<PAGE> 1
As filed with the Securities and Exchange Commission on March 3, 1999
Registration No. 333-69033
================================================================================
SECURITIES AND EXCHANGE COMMISSION
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
Registration Statement
Under
the Securities Act of 1933
MODTECH HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0825386
(State of Incorporation) (I.R.S. Employer Identification No.)
2830 BARRETT AVENUE, PERRIS, CALIFORNIA 92571, (909) 943-4014
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
EVAN M. GRUBER, CHIEF EXECUTIVE OFFICER
2830 BARRETT AVENUE, PERRIS, CALIFORNIA 92571, (909) 943-4014
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
COPIES TO:
Jon R. Haddan, Esq. Kevin A. Cudney, Esq.
Haddan & Zepfel LLP Dorsey & Whitney LLP
4675 MacArthur Court, Suite 710 370 17th Street, Suite 4400
Newport Beach, California 92660 Denver, Colorado 80202
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Securities Act"), check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ X ]
================================================================================
<PAGE> 2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Post-Effective Amendment to Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Newport Beach, California on March 3, 1999.
MODTECH HOLDINGS, INC.
By: /s/ Evan M. Gruber
---------------------------------------
Evan M. Gruber, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to Registration Statement has been signed by each of
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/Evan M. Gruber Chief Executive Officer March 3, 1999
- --------------------------- and Director
Evan M. Gruber
Chief Operating and Chief March 3, 1999
- --------------------------- Financial Officer (principal
*Michael G. Rhodes financial and accounting officer)
- --------------------------- President, Director March 3, 1999
*Patrick Van Den Bossche
- --------------------------- Director March 3, 1999
*Charles A. Hamilton
- --------------------------- Director March 3, 1999
*Charles R. Gwirtsman
- --------------------------- Director March 3, 1999
*Charles C. McGettigan
- --------------------------- Director March 3, 1999
*Myron A. Wick III
- --------------------------- Director March 3, 1999
*Daniel J. Donahoe III
- --------------------------- Director March 3, 1999
*Robert W. Campbell
*By: Evan M. Gruber, Attorney in Fact
/s/ Evan M. Gruber
- -------------------------------------
Evan M. Gruber
</TABLE>
<PAGE> 3
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER NAME OF EXHIBIT
- ------ ---------------
<C> <S>
2+ Agreement and Plan of Reorganization and Merger, dated as of September 28, 1998, by and between Modtech,
Inc. and SPI Holdings, Inc. (included as Annex I to the Joint Proxy Statement/Prospectus)
3.1+ Certificate of Incorporation of Modtech Holdings, Inc.
3.2+ Bylaws of Modtech Holdings, Inc.
3.3+ Articles of Incorporation of Modtech, Inc.
3.4+ Bylaws of Modtech, Inc.
3.5+ Articles of Incorporation of SPI Holdings, Inc.
3.6+ Bylaws of SPI Holdings, Inc.
3.7+ Certificate of Designation of Modtech Holdings, Inc. Series A Preferred Stock
3.8+ Designation of SPI Holdings, Inc. Series A-1, A-2, A-3, A-4, A-5 and A-6 Convertible Preferred Stock
4+ Registration Rights Agreement
5+ Opinion of Haddan & Zepfel LLP regarding the validity of securities offered hereby
8.1 Executed opinion of Gibson, Dunn & Crutcher LLP regarding certain tax matters, delivered at the closing.
8.2 Executed opinion of Dorsey & Whitney LLP regarding certain tax matters, delivered at the closing.
10.1+ Transaction Advisory Agreement
10.2+ Employment Agreement -- Evan M. Gruber
10.3+ Employment Agreement -- Patrick Van Den Bossche
10.4+ Employment Agreement -- Michael G. Rhodes
10.5+ Lease between Modtech, Inc. and Pacific Continental Modular Enterprises, relating to the Barrett Street property
in Perris, California
10.6+ Lease between Modtech, Inc. and Gerald Bashaw, relating to the Morgan Street Property in Perris, California
10.7+ Lease between Modtech, Inc. and BMG2, relating to the property in Lathrop, California
10.8+ Industrial Development Bond agreements
10.9+ Lease between Office Master of Texas, Inc. and Bertrand L. Taylor, relating to the Gibbs Boulevard property in
Glen Rose, Texas.
10.10+ Lease between Baron Homes, Inc. and David V. Homme and Mary B. Homme, relating to the South Cucamonga
Avenue property in Rancho Cucamonga, California, assigned to SPI.
10.11+ Lease between Ronfran Incorporated d/b/a Standard Pacific Industries and Toth Enterprises, relating to the
Hermosa Avenue property in Rancho Cucamonga, California, assigned to SPI.
</TABLE>
1
<PAGE> 4
<TABLE>
<C> <S>
10.12+ Lease between Arizona Millwork, Inc. and The Rosenfield Family Trust, relating to the Madison Avenue property
in Phoenix, Arizona.
10.13+ Letter agreement dated June 10, 1998 between McGettigan, Wick & Co., Inc. and Modtech, Inc.
23.1+ Consent of KPMG LLP
23.2+ Consent of Arthur Andersen LLP
23.3+ Consent of Haddan & Zepfel LLP (included in Exhibit 5)
23.4+ Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 8.1)
23.5+ Consent of Dorsey & Whitney LLP (included in Exhibit 8.2)
24+ Powers of attorney (included on Page II-4 hereof)
27+ Financial Data Schedule
99.1+ Form of Modtech, Inc. proxy
99.2+ Form of SPI Holdings, Inc. proxy
</TABLE>
- ---------------
+ Previously filed.
2
<PAGE> 1
EXHIBIT 8.1
[GIBSON, DUNN & CRUTCHER LLP LETTERHEAD]
February 16, 1999
Modtech, Inc.
2830 Barrett Avenue
Perris, California 92571
Re: Tax Opinion for Registration Statement on Form S-4 (File No.
333-69033)
Gentlemen:
We are acting as special tax counsel to Modtech, Inc., a California
corporation ("Modtech"), in connection with the Agreement and Plan of
Reorganization and Merger (the "Agreement") dated as of September 28, 1998, by
and between Modtec and SPI Holdings, Inc., a Colorado corporation ("SPI").
Pursuant to the terms of the Agreement, Modtec and SPI shall form Modtec
Holdings, Inc., a Delaware corporation ("Modtec Holdings"), which in turn will
form Modtec Merger Sub, Inc., a Delaware corporation and wholly owned
subsidiary of Modtec Holdings ("Modtec Sub"), and SPI Merger Sub, Inc., a
Colorado corporation and wholly owned subsidiary of Modtec Holdings ("SPI
Sub"). At the effective time, Modtec Sub will merge with and into Modtec (the
"Modtech Merger") and SPI Sub will merge with and into SPI (the "SPI Merger").
The Agreement is attached as Annex I to Registration Statement on Form S-4,
File No. 333-69033 (the "Registration Statement"), filed with the Securities
and Exchange Commission in connection with the Modtech Merger and SPI Merger.
You have requested our opinion as to the material federal income tax
consequences of the Modtech Merger to the shareholders of Modtech. This opinion
is being rendered pursuant to Section 6.2(e) of the Agreement.
In rendering our opinion, we have examined the Agreement and have, with
your permission, relied upon, and assumed as correct as of the effective date of
the Modtech Merger, (i) the factual information contained in the Registration
Statement, (ii) the representations and covenants contained in the Agreement,
(iii) certain factual representations made by Modtech and SPI and (iv) such
other materials as we have deemed necessary or appropriate as a basis for our
opinion.
On the basis of the information, representations and covenants contained
in the foregoing materials and assuming the Modtech Merger is consummated in
the manner
<PAGE> 2
Modtech, Inc.
February 16, 1999
Page 2
described in the Agreement and the Proxy Statement/Prospectus included in the
Registration Statement, we are of the opinion that:
(i) The formation of Modtech Sub and its merger with and into Modtech will
be disregarded for federal income tax purposes and the Modtech Merger will be
viewed as transfers by the Modtech stockholders of their shares of Modtech
common stock, par value $.01 per share ("MODTECH COMMON STOCK"), in exchange for
(i) cash, (ii) shares of common stock, par value $.01 per share of Modtech
Holdings ("HOLDINGS COMMON STOCK"), and, if elected, (iii) shares of non-voting
convertible preferred stock, Series A, of Holdings ("HOLDINGS SERIES A PREFERRED
STOCK"). The exchange will constitute an exchange within the meaning of Section
351 of the Internal Revenue Code of 1986, as amended (the "CODE").
(ii) No gain or loss will be recognized by a Modtech stockholder upon the
exchange of Modtech Common Stock for Holdings Common Stock and Holdings Series A
Preferred Stock.
(iii) A Modtech stockholder will recognize gain (but not loss) upon the
exchange of Modtech Common Stock for cash equal to the lesser of (i) the amount
of cash received, and (ii) the amount of gain realized by such stockholder in
the exchange.
(iv) The discussion in the Proxy Statement/Prospectus under the caption
"The Mergers--Material Federal Income Tax Consequences," to the extent it
constitutes summaries of legal matters or legal conclusions, is accurate in all
material respects.
This opinion expresses our views only as to federal income tax laws in
effect as of the date hereof, including the Code, applicable Treasury
Regulations, published rulings and administrative practices of the Internal
Revenue Service (the "SERVICE") and court decisions. This opinion represents our
best legal judgment as to the matters addressed herein, but is not binding on
the Service or the courts. Furthermore, the legal authorities upon which we rely
are subject to change either prospectively or retroactively. Any change in such
authorities or any change in the facts or representations, or any past or future
actions by Modtech, SPI, or Modtech Holdings contrary to such representations
might adversely affect the conclusions stated herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration statement and further consent to the use of our name under the
caption "The Mergers--Material Federal Income Tax Consequences" in the Proxy
Statement/Prospectus included in the Registration Statement.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
-------------------------------
GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
EXHIBIT 8.2
[DORSEY & WHITNEY LLP LETTERHEAD]
February 16, 1999
SPI Holdings, Inc.
9550 Hermosa Avenue
Rancho Cucamonga, CA 91730
Re: Federal Income Tax Consequences of Merger of SPI Merger Sub, Inc.
with and into SPI Holdings, Inc.
Ladies and Gentlemen:
We have acted as counsel to SPI Holdings, Inc., a Colorado corporation
("SPI"), in connection with the merger of SPI Merger Sub, Inc., a Colorado
corporation ("Merger Subsidiary"), a wholly owned subsidiary of Modtech
Holdings, Inc., a Delaware corporation ("Holdings"), with and into SPI, pursuant
to that certain Agreement and Plan of Reorganization and Merger dated as of
September 28, 1998 (the "Merger Agreement"), by and between SPI and Modtech,
Inc., a California corporation ("Modtech"). In accordance with the Merger
Agreement, we are rendering the following opinion to SPI. Unless otherwise
provided herein, capitalized terms used herein shall have the meanings assigned
to them in the Merger Agreement.
At the Effective Time of the SPI Merger and pursuant to the Merger
Agreement, Merger Subsidiary will be merged with and into SPI and the separate
existence of Merger Subsidiary will cease. Pursuant to the SPI Merger, each
share of SPI Common Stock and SPI Preferred Stock (collectively, "SPI Capital
Stock") issued and outstanding at the Effective Time of the SPI Merger (other
than shares as to which statutory dissenters' appraisal rights have been
exercised) will be converted into and exchanged for 1.8785 shares of Holdings
Common Stock or, at the SPI shareholder's election, for $49.4097 for up to
5.9176% of the shareholder's SPI Capital Stock.
<PAGE> 2
SPI Holdings, Inc.
Page 2
SPI has asked for our opinion concerning certain federal income tax
consequences of the SPI Merger. For purposes of rendering this opinion, we have
examined the Merger Agreement and such other instruments and documents as we
have deemed necessary or appropriate, and we have reviewed such questions of law
as we have considered necessary or appropriate.
Our opinion is based upon the existing provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), the current Treasury Department
Regulations issued thereunder, the current published administrative positions of
the Internal Revenue Service contained in revenue rulings, revenue procedures
and other administrative pronouncements, and judicial decisions, all of which
are subject to change prospectively and retroactively. Any change in such
authorities may affect the opinions rendered herein. In rendering this opinion,
we have relied upon the representations and warranties set forth in the Merger
Agreement and the representations set forth in the Certificates dated the date
hereof delivered to us by SPI and Holdings (collectively, the "Certificates").
Our opinion is also based on the assumption that SPI and Merger Subsidiary will
at all times comply with the terms of the Merger Agreement and that the SPI
Merger will be consummated in the manner described therein.
An opinion of counsel is predicated upon all facts and conditions set
forth in the opinion and is based upon counsel's analysis of the statutes,
regulatory interpretation and case law in effect as of the date of the opinion.
It is not a guarantee of the current status of the law and should not be
accepted as a guarantee that a court of law or an administrative agency will
concur in the opinion.
Based upon the foregoing, it is our opinion that the following
federal income tax consequences will result from the SPI Merger:
1. The SPI Merger will qualify as a reorganization within the meaning
of Sections 368(a)(1)(A) and 368(a)(2)(B) of the Code and SPI,
Holdings and Merger Subsidiary each will be a party to the
reorganization within the meaning of Section 368(b) of the Code.
2. No income, gain or loss will be recognized by SPI or Holdings as a
result of the SPI Merger.
3. No gain or loss will be recognized by the holders of SPI Capital
Stock upon the exchange of SPI Capital Stock solely for Holdings
Common Stock pursuant to the SPI Merger.
<PAGE> 3
SPI Holdings, Inc.
Page 3
4. Gain, if any, but not loss, will be recognized by an SPI shareholder
upon the exchange of SPI Capital Stock for cash in the SPI Merger.
Such gain will be recognized in an amount equal to the difference
between the fair market value of the Holdings Common Stock and cash
received, and the SPI shareholder's adjusted tax basis in the SPI
Capital Stock surrendered in the SPI Merger; provided, however, that
the amount of gain recognized will not exceed the amount of cash
received. If, as described below, the exchange has the effect of a
distribution of a dividend, the gain recognized will be treated as a
dividend to the extent of the shareholder's ratable share of SPI's
earnings and profits, as determined for federal tax purposes. Any
gain which does not have the effect of a distribution of a dividend
or which exceeds the shareholder's ratable share of SPI's earnings
and profits will be capital gain (provided that the SPI Capital
Stock held by the SPI shareholder was held as a capital asset at
the Effective Time).
5. The basis of the Holdings Common Stock (including any fractional
shares for which cash is received as described below) received by
an SPI shareholder who exchanges SPI Capital Stock for Holdings
Common Stock and cash will be the same as the basis of the SPI
Capital Stock surrendered in the SPI Merger, decreased by the
amount of cash received by such shareholder, and increased by the
amount of capital gain recognized by such shareholder and the amount
treated as a dividend to such shareholder.
6. The holding period of the Holdings Common Stock received by an SPI
shareholder will include the period during which the SPI Capital
Stock surrendered in exchange therefor was held (provided that such
SPI Capital Stock was held as a capital asset at the Effective Time).
7. Cash received by an SPI shareholder in lieu of a fractional share
of Holdings Common Stock will be treated as having been received as
a distribution in full payment in exchange for the fractional share
of Holdings Common Stock which such shareholder would otherwise be
entitled to receive, and will qualify as capital gain or loss
(assuming the Holdings Common Stock was a capital asset in such
shareholder's hands at the Effective Time).
The determination of whether the exchange of SPI Capital Stock for
cash pursuant to the SPI Merger has the effect of a distribution of a dividend
will be made, on a shareholder-by-shareholder basis, by applying the rules of
Section 302 of the Code and by comparing the
<PAGE> 4
SPI Holdings, Inc.
Page 4
proportionate, percentage interest of a former SPI shareholder in Holdings
after the SPI Merger with the proportionate, percentage interest in Holdings
such shareholder would have had if such shareholder had received solely
Holdings Common Stock pursuant to the SPI Merger. This comparison is made as
though Holdings had issued solely Holdings Common Stock to such shareholder in
the SPI Merger and in a hypothetical redemption Holdings had then redeemed a
portion of its Holdings Common Stock for the amount of cash the shareholder
actually received in the SPI Merger. In making this comparison, it is likely
that the effect of the merger of a separate subsidiary of Holdings with and
into Modtech, Inc. (the "Modtech Merger") must be taken into account as though
Holdings had issued solely Holdings Common Stock in the Modtech Merger and in a
hypothetical redemption Holdings had then redeemed a portion of its Holdings
Common Stock for the amount of cash received by the Modtech shareholders. In
the hypothetical redemption analysis, there also must be taken into account any
shares of Holdings Common Stock considered to be owned by such SPI shareholder
by reason of the constructive ownership rules set forth in Section 318 of the
Code. These constructive ownership rules apply in certain specified
circumstances to attribute ownership of shares of a corporation from the
shareholder actually owning the shares, whether an individual, trust,
partnership or corporation, to certain members of such individuals's family or
to certain other individuals, trusts, partnerships or corporations. Under these
rules, a shareholder is also considered to own any shares with respect to which
the shareholder holds stock options.
Under applicable Internal Revenue Service guidelines, such a
hypothetical redemption, as described above, involving a holder of a minority
interest in Holdings whose relative stock interest in Holdings is minimal, who
exercises no control over the affairs of Holdings and who experiences a
reduction in the shareholder's proportionate interest in Holdings, both
directly and by application of the foregoing constructive ownership rules,
generally will not be deemed to have resulted in a distribution of a dividend
under the rules set forth in Section 302(b)(1) of the Code. The determination
of whether cash received pursuant to the SPI Merger will be treated as the
distribution of a dividend generally will depend upon the facts and
circumstances peculiar to each SPI shareholder.
The Merger Agreement provides that, subject to the limits therein,
each SPI shareholder may elect which of such shareholder's SPI Capital Stock,
if any, will be exchanged for cash in the SPI Merger. In the event the receipt
of cash by an SPI shareholder is not treated as a dividend, as explained above,
the tax treatment of the cash may be different depending on which shares of SPI
Capital Stock are deemed to be exchanged for cash and which shares are deemed
to be exchanged for Holdings Common Stock. While there is some authority
suggesting that a shareholder's allocation of stock and cash to certain shares
of SPI Capital Stock should be respected, there can be no assurance that the
Service will not take a contrary position.
<PAGE> 5
SPI Holdings, Inc.
Page 5
The foregoing opinion is being furnished to you solely for your
benefit in connection with the SPI Merger and may not be relied upon by, nor
may copies be delivered to, any person without our prior written consent. Our
opinion is limited to the matters expressly addressed in the seven (7) numbered
paragraphs above. No opinion is expressed and none should be inferred as to any
other matter.
Our opinion is effective as of the date hereof and will remain
effective as of the Effective Time of the SPI Merger provided that (i) the
representations and warranties set forth in the Merger Agreement remain true
and correct as of the Effective Time of the SPI Merger, (ii) the
representations set forth in the Certificates remain true and correct as of the
Effective Time of the SPI Merger, (iii) the assumptions set forth above prove
to be true and correct, (iv) the SPI Merger is consummated in accordance with
the present terms of the Merger Agreement, and (v) there are no relevant
changes in the Code, the Treasury Department Regulations issued thereunder or
administrative or judicial interpretations thereof.
Very truly yours,
/s/ Dorsey & Whitney LLP
WHH:JTA
