As filed with the Securities and Exchange Commission on July 16, 1999.
Registration No. 333-80159
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
__________
AMENDMENT NO. 1 to FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________
PENTAIR, INC.
(Exact name of registrant as specified in its charter)
Minnesota
(State or other jurisdiction of incorporation or organization)
41-0907434
(I.R.S. Employer Identification No.)
Pentair, Inc.
1500 County Road B2 West, Suite 400
St. Paul, Minnesota 55113-3105
(651) 636-7920
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
__________
Louis L. Ainsworth, Esq.
Senior Vice President and General Counsel
Pentair, Inc.
1500 County Road B2 West, Suite 400
St. Paul, Minnesota 55113-3105
(651) 636-7920
(Name, address, including zip code and telephone number,
including area code, of agent for service)
_______________
Copies to:
Stanley Efron, Esq.
Henson & Efron, P.A.
400 Second Avenue South, Suite 1200
Minneapolis, Minnesota 55401
(612) 339-2500
_______________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
_______________
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
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered(1) offering price per unit(2) aggregate offering price(2) registration fee(2)
Common Stock,
$.16 2/3 par value
Debt Securities
Common Share Purchase Right,
attached to Common Stock (3)
TOTAL $700,000,000 $194,600
</TABLE>
(1) Such indeterminate number or amount of common stock or debt securities
as may from time to time be issued at indeterminate prices, up to an
aggregate initial offering price of $700,000,000. If any debt securities
are issued at an original issue discount, such greater amount as shall
result in the initial offering price for securities aggregating $700,000,000.
The debt securities and common stock may be sold separately or together .
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(o) under the Securities Act of 1933,
as amended. Accordingly, in accordance with General Instruction II.D.
to Form S-3, the table does not specify by class information as to the
amount to be registered, the proposed maximum offering price per unit or the
registration fee attributable to each class of securities registered.
(3) The value attributable to the common share purchase rights will be
reflected in the market price of the common stock to which the rights
are attached.
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.
<PAGE>
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement that we filed
with the Securities and Exchange Commission becomes effective. This
prospectus is not an offer to sell these securities and is not soliciting
offers to buy these securities in any state where the offer or sale isn't
permitted.
Subject to Completion, dated July 16, 1999
PROSPECTUS
$700,000,000
[Pentair logo]
Pentair, Inc.
1500 County Road B2 West, Suite 400
St. Paul, Minnesota 55113-3105
(651) 636-7920
Common Stock
Debt Securities
Pentair, Inc. may offer and sell from time to time, together or separately,
up to $700,000,000 of debt securities and shares of common stock. These
securities may be offered in amounts, at prices and on terms set forth in
supplements to this prospectus. This prospectus describes the general terms
that will apply to the shares of common stock and debt securities we intend to
offer at one or more times under this registration statement. It must be
accompanied by a supplement at the time of sale. Supplements will be available
at the time of each later offering of securities and will describe the specific
terms of the debt securities and common stock being offered. You should read
this prospectus and the supplements carefully before you invest.
Consider carefully the "Risk Factors" beginning on page 3 of this
Prospectus before investing in the common stock or debt securities.
The common stock is listed on the New York Stock Exchange under the
symbol "PNR."
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
This Prospectus is dated _________, 1999.
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TABLE OF CONTENTS
Page
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . .3
Cautionary Statement About Forward Looking Statements . . . . . .5
About Pentair. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 8
Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . . . 8
The Securities We May Offer. . . . . . . . . . . . . . . . . . . 9
Description of Debt Securities . . . . . . . . . . . . . . . . . 9
Description of Common Stock, Preferred Stock And Rights Plan . .17
Provisions Relating to Changes in Control. . . . . . . . . . . .19
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . .20
Where You Can Find More Information. . . . . . . . . . . . . . .22
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . .23
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
You should rely only on the information incorporated by reference or set
forth in this prospectus and that is set forth in the applicable prospectus
supplement. We have not authorized anyone else to provide you with different
information. We are only offering our common stock and debt securities in
states where the offer is permitted. You should not assume that the information
in this prospectus or the applicable prospectus supplement is accurate as of any
date other than the dates on the front of those documents.
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RISK FACTORS
You should carefully consider the following risk factors and warnings
before making an investment decision. If any of the risks described below
actually occur, our business, financial condition, results of operations or
prospects could be materially adversely affected. In that case, the price of
our securities could decline and you could lose all or part of your investment.
You should also refer to the other information set forth or incorporated by
reference in this prospectus, as well as our audited consolidated financial
statements and notes thereto and our unaudited interim consolidated
financial statements and notes thereto, which have been incorporated in this
prospectus by reference.
We May Have Difficulties Sustaining Consistent Internal Growth.
From 1993 through 1998, our net sales grew at a compound annual rate of
15.4 %, approximately half of which was from internal growth. This growth was
generated primarily from entering new distribution channels and introducing new
products. To grow more rapidly than our markets, we will have to expand our
geographic reach, increase our market shares, further diversify our distribution
channels and continue to introduce new products. We may not be able to
successfully meet those challenges, which could adversely affect our ability to
sustain consistent internal growth.
We May Have Difficulties Sustaining Growth Through Acquisitions.
Approximately half of our net sales growth in the period from 1993
through 1998 was generated from businesses which we acquired in that period.
We may not be able to sustain this level of growth from acquisition activity in
the future. We intend to continue to evaluate strategic acquisitions primarily
in our three current business segments, and we may consider acquisitions outside
of these segments as well. Our ability to expand through acquisitions is
subject to various risks, including the following:
increased competition for acquisitions, especially in the
enclosures industry;
higher acquisition prices;
lack of suitable acquisition candidates in targeted product or
market areas;
diversion of management time and attention to acquisitions and
acquired businesses;
inability to integrate acquired businesses effectively or profitably;
and
inability to achieve anticipated benefits from acquisitions.
In addition, future acquisitions could be dilutive to your equity
investment if we issue additional stock to fund acquisitions. Acquisitions
funded through borrowing may adversely affect our financial results if interest
costs are higher than income generated by an acquisition. Also, we may be
limited in our ability to use debt to fund acquisitions, and the use of debt may
affect our credit rating or the rating of our debt securities. We cannot
guarantee the effect of any future acquisition on our business or operating
results.
We May Not Be Able to Efficiently Complete our Internal Transformation
Initiatives.
We are in the process of transforming how we view and operate our
existing businesses and those we acquire. Historically, we operated our
subsidiaries as stand-alone entities. We recently have started to share
services among all businesses and consolidate some operations. In 1998, we
launched a cost control program under which we began to coordinate supply
management programs and administrative functions such as human resources and
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information technology. In addition, in April 1999, we announced a
restructuring plan to consolidate some of our subsidiary headquarters,
distribution facilities and manufacturing operations, reduce overhead, outsource
specific product lines and reduce headcount by approximately 700 jobs on a net
basis. We face the following risks in implementing these programs across
existing and newly acquired businesses:
inability to successfully consolidate management, operations,
product lines, distribution networks, sales forces and
manufacturing facilities;
increased employee turnover or inability to retain key employees;
inability to retain key customers or to maintain sales momentum;
and
potential disruption in inventory and product supply, or in
administrative services.
We may not be able to complete these programs without unexpected costs, delays
or the need for the increased management time and effort.
Our Reliance on Foreign Sourcing Arrangements Poses Risks to our Product
Supply.
We currently outsource about $300 million per year in sales value of our
products, primarily for our professional tools and equipment segment. Most of
these outsourcing arrangements are with manufacturers in Taiwan and China. In
the event of political unrest or significant economic instability, we may not be
able to obtain product supply on a timely basis. A significant disruption in
product supply could have material and adverse consequences on our level of
sales and on ongoing relationships with our customers.
We Are Increasingly Dependent on Large Retail Chains for Product Sales.
The largest single channel for distribution of our products in our
professional tools and equipment segment is large retail stores, particularly
those serving the "do-it-yourself" market, such as The Home Depot, Lowe's and
other large home centers and national retailers. While none of these customers
currently account for more than 10% of our sales individually, maintaining and
expanding these relationships is very important to the future success of our
business. We could lose a number of these relationships, through industry
developments, such as competitive products replacing ours or limiting the
volumes of our products purchased, or through our own actions. If we were to
lose one of our significant retail customers or a number of our other retailer
customers, it could have a material adverse effect on our financial results and
future prospects. In addition, the large size of these companies and their
dominant position in the marketplace gives them substantial leverage in the
terms they offer to their suppliers.
The International Nature of Our Operations Poses Risks to our Financial
Results.
Sales outside of North America accounted for 17% of our net sales in
1998, and this percentage is expected to increase in the future. Over the past
few years, the economies of many of the foreign countries in which we do
business have had slower growth than the U.S. economy. The European Union
currently accounts for the bulk of our foreign sales and income. Our most
significant European market is Germany, where the capital goods market has been
very slow. We cannot predict how changing European market conditions will impact
our financial results.
We are also exposed to the risk of fluctuation of foreign currency
exchange rates. We have entered into financial arrangements, including foreign
currency swaps and hedging transactions, to manage and reduce the impact of
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some of these risks, but we cannot assure you that these arrangements will
eliminate the risk that currency fluctuations may affect our financial results.
Intellectual Property Challenges May Hinder Product Development and
Marketing.
We rely on a combination of copyright, trademark, trade secret, unfair
competition and other intellectual property laws, as well as nondisclosure
agreements and other protective measures, to protect our intellectual property,
particularly our brand names and product lines. Such protection, however, may
not preclude competitors from developing products similar to ours or from
challenging our names or products. Over the past few years, we have noticed an
increasing tendency for participants in our markets to use conflicts over and
challenges to intellectual property as means to compete. Patent and trademark
challenges increase our costs to develop, engineer and market our products. In
late February 1999, a jury awarded $1 million in damages against us in a lawsuit
for patent infringement. We may be subject to these types of lawsuits in the
future. Defending these challenges can be costly to us.
We May Be Affected by Year 2000 Problems.
We have undertaken a project to review all of our computer systems for
Year 2000 compliance. This includes the replacement of a number of business
enterprise software systems. We may not be able to complete installation of
these systems or complete corrections of identified problems in our other
software and computers on a timely basis. In addition, our customers or
suppliers may experience business interruptions which would also adversely
affect our operations. It is also possible that we have failed to anticipate or
discover all of the problems that may arise, particularly in our recently
acquired businesses.
Provisions of our Restated Articles of Incorporation, Bylaws and Minnesota
Law Could Deter Takeover Attempts.
Our Restated Articles of Incorporation and Bylaws include provisions
relating to the election, appointment and removal of directors, as well as
shareholder notice and shareholder voting requirements which could delay,
prevent or make more difficult a merger, tender offer, proxy contest or other
change of control. In addition, our common share purchase rights could cause
substantial dilution to a person or group that attempts to acquire us, which
could deter some acquirers from making takeover proposals or tender offers.
Also, the Minnesota Business Corporations Act contains control share acquisition
and business combination provisions which could delay, prevent or make more
difficult a merger, tender offer, proxy contest or other change of control. Our
shareholders might view any such a transaction as being in their best interests
since the transaction could result in a higher stock price than the current
market price for our common stock. These provisions and laws are discussed in
detail later in this prospectus in "Provisions Relating to Changes in Control."
CAUTIONARY STATEMENT ABOUT FORWARD LOOKING STATEMENTS
We provide information and make statements in this prospectus that are
"forward-looking" in nature. Forward-looking information or statements include
statements about the future of the industries represented by our operating
groups, statements about our future business plans and strategies, the
timeliness of product introductions and deliveries, expectations about industry
and market growth and developments, expectations about our growth and
profitability and other statements that are not historical in nature. Many of
these statements contain words such as "may," "will," "expect," "believe,"
"intend," "anticipate," "estimate" or "continue" or other similar words.
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Because forward-looking statements involve future risks and
uncertainties, there are many factors that could cause actual results to differ
materially from those expressed or implied. For example, a few of the
uncertainties that could affect the accuracy of forward-looking statements,
besides the specific risk factors identified in the section entitled "Risk
Factors"(which begins on page 3), include:
changes in industry conditions, such as
- the strength of product demand;
- the intensity of competition;
- pricing pressures;
- market acceptance of new product introductions;
- the introduction of new products by competitors;
- our ability to source components from third parties
without interruption and at reasonable prices; and
- the financial condition of our customers;
changes in our business strategies;
general economic conditions, such as the rate of economic
growth in our principal geographic markets or fluctuations in
exchange rates;
changes in operating factors, such as continued improvement in
manufacturing activities and the achievement of related
efficiencies and inventory risks due to shifts in market demand;
and
our ability to accurately evaluate the effects of contingent
liabilities such as taxes, product liability and other liabilities.
We cannot predict the actual effect these factors will have on our results
and many of the factors and their effects are beyond our control. In addition,
we are under no duty to update any of the forward-looking statements after the
date of this prospectus to conform these statements to actual performance or
results. Given these uncertainties, you should not rely too heavily on these
forward-looking statements.
ABOUT PENTAIR
We are a global, diversified manufacturer operating in three principal
industry segments: professional tools and equipment; water and fluid
technologies; and electrical and electronic enclosures. We have grown these
three segments through a combination of internal development and acquisitions.
Professional Tools and Equipment. Our tools segment accounted for
43% of our sales in 1998. In this segment, we manufacture products including:
a full line of homeshop products, contractor tools, general
purpose stationary woodworking machinery and accessories;
portable electric tools including saws, routers, sanders, grinders
and drills; air-powered nailing products; and cordless tools; and
lubricating tools and equipment, battery charging and testing
equipment, lifting equipment, portable power supplies,
refrigerant and coolant recyclers, automatic transmission fluid
exchangers and welding equipment and accessories.
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Our tools and equipment products are sold in the United States, Canada
and overseas under the brand names Delta , Biesemeyer , Porter-Cable ,
FLEX , Lincoln , Blackhawk , Marquette , Guardian , Pro-Arc , T-Tech , Century ,
Solar , Booster Pac , Cobra and Viper . We sell these products through
various channels, including networks of independent industrial and
warehouse distributors, home centers and national retailers and hardware
stores, as well as through mail order and catalogues.
Water and Fluid Technology. Our water segment accounted for 28% of
our sales in 1998. In this segment, we manufacture products including:
a wide variety of water and wastewater pumps for residential,
commercial and municipal uses;
a complete line of control valves used in the manufacture of
water softeners and filtration, deionization and desalination
systems; and
automated and manual lubrication systems and equipment,
pumps and pumping stations for fluid transfer applications.
Our water and fluid technology products are sold in the United States,
Canada and overseas under the brand names Myers , Aplex , Fairbanks
Morse , Aurora , Water Ace , Shur Dri , Hydromatic , Fleck , SIATA ,
Lincoln and ORSCO . We sell these products through various wholesale and
retail channels, including home centers and hardware stores for the retail
"do-it-yourself" market, qualified systems distributors who have design,
installation and service capabilities, industrial supply and specialty
distributors and direct sales by internal sales organizations, as well as
through catalogs.
As announced on April 30, 1999 and described in our Form 10-Q for the
quarterly period ended March 27, 1999, we have entered into a merger
agreement to acquire Essef Corporation, which will expand our water segment.
Essef Corporation is a manufacturer of composite water tanks, pumps, filters and
other water equipment and accessories. The merger is subject to a number of
conditions, and we cannot assure you that the deal will actually be closed.
Electrical and Electronic Enclosures. Our enclosures segment
accounted for 29% of our sales in 1998. In this segment, we manufacture
standard and custom-designed products including:
metallic and composite enclosures and cabinets, which house
electrical and electronic controls, instruments and components;
cases, subracks and microcomputer packaging systems; and
a full line of accessories including backplanes, power supplies
and technical workstations.
Our electrical and electronic enclosure products are sold in the United
States, Canada and overseas under the brand names Hoffman , Schroff ,
Transrack , Optima , Eraba and Pentair Enclosures . We sell electrical
enclosures through industrial electrical distributors; electronic enclosures
through electronic equipment distributors and to original equipment
manufacturers; and information and communication technology products
primarily to original equipment manufacturers.
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Growth Strategy. We are growing our business through internal
development strategies in each of our three business segments and creating the
infrastructure to support our growth. Acquisitions also remain an important
part of our ongoing growth strategy. Acquisitions can help us achieve a
critical mass in our three segments more quickly than relying solely on internal
development. As part of our acquisition strategy, we regularly review
acquisition opportunities and have discussions with potential acquisition
candidates. Acquisition transactions could arise at any time and from time
to time.
Our principal executive offices are located at 1500 County Road B2
West, St. Paul, Minnesota, 55113-3105, and our telephone number is
(651) 636-7920.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we
anticipate that any net proceeds from the sale of the offered securities will be
used to fund expansion of our business, including:
repayment of debt, including amounts we may have borrowed
under our senior credit facility;
acquisitions;
working capital;
capital expenditures; and
other general corporate purposes.
When we offer a particular series of the offered securities, the
prospectus supplement relating to that series will set forth the intended use of
the net proceeds received for those securities. Pending the application of the
net proceeds, we expect to invest the proceeds from the sale of offered
securities in short-term, interest-bearing instruments or other investment-
grade debt securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratio of earnings to fixed
charges for the periods indicated:
Three Months
ended
Year ended December 31, March 27,
1994 1995 1996 1997 1998 1999
Ratio of Earnings to Fixed Charges 4.19x 4.88x 6.31x 6.73x 6.41x 1.52x
For the three months ended March 27, 1999, the ratio of earnings to
fixed charges would have been 7.1x if it had been calculated on the basis of
income before the special restructuring charge of $38 million taken during the
quarter.
The ratio of earnings to fixed charges is computed by dividing income
from continuing operations before income taxes and fixed charges by fixed
charges. Fixed charges consist of interest on debt (including capitalized
interest), amortization of debt discount and expense and a portion of rentals
determined to be representative of interest.
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THE SECURITIES WE MAY OFFER
This prospectus, together with the applicable prospectus supplement,
summarize the material terms of the securities we may sell in this offering. If
specified in the applicable prospectus supplement, the terms of the debt
securities and common stock as described in this prospectus may be changed.
Under this prospectus and with a prospectus supplement, we may sell at one time
or at various times and in various combinations shares of common stock and
debt securities. The debt securities may be in different series and forms and
may have different terms. The total dollar amount of securities that we may
issue in this offering will not exceed $700,000,000. However, if we issue debt
securities at a discount from their stated principal amount, the amount will be
calculated using the discounted amount and the aggregate amount of the offering
would be increased by the difference between the face amount and the discounted
price.
DESCRIPTION OF DEBT SECURITIES
We will provide information to you about the debt securities in up to
three separate documents that progressively provide more detail:
This prospectus provides general information that may not apply
to each series of debt securities.
The prospectus supplement is more specific than this prospectus.
If the information provided in the prospectus supplement differs
from this prospectus, you should rely on the prospectus
supplement.
The pricing supplement, if used, provides final details about a
specific series of debt securities. If the pricing supplement
differs from this prospectus or the prospectus supplement, you
should rely on the pricing supplement.
The debt securities will be issued under an indenture between us and
U.S. Bank Trust National Association, as trustee. For each issuance of
securities, we may enter into a supplemental indenture with more specific terms
of the debt securities issued.
General
The indenture does not limit the aggregate principal amount of debt
securities that we may issue under it. The debt securities may be issued in one
or more series as we may authorize at various times. All debt securities will
be unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. The debt securities may be issued as original issue
discount debt securities and sold at a substantial discount below their
principal amount. The prospectus supplement relating to the particular series
of debt securities being offered will specify the amounts, prices and terms of
those debt securities. These terms may include:
the title and the limit on the aggregate principal amount of the
debt securities;
the date or dates on which the debt securities will mature;
the person to whom interest is payable, if other than the person
in whose name the debt security is registered as of the record
date for payment of interest;
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any rate or rates, which may be fixed or variable, or the method
of determining any rate or rates, at which the debt securities will
bear interest;
the date or dates from which interest shall accrue and the date or
dates on which interest will be payable;
the place or places where the principal of and any premium and
interest on the debt securities will be payable;
the currency, currencies or currency units in which the debt
securities are denominated and principal and interest may be
payable, and for which the debt securities may be purchased, if
other than United States dollars;
any redemption or sinking fund terms;
any event of default or covenant with respect to the debt
securities of a particular series, if not set forth in this
prospectus;
any index used to determine the amount of principal, premium
or interest payable with respect to the debt securities;
whether the debt securities are to be issued in whole or in part in
the form of one or more global securities and the depositary for
the global security or securities;
if other than denominations of $1,000 or multiples of $1,000, the
denominations in which debt securities will be issued;
the part of the principal amount of debt securities which will be
payable upon acceleration if less than the entire amount;
if the principal amount of the debt securities or interest paid on
the debt securities are set forth or payable in a currency other
than U.S. dollars, whether and under what terms and conditions
we may discharge the debt securities; and
any other terms of the series, which will not conflict with the
terms of the indenture.
Principal, any premium and any interest will be payable and the debt
securities will be transferable at the corporate trust office of the trustee,
unless we specify otherwise in the accompanying prospectus supplement. At our
option, however, payment of interest may be made by check mailed to the
registered holders of the debt securities at their registered addresses.
We will issue the debt securities in fully registered form without
coupons. Unless we specify otherwise in the applicable prospectus supplement,
we will issue debt securities denominated in U.S. dollars in denominations of
$1,000 or multiples of $1,000. No service charge will be made for any transfer
or exchange of debt securities, but we may require payment beforehand of any
related taxes or other governmental charges. Debt securities may also be issued
pursuant to the indenture in transactions exempt from the registration
requirements of the Securities Act. Those debt securities will not be
considered in determining the aggregate amount of securities issued under the
registration statement of which this prospectus is a part.
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We will describe special federal income tax and other considerations
relating to debt securities denominated in foreign currencies in the applicable
prospectus supplement.
Unless we specify otherwise in the applicable prospectus supplement,
the covenants contained in the indenture and the debt securities will not
provide special protection to holders of debt securities if we enter into a
highly leveraged transaction, recapitalization or restructuring.
Exchange, Registration and Transfer
Debt securities of any series that are not global securities will be
exchangeable for other registered securities of the same series and of like
aggregate principal amount and tenor in different authorized denominations.
This may be done without service charge and upon payment of any taxes and
other governmental charges as described in the applicable indenture. The
security registrar or the transfer agent will effect the transfer or exchange
upon being satisfied with the documents of title and identity of the person
making the request. We have appointed the trustee as security registrar for the
indenture. If a prospectus supplement refers to any transfer agents, in
addition to the security registrar, initially designated by us with respect to
any series of debt securities, we may at any time rescind the designation of any
such transfer agent or approve a change in the location through which such
transfer agent acts. We may at any time designate additional transfer
agents with respect to any series of debt securities.
Payment and Paying Agents
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal, any premium and any interest on debt securities will be
made at the office of the paying agent or paying agents that we designate at
various times. However, at our option, we may make interest payments by
check mailed to the address, as it appears in the security register, of the
person entitled to the payments. Unless we specify otherwise in the applicable
prospectus supplement, we will make payment of any installment of interest on
debt securities to the person in whose name that registered security is
registered at the close of business on the regular record date for such
interest.
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more global certificates that we will deposit with a depositary
identified in the applicable prospectus supplement. Global securities may be
issued in either temporary or permanent form. Unless and until it is exchanged
in whole or in part for the individual debt securities it represents, a global
security may not be transferred except as a whole:
by the applicable depositary to a nominee of the depositary;
by any nominee to the depositary itself or another nominee; or
by the depositary or any nominee to a successor depositary or
any nominee of the successor.
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in the applicable prospectus supplement.
We anticipate that the following provisions will generally apply to depositary
arrangements.
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When we issue a global security, the depositary for the global security or
its nominee will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual debt securities represented by
that global security to the accounts of persons that have accounts with the
depositary, known as "participants." Those accounts will be designated by the
dealers, underwriters or agents with respect to the underlying debt securities
or by us if those debt securities are offered and sold directly by us.
Ownership of beneficial interests in a global security will be limited to
participants or persons that may hold interests through participants.
For interests of participants, ownership of beneficial interests in the global
security will be shown on records maintained by the applicable depositary or
its nominee. For interests of persons other than participants, that
ownership information will be shown on the records of participants.
Transfer of that ownership will be effected only through those records.
The laws of some states require that certain purchasers of securities
take physical delivery of securities in definitive form. These limits and laws
may impair our ability to transfer beneficial interests in a global security.
As long as the depositary for a global security, or its nominee, is the
registered owner of that global security, the depositary or nominee will be
considered the sole owner or holder of the debt securities represented by the
global security for all purposes under the applicable indenture. Except as
provided below, owners of beneficial interests in a global security:
will not be entitled to have any of the underlying debt securities
registered in their names;
will not receive or be entitled to receive physical delivery of any
of the underlying debt securities in definitive form; and
will not be considered the owners or holders under the indenture
relating to those debt securities.
Payments of principal of, any premium and any interest on individual
debt securities represented by a global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee as the
registered owner of the global security representing such debt securities.
Neither we, the trustee for the debt securities, any paying agent nor the
registrar for the debt securities will be responsible for any aspect of the
records relating to or payments made by the depositary or any participants on
account of beneficial interests of the global security.
We expect that the depositary or its nominee, upon receipt of any
payment of principal, any premium or interest relating to a permanent global
security representing any series of debt securities, immediately will credit
participants' accounts with the payments. Those payments will be credited in
amounts proportional to the respective beneficial interests of the participants
in the principal amount of the global security as shown on the records of the
depositary or its nominee. We also expect that payments by participants to
owners of beneficial interests in the global security held through those
participants will be governed by standing instructions and customary practices.
This is now the case with securities held for the accounts of customers in
bearer form or registered in "street name." Those payments will be the sole
responsibility of those participants.
If the depositary for a series of debt securities is at any time unwilling,
unable or ineligible to continue as depositary and we do not appoint a successor
depositary within 90 days, we will issue individual debt securities of that
series in exchange for the global security or securities representing that
series. In addition, we may at any time in our sole discretion determine not to
have any debt securities of a series represented by one or more global
securities. In that event, we will issue individual debt securities of that
series in exchange for the global security or securities. Further, if we
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specify, an owner of a beneficial interest in a global security may, on terms
acceptable to us, the trustee and the applicable depositary, receive individual
debt securities of that series in exchange for those beneficial interests.
The foregoing is subject to any limitations described in the applicable
prospectus supplement. In any such instance, the owner of the beneficial
interest will be entitled to physical delivery of individual debt securities
equal in principal amount to the beneficial interest and to have the debt
securities registered in its name. Those individual debt securities will
be issued in denominations, unless we specify otherwise, of $1,000 or integral
multiples of $1,000.
Restrictive Covenants
Under the indenture, we may not consolidate or merge with any other
person or convey or transfer all or substantially all of our properties and
assets to another person or permit another corporation to merge into us, unless:
the successor is a person organized under the laws of the United
States or any state;
the successor person, if not us, assumes our obligations on the
debt securities and under the indenture;
after giving effect to the transaction and treating any debt which
becomes our obligation as a result of the transaction as incurred
by us at that time, no event of default exists under the indenture;
and
we supply the trustee with documents certifying our compliance
with these conditions.
Modification of the Indenture
Under the indenture our rights and obligations and the rights of the
holders may be modified with the consent of the holders of at least a majority
in principal amount of the then outstanding debt securities of each series
affected by the modification. None of the following modifications, however, is
effective against any holder without the consent of the holders of all of the
affected outstanding debt securities:
changing the maturity, installment or interest rate of any of the
debt securities;
reducing the principal amount, any premium or the rate of interest
of any of the debt securities;
reducing the principal amount of an original issue discount debt
security due and payable upon acceleration of its maturity;
changing the place for payment of or the currency, currencies or
currency unit or units in which any principal, premium or interest
of any of the debt securities is payable;
impairing any right to take legal action for an overdue payment;
reducing the percentage required for modifications or waivers of
compliance with the indenture; or
with some exceptions, modifying any of the above provisions or
the provisions for the waiver of covenants and defaults.
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Any actions we or the trustee may take toward adding to our covenants,
adding events of default or establishing the structure or terms of the debt
securities as permitted by the indentures will not require the approval of any
holder of debt securities. In addition, we or the trustee may cure ambiguities
or inconsistencies in the indenture or make other provisions without the
approval of any holder as long as no holder's interests are materially
and adversely affected.
Waiver of Covenants
The indenture provides that we will not be required to comply with
covenants relating to our corporate existence, the maintenance of our properties
or the payment of taxes and other claims, if the holders of at least a majority
in principal amount of each series of outstanding debt securities affected waive
compliance with these covenants.
Events of Default, Notice and Waiver
"Event of default" when used in the indenture, will mean any of the
following in relation to a series of debt securities:
failure to pay interest on any debt security for 30 days after the
interest becomes due;
failure to pay the principal or any premium on any debt security
when due;
failure to deposit any sinking fund payment when due;
an event of default under the terms of any indenture or
instrument for borrowed money under which we or any
subsidiary of ours that owns or leases a principal property has
outstanding an aggregate principal amount of $50,000,000,
which default results in an acceleration of the payment of all or
a portion of such indebtedness for money borrowed (which
acceleration is not rescinded or annulled within 10 days after
notice of such acceleration);
failure to perform or breach of any other covenant or warranty in
the indenture that continues for 60 days after our being given
notice from the trustee or the holders of at least 25% in principal
amount of the outstanding debt securities of the series;
events of bankruptcy, insolvency or reorganization relating to us
or our property, or our written admission that we are unable to
pay our debts generally as they become due; or
any other event of default provided for debt securities of that
series.
If any event of default relating to outstanding debt securities of any
series occurs and is continuing, either the trustee or the holders of at least
25% in principal amount of the outstanding debt securities of that series may
declare the principal of all of the outstanding debt securities of such series
to be due and immediately payable. At any time after an acceleration of any
debt securities of a series is made, but before a judgment for payment of money
is obtained, the holders of at least a majority in principal amount of the
outstanding debt securities of that series may, under certain circumstances,
rescind such acceleration if two conditions are met. First, we must have
paid or deposited with the trustee a sum sufficient to pay the following:
all overdue interest on all debt securities of that series;
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the principal of (and premium, if any, on) any debt security of that series
that have become due otherwise than by the declaration of acceleration
and interest on those debt securities;
to the extent payment of such interest is lawful, interest on overdue
interest; and
all sums paid or advanced by or due to the trustee under the indenture
and reasonable compensation, expenses, disbursements and advances of
the trustee, its agents and counsel.
Second, all other events of default relating to debt securities of that series
must have been cured or waived.
The indenture provides that the holders of at least a majority in principal
amount of the outstanding debt securities of any series may direct the time,
method and place of conducting any proceeding for any remedy available to the
trustee, or of exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series. The trustee may act in any way
that is consistent with those directions and may decline to act if any of the
directions is contrary to law or to the indenture or would involve the trustee
in personal liability.
The indenture provides that 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 of the outstanding debt securities of the series waive any past
default (and its consequences) under the indenture relating to the series,
except a default (a) in the payment of the principal of or any premium or
interest on any of the debt securities of the series or (b) with respect to a
covenant or provision of such indentures which, under the terms of such
indenture cannot be modified or amended without the consent of the holders
of all of the outstanding debt securities of the series affected.
The indenture contains provisions entitling the trustee, subject to the
duty of the trustee during an event of default to act with the required standard
of care, to be indemnified by the holders of the debt securities of the relevant
series before proceeding to exercise any right or power under the indenture at
the request of those holders.
The indenture requires the trustee to, within 90 days after the occurrence
of a default known to it with respect to any series of outstanding debt
securities, give the holders of that series notice of the default if uncured and
unwaived. However, the trustee may withhold this notice if it in good faith
determines that the withholding of this notice is in the interest of those
holders. However, the trustee may not withhold this notice in the case of a
default in payment of principal, premium, interest or sinking fund installment
with respect to any debt securities of the series. The above notice shall not
be given until at least 30 days after the occurrence of a default in the
performance of or a breach of a covenant or warranty in the applicable indenture
other than a covenant to make payment. The term "default" for the purpose of
this provision means any event that is, or after notice or lapse of time,
or both, would become, an event of default with respect to the debt securities
of that series.
The indenture requires us to file annually with the trustee a certificate,
executed by one of our officers, indicating whether the officer has knowledge of
any default under the indenture.
Notices
Notices to holders of debt securities will be sent by mail to the addresses
of those holders as they appear in the security register.
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Replacement of Securities
We will replace any mutilated debt security at the expense of the holder
upon surrender of the mutilated debt security to the trustee. We will replace
debt securities that are destroyed, stolen or lost at the expense of the holder
upon delivery to the trustee of evidence of the destruction, loss or theft of
the debt securities satisfactory to us and to the trustee. In the case of a
destroyed, lost or stolen debt security, an indemnity satisfactory to the
trustee and us may be required at the expense of the holder of the debt security
before a replacement debt security will be issued.
Defeasance
The indenture contains provisions that, if made applicable to any series of
debt securities, permits us to elect (a) to defease and be discharged from all
of our obligations (subject to limited exceptions) with respect to any series of
debt securities then outstanding, which we refer to below as "legal defeasance,"
or (b) to be released from our obligations under the restrictive covenants
described above under "Restrictive Covenants," which we refer to below as
"covenant defeasance." To make either of the above elections, we must
deposit in trust with the trustee, money, U.S. government
obligations which through the payment of principal and interest
in accordance with their terms will provide sufficient money
without reinvestment, or a combination of money and U.S.
government obligations to repay in full those debt securities and
mandatory sinking fund payments (and this deposit in trust must
not cause specified conflicts, breaches or defaults to occur, or the
delisting from the New York Stock Exchange of any of our
outstanding debt securities, nor can there be an event of default
under the indenture existing at the time of the deposit in trust);
deliver to the trustee an opinion of counsel that holders of the
debt securities will not recognize income, gain or loss for federal
income tax purposes as a result of the deposit and related
defeasance and will be subject to federal income tax in the same
amount, in the same manner and at the same times as would have
been the case if such deposit and related defeasance had not
occurred in the case of legal defeasance only, such opinion of
counsel to be based on a ruling of the Internal Revenue Service or
other change in applicable Federal income tax law; and
deliver to the trustee required certificates and opinions as to our
compliance with these defeasance conditions.
Governing Law
The indenture, the debt securities and the coupons will be governed by,
and construed in accordance with, the laws of the State of New York.
The Trustee
U.S. Bank Trust National Association is trustee under the indenture. The
trustee participates in our credit agreement and has other customary banking
relationships with us and our affiliates.
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DESCRIPTION OF COMMON STOCK, PREFERRED STOCK AND RIGHTS PLAN
Our restated articles of incorporation provide that we may issue up to
250,000,000 shares of common stock. Our board of directors may designate up
to 15,000,000 of those shares as preferred stock.
As of March 1, 1999, we had 42,700,179 shares of common stock
outstanding and an equal number of shares of common stock reserved for
issuance under Pentair's common share purchase rights agreement. We also had
4,149,612 shares of common stock reserved for issuance upon exercise of
options under various stock option plans and an equal number of shares of
common stock reserved for issuance under the rights associated with those
options. Options to purchase 979,132 shares of common stock were exercisable
as of March 1, 1999. We do not have any shares of preferred stock outstanding.
Common Stock
Each outstanding share of common stock is entitled to one vote on all
matters to be submitted to a vote of the shareholders. Because holders of
common stock do not have cumulative voting rights, the holders of a simple
majority of the shares voted at a meeting at which a quorum is present can elect
all of the directors to be elected at that meeting. The shares of common stock
are neither redeemable nor convertible and the holders thereof have no
preemptive rights to subscribe for or purchase any additional shares of capital
stock issued by Pentair.
The right of holders of our common stock to receive dividends may be
restricted by the terms of any shares of our preferred stock issued in the
future or by the terms of our senior credit facility. If we were to liquidate,
dissolve or wind up our affairs, holders of common stock would share
proportionally in our assets that remain after payment of all of our debts and
liabilities and after any liquidation payments with respect to preferred stock.
Preferred Stock
We can issue shares of preferred stock in series with such preferences
and designations as our board of directors may determine. Our board can,
without shareholder approval, issue preferred stock with voting, dividend,
liquidation, redemption and conversion rights it deems appropriate. However,
shares of preferred stock cannot be given more than one vote per share. Issuance
of stock by the board could dilute the voting strength of the holders of common
stock, give the holders of preferred stock priority over the holders of common
stock with respect to the payment of dividends or grant the holders of preferred
stock preference with respect to liquidation rights. It also may help our
management impede a takeover or attempted change in control.
Rights Agreement
We have entered into a rights agreement dated as of July 31, 1995 with
Norwest Bank Minnesota, N.A. Under this agreement, each outstanding share of
our common stock has one common share purchase right attached to it. Each
share of common stock we issue before the rights agreement expires (including
the shares of common stock we are selling in this offering) also will have one
common share purchase right attached to it. A complete description of the
common share purchase rights and all the specific terms of the common share
purchase rights are set forth in the rights agreement.In this prospectus, unless
the context otherwise requires, all references to the common stock include the
accompanying common share purchase rights.
When the common share purchase rights become exercisable, each
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common share purchase right will initially entitle the holder to purchase one
share of our common stock, at the current purchase price of $80 per share. The
purchase price is subject to adjustment by the board to prevent dilution.
However, the common share purchase rights are not exercisable if they are held
by a person or group that beneficially owns more than 15% of our outstanding
common stock. Currently, the common share purchase rights are not exercisable
and trade automatically with the shares of common stock to which they are
attached. The common share purchase rights will only become exercisable if a
person or group has acquired, or announced an intention to acquire, 15% or more
of our outstanding common stock. Under certain circumstances, including the
existence of a 15% acquiring party, each holder of a common share purchase
right, other than the acquiring party, will then be entitled to purchase at the
applicable purchase price, common stock having a market value of two times the
purchase price. In the event we are acquired by another company after the
common share purchase rights have become exercisable, each holder of a
common share purchase right will be entitled to receive shares of the acquiring
company having a market value of two times the purchase price.
The common share purchase rights do not have voting or dividend rights
and, until they become exercisable, have no dilutive effect on our earnings.
Unless we redeem or exchange the common share purchase rights, they will
expire on July 31, 2005. We may redeem all, but not part of, the common share
purchase rights at any time before they become exercisable, at a price of $0.01
per common share purchase right. The board has the discretion to determine the
effective date of the redemption and the terms and conditions of the redemption.
Once the common share purchase rights become exercisable, but before a person
or group acquires 50% or more of our outstanding common stock, we may
decide to exchange all or part of the common share purchase rights at a rate of
one share of common stock per common share purchase right.
The board may amend the common share purchase rights without the
consent of the holders, except that we cannot change the redemption price, the
purchase price or the final expiration date. We can lower the threshold for
exercisability of the common share purchase rights from 15% to 10%, except
that the new threshold will not apply to a person who meets the new threshold at
the time we lower it, and if the common share purchase rights are already
exercisable, we cannot lower the threshold if it will adversely affect the
interests of the common share purchase rights holders.
Transfer Agent and Registrar
Norwest Bank Minnesota, N.A. is the transfer agent and registrar for our
common stock.
PROVISIONS RELATING TO CHANGES IN CONTROL
This section describes some provisions and laws that can delay, deter or
prevent a third party from acquiring control of Pentair through a tender offer,
open market purchases, a proxy contest or other mechanism. Our shareholders
might view any such transaction as being in their best interests since the
transaction could result in a higher stock price than the current market price
for our common stock.
Restated Articles of Incorporation and Bylaws Provisions. The
provisions in our Restated Articles of Incorporation and Bylaws that could have
an anti-takeover effect include the following:
We have a staggered board of directors with three classes. One
class is elected each year for three-year terms. We believe that a
classified board of directors helps assure the continuity and
stability of our board and business strategies and policies. The
classified board, however, also increases the likelihood that, in
the event of a takeover, some incumbent directors will retain
their positions; that is, a potential acquirer probably will not be
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able to take control of the board in one proxy contest. In
addition, the classified board provision helps ensure that our
board, if confronted with an unsolicited proposal from a third
party that has acquired a block of our voting stock, will have
sufficient time to review the proposal and appropriate
alternatives and to seek the best available result for all
shareholders.
Directors can fill any vacant directorships. However, directors
appointed by the board to fill a vacancy come up for election at
the next annual meeting, even if the term would not normally
expire.
Directors may only be removed for good cause.
There are advance notice requirements for nominating
candidates for the board of directors.
Holders of 25% of the outstanding voting shares are required to
call a special meeting to consider any action to facilitate or
effect a business combination.
There are notice and shareholder approval requirements for
persons acquiring 20% or more of the outstanding voting power.
If they are not complied with, the acquired shares, for a period
of one year after acquisition, are denied voting rights, are not
transferable and are subject to our option to redeem the shares at
the price at which they were acquired.
A super-majority representing two-thirds of our outstanding
common stock is required to approve a consolidation or merger.
If a 20% shareholder acquires more shares or any shareholder
acquires more than 50% of the outstanding shares, shareholders
have the right to request that we repurchase their shares at the
higher of the tender offer price, the acquisition price or the
highest market price over a specified period of time. The
obligation to repurchase does not apply in the event that:
the board recommends that a pending tender
offer be accepted or
if no tender offer is pending, the board
announces that it does not oppose the
accumulation of shares.
This provision is intended to prevent potential acquirers from
paying some shareholders less than other shareholders.
The board of directors could use the unissued and unreserved
shares to discourage a takeover attempt.
Rights Agreement. The common share purchase rights, described
above, can have anti-takeover effects. They could cause substantial dilution to
a person or group that attempts to acquire us. Accordingly, the existence of
the common share purchase rights may deter some acquirers from making takeover
proposals or tender offers. The common share purchase rights are not intended
to prevent a takeover, but rather are designated to enhance the ability of our
board of directors to negotiate with an acquirer on behalf of all of our
shareholders.
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Provisions of Minnesota Law. The Minnesota Business Corporation
Act has two provisions that could delay or prevent a change in control.
Generally, if any person acquires 20% or more of our outstanding voting stock,
such acquisition must be approved by a majority vote of our shareholders, as
required by Section 302A.671 of the Minnesota Business Corporation Act. If
the acquisition is not approved, the number of shares exceeding the 20% level
will be denied voting rights and we would have the right to redeem the shares at
their fair market value within 30 days if the owner of the shares fails to
comply with the procedural requirements of Section 302A.671 or our shareholders
do not vote to grant voting rights to the shares. This provision does not apply
to mergers and exchanges if we are a party to the transaction. This provision
also does not apply to shares acquired directly from us. Section 302A.673 of
the Minnesota Business Corporation Act does not allow us to enter into any
business combination, such as a merger, with any shareholder who owns
10% or more of our voting shares for four years following the date the
shares were acquired, unless the business combination is approved by a committee
of all of our disinterested directors before the shares are acquired.
In addition, Minnesota Statutes, Chapter 80B requires a person
proposing to acquire 10% or more of the outstanding shares to file materials
with and obtain approval from the Minnesota Department of Commerce under certain
circumstances.
PLAN OF DISTRIBUTION
Distribution
We may sell the offered securities through agents, underwriters or
dealers, or directly to one or more purchasers. The applicable prospectus
supplement will set forth the terms of the offering of any securities,
including:
the names of any underwriters or agents;
the purchase price of the securities;
the proceeds to us from the sale;
any underwriting discounts;
any other items of underwriters' compensation;
any initial public offering price; and
any discounts or concessions allowed or reallowed or paid to
dealers.
Agents
We may designate agents to sell securities from time to time, who will
agree to use their reasonable efforts to solicit purchases for the period of
their appointment or to sell securities on a continuing basis. We may sell
securities through agents designated by us from time to time.
Dealers
If we use dealers for the sale of any securities, we will sell such
securities to the dealers as principal. Any dealer may then resell such
securities to the public at varying prices to be determined by such dealer
at the time of resale. The name of any dealer and the terms of the transaction
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will be set forth in the prospectus supplement with respect to such securities
being offered thereby.
Underwriters
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if any of the securities of that series are purchased. Any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time. The securities may be offered
to the public either through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Only underwriters named in
a supplement will be underwriters for that offering.
Direct Sales
We may also sell securities directly to one or more purchasers without
using underwriters, dealers or agents.
Compensation and Indemnification of Underwriters, Dealers and Agents
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and commissions under
the Securities Act. The applicable prospectus supplement will identify any
underwriters, dealers or agents and will describe their compensation. We may
have agreements with the underwriters, dealers and agents to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with or perform
services for us or our subsidiaries in the ordinary course of their businesses.
Trading Markets And Listing of Securities
Unless otherwise specified in the applicable prospectus supplement,
each class or series of securities will be a new issue with no established
trading market, other than the common stock, which is listed on the New York
Stock Exchange. We may elect to list any other class or series of securities on
any exchange, but we are not obligated to do so. It is possible that one or
more underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the securities.
Delayed Delivery Contracts
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by certain institutions to purchase
such securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on the date or dates stated in the prospectus supplement. Each
contract will be for an amount not less than, and the aggregate principal amount
of the securities sold pursuant to the contracts shall be not less nor more
than, the respective amounts stated in the prospectus supplement. Institutions
with whom the contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but will in all
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cases be subject to our approval. The contracts will not be subject to any
conditions except:
the purchase by an institution of the securities covered by its
contract shall not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such
institution is subject; and
if the securities are being sold to underwriters, we shall have
sold to such underwriters the total principal amount of the debt
securities less the principal amount thereof covered by the
contracts.
The underwriters will not have any responsibility in respect of the
validity or performance of the contracts.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Exchange Act
and, accordingly, file reports, proxy statements and other information with the
SEC. We have also filed a registration statement that includes this prospectus
with the SEC. This prospectus does not contain all of the information set forth
in the registration statement. The registration statement contains additional
information about us and the securities we are offering. For example, in this
prospectus we've summarized or referred to contracts, agreements and other
documents that have been filed as exhibits to the registration statement. All
materials that we file with the SEC, including the registration statement, may
be read and copied (at prescribed rates) at the SEC's Public Reference Room
located at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC
at 1-800-SEC-0330 for further information about its Public Reference Room.
You can also obtain these documents on the SEC's website
(http://www.sec.gov).
Our common stock is listed on the New York Stock Exchange and our
reports, proxy materials and other information can also be inspected at their
offices at 20 Broad Street, New York, New York 10005 or on their website
(http://www.nyse.com).
We "incorporate by reference" into this prospectus the information we
file with the SEC. That means that, rather than reprinting here all of the
information contained in other documents filed with the SEC, we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus.
Any information that we file with the SEC in the future will automatically
update and supersede what is printed in this prospectus. We incorporate by
reference the following documents that we have filed or will file with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act:
Annual Report on Form 10-K for the year ended December 31,
1998.
Quarterly Report on Form 10-Q for the quarter ended March 27,
1999.
Current Report on Form 8-K as filed on April 8, 1999.
All future filings with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act until we have sold all of the
securities offered by this prospectus.
The descriptions of our common stock and common share
purchase rights contained in our Registration Statements on
Form 8-A and any amendments or reports filed to update these
descriptions.
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We will provide you with a copy of these filings, at no cost, if you write
us at Pentair, Inc., 1500 County Road B2 West, St. Paul, Minnesota 55113-3105,
Attention: Corporate Secretary or call (651) 636-7920.
LEGAL MATTERS
The validity of the common stock and debt securities covered by this
prospectus will be passed upon for us by Henson & Efron, P.A., Minneapolis,
Minnesota. Certain shareholders of Henson & Efron, P.A. own shares of
common stock.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from the Pentair, Inc.
Annual Report on Form 10-K for the year ended December 31, 1998 have been
audited by Deloitte & Touche, independent auditors, as stated in their report,
which is incorporated herein by reference, and have been so incorporated in
reliance on the report of such firm given upon their authority as experts in
accounting and auditing.
Page 23
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The table below sets forth the estimated expenses (except the SEC
registration fee, which is an actual expense) in connection with the offer and
sale of the shares of common stock of the registrant covered by this
Registration Statement.
SEC registration fee . . . . . . . . . . . . . . .$ 194,600
NYSE additional listing fees . . . . . . . . . . . 75,000
Trustee's fees . . . . . . . . . . . . . . . . . . 5,000
Attorney's fees and expenses . . . . . . . . . . . 150,000
Accounting Fees and expenses . . . . . . . . . . . 180,000
Rating agency fees . . . . . . . . . . . . . . . . 50,000
Printing and engraving . . . . . . . . . . . . . . 75,000
Miscellaneous . . . . . . . . . . . . . . . . . . 50,400
Total . . . . . . . . . . . . . . . . . . . .$ 700,000
Item 15. Indemnification of Directors and Officers.
Minnesota Statutes Section 302A.521 provides that a Minnesota
business corporation must indemnify any director, officer, employee or agent of
the corporation made or threatened to be made a party to a proceeding, by reason
of the former or present official capacity (as defined in the statute) of the
person, against judgments, penalties, fines, settlements and reasonable expenses
incurred by the person in connection with the proceeding if certain statutory
standards are met. "Proceeding" means a threatened, pending or completed civil,
criminal, administrative, arbitration or investigative proceeding, including one
by or in the right of the corporation. Section 302A.521 contains detailed terms
regarding such right of indemnification and reference is made thereto for a
complete statement of such indemnification rights. Pentair's Restated Articles
of Incorporation also require it to provide indemnification to the fullest
extent of the Minnesota indemnification statute.
Pentair maintains directors' and officers' liability insurance, including a
reimbursement policy in favor of Pentair.
Item 16. Exhibits.
See Exhibit Index following the Signatures Page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
Item 17. Undertakings.
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 20% change in the maximum 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
Page II-1
<PAGE>
(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.
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, (i) the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430(A) 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; (ii)
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, 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; and (iii) each post-effective
amendment that contains a form of prospectus shall be deemed to be anew
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, 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
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
Page II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1
to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of St. Paul, State of Minnesota on July
16, 1999.
PENTAIR, INC.
By /s/ Winslow H. Buxton
Winslow H. Buxton
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons on
July 16, 1999 in the capacities indicated.
Signature
Title
/s/ Winslow H. Buxton
Winslow H. Buxton
Chairman, President, Chief Executive Officer and
Director (principal executive officer)
/s/ Richard W. Ingman
Richard W. Ingman
Executive Vice President and Chief Financial
Officer (principal financial and accounting officer)
*
William J. Cadogan
Director
*
Joseph R. Collins
Vice Chairman and Director
*
Barbara B. Grogan
Director
*
Charles A. Haggerty
Director
*
Harold V. Haverty
Director
*
Quentin J. Hietpas
Director
*
Stuart Maitland
Director
*
Augusto Meozzi
Director
*
Richard M. Schulze
Director
*
Karen E. Welke
Director
Page II-3
<PAGE>
* This Amendment No. 1 to Registration Statement has been signed by the
undersigned as attorneys-in-fact on behalf of each person so indicated
pursuant to a power of attorney duly executed by each such person.
By: /s/ Louis L. Ainsworth
Louis L. Ainsworth
Attorney-in-Fact
And By: /s/ Richard W. Ingman
Richard W. Ingman
Attorney-in-Fact
Page II-4
<PAGE>
PENTAIR, INC.
EXHIBIT INDEX TO AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT
Exhibit Incorporated Herein by Filed
Number Description Reference to Herewith
1.1* Underwriting Agreement -
Debt Securities
1.2* Underwriting Agreement -
Common Stock
3.1 Second Restated Articles of
Incorporation as amended
through June 14, 1999 X
3.2 Second Amended and Exhibit 4.2 to
Superseding By-Laws as Pentair's
amended through July 21, Registration
1995. Statement on Form
S-8 filed August 28,
1998 (File No. 333-62475)
4.1 Rights Agreement as of July Exhibit 4.1 to
21, 1995 between Norwest Pentair's Form 10-Q
Bank N.A. and Pentair, Inc. for the quarter ended
June 30,1995).
4.2 Form of Indenture (including Exhibit 4.2 to the
form of debt securities) original
Registration
Statement
5.1 Opinion and Consent of
Henson & Efron, P.A.** X
12.1 Statement regarding Exhibit 12.1 to the
Computation of Ratio of original
Earnings to Fixed Charges Registration
Statement
23.1 Consent of Deloitte &
Touche, LLP** X
23.2 Consent of Henson & Efron, Contained in
P.A. Exhibit 5.1
24.1 Power of Attorney Signature page of
original
Registration
Statement
25.1 Statement of Eligibility on Exhibit 25.1 to the
Form T-1 of U.S. Bank Trust original
National Association. Registration
Statement
* To be filed by amendment or under cover of Form 8-K and incorporated
herein by reference.
** Replaces the form of this Exhibit previously filed with this Registration
Statement.
EXHIBIT 3.1
SECOND RESTATED ARTICLES OF INCORPORATION
OF PENTAIR, INC.
As Amended Through June 14, 1999.
ARTICLE I.
The name of this Corporation shall be PENTAIR, INC.
ARTICLE II.
The duration of this Corporation shall be perpetual.
ARTICLE III.
Section 1. This Corporation has general business purposes.
Section 2. In amplification but not in limitation of the provisions and
legal effect of Section 1 hereof or of any other provision in these Articles,
and in amplification but not in limitation of the purposes, powers and authority
this Corporation would have in the absence from these Articles of this
Section 2 hereof, the nature of the business, or objects or purposes to be
transacted, promoted or carried on are: to manufacture, purchase or otherwise
dispose of, and to deal generally in and with paper and paper products and
related products, of every type and description; to manufacture, purchase or
otherwise acquire, invest in, own, mortgage, sell, assign and transfer, or
otherwise dispose of, trade, deal in and deal with goods, wares and
merchandise and personal property of every class and description; to carry on
any other business in connection with any one or more of the foregoing
purposes; and to do any and all acts and things necessary or convenient to
accomplish or implement any one or more of the foregoing purposes.
ARTICLE IV.
This Corporation shall have all the powers granted to private
corporations organized for profit by said Minnesota Business Corporation Act
and, in furtherance, and not in limitation, of the powers conferred by the laws
of the State of Minnesota upon corporations organized for the foregoing
purposes, the Corporation shall have the power:
(a) To issue bonds, debentures or other obligations of the
Corporation, and to contract indebtedness without limit as to
amount for any of the objects and purposes of the
Corporation, and to secure the same by mortgage or
mortgages, deed or deeds of trust, or pledge, or lien, or any or
all of the real or personal property, or both, of the
Corporation.
(b) To acquire, hold, mortgage, pledge or dispose of the shares,
bonds, securities or other evidences of indebtedness of the
United States of America or of any domestic or foreign
corporation, and while the holder of such shares, to exercise
all the privileges of ownership, including the right to vote
thereon, to the same extend as a natural person might or could
do, by the president of this Corporation or by proxy appointed
by him, unless some other person, by resolution of the Board
of Directors, shall be appointed to vote such shares.
(c) To purchase or otherwise acquire on such terms and in such
manner as the By-Laws of this Corporation from time to time
provide, and to own and hold, shares of the capital stock of
this Corporation, and to reissue the same from time to time.
(d) When and as authorized by the vote of the holders of not less
than a majority of the shares entitled to vote, at a shareholders'
meeting called for that purpose or when authorized upon the
written consent of the holders of a majority of such shares, to
sell, lease, exchange, or otherwise dispose of all, or
substantially all, of its property and assets, including its good
will, upon such terms and for such considerations, which may
be money, shares, bonds, or other instruments for the payment
of money or other property, as the Board of Directors deems
expedient or advisable.
(e) To acquire, hold, lease, encumber, convey or otherwise
dispose of, either alone or in conjunction with others, real
and personal property within or without the state; and to take
real and personal property by will or gift.
(f) To acquire, hold, take over as a going concern and thereafter
to carry on, mortgage, sell or otherwise dispose of, either
alone or in conjunction with others, the rights, property and
business of any person, entity, partnership, association, or
corporation heretofore or hereafter engaged in any business,
the purpose of which is similar to the purposes set forth in
Article III of these Articles of Incorporation.
(g) To enter into any lawful arrangement for sharing of profits,
union of interest, reciprocal association, or cooperative
association with any corporation, association, partnership,
individual, or other legal entity, for the carrying on of any
business, the purpose of which is similar to the purposes set
forth in Article III of these Articles of Incorporation, and,
insofar as it is lawful, to enter into any general or limited
partnership, the purpose of which is similar to such purposes.
ARTICLE V.
An agreement for consolidation or merger with one or more foreign
or domestic corporations may be authorized by vote of the shareholders
entitled to exercise at least two-thirds of the shares entitled to vote unless
the necessary affirmative vote to authorize any particular merger or consolida-
tion is reduced by the Board of Directors, which reduction shall be to not less
than a majority of the shares entitled to vote.
ARTICLE VI.
The location and post office address of the registered office of this
Corporation shall be 1500 County Road B2 West, St. Paul, Minnesota.
ARTICLE VII.
The aggregate number of shares which this Corporation shall have
authority to issue is 250,000,000 shares, of which not more than 15,000,000
shares shall be "Preferred Shares."
a. All classes of Preferred and Common shares may be issued as
and when and for such consideration as the Board of Directors
shall determine, and, to the full extent permitted by the
Minnesota Business Corporation Act, the Board of Directors
shall have the power to establish any classes or series of
Preferred Shares or Common Shares, with such par value,
rights and priorities it deems appropriate, and to fix or alter,
from time to time, in respect of any Preferred Shares then
unissued, the rights and preferences of such shares, including
without limitation, any or all of the following: dividend rate
and dividend cumulation rights; voting rights; redemption
rights and price; liquidation rights and price; conversion
rights and sinking or purchase fund rights; or the number of
shares constituting any class or series. The Board of Directors
shall also have the power to fix the terms and provisions of
options, rights and warrants to purchase or subscribe for
shares of any class or classes and to authorize the issuance
thereof. Dividends payable in shares of any class may be paid
to shareholders of any other class as and when determined by
the Board of Directors.
b. The voting rights of the shares of this Corporation shall be
vested in the holders of all shares presently outstanding, with
one vote per share. The voting rights of unissued shares shall
be fixed by the Board of Directors, but no such share shall be
entitled to more than one vote. No holder of any shares shall
be entitled to any cumulative voting rights.
c. No shareholder of this Corporation shall have any
pre-emptive right to subscribe for or purchase any shares of
any class or series of the Corporation, whether now or
hereafter established or authorized, or any securities or
obligations convertible into any such shares, or any options or
warrants or rights to purchase any such shares.
ARTICLE VIII.
Section 1. If any person has become an Acquiring Person as defined
in Section 2, each holder of Voting Shares, other than the Acquiring Person
or a transferee of the Acquiring Person, until and including the ninetieth day
following the date the notice to holders of Voting Shares referred to in
Section 3 herein is mailed, shall have the right to have the Voting Shares held
by such holder redeemed by the Corporation at the Redemption Price
determined as provided in Section 4 herein, and each holder of securities
convertible into Common Shares or of options, warrants, or rights exercisable
to acquire Common Shares prior to such ninetieth day, other than the
Acquiring Person or a transferee of the Acquiring Person, shall have the right
simultaneously with the conversion of such securities or exercise of such
options, warrants, or rights to have the Common Shares to be received
thereupon by such holder redeemed by the Corporation at the Redemption
Price; provided that no holder of Voting Shares shall have any right to have
Voting Shares redeemed by the Corporation pursuant to this Article if the
Corporation acting through a majority of its Board of Directors shall either
(a) recommend to the holders of Voting Shares that a pending tender offer be
accepted by the holders of Voting Shares or (b) if no tender offer is pending
it announces that it does not oppose any accumulation of shares by an
Acquiring Person; provided, however, that such recommendation or
announcement is made within ten days following either (i) the announcement
or publication of such tender offer made by an Acquiring Person, (ii) any
amendment to such tender offer, (iii) a vote by shareholders of the
Corporation for approval of the acquisition of shares by the Acquiring Person
(iv) receipt by the Board of Directors of credible notice that an Acquiring
Person exists, or (v) receipt by the Board of Directors of credible notice that
an Acquiring Person has increased ownership of Voting Shares by more than
three percent (3%) of the Voting Shares outstanding.
Section 2. For purposes of this Article:
(a) The term "person" shall include an individual, a
corporation, partnership, trust or other entity.
(b) An "Acquiring Person" shall be any person who
becomes the beneficial owner, directly or indirectly, of more than
twenty percent (20%) of the voting shares outstanding and becomes
the beneficial owner, directly or indirectly, of any additional Voting
Shares pursuant to a tender offer or otherwise or (ii) becomes the
beneficial owner, directly or indirectly, of more than fifty percent
(50%) of the Voting Shares outstanding whether such shares were
acquired by market purchases, a tender offer or otherwise.
(c) For the purpose of determining whether a person is an
Acquiring Person, such person shall be deemed to beneficially own
(i) all Voting Shares with respect to which such person has the
capability to control or influence the voting power in respect thereof
and (ii) all Voting Shares which such person has the immediate or
future right to acquire, directly or indirectly, pursuant to agreements,
through the exercise of options, warrants or rights or through the
conversion of convertible securities or otherwise; and all Voting
Shares which such person has the right to acquire in such manner
shall be deemed to be outstanding shares, but Voting Shares which
any other person has the right to acquire in such manner shall not be
deemed to be outstanding shares.
(d) The term "Voting Shares" shall mean such of the
Common Shares and the Preferred Shares of the Corporation as shall
have been granted voting rights.
(e) The acquisition of Voting Shares by the Corporation
or by any person controlling, controlled by or under common control
with the Corporation shall not affect the right to have Voting Shares
redeemed pursuant to this Article.
(f) The right to have Voting Shares redeemed pursuant to
this Article shall attach to such shares and shall not be personal to the
holder thereof.
(g) The term "tender offer" shall mean an offer to acquire
or an acquisition of Voting Shares pursuant to a request or invitation
for tenders or an offer to purchase such shares for cash, securities or
any other consideration.
(h) The term "market purchases" shall mean the
acquisition of Voting Shares from holders of such shares in privately
negotiated transactions or in transactions effected through a broker or
dealer.
(i) Subject to the provisions of Section 2(c) herein,
"outstanding shares" shall mean Voting Shares which at the time in
question have been issued by the Corporation and not reacquired and
held or retired by it or held by any subsidiary of the Corporation.
Section 3. If Voting Shares are subject to redemption in accordance
with Section 1:
(a) Not later than sixty (60) days following the date on which the
Corporation receives credible notice that any person has become an
Acquiring Person, the Corporation shall give written notice, by first class
mail, postage prepaid, at the addresses shown on the records of the
Corporation, to each holder of record of Voting Shares (and to any other
person known by the Corporation to have rights to demand redemption
pursuant to Section 2 of this Article) as of a date not more than seven (7) days
prior to the date of the mailing pursuant to this Section 3 and shall advise
each such holder of the right to have shares redeemed and the procedure for
such redemption.
(b) If the Corporation fails to give notice as required by this
Section 3, any holder entitled to receive such notice may within twenty (20)
days thereafter serve written demand upon the Corporation to give such
notice. If within twenty (20) days after the receipt of the written demand the
Corporation fails to give the required notice, such holder may at the expense
and on behalf of the Corporation take such reasonable action as may be
appropriate to give notice or to cause notice to be given pursuant to this
Section 3.
(c) The Directors of the Corporation shall designate a Redemption
Agent, which shall be a corporation or association (i) organized and doing
business under the laws of the United States or any State, (ii) subject to
supervision or examination by Federal or State authority, (iii) having
combined capital and surplus of at least $20 million, and (iv) having the
power to exercise corporate trust powers.
(d) For a period of ninety (90) days from the date of the mailing
of the notice to the holders of Voting Shares referred to in this Section 3,
holders of Voting Shares and other persons entitled to have Voting Shares
redeemed pursuant to this Article may, at their option, deposit certificates
representing all or less than all Voting Shares held of record by them with the
Redemption Agent together with written notice that the holder elects to have
such shares redeemed pursuant to this Article. Redemption shall be deemed
to have been effected at the close of business on the day such certificates are
deposited in proper form with the Redemption Agent.
(e) The Corporation shall promptly deposit in trust with the
Redemption Agent cash in an amount equal to the aggregate Redemption
Price of all of the Voting Shares deposited with the Redemption Agent for
purposes of redemption.
(f) As soon as practicable after receipt by the Redemption Agent
of the cash deposit by the Corporation referred to in this Section 3, the
Redemption Agent shall issue its checks payable to the order of the persons
entitled to receive the Redemption Price of the Voting Shares in respect of
which such cash deposit was made.
Section 4. (a) The Redemption Price shall be the amount payable by
the Corporation in respect of each Voting Share with respect to which
redemption has been demanded pursuant to this Article and shall be the
greater amount determined on either of the following bases, but in no event
shall the Redemption Price be less than the amount of shareholders' equity in
respect of each outstanding Voting Share as determined in accordance with
generally accepted accounting principles and as reflected in any published
report by the Corporation as at the fiscal year quarter ending immediately
preceding the notice to shareholders referred to in Section 3 herein:
(i) The highest price per Voting Share, including any
commission paid to brokers or dealers for solicitation or whatever, at
which Voting Shares held by the Acquiring Person were acquired
pursuant to a tender offer regardless of when such tender offer was
made or were acquired pursuant to any market purchase or otherwise
within eighteen months prior to the notice to holders of Voting Shares
referred to in Section 3 herein. For purposes of this subsection (i) if
the consideration paid in any such acquisition of Voting Shares
consisted, in whole or in part, of consideration other than cash, the
Board of Directors of the Corporation shall take such action, as in its
judgment it deems appropriate, to establish the cash value of such
consideration, but such valuation shall not be less than the cash value,
if any, ascribed to such consideration by the Acquiring Person.
(ii) The highest sale price per Voting Share for any trading
day during the eighteen months prior to the notice to holders of
Voting Shares referred to in Section 3 herein. For purposes of this
subsection (ii), the sale price for any trading day shall be the last sale
price per Voting Share traded on the New York Stock Exchange, any
or other national securities exchange or the National Market System
or, if Voting Shares are not then traded on the foregoing, the mean
of the closing bid and asked price per Voting Share.
(b) The determination to be made pursuant to this Section 4 shall
be made by the Board of Directors not later than the date of the notice to
holders of Voting Shares referred to in Section 3 herein. In making such
determination the Board of Directors may engage such persons, including
investment banking firms and the independent accountants who have reported
on the most recent financial statements of the Corporation, and utilize
employees and agents of the Corporation, who will, in the judgment of the
Board of Directors, be of assistance to the Board of Directors.
(c) The determinations to be made pursuant to this Section 4,
when made by the Board of Directors acting in good faith on the basis of such
information and assistance as was then reasonably available for such purpose,
shall be conclusive and binding upon the Corporation and its shareholders,
including any person referred to in Section 2 herein.
(d) Notwithstanding the foregoing provisions of this Section 4,
each such holder of Voting Shares shall have the right to have the
Redemption Price to be paid determined under and pursuant to the appraisal
provisions of the Minnesota Statutes then in effect.
Section 5. This Article may be amended or repealed only by the
affirmative vote of the holders of 85% of each class of shares of the
Corporation entitled to exercise the voting power of the Corporation;
provided, however, that if no person holds more than twenty percent (20%)
of the Voting Shares and there is no tender offer pending or threatened of
which the Board of Directors has credible notice, the necessary vote for
amendment or repeal may be reduced by the Board of Directors to not less
than the requirements of Article XII of these Articles of Incorporation;
provided, further that no amendment or repeal adopted after the notice to
holders of Voting Shares referred to in Section 3 herein shall affect any
Voting Shares theretofore or thereafter deposited with the Redemption Agent
for redemption under this Article pursuant to such notice.
ARTICLE IX.
The amount of stated capital with which this Corporation shall
commence business will be at least $1,000.
ARTICLE X.
Meetings of the shareholders, whether annual or special, shall be held
at the principal place of business of the Corporation at such time and date as
may be fixed in the By-Laws, or at any other place designated by the Board
of Directors pursuant to the By-Laws or consented to in writing by all of the
shareholders entitled to vote thereat.
ARTICLE XI.
Section 1. The business of this Corporation shall be managed by a
Board of Directors who shall be elected at the annual meeting of the
shareholders. The number of directors shall be fixed from time to time by the
By-Laws but the number thereof shall never be less than three. The directors
are hereby divided into three classes, each class to consist as nearly as may
be of one-third of the number of directors then constituting the whole Board.
The term of office of those of the first class shall expire at the annual
meeting in 1977. The term of office of the second class shall expire in 1978.
The term of office of the third class shall expire in 1979. At each annual
election commencing in 1977, the directors elected shall be chosen for a full
term of three years to succeed those whose terms then expire. Vacancies on
the Board of Directors may be filled by the remaining directors and each
person so elected shall be a director until his successor is elected at an
annual meeting of shareholders or at a special meeting duly called therefor.
Section 2. The Board of Directors shall have all of the powers of the
Corporation, subject to such action restricting said powers as may legally be
taken from time to time by the shareholders either at an annual meeting or at
a special meeting duly called therefor.
Section 3. The Board of Directors shall have authority to make and
alter By-Laws, subject to the power of the shareholders to change or repeal
such By-Laws, provided, however, that the Board shall not make or alter any
By-Law fixing the number, qualifications, or term of office of Directors.
Section 4. Any contract or other transaction between the Corporation
and one or more of its directors, or between the Corporation and any
corporation, association or firm of which one or more of its directors are
shareholders, members, directors, officers or employees, or in which they are
interested, shall be valid for all purposes, notwithstanding the presence and
participation of such director or directors at the meeting of the Board of
Directors of the Corporation which acts upon or in reference to such contract
or transaction, if the fact of such interest shall be disclosed or known to the
Board of Directors, and the Board of Directors shall, nevertheless, authorize,
approve and ratify such contract or transaction by a vote of a majority of the
directors present, such interested director or directors to be counted in
determining whether a quorum is present, but not to be counted in calculating
the majority necessary to carry such vote. This section shall not be construed
to invalidate any contract or transaction which would otherwise be valid
under the laws applicable thereto.
Section 5. The annual meeting of the Board of Directors shall be held
immediately following the annual meeting of the shareholders, and at the
same place.
Section 6. The names and post office addresses of the directors at the
time of adoption of these Restated Articles of Incorporation are as follows:
Winslow H. Buxton
Pentair, Inc.
1500 West County Road B2
St. Paul, MN 55113-3105
Joseph R. Collins
Pentair, Inc.
1500 West County Road B2
St. Paul, MN 55113-3105
Stuart "Chuck"Maitland
Ford Motor Company
Vehicle Operations General
Office, Rm A-212
17000 Oakwood Boulevard
Allen Park, MI 48101
Augusto Meozzi
Via delle Lame, 34
50126 Florence, Italy
William J. Cadogan
ADC Telecommunications, Inc.
P.O. Box 1101
Minneapolis, MN 55440-1101
Barbara Grogan
Western Industrial Contractors
5301 Joliet Street
Denver, CO 80239-2112
Charles Haggerty
Chairman, President and CEO
Western Digital Corporation
8105 Irvine Center Drive
Irvine, CA 92718
Harold V. Haverty
1 Wood Duck Lane
North Oaks, MN 55127
Karen E. Welke
3M Center, Building 220-14E-16
St. Paul, MN 55144
Quentin J. Hietpas
University of St. Thomas
2115 Summit Avenue, AQU104
St. Paul, Minnesota 55105
Richard M. Schulze
Best Buy Co., Inc.
7075 Flying Cloud Drive
Eden Prairie, MN 55344
Section 7. A Director of this Corporation shall not be personally
liable to the Corporation or its shareholders for monetary damages for breach
of fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under Section 302A.251 of the
Minnesota Statutes.
If Chapter 302A of the Minnesota Statutes hereafter is amended to
authorize the further elimination or limitation of the liability of directors,
then, in addition to the limitation on personal liability provided herein, the
liability of a Director of the Corporation shall be limited to the fullest
extent permitted by the amended Chapter 302A of the Minnesota Statutes.
Any repeal or modification of this Section 7 by the shareholders of the
Corporation shall be prospective only and shall not adversely affect any
limitation of the personal liability of a Director of the Corporation existing
at the time of such repeal or modification.
ARTICLE XII.
These articles may be amended by resolution setting forth such
amendment or amendments adopted at any meeting of the shareholders by the
affirmative vote of the holders of 60% of the voting power of all shareholders
entitled to vote, provided such amendment or amendments shall not receive
the negative vote of the holders of more than 25% of the voting power of all
shareholders entitled to vote. Each share of stock shall entitle the holder
thereof to one vote.
IN WITNESS WHEREOF, the undersigned corporation has caused
these Second Restated Articles of Incorporation to be executed by its Chief
Executive Officer and attested by its Secretary this 28th day of June, 1999.
PENTAIR, INC.
/s/ Winslow H. Buxton
Winslow H. Buxton, Chief Executive Officer
ATTEST:
/s/ Roy T. Rueb
Roy T. Rueb, Secretary
EXHIBIT 5.1
[LETTERHEAD OF HENSON & EFRON, P.A.]
July 16, 1999
Board of Directors
Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113
Ladies and Gentlemen:
We are acting as counsel to Pentair, Inc., a Minnesota corporation (the
"Company"), in connection with its registration statement on Form S-3, as
amended (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the proposed public offering of up to
$700,000,000 in aggregate amount of one or more series of the Company's
securities, which securities may include any or all of the Company's
(i) shares of common stock, par value $.16 2/3 per share including rights
attached thereto to purchase shares of Common Stock pursuant to the Rights
Agreement dated as of July 31, 1995, (collectively the "Common Stock"); or
(ii) debt securities (the "Debt Securities"), all of which Common Stock and
Debt Securities may be offered and sold from time to time on a continuous
or delayed basis as set forth in the prospectus which forms a part of the
Registration Statement (the "Prospectus"), and as set forth in one or more
supplements to the Prospectus (each, a "Prospectus Supplement"). This
opinion letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. The Registration Statement.
2. The Amended and Restated Articles of Incorporation of the
Company, (the "Articles of Incorporation") as certified by the
Secretary of State of the State of Minnesota on July 15, 1999
and by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
3. The Amended and Restated Bylaws of the Company (the
"Bylaws"), as certified by the Secretary of the Company on
the date hereof as then being complete, accurate and in effect.
4. The form of Indenture relating to Debt Securities between the
Company and Trustee, filed as Exhibit 4.2 to the Registration
Statement.
5. Resolutions of the Board of Directors of the Company
adopted at a meeting held on June 2, 1999 as certified by the
Secretary of the Company on the date hereof as being
complete, accurate and in effect, relating to the filing by the
Company of the Registration Statement and related matters.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us,
and the conformity with the original documents of all documents submitted
to us as certified, telecopied, photostatic, or reproduced copies.In giving this
opinion, we also have relied as to certain matters on information obtained
from public officials, officers of the Company and other sources we believe
to be responsible. This opinion letter is given, and all statements herein are
made, in the context of the foregoing.
For purposes of this opinion letter, we have assumed that (i) the
issuance, sale, amount and terms of the Common Stock and Debt Securities
to be offered from time to time will be duly authorized and established by
proper action of the Board of Directors of the Company (each, a "Board
Action") and in accordance with the Company's Certificate of Incorporation,
Bylaws and applicable Minnesota law; and (ii) any Debt Securities will be
issued pursuant to an Indenture, the form of which will be filed as an exhibit
on a current Form 8-K filed prior to issuance thereof.
Our opinions expressed below are limited to the laws of the State of
Minnesota and the State of New York and the federal laws of the United
States of America.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof:
(a) With respect to the Common Stock, when the Registration
Statement has become effective under the Securities Act,
upon due authorization by Board Action of an issuance of
shares of Common Stock, and upon issuance and delivery of
certificates for shares of Common Stock against payment
therefor in accordance with the terms of such Board Action
and any applicable underwriting agreement or purchase
agreement, and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Common
Stock represented by such certificates will be validly issued,
fully paid and non-assessable.
(b) With respect to the Debt Securities, when (i) the Registration
Statement has become effective under the Securities Act, (ii)
an applicable Indenture has been duly executed and delivered
by the Company and the Trustee named therein, (iii) by
applicable Board Action, the issuance of any series of Debt
Securities has been duly authorized and the terms thereof
have been duly established in accordance with the provisions
of the Indenture, and (iv) such Debt Securities have been duly
authenticated by the Trustee and duly executed and delivered
on behalf of the Company against payment therefor in
accordance with the terms of such Board Action, any
applicable underwriting agreement or purchase agreement, the
Indenture and any applicable supplemental indenture, and as
contemplated by the Registration Statement or the applicable
Prospectus Supplement, the Debt Securities will constitute
valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
affecting creditors' rights (including, without limitation, the
effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfer and preferential transfers)
and as may be limited by the exercise of judicial discretion
and the application of principles of equity, including, without
limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
To the extent that the obligations of the Company under any Indenture
may be dependent upon such matters, we assume for purposes of this opinion
that the Trustee is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; that the Trustee is duly qualified
to engage in the activities contemplated by the Indenture; that the Indenture
has been duly authorized, executed and delivered by the Trustee and
constitutes the valid and binding obligation of the Trustee enforceable against
the Trustee in accordance with its terms; that the Trustee is in compliance,
with respect to acting as a trustee under the Indenture, with all applicable
laws and regulations; and that the Trustee has the requisite organizational and
legal power and authority to perform its obligations under the Indenture.
The opinions expressed in Paragraph (b) above shall be understood
to mean only that if there is a default in performance of an obligation, (i) if
a failure to pay or other damage can be shown and (ii) if the defaulting party
can be brought into a court which will hear the case and apply the governing
law, then, subject to the availability of defenses, and to the exceptions set
forth in Paragraph (a), the court will provide a money damage (or perhaps
injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the prospectus constituting a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act.
Very truly yours,
HENSON & EFRON, P.A.
/s/ Henson & Efron, P.A.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Pentair, Inc. on Amendment No. 1
to Form S-3 of our report dated January 29, 1999, appearing
in the Annual Report on Form 10-K of Pentair, Inc. for the
year ended December 31, 1998 and to the reference to us
under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
Deloitte & Touche LLP
Minneapolis, Minnesota
July 15,1999
