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AS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION
ON DECEMBER 5, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IDEX CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-3555336
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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630 DUNDEE ROAD, NORTHBROOK, ILLINOIS 60062
(847) 498-7070
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
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Wayne P. Sayatovic
Senior Vice President-Finance, Chief Financial
Officer and Secretary
IDEX Corporation
630 Dundee Road
Northbrook, Illinois 60062
(847) 498-7070
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
Mark A. Stegemoeller
Latham & Watkins
Sears Tower, Suite 5800
Chicago, Illinois 60606
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS
DETERMINED BY MARKET CONDITIONS.
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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]
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If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 the delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE(1)(2) FEE
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Debt Securities (4)(7).......................... (3) (3) (3) (3)
Preferred Stock, par value $.01 per share
(5)(7).......................................... (3) (3) (3) (3)
Common Stock, par value $.01 per share (6)(7)... (3) (3) (3) (3)
Warrants (8).................................... (3) (3) (3) (3)
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Total:..........................................$250,000,000(9) 100% $250,000,000(7) $75,757.58
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(footnotes on next page)
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.
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(footnotes from previous page)
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(1) The proposed maximum per unit and aggregate offering prices per
class of security will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities registered
hereunder.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act").
(3) Not required to be included in accordance with General Instruction
II.D. of Form S-3 under the Securities Act.
(4) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant. If any Debt Securities are issued at an original
issue discount, then the offering price shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed
$250,000,000 less the dollar amount of any securities previously issued
hereunder.
(5) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate number of shares of Preferred Stock of the Company as may be
sold from time to time.
(6) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate number of shares of Common Stock of the Company as may be sold
from time to time.
(7) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate principal amount of Debt Securities, and an indeterminate
number of shares of Preferred Stock and Common Stock of the Company, as shall be
issuable upon conversion or redemption, or upon the exercise of Warrants of the
Company registered hereunder, of Debt Securities, Preferred Stock or Common
Stock of the Company, as the case may be, registered hereunder.
(8) Subject to note (9) below, the Registrant is registering hereunder
an indeterminate amount and number of Warrants of the Company, representing
rights to purchase certain of the Debt Securities, Preferred Stock or Common
Stock of the Company registered hereunder.
(9) In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to this Registration Statement
exceed $250,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. The aggregate amount of Common
Stock registered hereunder is further limited to that which is permissible under
Rule 415(a)(4) under the Securities Act. The securities registered hereunder may
be sold separately or as units with other securities registered hereunder.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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Subject to Completion, Dated December 5, 1997
IDEX CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
SECURITIES WARRANTS
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IDEX Corporation (the "Company" or "IDEX") may offer from time to time,
in one or more series, (i) unsecured debt securities (the "Debt Securities"),
(ii) warrants to purchase Debt Securities (the "Debt Warrants"), (iii) shares
of serial preferred stock, par value $.01 per share, in one or more series
(the "Preferred Stock"), (iv) warrants to purchase share of Preferred Stock
(the "Preferred Stock Warrants"), (v) shares of common stock, $.01 par value
per share (the "Common Stock"), or (vi) warrants to purchase shares of Common
Stock (the "Common Stock Warrants"), in amounts, at prices, and on terms to be
determined by market conditions at the time of offering. The Debt Warrants,
Preferred Stock Warrants and Common Stock Warrants are referred to herein
collectively as the "Securities Warrants." The Debt Securities, Preferred
Stock, Common Stock and Securities Warrants are referred to herein collectively
as the "Offered Securities."
The specific terms of the Offered Securities with respect to which this
Prospectus is being delivered will be set forth in a supplement to this
Prospectus (a "Prospectus Supplement"), together with the terms of the offering
and sale of the Offered Securities, the initial offering price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
include, with regard to the particular Offered Securities, the following
information: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking, subordination provisions, authorized
denomination, maturity, rate or method of calculation of interest and dates for
payment thereof, any terms for optional or mandatory redemption or payment of
additional amounts or any sinking fund provisions, any index or formula for
determining the amount of any principal, premium, or interest fund provisions,
the currency or currency unit in which principal, premium, or interest is
payable, whether the securities are issuable in registered form or in the form
of global securities and any provisions for the conversion or exchange of such
Debt Securities; (ii) in the case of Preferred Stock, the designation, number of
shares, liquidation preference per share, initial public offering price,
dividend rate (or method of calculation thereof), dates on which dividends shall
be payable and dates from which dividends shall accrue, any redemption or
sinking fund provisions and any conversion or exchange provisions; (iii) in the
case of Common Stock, the number of shares; (iv) in the case of Securities
Warrants, the duration, offering price, exercise price and detachability; and
(v) in the case of all Offered Securities, whether such Offered Securities will
be offered separately or as a unit with other Offered Securities. The Prospectus
Supplement also will contain information, where applicable, about material
United States federal income tax considerations relating to, and any listing on
a securities exchange of, the Offered Securities covered by such Prospectus
Supplement.
The Company's Common Stock is listed on the New York Stock Exchange and
the Chicago Stock Exchange. Any Common Stock offered hereby will be listed,
subject to notice of issuance, on such exchanges.
The Debt Securities of any series may be issued with Securities
Warrants. The Debt Securities may be designated as senior debt or subordinated
debt of the Company. Any Debt Securities designated
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as senior debt, when issued, will rank on a parity with all the unsecured and
unsubordinated indebtedness of the Company, and any Debt Securities designated
as subordinated debt, when issued, will be subordinated in right of payment to
obligations of the Company to its other creditors to the extent set forth in the
applicable Prospectus Supplement. See "Description of Debt Securities."
The Offered Securities may be sold directly by the Company, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company, underwriters or
dealers are involved in the sale of any Offered Securities in respect of which
this Prospectus is being delivered, the names of such agents, underwriters or
dealers and any applicable commissions or discounts and the net proceeds to the
Company will be set forth in a Prospectus Supplement.
(CONTINUED ON NEXT PAGE)
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is _____, 199_.
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(CONTINUED FROM COVER PAGE)
The Offered Securities may be issued in one or more series or issuances
and will be limited to $250,000,000 in aggregate public offering price (or its
equivalent, based on the applicable exchange rate, to the extent Debt Securities
are issued for one or more foreign currencies or currency units). The Offered
Securities may be sold for United States dollars, or any foreign currency or
currencies or currency units, and the principal of, any premium on, and any
interest on, the Debt Securities may be payable in United States dollars, or any
foreign currency or currencies or currency units.
The Offered Securities may be offered separately or as units with other
Offered Securities, in separate series in amounts, at prices and on terms to be
determined at or prior to the time of sale. The sale of other securities under
the Registration Statement of which this Prospectus forms a part, or under a
Registration Statement to which this Prospectus relates, will reduce the amount
of Offered Securities which may be sold hereunder.
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information concerning the Company may be inspected and copies may be obtained
(at prescribed rates) at the Commission's Public Reference Section, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at the web site
(http://www.sec.gov) maintained by the Commission and at the Commission's
Regional Offices located at Seven World Trade Center, 13th Floor, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. The Company's Common Stock is listed on the New York and Chicago
Stock Exchanges, where reports, proxy statements and other information
concerning the Company can also be inspected. The offices of the New York Stock
Exchange are located at 20 Broad Street, New York, New York 10005, and the
offices of the Chicago Stock Exchange are located at One Financial Place, 440
South LaSalle Street, Chicago, Illinois 60605.
The Company has filed a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with the Commission with respect to the Offered Securities.
As permitted by the rules and regulations of the Commission, this Prospectus
omits certain information contained in the Registration Statement. For further
information with respect to the Company and the Offered Securities, reference is
hereby made to such Registration Statement, including the exhibits filed as a
part thereof. Statements contained in this Prospectus concerning the provisions
of certain documents filed with, or incorporated by reference in, the
Registration Statement are not necessarily complete, each such statement being
qualified in all respects by such reference. Copies of all or any part of the
Registration Statement, including the documents incorporated by reference
therein or exhibits thereto, may be obtained upon payment of the prescribed
rates at the offices of the Commission set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
pursuant to the Exchange Act are incorporated herein by reference:
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(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(2) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1997, June 30, 1997 and September 30, 1997; and
(3) all other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and before the termination of the offering of all Offered Securities
to which this Prospectus relates, which shall be deemed to be a part hereof from
the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
This Prospectus may not be used to consummate sales of offered
securities unless accompanied by a Prospectus Supplement. The delivery of this
Prospectus together with a Prospectus Supplement relating to particular Offered
Securities in any jurisdiction shall not constitute an offer in such
jurisdiction of any other securities covered by this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, on written or oral request
of such person, a copy of any or all of the documents incorporated by reference
herein (other than exhibits to such documents unless such exhibits are
incorporated by reference into such documents). Such written requests should be
addressed to: Secretary, IDEX Corporation, 630 Dundee Road, Northbrook, Illinois
60062. Telephone requests may be directed to the Secretary at (847) 498-7070.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents that are incorporated by
reference as set forth in "Information Incorporated by Reference," contains
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such statements relate to, among other
things, capital expenditures, cost reduction, cash flow and operating
improvements and are indicated by words or phrases such as "anticipate,"
"estimate," "plans," "projects," "management believes," "the Company believes,"
"the Company intends" and similar words or phrases. Such statements are subject
to inherent uncertainties and risks, including but not limited to the following:
IDEX's utilization of its capacity and the effect of capacity utilization on
costs; developments with respect to contingencies such as environmental matters
and litigation; labor market conditions and raw materials costs; levels of
industrial activity and economic conditions in the U.S. and other countries
around the world; pricing pressures and other competitive factors and levels of
capital spending in certain industries, all of which could have a material
impact on order rates; the relationship of the U.S. dollar to other currencies;
interest rates; IDEX's ability to integrate and operate acquired businesses on a
profitable basis, and other components of IDEX's business. Consequently, actual
events and results may vary significantly from those included in or contemplated
or implied by such statements.
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THE COMPANY
IDEX designs, manufactures and markets a broad range of fluid handling
products and industrial products serving a diverse customer base in the United
States and internationally. IDEX competes with relatively few major
manufacturers in most of its markets, and believes that each of its eleven
principal subsidiaries (the "Subsidiaries") has a significant domestic market
share in its respective product area. The Company manufactures proprietary
products, designed and engineered by the Company itself.
The Fluid Handling Group of Subsidiaries, which in 1996 accounted for
approximately three-fourths of the Company's total sales, manufactures a wide
variety of industrial pumps and controls, fire-fighting pumps and rescue tools,
dispensing and mixing equipment, lubrication systems and low-horsepower
compressors. Eight of the Company's Subsidiaries operate in the Fluid Handling
Group, and a significant percentage of sales in this Group was to customers
outside of the United States. The devices and equipment produced by these
Subsidiaries are used in a large and diverse set of industries, including paints
and coatings, chemical processing, construction and material handling equipment,
food processing, transportation equipment, water conditioning, petroleum
distribution, oil and refining, utilities and power generation.
The Industrial Products Group of Subsidiaries manufactures sheet metal
fabricating equipment and tooling, stainless steel banding and clamping devices,
vibration control devices and sign-mounting products and systems. Three of the
Company's Subsidiaries operate in the Industrial Products Group, and a
significant percentage of sales in this Group was to customers outside of the
United States. The products and devices manufactured by these Subsidiaries are
used in a variety of industries and applications, including sign mounting
systems used for road, traffic and general signage, transportation equipment,
utilities, petroleum distribution, electronics and office equipment.
The address of the principal executive office of the Company is 630
Dundee Road, Northbrook, Illinois 60062. The telephone number of the Company is
(847) 498-7070.
RECENT DEVELOPMENT
On December 4, 1997, the Company announced that it had entered into an
agreement to acquire Knight Equipment International, Inc. ("Knight"), a
privately-held company with annual revenues of approximately $25 million. The
transaction, which is scheduled to close in mid-December 1997, will involve the
purchase by the Company of Knight for an aggregte purchase price of
approximately $38 million in cash. Knight manufactures pumps and dispensing
equipment for industrial laundries, commercial dishwashing and chemical
metering customers, and is expected to become part of the Company's Fluid
Handling Group.
USE OF PROCEEDS
Unless otherwise provided in the applicable Prospectus Supplement, the
Company anticipates that any net proceeds will be used for general corporate
purposes, which may include but are not limited to working capital, capital
expenditures, acquisitions and the repayment or refinancing of indebtedness of
the Company.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of
earnings (before fixed charges) to fixed charges for each of the (i) years
ended December 31, 1996, 1995, 1994, 1993 and 1992, and (ii) nine months ended
September 30, 1997 and 1996:
YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
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1996 1995 1994 1993 1992 1997 1996
Ratio of earnings (before
fixed charges)to fixed charges: 5.16x 5.45x 4.87x 4.48x 3.54x 5.71x 5.24x
For purposes of computing the ratio of earnings (before fixed charges)
to fixed charges, (i) earnings consist of income before income taxes,
extraordinary items and fixed charges, and (ii) fixed charges consist of
interest on indebtedness, amortization of debt issuance expenses and rental
expense representative of the interest factor.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities offered hereby are to be issued under an indenture
(the "Indenture") to be executed by the Company and a trustee, as Trustee (the
"Trustee"). A copy of the form of Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. Section references
used in this Prospectus refer to sections of the Indenture.
The following statements relating to the Debt Securities and the
Indenture are summaries and do not purport to be complete, and are subject to
and are qualified in their entirety by reference to all the provisions of the
Indenture. Certain other specific terms of any series of Debt Securities will be
described in the applicable Prospectus Supplement. To the extent that any
particular terms of the Debt Securities described in a Prospectus Supplement
differ from any of the terms described herein, then such terms described herein
shall be deemed to have been superseded by such Prospectus Supplement. As used
in this "Description of Debt Securities," all references to the "Company" shall
mean IDEX Corporation excluding, unless the context otherwise requires or as
otherwise expressly stated, its Subsidiaries.
GENERAL
The terms of each series of Debt Securities will be established by or
pursuant to a resolution of the Board of Directors of the Company and set forth
or determined in the manner provided in an officer's certificate or by a
supplemental indenture. (Indenture ss. 2.2) The particular terms of each series
of Debt Securities will be described in a Prospectus Supplement relating to such
series (including any pricing supplement thereto).
The Debt Securities that may be offered under the Indenture are not
limited in aggregate principal amount. The Debt Securities may be issued in one
or more series with the same or various maturities, at par, at a premium, or at
a discount. The applicable Prospectus Supplement (including any pricing
supplement thereto) will set forth the initial offering price, the aggregate
principal amount and the following terms of the Debt Securities in respect of
which this Prospectus is delivered: (1) the title of such Debt Securities; (2)
any subordination provisions pertaining to such Debt Securities; (3) the price
or prices (expressed as a percentage of the principal amount thereof) at which
the Debt Securities will be issued; (4) any limit on the aggregate principal
amount of such Debt Securities; (5) the date or dates on which principal on such
Debt Securities will be payable; (6) the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to determine such rate or
rates (including any commodity, commodity index, stock exchange index or
financial index) at which such Debt Securities will bear interest, if any, the
date or dates from which such interest, if any, will accrue, the date or dates
on which such interest, if any, will commence and be payable and any regular
record date for the interest payable on any interest payment date; (7) the place
or places where principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable; (8) the period or periods within which, the
price or prices at which and the terms and conditions upon which the Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase the Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof; (10) the dates, if any, on which and the price or prices at
which the Debt Securities will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations; (11) the denominations in which such Debt Securities may be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
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(12) whether the Debt Securities are to be issuable in the form of Certificated
Debt Securities (as defined below) or Global Debt Securities (as defined below);
(13) the portion of principal amount of such Debt Securities that shall be
payable upon declaration of acceleration of the maturity date thereof, if other
than the principal amount thereof; (14) the currency of denomination of such
Debt Securities; (15) the designation of the currency, currencies or currency
units in which payment of principal of, premium, if any, and interest, if any,
on such Debt Securities will be made; (16) if payments of principal of, premium,
if any, or interest, if any, on the Debt Securities are to be made in one or
more currencies or currency units other than that or those in which such Debt
Securities are denominated, the manner in which the exchange rate with respect
to such payments will be determined; (17) the manner in which the amounts of
payment of principal of, premium, if any, or interest, if any, on such Debt
Securities will be determined, if such amounts may be determined by reference to
an index based on a currency or currencies other than that in which the Debt
Securities are denominated or designated to be payable or by reference to a
commodity, commodity index, stock exchange index or financial index; (18) the
provisions, if any, relating to any security provided for such Debt Securities;
(19) any addition to or change in the Events of Default described herein or in
the Indenture with respect to such Debt Securities and any change in the
acceleration provisions described herein or in the Indenture with respect to
such Debt Securities; (20) any addition to or change in the covenants described
in the Indenture with respect to such Debt Securities; (21) any other terms of
such Debt Securities, which may modify or delete any provision of the Indenture
insofar as it applies to such series; and (22) any depositories, interest rate
calculation agents, exchange rate calculation agents or other agents with
respect to the Debt Securities. (Indenture ss. 2.2).
Debt Securities may be issued that provide for an amount less than the
stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to the terms of the Indenture
("Discount Securities"). Federal income tax considerations and other special
considerations applicable to any such Discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of and any premium and interest, if any, on any series of Debt
Securities is payable in a foreign currency or currencies or a foreign currency
unit or units, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such issue of Debt Securities and
such foreign currency or currencies or foreign currency unit or units will be
set forth in the applicable Prospectus Supplement.
TRANSFER AND EXCHANGE
Each Debt Security will be represented by either one or more global
securities (a "Global Debt Security") registered in the name of The Depository
Trust Company, as Depository (the "Depository") or a nominee of the Depository
(each such Debt Security represented by a Global Debt Security being herein
referred to as a "Book-Entry Debt Security"), or a certificate issued in
definitive registered form (a "Certificated Debt Security"), as set forth in the
applicable Prospectus Supplement. Except as set forth under "--Global Debt
Securities and Book-Entry System" below, Book-Entry Debt Securities will not be
issuable in certificated form. The information in this section concerning the
Depository and its book-entry system and procedures has been obtained from
sources the Company believes to be reliable, but the Company takes no
responsibility for the accuracy of the information in this section.
Certificated Debt Securities. Certificated Debt Securities may be
transferred or exchanged at the Trustee's office or paying agencies in
accordance with the terms of the Indenture. No service charge will
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be made for any transfer or exchange of Certificated Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The transfer of Certificated Debt Securities and the right to receive
the principal of, premium, if any, and interest, if any, on such Certificated
Debt Securities may be effected only by surrender of the certificate
representing such Certificated Debt Securities and either reissuance by the
Company or the Trustee of such certificate to the new Holder or the issuance by
the Company or the Trustee of a new certificate to the new Holder.
Global Debt Securities and Book-Entry System. Each Global Debt Security
representing Book-Entry Debt Securities will be deposited with, or on behalf of,
the Depository, and registered in the name of the Depository or a nominee of the
Depository. Except as set forth below, Book-Entry Debt Securities will not be
exchangeable for Certificated Debt Securities and will not otherwise be issuable
as Certificated Debt Securities.
The Depository is a limited purpose trust company organized under the
laws of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act. The Depository was created to hold securities for its
participating organizations ("participants") and facilitate the clearance and
settlement of securities transactions between participants through electronic
book-entry changes in accounts of its participants, thereby eliminating the need
for physical movements of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing corporations, and may include
certain other organizations. Indirect access to the Depository's system is also
available to others such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly. The procedures that the Depository has indicated it
intends to follow with respect to Book-Entry Debt Securities are set forth
below.
Ownership of beneficial interests in Book-Entry Debt Securities will be
limited to participants or persons that may hold interests through participants.
Upon the issuance of a Global Debt Security, the Depository will credit, on its
book-entry registration and transfer system, the participants' accounts with the
respective principal amounts of the Book-Entry Debt Securities represented by
such Global Debt Security beneficially owned by such participants. The accounts
to be credited shall be designated by participants participating in the
distribution of such Book-Entry Debt Securities. Ownership of Book-Entry Debt
Securities will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depository for the related
Global Debt Security (with respect to interests of participants) and on the
records of participants (with respect to interests of persons holding through
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to own, transfer or pledge beneficial interests in
Book-Entry Debt Securities.
So long as the Depository for a Global Debt Security, or its nominee,
is the registered owner of such Global Debt Security, the Depository or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Book-Entry Debt Securities represented by such Global Debt Security for all
purposes under the Indenture. Except as set forth below, beneficial owners of
Book-Entry Debt Securities will not be entitled to have such securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing such securities and
will not be considered the owners or Holders thereof under the Indenture.
Accordingly, each person
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beneficially owning Book-Entry Debt Securities must rely on the procedures of
the Depository for the related Global Debt Security and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a Holder under the Indenture.
The Company understands, however, that under existing industry
practice, the Depository will authorize the persons on whose behalf it holds a
Global Debt Security to exercise certain rights of Holders of Debt Securities,
and the Indenture provides that the Company, the Trustee and their respective
agents will treat as the Holder of a Debt Security the persons specified in a
written statement of the Depository with respect to such Global Debt Security
for purposes of obtaining any consents or directions required to be given by
Holders of the Debt Securities pursuant to the Indenture. (Indenture ss. 2.14.6)
Payments of principal of, premium, if any, and interest on Book-Entry
Debt Securities will be made to the Depository or its nominee, as the case may
be, as the registered Holder of the related Global Debt Security. (Indenture ss.
2.14.5) None of the Company, the Trustee or any other agent of the Company or
agent of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Global Debt Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests; provided,
however, that the Trustee may maintain physical possession of such Global Debt
Security on behalf of the Depository or its nominee pursuant to an agreement
between the Trustee and the Depository.
If the Depository is at any time unwilling or unable to continue as
Depository or ceases to be a clearing agency registered under the Exchange Act,
and a successor Depository registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
Certificated Debt Securities in exchange for each Global Debt Security. In
addition, the Company may at any time and in its sole discretion determine not
to have the Book-Entry Debt Securities of any series represented by one or more
Global Debt Securities and, in such event, will issue Certificated Debt
Securities in exchange for the Global Debt Securities of such series. Global
Debt Securities will also be exchangeable by the Holders for Certificated Debt
Securities if an Event of Default with respect to the Book-Entry Debt Securities
represented by such Global Debt Securities has occurred and is continuing. Any
Certificated Debt Securities issued in exchange for a Global Debt Security will
be registered in such name or names as the Depository shall instruct the
Trustee. It is expected that such instructions will be based upon directions
received by the Depository from participants with respect to ownership of
Book-Entry Debt Securities relating to such Global Debt Security.
The foregoing information in this section concerning the Depository and
the Depository's book-entry system has been obtained from sources the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
NO PROTECTION IN THE EVENT OF A CHANGE OF CONTROL
Unless otherwise set forth in the applicable Prospectus Supplement, the
Debt Securities will not contain any provisions which may afford Holders of the
Debt Securities protection in the event of a change in control of the Company or
in the event of a highly leveraged transaction (whether or not such transaction
results in a change in control of the Company) which could adversely affect
Holders of Debt Securities.
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COVENANTS
The applicable Prospectus Supplement will set forth any restrictive
covenants applicable with respect to any issue of Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
Person (a "successor Person") unless (i) the Company is the surviving
corporation or the successor Person (if other than the Company) is a
corporation, partnership, trust or other entity organized and validly existing
under the laws of any United States domestic jurisdiction and expressly assumes
the Company's obligations on the Debt Securities and under the Indenture, (ii)
immediately after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing under the Indenture and (iii)
certain other conditions are met. (Indenture Section 5.1)
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with
respect to Debt Securities of any series: (a) default in the payment of any
interest on any Debt Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the entire
amount of such payment is deposited by the Company with the Trustee or with a
paying agent prior to the expiration of such period of 30 days); (b) default in
the payment of principal of or premium, if any, on any Debt Security of that
series when due and payable; (c) default in the deposit of any sinking fund
payment, when and as due in respect of any Debt Security of that series; (d)
default in the performance or breach of any other covenant or warranty of the
Company in the Indenture (other than a covenant or warranty that has been
included in the Indenture solely for the benefit of a series of Debt Securities
other than that series), which default continues uncured for a period of 60 days
after written notice to the Company by the Trustee or to the Company and the
Trustee by the Holders of not less than a majority in principal amount of the
outstanding Debt Securities of that series as provided in the Indenture; (e)
certain events of bankruptcy, insolvency or reorganization with respect to the
Company; and (f) any other Event of Default provided with respect to Debt
Securities of that series that is described in the applicable Prospectus
Supplement. No Event of Default with respect to a particular series of Debt
Securities (except as to certain events of bankruptcy, insolvency or
reorganization with respect to the Company) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities. (Indenture ss.
6.1). The occurrence of an Event of Default may constitute an event of default
under the Company's bank credit agreements in existence from time to time. In
addition, the occurrence of certain Events of Default or an acceleration under
the Indenture may constitute an event of default under certain other
indebtedness of the Company outstanding from time to time.
Unless otherwise specified in the applicable Prospectus Supplement, if
an Event of Default with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than a majority in principal amount of the outstanding Debt
Securities of that series may, by a notice in writing to the Company (and to the
Trustee if given by the Holders), declare to be due and payable immediately the
principal amount (or, if the Debt Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued and unpaid interest, if any, on all Debt
Securities of that series. In the case of an Event of Default resulting from
certain events of bankruptcy, insolvency or reorganization, the principal amount
(or such specified amount) of and accrued and unpaid interest, if any, on all
outstanding
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Debt Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
outstanding Debt Securities. At any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in principal amount of the outstanding Debt
Securities of that series may rescind and annul such acceleration if all Events
of Default, other than the non-payment of accelerated principal and interest, if
any, with respect to Debt Securities of that series, have been cured or waived
as provided in the Indenture. (Indenture ss. 6.2) For information as to waiver
of defaults see the discussion set forth below under "--Modification and
Waiver." Reference is made to the applicable Prospectus Supplement (i) relating
to any series of Debt Securities that are Discount Securities for the particular
provisions relating to acceleration of a portion of the principal amount of such
Discount Securities upon the occurrence of an Event of Default, or (ii) relating
to any series of Debt Securities that are designated as subordinated debt for
the particular provisions relating to acceleration of a portion of the principal
amount of such subordinated Debt Securities upon the occurrence of an Event of
Default.
The Indenture provides that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
Holder of outstanding Debt Securities, unless the Trustee receives indemnity
satisfactory to it against any loss, liability or expense. (Indenture ss.
7.1(e)) Subject to certain rights of the Trustee, the Holders of a majority in
principal amount of the outstanding Debt Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Debt Securities of that series. (Indenture
Section 6.12)
No Holder of any Debt Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to the Indenture,
or for the appointment of a receiver or trustee, or for any remedy under the
Indenture, unless such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default with respect to Debt Securities of that
series and unless also the Holders of not less than a majority in principal
amount of the outstanding Debt Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the outstanding Debt Securities of that
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Indenture ss. 6.7) Notwithstanding
the foregoing, the Holder of any Debt Security will have an absolute and
unconditional right to receive payment of the principal of, premium, if any, and
any interest on such Debt Security on or after the due dates expressed in such
Debt Security and to institute suit for the enforcement of any such payment.
(Indenture Section 6.8)
The Indenture requires the Company, within 90 days after the end of
each of its fiscal years, to furnish to the Trustee a statement as to compliance
with the Indenture. (Indenture ss. 4.3) The Indenture provides that the Trustee
may withhold notice to the Holders of Debt Securities of any series of any
Default or Event of Default (except in payment on any Debt Securities of such
series) with respect to Debt Securities of such series if it in good faith
determines that withholding such notice is in the interest of the Holders of
such Debt Securities. (Indenture Section 7.5)
MODIFICATION AND WAIVER
The Indenture provides that modifications to, and amendments of, the
Indenture or any series of Debt Securities issued thereunder may be made by the
Company and the Trustee without the consent of the Holders for the following
purposes: (i) to cure any ambiguity, defect or inconsistency; (ii) to comply
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with Article V (which governs the Company's ability to merge or consolidate
with, and to be replaced by, a successor corporation); (iii) to provide for
uncertificated Debt Securities in addition to or in place of certificated Debt
Securities; (iv) to make any change that does not adversely affect the rights of
any Holder; (v) to provide for the issuance of and establish the form and terms
and conditions of Debt Securities of any series as permitted by the Indenture;
(vi) to evidence and provide for the acceptance of appointment under the
Indenture by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of the Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
under the Indenture by more than one Trustee; or (vii) to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended. (Indenture
Section 9.1)
Other modifications to, and amendments of, the Indenture or any series
of Debt Securities issued thereunder may be made by the Company and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the outstanding Debt Securities of each series affected by such modifications or
amendments; provided, however, that no such modification or amendment may,
without the consent of the Holder of each outstanding Debt Security affected
thereby: (a) change the amount of Debt Securities whose Holders must consent to
an amendment, supplement or waiver; (b) reduce the rate of or extend the time
for payment of interest (including default interest) on any Debt Security; (c)
reduce the principal of or premium, if any, on, or change the fixed maturity of,
any Debt Security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation with respect to any series
of Debt Securities; (d) reduce the principal amount of Discount Securities
payable upon acceleration of the maturity thereof; (e) waive a default in the
payment of the principal of, premium, if any, or interest, if any, on any Debt
Security (except a rescission of acceleration of the Debt Securities of any
series by the Holders of at least a majority in aggregate principal amount of
the then outstanding Debt Securities of such series and a waiver of the payment
default that resulted from such acceleration); (f) make the principal of, or
premium, if any, or interest, if any, on any Debt Security payable in currency
other than that stated in the Debt Security; (g) make any change to certain
provisions of the Indenture relating to, among other things, the right of
Holders of Debt Securities to receive payment of the principal of, premium, if
any, and interest, if any, on such Debt Securities and to institute suit for the
enforcement of any such payment and to waivers or amendments; or (h) waive a
redemption payment with respect to any Debt Security or change any of the
provisions with respect to the redemption of any Debt Security. (Indenture
Section 9.3)
The Holders of at least a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with provisions of the Indenture other than certain
specified provisions. (Indenture ss. 9.2) The Holders of not less than a
majority in principal amount of the outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series waive any
past default under the Indenture with respect to such series and its
consequences, except a default in the payment of the principal of, premium, if
any, or interest, if any, on any Debt Security of that series or in respect of a
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Debt Security of such series affected (provided,
however, that the Holders of a majority in principal amount of the outstanding
Debt Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
(Indenture Section 6.13)
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DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
Satisfaction and Discharge of Indenture. The Indenture provides that,
upon satisfaction by the Company of certain conditions, the terms of the
Indenture will cease to be of further effect (except for certain obligations to
register the transfer or exchange of Debt Securities, to replace stolen, lost or
mutilated Debt Securities, to maintain paying agencies, to compensate and
indemnify the Trustee and certain provisions relating to the treatment of funds
held by paying agents) in the event that either (i) all Debt Securities
theretofore authenticated and delivered under the Indenture (other than Debt
Securities that have been destroyed, lost or stolen and that have been replaced
or paid) have been delivered to the Trustee for cancellation; or (ii) all Debt
Securities issued under the Indenture not theretofore delivered to the Trustee
for cancellation (a) have become due and payable, or (b) will become due and
payable at their stated maturity within one year, or (c) are to be called for
redemption within one year under arrangements satisfactory to the Trustee, at
the expense of the Company, or (d) are deemed paid and discharged pursuant to
the provisions of the Indenture described under "--Legal Defeasance," below. The
Company must, in order to be discharged from its obligations under the Indenture
as a result of events described in the preceding sentence, (1) deposit or cause
to be deposited with the Trustee trust funds in an amount sufficient for the
purpose of paying and discharging the entire indebtedness on such Debt
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Debt
Securities which have become due and payable on or prior to the date of such
deposit) or to the stated maturity or redemption date, as the case may be; (2)
have paid or caused to be paid all other sums payable by the Company under the
Indenture; and (3) delivered to the Trustee an officer's certificate and an
opinion of counsel, each stating that all conditions precedent provided for in
the Indenture relating to the satisfaction and discharge of the Indenture have
been complied with. (Indenture Section 8.1)
Legal Defeasance. The Indenture provides that, unless otherwise
provided by the terms of the applicable series of Debt Securities, the Company
may be discharged from any and all obligations in respect of the Debt Securities
of any series (except for certain obligations to register the transfer or
exchange of Debt Securities of such series, to replace stolen, lost or mutilated
Debt Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) upon the
deposit with the Trustee, in trust, of money and/or United States Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than United States Dollars, Foreign Government Obligations, that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal (and premium, if any) and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such discharge may
occur only if, among other things, the Company shall have delivered to the
Trustee an opinion of counsel stating that the Company has received from, or
there has been published by, the United States Internal Revenue Service a ruling
or, since the date of execution of the Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred. (Indenture Section
8.3)
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Defeasance of Certain Covenants. The Indenture provides that, unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, (i) the Company may omit to comply with
the covenants described above under "--Consolidation, Merger and Sale of Assets"
and certain other covenants set forth in the Indenture and any other covenants
applicable to such Debt Securities, as well as any additional covenants which
may be set forth in the applicable Prospectus Supplement, and (ii) any omission
to comply with such covenants will not constitute a Default or an Event of
Default with respect to, and certain Events of Default will be inapplicable to,
the Debt Securities of such series ("covenant defeasance"). The conditions
include: the deposit with the Trustee of money and/or United States Government
Obligations or, in the case of Debt Securities denominated in a single currency
other than United States Dollars, Foreign Government Obligations, that, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient in the opinion of a
nationally recognized firm of independent public accountants to pay and
discharge each installment of principal of, premium, if any, and interest, if
any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities; and the delivery to
the Trustee of an opinion of counsel to the effect that the Holders of the Debt
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit and related
covenant defeasance and will be subject to United States federal income tax on
the same amounts and in the same manner and at the same times as would have been
the case if such deposit and related covenant defeasance had not occurred.
(Indenture Section 8.4)
Covenant Defeasance and Events of Default. In the event the Company
exercises its option to effect covenant defeasance with respect to any series of
Debt Securities and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default, the amount of money
and/or United States Government Obligations or Foreign Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
"Foreign Government Obligations" means, with respect to Debt Securities
of any series that are denominated in a currency other than United States
Dollars, (i) direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by or
acting as an agency or instrumentality of such government the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by
such government, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the internal laws of the State of New York.
(Indenture Section 10.10).
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets
forth general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock will be described in the applicable Prospectus Supplement. The
description of certain provisions of the Preferred Stock set forth below and in
any Prospectus Supplement does not purport to be complete and is subject to and
qualified in its entirety by reference to the Company's Restated Certificate of
Incorporation, as amended to date (the "Restated Certificate of Incorporation"),
and the certificate of designation (a "Certificate of Designation") relating to
each series of the Preferred Stock which will be filed with the Commission and
incorporated by reference in the Registration Statement of which this Prospectus
is a part at or prior to the time of the issuance of such series of the
Preferred Stock.
GENERAL
The Company has authorized 5,000,000 shares of Preferred Stock, par
value $.01 per share, of which no shares are currently outstanding. The Board of
Directors has been authorized, subject to certain limitations set forth in the
Restated Certificate of Incorporation, to issue shares of Preferred Stock in one
or more series, by resolution providing for the issuance of such series, and to
(i) fix the number of shares which will constitute such series and the
designation thereof, (ii) fix the stated value, if any, of such series and the
consideration for which shares of such series may be issued, (iii) determine the
voting rights of shares of such series, (iv) determine the terms and conditions,
if any, under which such series may be redeemable, (v) determine the rate of any
dividends payable with respect to shares of such series and any preferences or
relations to dividends payable with respect to shares of other classes of the
Company's capital stock, (vi) determine the rights of shares of such series upon
the liquidation of the Company, (vii) determine if shares of such series are
convertible into or exchangeable for shares of another class or classes of
capital stock of the Company and the rates or prices at which shares of such
series are convertible or exchangeable, and (viii) determine such other
preferences and relative, participating, optional or other special rights and
qualifications of shares of such series as are not inconsistent with the terms
of the Restated Certificate of Incorporation. To the extent permitted by the
resolutions of the Board of Directors authorizing any such series of Preferred
Stock, a duly authorized committee of the Board of Directors may determine
certain of the designations described above which are made with respect to such
series.
The Preferred Stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in the applicable
Prospectus Supplement relating to the particular series of the Preferred Stock
offered thereby for the specific terms of such series.
The Preferred Stock will, when issued, be fully paid and nonassessable
and will have no preemptive rights. The rights of the holders of each series of
the Preferred Stock will be subordinate to those of the Company's general
creditors.
Unless otherwise noted in the applicable Prospectus Supplement, Harris
Trust and Savings Bank of Chicago, Illinois will be the registrar and transfer
agent for any Preferred Stock.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to
receive, when and as declared by the Board of Directors of the Company, out of
funds of the Company legally available therefor, cash
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dividends on such dates and at such rates as are set forth in, or as are
determined by the method described in, the applicable Prospectus Supplement.
Each such dividend will be payable to the holders of record as they appear on
the stock books of the Company on such record dates, fixed by the Board of
Directors of the Company, as specified in the applicable Prospectus Supplement.
Such dividends may be cumulative or noncumulative, as provided in the applicable
Prospectus Supplement. If the Board of Directors of the Company fails to declare
a dividend payable on a dividend payment date on any series of Preferred Stock
for which dividends are noncumulative, then the right to receive a dividend in
respect of the dividend period ending on such dividend payment date will be
lost, and the Company will have no obligation to pay any dividend for such
period, whether or not dividends on such series are declared payable on any
future dividend payment dates. Dividends on the shares of each series of
Preferred Stock for which dividends are cumulative will accrue from the date
fixed by the Board of Directors. Unless dividends on all outstanding shares of
series of Preferred Stock having cumulative dividend rights have been fully
paid, no dividend (other than stock dividends) may be paid on the Common Stock
or any other class of stock ranking junior to such series of Preferred Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of each series of the Preferred Stock will
be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets is made to the
holders of Common Stock or any other shares of stock of the Company ranking
junior as to such distribution to such series of the Preferred Stock, the amount
(if any) set forth in the applicable Prospectus Supplement, together with any
unpaid cumulative dividends. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Preferred Stock of any series are not paid in full, the holders of the
Preferred Stock of such series and of any other series of equal preference will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series that has a
liquidation preference of the full preferential amounts of the liquidating
distribution to which they are entitled, the holders of each such series of the
Preferred Stock will be entitled to no further participation in any distribution
of assets by the Company. A consolidation, merger or sale of all or
substantially all of the assets of the Company would not be considered a
"liquidation" within the meaning of the foregoing provisions.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from
time to time in part, at the option of the Company, and may be subject to
mandatory redemption, in each case upon terms, at the time and at the redemption
prices set forth in the applicable Prospectus Supplement. Shares of the
Preferred Stock redeemed by the Company will be restored to the status of
authorized but unissued shares of Preferred Stock of the Company.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may
be exchanged for or converted into shares of Common Stock, shares of another
series of Preferred Stock or into any other security will be set forth in the
applicable Prospectus Supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder, or at the option of
the Company, in which case the number of shares of Common Stock, the shares of
another series of Preferred Stock or the
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amount of any other securities to be received by the holders of Preferred Stock
would be calculated as of a time and in the manner stated in the applicable
Prospectus Supplement.
VOTING
Except as set forth below, the holders of shares of Preferred Stock
will not have any right or power to vote on any matter presented to a vote of
stockholders. So long as there are any shares of Preferred Stock outstanding,
the Company would be prohibited, without the affirmative vote of at least
two-thirds of the outstanding Preferred Stock, from (i) authorizing a new class
of stock which ranks senior to or on parity with the Preferred Stock in the
payment of dividends or in liquidation preference; (ii) adversely altering the
rights, preferences or privileges of the Preferred Stock; or (iii) effecting a
sale, lease or conveyance of all or substantially all of the Company's assets,
or a merger or consolidation of the Company with or into another entity, if the
result of such transaction would be (A) the redemption of the Preferred Stock
for less than its stated liquidation preference plus any accrued and unpaid
dividends or (B) the adverse alteration of the rights, preferences or privileges
of the Preferred Stock, unless in the case of clauses (i), (ii) or (iii),
provision is made for the redemption of all shares of Preferred Stock at the
time outstanding. If accrued dividends on any series of Preferred Stock have not
been paid or set aside in an amount equivalent to six quarterly dividends or the
Company shall have failed to discharge any applicable mandatory redemption
provisions, the holders of a majority of the outstanding shares of any series of
Preferred Stock, voting separately as a class, would be entitled to increase the
number of directors of the Company by a number specified with respect to such
series of Preferred Stock and elect such number of additional directors. These
directors would serve until all accrued and unpaid dividends on all outstanding
shares of Preferred Stock had been paid or set aside in full or until all shares
of such series of Preferred Stock have been redeemed by the Company. Except for
the specific voting rights summarized above in this paragraph, the holders of
any series of Preferred Stock would have only such voting rights as may be
authorized by the Board of Directors of the Company in establishing the terms of
that series.
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DESCRIPTION OF COMMON STOCK
GENERAL
The Company's Restated Certificate of Incorporation authorizes the
issuance of 75,000,000 shares of Common Stock, par value $.01 per share. As of
November 30, 1997, there were 29,240,183 shares of Common Stock outstanding. The
outstanding shares of Common Stock are validly issued, fully paid and
non-assessable, and the shares of Common Stock offered pursuant to this
Prospectus and a related Prospectus Supplement, when issued and sold as
contemplated herein and therein, will be validly issued, fully paid and
non-assessable.
Subject to the rights of the holders of any Preferred Stock and except
as provided below, each holder of Common Stock on the applicable record date is
entitled to receive such dividends as may be declared by the Board of Directors
out of funds legally available therefor. In the event of liquidation,
dissolution or winding-up of the Company, each stockholder of record on the
applicable date has the right to share equally and ratably in any distribution
of the Company's assets after payment of liabilities (including payments with
respect to any outstanding shares of Preferred Stock). Each holder of Common
Stock is entitled to one vote for each share held of record on the applicable
record date on all matters presented to a vote of stockholders, and, except as
described below, a majority vote is required for all action to be taken by
stockholders. The Common Stock has no preemptive rights and no redemption,
sinking fund or conversion provisions.
Harris Trust and Savings Bank of Chicago, Illinois is the registrar and
transfer agent for the Common Stock.
Dividends. The entitlement of holders of Common Stock to receive
dividends is subject to the dividend and liquidation rights of any preferred
stock that may be issued, and subject to the dividend restrictions in the
multicurrency amended and restated domestic bank revolving credit facility,
entered into by the Company and the banks a party thereto in July 1996 (as
amended, the "Credit Agreement") and the Indenture, dated as of September 16,
1992 (as supplemented, the "Existing Indenture"), governing the Company's
$75,000,000 aggregate principal amount of 9 3/4% Senior Subordinated Notes due
2002 (the "Existing Notes"). Borrowings under the Credit Agreement are
guaranteed jointly and severally by certain of the Company's subsidiaries and
secured by a pledge of their stock and intercompany notes. The Existing Notes
are jointly and severally guaranteed by certain of the Company's subsidiaries
and are subordinated to the Credit Agreement. Principal on the Existing Notes is
payable in annual installments of $18,750,000 commencing in 2000 and the
Existing Notes are redeemable at various premiums by the Company commencing in
1997.
As of September 30, 1997, the Company had approximately $71 million
available for payment of cash dividends pursuant to the Credit Agreement, which
is more restrictive than the Existing Indenture.
CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION AND
AMENDED AND RESTATED BY-LAWS
The following summary of certain provisions of the Restated Certificate
of Incorporation and the Company's Amended and Restated By-Laws (the "Amended
and Restated By-Laws") does not purport to be complete and is subject to and
qualified in its entirety by reference to the Restated Certificate of
Incorporation and the Amended and Restated By-Laws which are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part.
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Classification of Directors. The Company's Restated Certificate of
Incorporation provides that its Board of Directors shall be divided into three
classes, each class being as nearly equal in number as possible, and that at
each annual meeting of the Company's stockholders, the successors to the
directors whose terms expire that year shall be elected for a term of three
years. Within the limit of not less than three nor more than twelve directors,
the number of directors is fixed by the Board of Directors. Newly created
directorships and any vacancies on the Board of Directors are filled by a
majority vote of the remaining directors then in office, and are to be
apportioned among the three classes so as to keep the number of directors in
each class as nearly equal as possible. The provisions of the Restated
Certificate of Incorporation relating to the classified Board may be amended
only upon the vote of the holders of at least 80% of the outstanding shares of
Common Stock. Directors may be removed by the affirmative vote of the holders of
a majority of the outstanding voting shares of the Company, but only for cause.
Stockholder Nominations and Proposals. Any stockholder intending to
nominate a person for election as director or present a proposal at annual or
special meetings of stockholders may do so only if written notice of the
stockholder's intent to make such nomination, including certain related
information specified in the Amended and Restated By-Laws, is given to the
Secretary of the Company at least 60 days prior to the anniversary date of
the previous year's annual meeting (or in the case of a special meeting, not
later than the seventh day following the date on which notice of that meeting is
first given to stockholders).
CERTAIN ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
The Company is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with the Company (or its majority-owned
subsidiaries) for three years following the time such person became an
interested stockholder unless: (i) before such person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination; (ii) upon consummation of the transaction that resulted in
the interested stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the Company's voting stock outstanding at the
time the transaction commenced (excluding stock held by directors who are also
officers of the Company and by employee stock plans that do not provide
employees with the rights to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer); or (iii) at
or following the transaction in which such person became an interested
stockholder, the business combination is approved by the Company's Board of
Directors and approved at a meeting of stockholders by the affirmative vote of
the holders of at least two-thirds of the Company's outstanding voting stock not
owned by the interested stockholder. Under Section 203, the restrictions
described above also do not apply to certain business combinations proposed by
an interested stockholder following the earlier of the announcement or
notification of one of certain extraordinary transactions involving the Company
and a person who had not been an interested stockholder during the previous
three years or who became an interested stockholder with the approval of a
majority of the Company's directors, if such extraordinary transaction is
approved or not opposed by a majority of the directors who were directors prior
to any person becoming an interested stockholder during the previous three years
or were recommended for election or elected to succeed such directors by a
majority of such directors.
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DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock or Common Stock. Securities Warrants may be issued
independently or together with Debt Securities or shares of Preferred Stock or
Common Stock offered by any Prospectus Supplement and may be attached to or
separate from such Debt Securities or shares of Preferred Stock or Common Stock.
Each series of Securities Warrants will be issued under a separate warrant
agreement (a "Securities Warrant Agreement") to be entered into between the
Company and Harris Trust and Savings Bank of Chicago, Illinois or another bank
or trust company, as warrant agent (the "Securities Warrant Agent"), all as set
forth in the applicable Prospectus Supplement. The Securities Warrant Agent will
act solely as an agent of the Company in connection with the Securities Warrants
and will not assume any obligation or relationship of agency or trust for or
with any holders of Securities Warrants or beneficial owners of Securities
Warrants. The description of certain provisions of the Securities Warrants set
forth below and in any Prospectus Supplement does not purport to be complete and
is subject to and qualified in its entirety by reference to the applicable
Securities Warrant Agreement, including the forms of Securities Warrant
Certificates representing the Securities Warrants, which will be filed with the
Commission and incorporated by reference in the Registration Statement of which
this Prospectus is a part at or prior to the time of the issuance of such series
of the Securities Warrants.
The Prospectus Supplement relating to a particular issue of Securities
Warrants will set forth the terms of such Securities Warrants, including, as
applicable: (i) the designation, aggregate principal amount, currencies,
denominations and terms of the series of Debt Securities purchasable upon
exercise of Securities Warrants to purchase Debt Securities and the price at
which such Debt Securities may be purchased upon such exercise; (ii) the
designation, number, stated value and terms (including, without limitation,
liquidation, dividend, conversion and voting rights) of the series of Preferred
Stock purchasable upon exercise of Securities Warrants to purchase Preferred
Stock and the price at which such number of shares of Preferred Stock of such
series may be purchased upon such exercise; (iii) the number of shares of Common
Stock purchasable upon the exercise of Securities Warrants to purchase Common
Stock and the price at which such number of shares of Common Stock may be
purchased upon such exercise; (iv) the date on which the right to exercise such
Securities Warrants shall commence and the date (the "Expiration Date") on which
such right shall expire; (v) United States federal income tax consequences
applicable to such Securities Warrants; and (vi) any other terms of such
Securities Warrants. Securities Warrants for the purchase of Preferred Stock and
Common Stock will be offered and exercisable for United States dollars only.
Securities Warrants will be issued in registered form only. The exercise price
for Securities Warrants will be subject to adjustment as described in the
applicable Prospectus Supplement.
Each Securities Warrant will entitle the holder thereof to purchase
such principal amount of Debt Securities or such number of shares of Preferred
Stock or Common Stock, as the case may be, at such exercise price as shall in
each case be set forth in, or calculable from, the Prospectus Supplement
relating to the offered Securities Warrants, which exercise price may be subject
to adjustment upon the occurrence of certain events as set forth in such
Prospectus Supplement. After the close of business on the Expiration Date (or
such later date to which such Expiration Date may be extended by the Company),
unexercised Securities Warrants will become void. The place or places where, and
the manner in which, Securities Warrants may be exercised shall be specified in
the Prospectus Supplement relating to such Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt
Securities, holders of such Securities Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon
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such exercise, including the right to receive payments of principal of,
premium, if any, or interest on the Debt Securities purchasable upon such
exercise or to enforce covenants in the Indenture. Prior to the exercise of any
Securities Warrants to purchase Preferred Stock or Common Stock, holders of such
Securities Warrants will not have any rights of holders of the Preferred Stock
or Common Stock purchasable upon such exercise, including the right to receive
payments of dividends, if any, on the Preferred Stock or Common Stock
purchasable upon such exercise or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside of the United
States to one or more underwriters for public offering and sale by them and may
also sell the Offered Securities to investors directly or through agents. Any
such underwriter or agent involved in the offer and sale of Offered Securities
will be named in the applicable Prospectus Supplement. The Company has reserved
the right to sell Offered Securities directly to investors on its own behalf in
those jurisdictions where and in such manner as it is authorized to do so.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, or at negotiated prices. The Company may also,
from time to time, authorize dealers, acting as the Company's agents, to offer
and sell Offered Securities upon the terms and conditions as are set forth in
the applicable Prospectus Supplement. In connection with the sale of Offered
Securities, underwriters may receive compensation from the Company in the form
of underwriting discounts or commissions and may also receive commissions from
purchasers of the Offered Securities for whom they may act as agent.
Underwriters may sell Offered Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agent. Unless otherwise indicated in a Prospectus Supplement, an agent
will be acting on a best efforts basis and a dealer will purchase Offered
Securities as a principal, and may then resell such Offered Securities at
varying prices to be determined by the dealer.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of Offered Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may be
entitled, under agreements entered into with the Company, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act, and to reimbursement by the Company for certain
expenses.
Certain of the underwriters, dealers or agents and their affiliates may
be customers of, engage in transactions with and perform services for the
Company in the ordinary course of business.
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LEGAL MATTERS
Certain legal matters with respect to the Offered Securities offered
hereby will be passed upon for the Company by Latham & Watkins, Chicago,
Illinois. Certain partners of Latham & Watkins, members of their families,
related persons and others, have an indirect interest, through limited
partnerships, in less than 1% of the Company's common stock. Such persons do not
have the power to vote or dispose of such shares of common stock. Certain legal
matters will be passed upon for any agents or underwriters by counsel for such
agents or underwriters identified in the applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1996 and December 31, 1995 and for each of the three years in the period ended
December 31, 1996, incorporated by reference herein from the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated by reference herein, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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=========================================================================== ===============================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY [LOGO]
REPRESENTATION OTHER THAN CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS IDEX CORPORATION
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY
ANY SECURITIES OTHER THAN THOSE SPECIFICALLY OFFERED HEREBY, NOR DOES
IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO $250,000,000
BUY ANY SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN DEBT SECURITIES
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION PREFERRED STOCK
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS COMMON STOCK
PROSPECTUS. SECURITIES WARRANTS
------------
PROSPECTUS
------------
----------------
TABLE OF CONTENTS __________, 199_
PAGE
Available Information....................................................3
Information Incorporated by Reference....................................3
Disclosure Regarding Forward-Looking Statements..........................4
The Company..............................................................5
Use of Proceeds..........................................................5
Ratio of Earnings to Fixed Charges.......................................6
Description of Debt Securities...........................................7
Description of Preferred Stock..........................................16
Description of Common Stock.............................................19
Description of Securities Warrants......................................21
Plan of Distribution....................................................22
Legal Matters...........................................................23
Experts.................................................................23
=========================================================================== ===============================================
29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation, are:
S.E.C. Registration Fee........................................... $ 75,757.58
*Legal Fees and Expenses........................................... 250,000.00
*Accounting Fees and Expenses...................................... 150,000.00
*Trustee's Fees and Expenses....................................... 15,000.00
*Rating Agency Fees................................................ 40,000.00
*Blue Sky Fees and Expenses........................................ 5,000.00
*Printing and Engraving Fees....................................... 125,000.00
*Miscellaneous..................................................... 4,242.42
==========
*TOTAL $ 665,000.00
- -------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law, the Company's
Restated Certificate of Incorporation provides that a director of the Company
will not be personally liable to the Company or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except for liability (i)
for breach of the duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law (governing distributions to stockholders), or (iv) for any
transaction for which a director derives an improper personal benefit. In
addition, Section 145 of the Delaware General Corporation Law and Article III,
Section 13 of the Company's Amended and Restated By-Laws, under certain
circumstances, provide for the indemnification of the Company's officers,
directors, employees and agents against liabilities which they may incur in such
capacities. A summary of the circumstances in which such indemnification is
provided for is contained herein, but that description is qualified in its
entirety by reference to Article III, Section 13 of the Company's Amended and
Restated By-Laws.
In general, any officer, director, employee or agent will be
indemnified against expenses, including attorney's fees, fines, settlements or
judgments, which were actually and reasonably incurred, in connection with a
legal proceeding, other than one brought by or on behalf of the Company, to
which he or she was a party as a result of such relationship, if he or she acted
in good faith, and in the manner he or she believed to be in or not opposed to
the Company's best interest and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. If the
action is brought by or on behalf of the Company, the person to be indemnified
must have acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the Company's best interest, but no indemnification will
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Company unless and only to the extent
that the Court of Chancery of Delaware, or the court in which such action was
brought, determines upon application that, despite adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense which such Court of Chancery
or such other court shall deem proper.
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Any indemnification under the previous paragraphs (unless ordered by a
court) will be made by the Company only as authorized in the specific case upon
a determination that indemnification of the director, officer, employee or agent
is proper under the circumstances because he or she has met the applicable
standard of conduct set forth above. Such determination will be made (i) by the
Company's Board of Directors by a majority vote of a quorum of disinterested
directors who were not parties to such actions, (ii) by independent legal
counsel in a written opinion, or (iii) by the stockholders. To the extent that a
director, officer, employee or agent of the Company is successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in the
previous paragraph, he or she will be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him or her in connection
therewith.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that he or she is not entitled to be indemnified by
the Company as authorized by the Company's Amended and Restated By-Laws. Such
expenses incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the Company's Board of Directors deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Section 13 of the Company's Amended and Restated By-Laws is not
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. If a claim for indemnification or payment of expenses under Section 13
of the Company's Amended and Restated By-Laws is not paid in full within ninety
(90) days after a written claim therefor has been received by the Company, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action, the Company has the burden of
proving that the claimant was not entitled to the requested indemnification or
payment of expenses under applicable law.
The Company's Board of Directors may authorize, by a vote of a majority
of a quorum of the Company's Board of Directors, the Company to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him or her against such liability under the provisions of
Section 13 of the Company's Amended and Restated By-Laws. The Company's Board of
Directors may authorize the Company to enter into a contract with any person who
is or was a director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
providing for indemnification rights equivalent to or, if the Company's Board of
Directors so determines, greater than those provided for in Section 13 of the
Company's Amended and Restated By-Laws.
The Company has also purchased insurance for its directors and officers
for certain losses arising from claims or charges made against them in their
capacities as directors and officers of the Company.
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ITEM 16. EXHIBITS
*1 Underwriting Agreement.
3.1 Restated Certificate of Incorporation of IDEX Corporation
(formerly HI, Inc.) (incorporated by reference to Exhibit 3.1
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on April 21,
1988).
3.1 (a) Amendment to Restated Certificate of Incorporation of IDEX
Corporation (formerly HI, Inc.), as amended (incorporated by
reference to Exhibit 3.1 (a) to the Quarterly Report of IDEX
Corporation on Form 10-Q for the quarter ended March 31, 1996,
Commission File No. 1-10235).
3.2 Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 to Post-Effective Amendment No. 2
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on July 17, 1989).
3.2 (a) Amended and Restated Article III, Section 13 of the
Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 (a) to Post-Effective Amendment
No. 3 to the Registration Statement on Form S-1 of IDEX
Corporation, et al., Registration No. 33-21205, as filed on
February 12, 1990).
4.1 Form of Indenture.
*4.2 Form of Debt Securities.
*4.3 Certificate of Designation of Preferred Stock.
*4.4 Warrant Agreement.
5 Opinion of Latham & Watkins.
12 Statement Regarding Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on Page II-6).
**25 Statement of Eligibility of Trustee on Form T-1.
- -----------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately and at a later date pursuant to Trust Indenture
Act Section 305(b)(2).
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ITEM 17. 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. 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 information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
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 the 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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 and (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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the 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 their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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(j) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, IDEX
Corporation 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 Chicago, Illinois on December 5, 1997.
IDEX CORPORATION
By /s/ Wayne P. Sayatovic
---------------------------------
Wayne P. Sayatovic
Senior Vice President -- Finance,
Chief Financial Officer and Secretary
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Donald N. Boyce and Wayne P.
Sayatovic, and each of them, with full power of substitution and full power to
act without the other, his true and lawful attorney-in-fact and agent to act for
him or her in his or her name, place and stead, in any and all capacities, to
sign a registration statement on Form S-3 and any or all amendments thereto
(including without limitation any post-effective amendments thereto), and any
registration statement for the same offering that is to be effective under Rule
462(b) of the Securities Act, and to file each of the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said 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 in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by each of the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Donald N. Boyce Chairman of the Board, President and Chief Executive December 5, 1997
- -------------------------
Donald N. Boyce Officer (Principal Executive Officer)
/s/ Wayne P. Sayatovic Senior Vice President -- Finance, Chief Financial December 5, 1997
- --------------------------
Wayne P. Sayatovic Officer and Secretary (Principal Financial and
Accounting Officer)
/s/ Richard E. Heath Director December 5, 1997
- --------------------------
Richard E. Heath
/s/ Henry R. Kravis Director December 5, 1997
- --------------------------
Henry R. Kravis
/s/ William H. Luers Director December 5, 1997
- ---------------------------
William H. Luers
II-6
35
/s/ Paul E. Raether Director December 5, 1997
- ----------------------------
Paul E. Raether
/s/ Clifton S. Robbins Director December 5, 1997
- -----------------------------
Clifton S. Robbins
/s/ George R. Roberts Director December 5, 1997
- ----------------------------
George R. Roberts
/s/ Neil A. Springer Director December 5, 1997
- -----------------------------
Neil A. Springer
/s/ Micheal T. Tokarz Director December 5, 1997
- ----------------------------
Michael T. Tokarz
II-7
36
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-3
Exhibit No. Exhibit
- ----------- -------
*1 Underwriting Agreement.
3.1 Restated Certificate of Incorporation of IDEX Corporation
(formerly HI, Inc.) (incorporated by reference to Exhibit 3.1
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on April 21,
1988).
3.1 (a) Amendment to Restated Certificate of Incorporation of IDEX
Corporation (formerly HI, Inc.), as amended (incorporated by
reference to Exhibit 3.1 (a) to the Quarterly Report of IDEX
Corporation on Form 10-Q for the quarter ended March 31, 1996,
Commission File No. 1-10235).
3.2 Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 to Post-Effective Amendment No. 2
to the Registration Statement on Form S-1 of IDEX Corporation,
et al., Registration No. 33-21205, as filed on July 17, 1989).
3.2 (a) Amended and Restated Article III, Section 13 of the
Amended and Restated By-Laws of IDEX Corporation (incorporated
by reference to Exhibit 3.2 (a) to Post-Effective Amendment
No. 3 to the Registration Statement on Form S-1 of IDEX
Corporation, et al., Registration No. 33-21205, as filed on
February 12, 1990).
4.1 Form of Indenture.
*4.2 Form of Debt Securities.
*4.3 Certificate of Designation of Preferred Stock.
*4.4 Warrant Agreement.
5 Opinion of Latham & Watkins.
12 Statement Regarding Computation of Ratios.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on Page II-6).
**25 Statement of Eligibility of Trustee on Form T-1.
- -----------------
* To be filed by amendment or by a report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately and at a later date pursuant to Trust Indenture
Act Section 305(b)(2).
II-8