As filed with the Securities and Exchange Commission on May 22, 1998
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
CULLIGAN WATER TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0350629
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-------------------
ONE CULLIGAN PARKWAY
NORTHBROOK, ILLINOIS 60062
(847) 205-6000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive
offices)
--------------------------
EDWARD A. CHRISTENSEN, ESQ.
ONE CULLIGAN PARKWAY
NORTHBROOK, ILLINOIS 60062
(847) 205-6000
(Name, address and telephone number, including area code,
of agent for service)
----------------------
Approximate date of commencement of the proposed sale to the public: As
soon as practicable 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, as amended (the "Securities Act"), 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 a 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. ( )
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
=========================================================================================
<S> <C> <C> <C> <C>
Common Stock, par 687,639 $56.844 $39,088,151.32 $11,532
value
$.01 per share......
=========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee and based on the average of the high and low sales prices
of the Common Stock as reported on the New York Stock Exchange on May 15,
1998 pursuant to Rule 457(c) under the Securities Act.
------------------
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, OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
Prospectus
Subject to Completion, Dated May 22, 1998
CULLIGAN WATER TECHNOLOGIES, INC.
687,639 SHARES OF COMMON STOCK
This Prospectus relates to the offering from time to time of up to
687,639 shares of Common Stock, par value $.01 per share (the "Common
Stock"), of Culligan Water Technologies, Inc., a Delaware corporation (the
"Company"), by certain stockholders of the Company (the "Selling
Stockholders"). The Common Stock offered hereby was issued as consideration
to the Selling Stockholders in connection with the Company's acquisition by
the Company of all of the capital stock of, or other ownership interests
in, Southern Ohio Water Treatment Systems, Inc.--Middletown, Southern Ohio
Water Treatment Systems, Inc.--Springfield, Southern Ohio Water Treatment
Systems, Inc.--Zanesville, Culligan Water Conditioning of Cleveland, Inc.,
224 V.C. Inc., Southern Ohio Water Treatment Systems, Inc, Central Ohio
Water Treatment Systems, Inc, a sole proprietorship doing business as
Culligan Water Conditioning of Lancaster, OH and a partnership doing
business as Culligan Water Conditioning of Richmond, IN and the real
property and improvements thereon used in the businesses located in
Middletown, OH, the merger of a subsidiary of the Company with and into
Winokur Water Conditioning, Inc. and the real property and improvements
thereon used in the businesses located in Bethel, Connecticut, South
Windsor, Connecticut, and West Warwick, Rhode Island by Richard M. Winokur,
Trustee of the Winokur Water Trust, and the acquisition by a subsidiary of
the Company of the stock of Colorado Water Technologies, Inc., a Colorado
corporation, doing business as Mile Hi Culligan (collectively, the
"Acquired Companies"). See "Selling Stockholders." The Company will not
receive any proceeds from the sale of the Common Stock offered hereby.
The Selling Stockholders directly, or through agents or dealers
designated from time to time, may sell the Common Stock offered hereby from
time to time on terms to be determined at the time of sale. To the extent
required, the number of shares of Common Stock to be sold, purchase price,
public offering price, the names of any such agent or dealer and any
applicable commission or discount with respect to a particular offering
will be set forth in an accompanying Prospectus Supplement. The aggregate
proceeds to the Selling Stockholders from the sale of the Common Stock
offered hereby will be the purchase price thereof less the aggregate
agents' or dealers' commissions and discounts, if any, and other expenses
of distribution not borne by the Company. The Company has agreed to pay
certain expenses in connection with the filing of the Registration
Statement (as hereinafter defined) with the Securities and Exchange
Commission. See "Plan of Distribution."
The Selling Stockholders and any dealers or agents that participate
with any Selling Stockholder in the distribution of Common Stock may be
deemed to be "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and any commission received by
them and any profit from the resale of Common Stock purchased by them may
be deemed to be underwriting commissions or discounts under the Securities
Act. See "Plan of Distribution" for a description of information regarding
indemnification arrangements.
The Common Stock is listed on the New York Stock Exchange (the
"NYSE") under the trading symbol "CUL." The last reported sale price of the
Common Stock on the NYSE on May 15, 1998 was $56-3/4 per share.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The date of this Prospectus is May , 1998
TABLE OF CONTENTS
AVAILABLE INFORMATION.....................................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...........................3
GENERAL...................................................................4
USE OF PROCEEDS...........................................................4
SELLING STOCKHOLDERS......................................................5
PLAN OF DISTRIBUTION......................................................7
LEGAL MATTERS.............................................................9
EXPERTS...................................................................9
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). The Company has
furnished and intends to furnish reports to its stockholders, which will
include financial statements audited by its independent certified public
accountants, and such other reports as it may determine to furnish or as
required by law, including Sections 13(a) and 15(d) of the Exchange Act.
Reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Seven World Trade Center,
13th Floor, New York, NY 10048 and 500 West Madison Street, Suite 1400,
Chicago, IL 60661. Copies of such material can also be obtained from the
Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition,
such material can be inspected at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10009. The Commission
maintains a Website that contains reports, proxy and information statements
and other information regarding registrants that file electronically with
the Commission. The address of such site is http://www.sec.gov.
The Company has filed a registration statement (the "Registration
Statement") on Form S-3 with respect to the Common Stock offered hereby
with the Commission under the Securities Act. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all the
information set forth in the Registration Statement, certain items of which
are contained in exhibits to the Registration Statement as permitted by the
rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any agreement, instrument or other
document referred to are not necessarily complete. With respect to each
such agreement, instrument or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more
complete description of the matter involved, and each such statement shall
be deemed qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1998 (as amended on Form 10-K/A dated May 15, 1998);
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended April 30, 1997, July 31, 1997 and October 31, 1997 (in the
case of the Quarterly Report for the quarter ended October 31, 1997, as
amended on Form 10-Q/A dated May 15, 1998);
(3) Definitive Proxy Statement in Schedule 14A dated May 14,
1997;
(4) The description of the Common Stock contained in the
Company's Registration Statement on Form S-1, filed on December 15, 1995
(File No. 333-99236), including any amendment or report filed for the
purpose of updating such information.
(5) The description of the rights associated with the Common
Stock included in the Company's Registration Statement on Form 8-A, filed
with the Commission on September 16, 1996 (File No. 1-14104), including any
amendment or report filed for the purpose of updating such information;
(6) The Company's Registration Statement on Form S-3 (File No.
333-12069); and
(7) The Company's reports on Form 8-K dated February 14, 1997,
August 13, 1997, September 8, 1997, October 22, 1997, November 21, 1997,
December 12, 1997 (as amended on Form 8- K/A dated February 17, 1998),
February 10, 1998 (as amended on May 15, 1998) and May 21, 1998, as each
may have been amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Common Stock shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained
in this Prospectus or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have
been or may be incorporated by reference herein (other than exhibits to
such documents unless such exhibits are specifically incorporated by
reference in such documents). Requests for such copies should be directed
to Edward A. Christensen, Culligan Water Technologies, Inc., One Culligan
Parkway, Northbrook, Illinois 60062 (telephone (847) 205-6000).
GENERAL
The Company is a leading manufacturer and distributor of water
purification and treatment products for household and consumer, and
commercial and industrial applications. Products and services offered by
the Company range from those designed to solve common residential water
problems, such as filters for tap water and household water softeners, to
highly sophisticated equipment and services, such as ultrafiltration and
microfiltration products. Culligan also offers desalination systems and
portable deionization services, designed for commercial and industrial
applications. In addition, Culligan sells and licenses its dealer network
to sell bottled water.
The Company has been an active participant in the water purification
and treatment industry since 1936, and its Culligan(R), Everpure(R) and
Bruner(R) brands are among the most recognized in the industry. The
Company's products are sold and serviced in over 90 countries through a
worldwide network of over 1,400 sales and service centers. Supporting this
distribution network, the Company maintains manufacturing facilities in the
United States, Italy, Spain and Canada. During the last 15 years, the
Company's residential water treatment systems have been installed in over 3
million households in the United States, representing the largest installed
base in the country. In addition, over 1.5 million of the Company's
commercial, industrial, municipal and desalination systems have been
installed worldwide. The Company's customer base includes such well known
names as McDonald's(R), Coca-Cola(R), Pepsi- Cola(R), Starbucks(R),
7-Eleven(R), Navistar, Owens-Corning, Eli Lilly, Carnival Cruise Lines,
Ingersoll-Rand and Union Carbide.
The principal executive offices of the Company are located at One
Culligan Parkway, Northbrook, Illinois 60062, and the Company's telephone
number is (847) 205-6000.
Prospective purchasers should carefully consider the risks of
investing in the Common Stock. Prospective purchasers of the Common Stock
are referred to the Company's Registration Statement on Form S-3 (File No.
333-12069) incorporated by reference into this Prospectus, which contains a
description of the risks of investing in the Common Stock.
USE OF PROCEEDS
All of the shares of Common Stock are being offered by the Selling
Stockholders. The Company will not receive any proceeds from sales of
Common Stock by the Selling Stockholders.
SELLING STOCKHOLDERS
The shares of Common Stock being offered by the Selling Stockholders were
acquired pursuant to the Exchange Agreement, dated as of January 1, 1998,
among the Company and Paul Van Camp, Bruce Van Camp and Paul Jansen in
connection with the acquisition by the Company of all of the capital stock
of, or other ownership interests in, Southern Ohio Water Treatment Systems,
Inc.--Middletown, Southern Ohio Water Treatment Systems, Inc.--Springfield,
Southern Ohio Water Treatment Systems, Inc.--Zanesville, Culligan Water
Conditioning of Cleveland, Inc., 224 V.C. Inc., Southern Ohio Water
Treatment Systems, Inc, Central Ohio Water Treatment Systems, Inc, a sole
proprietorship doing business as Culligan Water Conditioning of Lancaster,
OH and a partnership doing business as Culligan Water Conditioning of
Richmond, IN and the real property and improvements thereon used in the
businesses located in Middletown, OH (the "Van Camp Agreement"), the
Agreement and Plan of Merger, dated as of January 9, 1998, in connection
with the merger of a subsidiary of the Company with and into Winokur Water
Conditioning, Inc. and the real property and improvements thereon used in
the businesses located in Bethel, Connecticut, South Windsor, Connecticut,
and West Warwick, Rhode Island by Richard M. Winokur, Trustee of the
Winokur Water Trust (the "Winokur Agreement"), and the Stock Purchase
Agreement, dated as of March 24, 1998, in connection with the acquisition
by a subsidiary of the Company of the stock of Colorado Water Technologies,
Inc., a Colorado corporation, doing business as Mile Hi Culligan (the
"Marotta Agreement" and together with the Van Camp Agreement and the
Winokur Agreement, the "Agreements").
The Company entered into Registration Agreements, dated as of even
date with the respective Agreements with the Selling Stockholders (the
"Registration Agreements"), in connection with the acquisitions pursuant to
the Agreements.
The following table sets forth information with respect to the
Selling Stockholders and the respective number of shares of Common Stock
beneficially owned by each Selling Stockholder, all of which are offered
pursuant to this Prospectus.
Number of
Shares of
Common Stock
Name and Address Owned
---------------- ------------
Paul Van Camp 355,501*
1161 Sycamore Drive
Lancaster, OH 43130
Bruce Van Camp 16,813*
365 Chadwick Court
Lebanon, OH 43036
Paul Jansen 7,696*
901 McBurney
Lebanon, OH 43036
Richard M. Winokur 105,506*
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Theodore D. Winokur 35,038*
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Jean Marie Winokur 3,647*
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Theodore D. Winokur, Trustee of the 1,824*
Sarah Winokur Trust
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Theodore D. Winokur, Trustee of the 1,824*
Justin Winokur Trust
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
James H. Winokur 35,038*
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Meaghan Winokur 3,647*
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
James H. Winokur, Trustee of the 1,824*
Laine Winokur Trust
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
James H. Winokur, Trustee of the 1,824*
Alicia Winokur Trust
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Richard M. Winokur, Trustee of the 19,983*
Winokur Water Trust
Winokur Water Conditioning, Inc.
P.O. Box 426
Bethel, CT
Paul Marotta 97,474*
9526 S. Harford Ct.
Highlands Ranch, CO 80126
- --------------------
* In each case represents less than 1% of the total outstanding shares of
common stock.
PLAN OF DISTRIBUTION
The Selling Stockholders may sell the Common Stock being offered
hereby directly to other purchasers, or to or through dealers or agents. To
the extent required, a Prospectus Supplement with respect to the Common
Stock will set forth the terms of the offering of the Common Stock,
including the name(s) of any dealers or agents, the number of shares of
Common Stock to be sold, the price of the offered Common Stock, any
underwriting discounts or other items constituting underwriters'
compensation.
The Common Stock offered hereby may be sold from time to time
directly by the Selling Stockholders or, alternatively, through
broker-dealers or agents. Such Common Stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale or at negotiated
prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Common Stock may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter
market or (iv) through the writing of options. In connection with sales of
the Common Stock offered hereby or otherwise, the Selling Stockholders may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of such Common Stock in the course of hedging the
positions they assume. The Selling Stockholders may also sell the Common
Stock offered hereby short and deliver such Common Stock to close out such
short positions, or loan or pledge such Common Stock to broker-dealers that
in turn may sell such securities. The Common Stock offered hereby also may
be sold pursuant to Rule 144 under the Securities Act.
The Selling Stockholders and any such brokers, dealers or agents, may
be deemed "underwriters" as that term is defined by the Securities Act.
If a dealer is utilized in the sale of any Common Stock in respect of
which this Prospectus is delivered, the Selling Stockholders may sell such
Common Stock to the dealer, as principal. The dealer may then resell such
Common Stock to the public at varying prices to be determined by such
dealer at the time of resale. To the extent required, the name of the
dealer and the terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
In connection with the sale of Common Stock offered hereby, dealers
or agents may receive compensation from the Selling Stockholders or from
purchasers of such Common Stock for whom they may act as agents in the form
of discounts, concessions, or commissions. Agents, and dealers
participating in the distribution of the Common Stock may be deemed to be
underwriters, and any such compensation received by them and any profit on
the resale of Common Stock by them may be deemed to be underwriting
discounts or commissions under the Securities Act.
Pursuant to the Registration Agreements, the Company has agreed to
pay all costs and expenses associated with the registration of the Shares
under the Securities Act. In addition, the Selling Stockholders may be
entitled to indemnification against certain liabilities pursuant to the
Agreement.
LEGAL MATTERS
Certain legal matters with respect to the Common Stock will be passed
upon for the Company by Edward A. Christensen, Esq., Vice President,
General Counsel and Secretary of the Company.
EXPERTS
The consolidated financial statements and schedule of the Company
appearing in the Company's Annual Report on Form 10-K/A for the fiscal year
ended January 31, 1998 have been audited by KPMG Peat Marwick LLP,
independent certified public accountants, as set forth in their report
thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts
in accounting and auditing.
The aggregated financial statements of Protean plc as of March 31,
1997 and for the year ended March 31, 1997 have been incorporated by
reference herein in reliance upon the report of KPMG Audit plc, independent
chartered accountants, which report is incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
The combined financial statements of The Water Filtration Business (a
wholly-owned business of Ametek) at December 31, 1996 and 1995, and for
each of the three years in the period ended December 31, 1996, incorporated
by reference herein have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated by reference
herein, and are incorporated by reference herein in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED
IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO ITS DATE. HOWEVER, IF ANY MATERIAL CHANGE OCCURS WHILE THIS PROSPECTUS
IS REQUIRED BY LAW TO BE DELIVERED, THIS PROSPECTUS WILL BE AMENDED OR
SUPPLEMENTED ACCORDINGLY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OTHER THAN
THE SHARES OFFERED BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN OFFER TO
SELL OR AN OFFER TO BUY THE SHARES BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING
SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
CULLIGAN WATER TECHNOLOGIES, INC.
687,639 SHARES OF COMMON STOCK
------------
PROSPECTUS
------------
May , 1998
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee................... $11,532
Accountants' fees and expenses......... $ 2,500 *
Attorneys' fees and expenses .......... $10,000*
Miscellaneous.......................... $ 968*
----------
Total.................................. $25,000 *
- --------------------
* Estimated
The Company will pay all such expenses.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "GCL")
empowers a corporation, subject to certain limitations, to indemnify its
directors and officers against expenses (including attorneys' fees,
judgments, fines and certain settlements) actually and reasonably incurred
by them in connection with any suit or proceeding to which they are a party
so long as they acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to criminal action or proceeding, so long as they had no reasonable
cause to believe their conduct to have been unlawful.
The Restated Certificate of Incorporation of the Company (the
"Charter") provides that the Company shall indemnify the directors and
officers of the Company to the fullest extent permitted by Delaware law.
In addition, the Amended and Restated By-laws of the Company (the
"By-Laws") provide that the Company shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Company), by reason of the fact that he is or was a director or officer
of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
The By-Laws provide that the Company shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that he is or was a
director or officer of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company;
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery of the State of Delaware or such other court shall deem
proper.
The By-Laws provide that any indemnification under the above two
paragraphs (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in the
above two paragraphs. Such determination shall be made (1) by the Board of
Directors of the Company by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, even
though less than a quorum or (2) if there are no such directors or if such
directors so direct, by independent legal counsel in a written opinion, or
(3) by the stockholders of the Company.
The By-Laws provide that to the extent that a director or officer of
the Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, or in defense of any
claim, issue or matter therein, the Company shall indemnify him against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
The By-Laws further provide that expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit
or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the Company as authorized in the ByLaws. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors of the Company deems
appropriate.
The By-Laws provide that the indemnification and advancement of
expenses provided by, or granted pursuant to, the By-Laws shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
The Company intends to maintain insurance on behalf of any person who
is or was a director or officer of the Company, or is or was a director or
officer of the Company serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have
the power or the obligation to indemnify him against such liability under
the By-Laws.
The Company has entered into indemnification agreements with each of
the Company's directors and officers. The indemnification agreements
require, among other things, the Company to indemnify the officers and
directors to the fullest extent permitted by law, and to advance to such
directors and officers all related expenses, subject to reimbursement, if
it is subsequently determined that indemnification is not permitted. The
Company will also indemnify and advance all expenses incurred by such
directors and officers seeking to enforce their rights under the
indemnification agreements, and cover directors and officers under the
Company's directors' and officers' liability insurance. Although such
indemnification agreements will offer substantially the same scope of
coverage afforded by provisions in the Charter and the By-Laws, they
provide greater assurance to directors and officers that indemnification
will be available because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors of the Company or by
the stockholders to eliminate the rights provided therein.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company
has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
Exhibit
Number Description
------- -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's
Registration Statement on Form 10 (File No.
0-26630)).
4.2 Amended and Restated By-Laws of the Company
(incorporated by reference to the Company's
Registration Statement on Form 10 (File No. 0-
26630)).
4.3 Rights Agreement between the Company and the First
National Bank of Boston, as Rights Agent
(incorporated by reference to Exhibit 3 to the
Company's Registration Statement on Form 8-A filed
with the Commission on September 16, 1996 (File No.
1-14104)).
4.4 Amendment No. 1 to the Rights Agreement between the
Company and American Stock Transfer and Trust
Company, as successor Rights Agent (incorporated by
reference to the Company's Quarterly Report on Form
10-Q for the quarter ended July 31, 1997).
5 Opinion of Edward A. Christensen, Esq.
regarding the legality of the securities being
registered.
23.1 Consent of KPMG Peat Marwick LLP, independent
certified public accountants.
23.2 Consent of KPMG Audit plc.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Edward A. Christensen, Esq. to the
filing of his opinion (included in Exhibit 5).
24 Powers of Attorney (included on the signature
page of this Registration Statement).
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
A. 1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
a. To include any prospectus required by Section 10(a)(3) of
the Securities Act;
b. 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;
c. 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)(a) and (A)(1)(b) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act, (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Northbrook, State of Illinois, on
this 22nd day of May, 1998.
CULLIGAN WATER TECHNOLOGIES, INC.
By: /s/ Edward A. Christensen
-----------------------------------------
Name: Edward A. Christensen
Title: Vice President, General Counsel
and Secretary
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Douglas A. Pertz, Michael
A. Salvati and Edward A. Christensen, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him in any and
all capacities, to sign any amendments to this registration statement
(including post-effective amendments), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities
and Exchange Commission, hereby ratifying and confirming all that each of
said attorneys-in-fact, or his substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
/s/ Douglas A. Pertz President, Chief Executive May 22, 1998
- ----------------------- Officer and Director
Douglas A. Pertz
/s/ Michael E. Salvati Vice President, Finance and May 22, 1998
- ----------------------- Chief Financial Officer
Michael E. Salvati (principal financial
and accounting officer)
/s/ R. Theodore Ammon Director May 22, 1998
- ----------------------
R. Theodore Ammon
/s/ Andrew Africk Director May 22, 1998
- ----------------------
Andrew Africk
/s/ Bernard Attal Director May 22, 1998
- ----------------------
Bernard Attal
/s/ Leon D. Black Director May 22, 1998
- ----------------------
Leon D. Black
/s/ Robert H. Falk Director May 22, 1998
- ----------------------
Robert H. Falk
/s/ Michael F. Fisch Director May 22, 1998
- ----------------------
Michael F. Fisch
/s/ Mark H. Rachesky Director May 22, 1998
- ----------------------
Mark H. Rachesky
/s/ Robert L. Rosen Director May 22, 1998
- ----------------------
Robert L. Rosen
/s/ Marc J. Rowan Director May 22, 1998
Marc J. Rowan
/s/ Stephen J. Solarz Director May 22, 1998
- ----------------------
Stephen J. Solarz
/s/ Carl Spielvogel Director May 22, 1998
- ----------------------
Carl Spielvogel
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Registration
Statement on Form 10 (File No. 0-26630)).
4.2 Amended and Restated By-Laws of the Company (incorporated
by reference to the Company's Registration Statement on
Form 10 (File No. 0-26630)).
4.3 Rights Agreement between the Company and the First National
Bank of Boston, as Rights Agent (incorporated by reference
to Exhibit 3 to the Company's Registration Statement on
Form 8-A filed with the Commission on September 16, 1996
(File No. 1-14104)).
4.4 Amendment No. 1 to the Rights Agreement between the Company
and American Stock Transfer and Trust Company, as successor
Rights Agent (incorporated by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended July
31, 1997).
5 Opinion of Edward A. Christensen regarding the legality
of the securities being registered.
23.1 Consent of KPMG Peat Marwick LLP, independent certified
public accountants.
23.2 Consent of KPMG Audit plc.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Edward A. Christensen to the filing of his opinion
(included in Exhibit 5).
24 Powers of Attorney (included on the signature page of this
Registration Statement).
Exhibit 5
Culligan Water Technologies, Inc.
One Culligan Parkway
Northbrook, Illinois 60062
May 22, 1998
Culligan Water Technologies, Inc.
One Culligan Parkway
Northbrook, Illinois 60062
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of Culligan Water
Technologies, Inc., a Delaware corporation (the "Company"), and have acted
as such in connection with the preparation of a registration statement on
Form S-3, relating to the sale by certain stockholders of the Company of up
to 687,639 shares (the "Shares") of the common stock of the Company, par
value $0.01 per share (the "Common Stock").
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as
amended (the "Act").
I have examined originals or copies, certified or otherwise
identified to our satisfaction, of (a) the Registration Statement on Form
S-3 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission"), (b) the Exchange Agreement, dated
as of January 1, 1998, among the Company and Paul Van Camp, Bruce Van Camp
and Paul Jansen in connection with the acquisition by the Company of all of
the capital stock of, or other ownership interests in, Southern Ohio Water
Treatment Systems, Inc.--Middletown, Southern Ohio Water Treatment Systems,
Inc.--Springfield, Southern Ohio Water Treatment Systems, Inc.--Zanesville,
Culligan Water Conditioning of Cleveland, Inc., 224 V.C. Inc., Southern
Ohio Water Treatment Systems, Inc, Central Ohio Water Treatment Systems,
Inc, a sole proprietorship doing business as Culligan Water Conditioning of
Lancaster, OH and a partnership doing business as Culligan Water
Conditioning of Richmond, IN and the real property and improvements thereon
used in the businesses located in Middletown, OH (the "Van Camp
Agreement"), (c) the Agreement and Plan of Merger, dated as of January 9,
1998, in connection with the merger of a subsidiary of the Company with and
into Winokur Water Conditioning, Inc. and the real property and
improvements thereon used in the businesses located in Bethel, Connecticut,
South Windsor, Connecticut, and West Warwick, Rhode Island by Richard M.
Winokur, Trustee of the Winokur Water Trust (the "Winokur Agreement"), (d)
the Stock Purchase Agreement, dated as of March 24, 1998, in connection
with the acquisition by a subsidiary of the Company of the stock of
Colorado Water Technologies, Inc., a Colorado corporation, doing business
as Mile Hi Culligan (the "Marotta Agreement" and together with the Van Camp
Agreement and the Winokur Agreement, the "Agreements") (e) a specimen
certificate evidencing the Common Stock, (f) the Restated Certificate of
Incorporation of the Company, as presently in effect, (e) the Amended and
Restated By-Laws of the Company, as presently in effect, (g) certain
resolutions of the Board of Directors of the Company relating to, among
other things, the Agreements and (h) such other documents as I have deemed
necessary or appropriate as a basis for the opinions set forth below.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all
documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. In making my examination of documents executed by parties other
than the Company, I have assumed that such parties had the power, corporate
or other, to enter into and perform all obligations thereunder and have
also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. As to any facts
material to the opinions expressed herein which I did not independently
establish or verify, I have relied upon certificates, statements or
representations of officers and other representatives of the Company,
public officials and others.
I am admitted to the Bar of the State of New York and I do not
express any opinion as to the laws of any jurisdiction other than the
Delaware General Corporation Law.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized and validly issued and are fully paid and
nonassessable.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving such consent, I do not
thereby admit that I am in the category of persons whose consent is
required under Section 7 of the Act or the rules or regulations of the
Commission thereunder.
Very truly yours,
/s/Edward A. Christensen, Esq.
Exhibit 23.1
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Culligan Water Technologies, Inc.:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/KPMG Peat Marwick LLP
Chicago, Illinois
May 21, 1998
Exhibit 23.2
CONSENT OF KPMG AUDIT Plc
The Board of Directors
Culligan Water Technologies, Inc.
21 May 1998
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/KPMG Audit Plc
KPMG Audit Plc
Chartered Accountants Registered Auditor
London
Exhibit 23.3
Consent of Ernst & Young LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) of Culligan Water Technologies, Inc. for
the registration of 687,639 shares of its common stock and to the
incorporation by reference therein of our report dated March 14, 1997, with
respect to the combined financial statements of The Water Filtration
Business (a wholly owned business of AMETEK, Inc.) incorporated by
reference in the Current Report on Form 8- K of Culligan Water
Technologies, Inc. dated August 13, 1997, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Philadelphia, Pennsylvania
May 21, 1998
