income, and cash flows for the year ended September 30, 2000, incorporated herein by reference.

 

/s/ KPMG LLP

 

Chicago, Illinois

September 22, 2003