AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 8, 2002
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
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.)
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)
------------------------
WAYNE P. SAYATOVIC
SENIOR VICE PRESIDENT-FINANCE AND CHIEF FINANCIAL OFFICER
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 TO:
CHRISTOPHER D. LUEKING, ESQ.
LATHAM & WATKINS
233 SOUTH WACKER DRIVE
SUITE 5800
CHICAGO, ILLINOIS 60606
(312) 876-7700
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of the Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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 delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
------------------
CALCULATION OF REGISTRATION FEE
AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED SECURITY (1) PRICE (1)
Common Stock, par value $.01 per share .............. 2,939,199 shares $35.91 $105,546,636.10 $9,711
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act, as amended, based upon the
average of the high and low trading prices of the common stock on the New York
Stock Exchange on March 1, 2002.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION BECOMES EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE SUCH OFFER OR SALE IS
NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MARCH 8, 2002
PROSPECTUS
2,939,199 Shares
IDEX CORPORATION
Common Stock
------------
This prospectus relates to 2,939,199 shares of our common stock that
may be offered for sale or otherwise transferred from time to time by the
selling shareholder.
The selling shareholder may offer its shares of common stock from time
to time through public or private transactions, on or off of the New York Stock
Exchange or the Chicago Stock Exchange, at prevailing market prices or at
privately negotiated prices. We will not receive any of the proceeds from the
sale of the shares of our common stock by the selling shareholder.
Our common stock is listed on the New York Stock Exchange and the
Chicago Stock Exchange under the symbol "IEX." The last reported sale price of
our common stock on the New York Stock Exchange on March 7, 2002 was $36.80 per
share.
-------------------------
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
on the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
-------------------------
The date of this prospectus is , 2002.
TABLE OF CONTENTS
PAGE
----
Cautionary Statement Regarding Forward-Looking Statements............. 3
The Company........................................................... 4
Use Of Proceeds....................................................... 5
Selling Shareholder................................................... 5
Plan Of Distribution.................................................. 6
Legal Matters......................................................... 6
Experts............................................................... 7
Where You Can Find More Information................................... 7
Incorporation Of Certain Documents By Reference....................... 7
----------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not, and the selling shareholder has not,
authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not, and the selling shareholder is not making an offer to sell or
seeking an offer to buy these securities in any jurisdiction where the offer or
sale is not permitted. You should assume that the information appearing in this
prospectus is accurate only as of the date on the front cover of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of these securities. Our business, financial condition, results of operations
and prospects may have changed since that date.
2
CAUTIONARY STATEMENT 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 of 1993, as amended (the "Securities Act") and Section 21E of the Exchange
Act of 1934, as amended (the "Exchange Act"). Such statements relate to, among
other things, capital expenditures, cost reductions, cash flow, and operating
improvements and are indicated by words or phrases such as "anticipate,"
"estimate," "plans," "expects," "projects," "management believes," "the company
believes," "the company intends" and similar words or phrases. Such statements
are subject to inherent uncertainties and risks which could cause actual results
to differ materially from those anticipated as of the date of this prospectus.
The risks and uncertainties include, but are not limited to, the following:
- economic and political consequences resulting from the
September 11, 2001 terrorist attacks;
- 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 and the Company's results, particularly
in light of the low levels of order backlogs we typically
maintain;
- our ability to integrate and operate acquired businesses on a
profitable basis;
- the relationship of the U.S. dollar to other currencies and
its impact on pricing and cost competitiveness;
- interest rates;
- our utilization of our capacity and the effect of capacity
utilization on costs;
- labor market conditions and materials costs; and
- developments with respect to contingencies, such as litigation
and environmental matters.
The forward-looking statements included herein are only made as of the
date of this prospectus and we undertake no obligation to publicly update such
forward-looking statements to reflect subsequent events or circumstances.
3
THE COMPANY
Unless the context requires otherwise, the references to "we," "us,"
"our," "the Company," or "IDEX" refer collectively to IDEX Corporation and its
subsidiaries.
We manufacture an extensive array of proprietary, engineered industrial
products sold to customers in a variety of industries around the world. We
believe that each of our principal business units holds the number-one or
number-two market share position in each unit's niche market. We also believe
that our consistent financial performance has been attributable to the
manufacture of quality proprietary products designed and engineered by us,
coupled with our ability to identify and successfully integrate strategic
acquisitions. IDEX consists of three reportable business segments: Pump Products
Group, Dispensing Equipment Group, and Other Engineered Products Group.
PUMP PRODUCTS GROUP
The Pump Products Group designs, produces and distributes a wide
variety of industrial pumps, compressors, flow meters and related controls for
the movement of liquids, air and gases. The devices and equipment produced by
this group are used by a large and diverse set of industries, including chemical
processing, machinery, water treatment, medical equipment, liquid petroleum
distribution, oil and refining, and food and drug processing. In 2001, the six
business units that comprised this group were Gast Manufacturing, Liquid
Controls, Micropump, Pulsafeeder, Viking Pump and Warren Rupp. The group
accounted for 59% of sales and 61% of operating income in 2001, with 37% of
sales shipped to customers outside the U.S.
DISPENSING EQUIPMENT GROUP
The Dispensing Equipment Group produces highly engineered equipment for
dispensing, metering and mixing colorants, paints, inks, dyes; refinishing
equipment; and centralized lubrication systems. This proprietary equipment is
used in a variety of retail and commercial industries around the world. These
units provide equipment, systems, and service for applications such as tinting
paints and coatings; providing industrial and automotive refinishing equipment;
and the precise lubrication of machinery and transportation equipment. In 2001,
the three business units that comprised this group were FAST, Fluid Management
and Lubriquip. The group accounted for 19% of sales and 14% of operating income
in 2001, with 57% of sales shipped to customers outside the U.S.
OTHER ENGINEERING PRODUCTS GROUP
The Other Engineered Products Group manufactures engineered banding and
clamping devices, fire fighting pumps and rescue tools and other components and
systems for the fire and rescue industry. The high-quality stainless steel
bands, buckles and preformed clamps and related installation tools are used in a
wide variety of "hold together" industrial commercial applications. The group
also includes the world's leading manufacturer of truck-mounted fire pumps and
rescue tool systems used by public and private fire and rescue organizations. In
2001, the two units that comprised this group were Band-It and Hale Products.
The group accounted for 22% of sales and 25% of operating income in 2001, with
41% of sales shipped to customers outside the U.S.
OUR ADDRESS
Our principal executive office is located at 630 Dundee Road,
Northbrook, Illinois 60062 and our telephone number at that address is (847)
498-7070. Our Internet address is http://www.idexcorp.com. The contents of our
website are not part of this prospectus.
4
USE OF PROCEEDS
All of the shares of common stock offered by this prospectus are being
offered by the selling shareholder. For information about the selling
shareholder, see "Selling Shareholder." We will not receive any proceeds from
the sale of shares of our common stock by the selling shareholder.
SELLING SHAREHOLDER
We originally issued and sold the 2,939,199 shares of common stock
covered by this prospectus to IDEX Associates, L.P. in a transaction exempt from
the registration requirements of the Securities Act. The shareholder named below
may from time to time offer and sell pursuant to this prospectus any and all of
the common stock. Our registration of the common stock held by the selling
shareholder does not necessarily mean that the selling shareholder will sell all
or any of the shares of common stock.
The following table sets forth, to our knowledge, with respect to the
selling shareholder (i) the number of shares of common stock beneficially owned
as of March 7, 2002 and prior to the offering contemplated hereby, (ii) the
maximum number of shares of common stock which may be sold in this offering, and
(iii) the number of shares of common stock which will be owned after the
offering, assuming the sale of all the shares of common stock offered hereby:
SHARES OF COMMON STOCK NUMBER OF SHARES OF COMMON SHARES OF COMMON STOCK TO
SELLING SHAREHOLDER OWNED PRIOR TO THE OFFERING STOCK OFFERED HEREBY BE OWNED AFTER THE OFFERING (1)
------------------- --------------------------- -------------------------- -------------------------------
IDEX Associates, L.P. (2) 2,939,199 2,939,199 0
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(1) For purposes of this table, we have assumed that the selling
shareholder will sell all shares covered by this prospectus.
(2) IDEX Associates, L.P. is a limited partnership of which KKR Associates,
L.P. is the sole general partner and possesses sole voting and
investment power. KKR Associates, L.P. is a limited partnership of
which Henry R. Kravis, George R. Roberts, Paul E. Raether and Michael
F. Tokarz (each of whom is currently a director of the Company) and
Messrs. Edward A. Gilhuly, Perry Golkin, James H. Greene, Jr., Robert
I. MacDonnell, Michael W. Michelson and Scott M. Stuart are general
partners. Such persons may be deemed to share beneficial ownership of
the shares shown as beneficially owned by IDEX Associates, L.P. All of
the foregoing persons disclaim beneficial ownership of any shares of
the company listed above as beneficially owned by IDEX Associates, L.P.
Except as noted above, the selling shareholder has not had, within the
past three years, any position, office, or other material relationship with IDEX
or any of its affiliates. The selling shareholder identified above may have
sold, transferred, or otherwise disposed of a portion of its common stock since
the date on which it provided information regarding its common stock in a
transaction exempt from the registration requirements of the Securities Act.
Only the selling shareholder identified above who beneficially owns the
common stock set forth opposite its name in the foregoing table on the effective
date of the registration statement of which this prospectus forms a part may
sell common stock pursuant to the registration statement.
Pursuant to a registration rights agreement entered into by the selling
shareholder, KKR Associates, L.P. (together with the selling shareholder, the
"KKR Entities") and us, the KKR Entities have the right, under certain
circumstances and subject to certain conditions, to require us to register under
the Securities Act the shares of common stock held by the KKR Entities. Such
registration rights will generally be available to the KKR Entities until
registration is no longer required to enable them to resell their common stock.
IDEX Associates has exercised their rights under this registration rights
agreement and requested that we register the shares of common stock covered by
this prospectus. The registration rights agreement provides, among other things,
that we will pay all expenses in connection with any such registration, other
than
5
underwriting discounts and selling commissions.
PLAN OF DISTRIBUTION
The purpose of this prospectus is to permit the selling shareholder or
its pledgees, donees, transferees or other successors in interest (collectively,
the "selling shareholder") to offer for sale or to sell shares of common stock
covered by this prospectus at such time and at such prices as each, in its sole
discretion, chooses. We will not receive any of the proceeds from these
offerings or sales.
The selling shareholder may sell or distribute some or all of its
shares from time to time through dealers or brokers or other agents or directly
to one or more purchasers in transactions (which may involve crosses and block
transactions) on the New York Stock Exchange or other exchanges on which our
common stock may be listed for trading, in privately negotiated transactions
(including sales pursuant to pledges) or in the over-the-counter market, or in
brokerage transactions, or in a combination of these transactions. In addition,
the selling shareholder may sell or distribute some or all of its shares of
common stock in a transaction involving an underwriter. Such transactions may be
effected by the selling shareholder at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices,
or at fixed prices, which may be changed. Brokers, dealers, or their agents
participating in such transactions as agent may receive compensation in the form
of discounts, concessions or commissions from the selling shareholder (and, if
they act as agent for the purchaser of the shares, from the purchaser). Such
discounts, concessions or commissions as to a particular broker, dealer or other
agent might be in excess of those customary in the type of transaction involved.
If the applicable law requires, we will provide a supplement to this
prospectus to disclose the specific shares to be sold, the public offering price
of the shares to be sold, the names of any agents, dealers or underwriters
employed by the selling shareholder in connection with such sale, and any
applicable commissions or discounts with respect to a particular offer.
The selling shareholder and any such brokers, dealers or other agents
that participate in such distribution may be deemed to be "underwriters" within
the meaning of the Securities Act, and any discounts, commissions or concessions
received by any such brokers, dealers or other agents might be deemed to be
underwriting discounts and commissions under the Securities Act.
In connection with the offer and sale of the shares of common stock by
the selling shareholder, various state securities laws and regulations require
that any such offer and sale should be made only through the use of a
broker-dealer registered as such in any state where a selling shareholder
engages such broker-dealer and in any state where such broker-dealer intends to
offer and sell shares.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the shares of common stock offered hereby
may not simultaneously engage in market activities with respect to common stock
for the applicable period under Regulation M prior to the commencement of such
distribution. In addition, the selling shareholder will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including Rule 10b-5 and Regulation M, which provisions may limit the timing of
purchases and sale of any of the shares by the selling shareholder. All of the
foregoing may affect the marketability of the shares offered hereby.
We will pay all expenses of the registration of the offered securities,
including Commission filing fees and expenses of compliance with state
securities or "blue sky" laws. The selling shareholder will pay any underwriting
discounts and selling commissions. The selling shareholder will be indemnified
by us against certain civil liabilities, including certain liabilities under the
Securities Act. The selling shareholder will indemnify us against certain civil
liabilities, including certain liabilities under the Securities Act.
The selling shareholder also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of such rule.
LEGAL MATTERS
The validity of the common stock will be passed upon by Latham &
Watkins, Chicago, Illinois.
6
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K, of IDEX Corporation for the year ended
December 31, 2001 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and has been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may obtain
information on the operation of the SEC's public reference room in Washington,
D.C. by calling the SEC at 1-800-SEC-0330. You may also read and copy any
document we file at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Our common shares are listed on the New York and Chicago
Stock Exchanges. We also file information with The New York Stock Exchange.
These reports, proxy statements and other information may be read and copied at
20 Broad Street, New York, New York 10005. We also file information with the
Chicago Stock Exchange. These reports, proxy statements and other information
may be read and copied at One Financial Plaza, 440 South LaSalle Street,
Chicago, Illinois 60605. You can also request copies of these documents upon
payment of a duplication fee by writing to the SEC.
This prospectus, which constitutes a part of a registration statement
on Form S-3 that we filed with the Commission under the Securities Act of 1933,
omits certain information contained in the registration statement. Accordingly,
you should refer to the registration statement and its exhibits for further
information with respect to IDEX Corporation and the shares of common stock
offered hereby. Furthermore, statements contained in this prospectus or in any
document incorporated in this prospectus by reference regarding any contract or
other document are not necessarily complete, and, in each instance, you should
refer to the copy of the contract or other document filed with the Commission as
an exhibit to the registration statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In this prospectus we have incorporated by reference certain reports
and other information we have filed, or will file, with the SEC. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. The following documents filed with the SEC by us
pursuant to the Exchange Act are incorporated herein by reference until all of
the securities covered hereby are sold or this offering is terminated:
- our Annual Report on Form 10-K for the year ended December 31,
2001;
- our Proxy Statement on Form 14-A, filed on March 4, 2002;
- the description of our common stock contained in our
Registration Statement on Form 8-A filed on April 19, 1996
(File No. 1-10235) pursuant to Section 12 of the Exchange Act;
and
- all other documents subsequently filed by us pursuant to
Section 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 common shares to which this prospectus
relates, which shall be deemed to be a part hereof from the
date of filing of such documents.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
IDEX Corporation, 630 Dundee Road, Northbrook, Illinois 60062,
Attention: Wayne P. Sayatovic, Senior Vice President - Finance and Chief
Financial Office, Telephone: (847) 498-7070.
7
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No dealer, salesman, or other person has been authorized to give any information
or to make any representation, other than those contained in this prospectus, in
connection with the offering made by this prospectus and information or
representations not herein contained, if given or made, must not be called upon
as having been authorized. This prospectus does not constitute an offer to sell,
or a solicitation of an offer to buy, the securities offered hereby. Neither the
delivery of this prospectus nor any sales made hereunder shall under any
circumstances create any implication that the information contained herein is
correct as of any time subsequent to the date hereof.
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2,939,199 SHARES
IDEX CORPORATION
COMMON STOCK
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PROSPECTUS
--------------
, 2002
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection
with the distribution of the securities covered by this Registration Statement.
IDEX Corporation has agreed to pay all fees and expenses incident to the
registration of this offering, other than sales commissions, discounts and
applicable transfer taxes. All fees and expenses with an "*" will be completed
by amendment.
SEC registration fee................................. $9,711
Legal fees and expenses.............................. *
Accounting fees and expenses......................... *
EDGAR formatting and related expenses................ *
Miscellaneous expenses............................... *
-----
Total........................................... *
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 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.
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
II-1
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.
The Company has entered into contracts with each of its officers and
directors requiring the Company to indemnify such persons and advance litigation
expenses to such persons to the fullest extent permitted by applicable law. The
contracts also require the Company to (i) indemnify such officers and directors
upon receipt of an opinion of counsel in certain cases, (ii) pay indemnity
demands pending a determination of entitlement thereunder, and (iii)
demonstrate, in any action brought thereunder, that such officer or director was
not entitled to indemnification under applicable law.
The registration rights agreement between the Company and the selling
shareholder relating to the common stock requires the Company, on the one hand,
and the the selling shareholder, on the other hand, under certain circumstances,
to indemnify each other and their respective officers and directors against
certain liabilities, including liabilities under the Securities Act, incurred in
connection with the registration of such securities.
II-2
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of IDEX Corporation under the Securities Act or the Exchange Act as
indicated in parenthesis:
EXHIBIT
NO. DESCRIPTION
3.1 Restated Certificate of Incorporation of IDEX Corporation
(formerly HI, Inc.) (incorporated by reference to Exhibit No. 3.1
to the Registration Statement on Form S-1 of IDEX et al.,
Registration N. 33-21205, as filed on April 21, 1988).
3.1(a) Amendment to Restated Certificate of Incorporation of IDEX
Corporation (formerly HI, Inc.) (incorporated by reference to
Exhibit No. 3.1(a) to the Quarterly Report of IDEX 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 to Exhibit 3.2 to Post-Effective Amendment
No. 2 to the Registration Statement on Form S-1 of IDEX, 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 to the Registration
Statement on Form S-1 of IDEX, et al., Registration No. 33-21205,
as filed on February 12, 1990).
4.1 Restated Certificate of Incorporation and By-Laws of IDEX
Corporation (filed as Exhibits 3.1 through 3.2(a)).
4.2 Specimen of Certificate of Common Stock of IDEX Corporation
(incorporated by reference to Exhibit No. 4.3 to the Registration
Statement on Form S-2 of IDEX, et al., Registration No. 33-42208,
as filed on September 16, 1991).
5.1 Opinion of Latham & Watkins as to the validity of the common
stock.
10.1 Registration Rights Agreement, dated January 22, 1988, among IDEX,
KKR Associates and IDEX Associates, relating to the Common Stock
(Incorporated by reference to Exhibit No. 10.8 to the Registration
Statement on Form S-1 of IDEX Corporation, et al, Registration No.
33-21205, as filed on April 21, 1988).
23.1 Consent of Deloitte & Touche LLP, independent auditors.
23.2 Consent of Latham & Watkins (included in the opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
ITEM 17. UNDERTAKINGS
(a) The 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 the 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% change in the maximum
II-3
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that the undertakings set forth in clauses (i) and (ii) above
do not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by IDEX Corporation pursuant
to Section 13 or Section 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 registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of IDEX Corporation's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions set forth in Item 15 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
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer, or controlling person of
the registrant in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless, in the opinion of its
counsel, the matter has been settled by controlling precedent, submit the
question of whether such indemnification is against public policy as expressed
in the Act to a court of appropriate jurisdiction and will be governed by the
final adjudication of such issue.
The registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
IDEX 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 Northbrook, State of Illinois, on March 8, 2002.
IDEX CORPORATION
By /s/ Wayne P. Sayatovic
----------------------------------
Wayne P. Sayatovic
Senior Vice President - Finance
and Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dennis K. Williams and Wayne P. Sayatovic
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the dates indicated.
SIGNATURE TITLE DATE
/s/ Dennis K. Williams Chairman of the Board, President, Chief
- ---------------------- Executive Officer (Principal Executive
Dennis K. Williams Officer) and Director March 8, 2002
/s/ Wayne P. Sayatovic Senior Vice President - Finance and
- ---------------------- Chief Financial Officer (Principal March 8, 2002
Wayne P. Sayatovic Financial and Accounting Officer)
/s/ Bradley J. Bell
- ---------------------- Director March 8, 2002
Bradley J. Bell
/s/ Richard E. Heath
- ---------------------- Director March 8, 2002
Richard E. Heath
II-5
/s/ Gregory B. Kenny
- ---------------------- Director March 8, 2002
Gregory B. Kenny
/s/ Henry R. Kravis
- ---------------------- Director March 8, 2002
Henry R. Kravis
/s/ William H. Luers
- ---------------------- Director March 8, 2002
William H. Luers
/s/ Paul E. Raether
- ---------------------- Director March 8, 2002
Paul E. Raether
/s/ George R. Roberts
- ---------------------- Director March 8, 2002
George R. Roberts
/s/ Neil A. Springer
- ---------------------- Director March 8, 2002
Neil A. Springer
/s/ Michael T. Tokarz
- ---------------------- Director March 8, 2002
Michael T. Tokarz
II-6
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-3
EXHIBIT
NO. DESCRIPTION
3.1 Restated Certificate of Incorporation of IDEX Corporation
(formerly HI, Inc.) (incorporated by reference to Exhibit No. 3.1
to the Registration Statement on Form S-1 of IDEX et al.,
Registration N. 33-21205, as filed on April 21, 1988).
3.1(a) Amendment to Restated Certificate of Incorporation of IDEX
Corporation (formerly HI, Inc.) (incorporated by reference to
Exhibit No. 3.1(a) to the Quarterly Report of IDEX 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 to Exhibit 3.2 to Post-Effective Amendment
No. 2 to the Registration Statement on Form S-1 of IDEX, 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 to the Registration
Statement on Form S-1 of IDEX, et al., Registration No. 33-21205,
as filed on February 12, 1990).
4.1 Restated Certificate of Incorporation and By-Laws of IDEX
Corporation (filed as Exhibits 3.1 through 3.2(a)).
4.2 Specimen of Certificate of Common Stock of IDEX Corporation
(incorporated by reference to Exhibit No. 4.3 to the Registration
Statement on Form S-2 of IDEX, et al., Registration No. 33-42208,
as filed on September 16, 1991).
5.1 Opinion of Latham & Watkins as to the validity of the common
stock.
10.1 Registration Rights Agreement, dated January 22, 1988, among IDEX,
KKR Associates and IDEX Associates, relating to the Common Stock
(Incorporated by reference to Exhibit No. 10.8 to the Registration
Statement on Form S-1 of IDEX Corporation, et al, Registration No.
33-21205, as filed on April 21, 1988).
23.1 Consent of Deloitte & Touche LLP, independent auditors.
23.2 Consent of Latham & Watkins (included in the opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
Exhibit 5.1
[LETTERHEAD OF LATHAM & WATKINS]
March 8, 2002
IDEX Corporation
630 Dundee Road
Northbrook, Illinois 60062
Re: IDEX Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by IDEX
Corporation, a Delaware corporation (the "Company"), of its Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), with respect to the offer and sale by the selling
shareholder named in the Registration Statement (the "Offering") of up to
2,939,199 shares of the Company's common stock, par value $.01 per share (the
"Shares"). We have acted as special counsel to the Company in connection with
the preparation of the Registration Statement.
In our capacity as such counsel, we are generally familiar with the
proceedings taken by the Company in connection with the authorization and
issuance of the Shares. In addition, we have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of all such documents,
corporate records and instruments, as we have deemed necessary or appropriate
for purposes of this opinion.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
We are opining herein as to the effect on the subject transaction
only of the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or any other Delaware laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth
herein, it is our opinion that, as of the date hereof, the Shares have been duly
authorized and validly issued and are fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the heading "Legal
Matters" in the Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
IDEX Corporation:
We consent to the incorporation by reference in the Prospectus, which
is part of this Registration Statement of IDEX Corporation on Form S-3, of our
reports dated January 15, 2002 and March 4, 2002, appearing in and incorporated
by reference in the Annual Report on Form 10-K of IDEX Corporation for the year
ended December 31, 2001, and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Chicago, Illinois
March 8, 2002
