Filed
Pursuant to Rule 424(b)(2)
Registration
Statement No 333-161101
Prospectus
Supplement
(To
Prospectus Dated October 7, 2009)
3,000,000 Shares
Standard
Motor Products, Inc.
Common
Stock
Standard
Motor Products, Inc. is offering 3,000,000 shares of common stock to be sold in
the offering.
The
common stock is listed on the New York Stock Exchange under the symbol “SMP”.
The last reported sale price of the common stock on October 29, 2009 was $9.86
per share.
Investing
in our common stock involves certain risks. See “Risk Factors” on page S-3
of this prospectus supplement and in our Annual Report on Form 10-K for the
year ended December 31, 2008 and any subsequent Quarterly Report on
Form 10-Q, which are incorporated by reference in this prospectus
supplement.
Neither
the Securities and Exchange Commission nor any other regulatory body has
approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus supplement or the accompanying prospectus. Any
representation to the contrary is a criminal offense.
|
Per
Share
|
Total
|
|||||||
|
Initial
price to public
|
$
|
8.5000
|
$
|
25,500,000
|
||||
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Underwriting
discount
|
$
|
0.4250
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$
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1,275,000
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||||
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Proceeds,
before expenses, to Standard Motor Products, Inc.
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$
|
8.0750
|
$
|
24,225,000
|
||||
The
underwriters have the option to purchase up to an additional 450,000 shares
from Standard Motor Products, Inc. at the initial price to public less the
underwriting discount.
The
underwriters expect to deliver the shares against payment in New York, New York
on November 4, 2009.
Goldman,
Sachs & Co.
BB&T
Capital Markets
Prospectus
Supplement dated October 29, 2009.
Prospectus
Supplement
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Page
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Prospectus
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You
should read this prospectus supplement along with the accompanying prospectus,
as well as the information incorporated by reference herein and therein,
carefully before you invest in our common stock. These documents contain
important information that you should consider before making your investment
decision. This prospectus supplement and the accompanying prospectus contain the
terms of this offering of common stock. The accompanying prospectus contains
information about our securities generally, some of which does not apply to the
common stock covered by this prospectus supplement. This prospectus supplement
may add, update or change information contained in or incorporated by reference
in the accompanying prospectus. If the information in this prospectus supplement
is inconsistent with any information contained in or incorporated by reference
in the accompanying prospectus, the information in this prospectus supplement
will apply and will supersede the inconsistent information contained in or
incorporated by reference in the accompanying prospectus.
It is
important for you to read and consider all of the information contained in this
prospectus supplement, the accompanying prospectus and the additional
information incorporated by reference in this prospectus supplement and the
accompanying prospectus before making your investment decision. See “Where You
Can Find More Information” in this prospectus supplement.
You
should rely only on the information contained in or incorporated by reference in
this prospectus supplement, the accompanying prospectus and any related free
writing prospectus we provide to you that is required to be filed with the
Securities and Exchange Commission (the “SEC”). Neither we nor the underwriters
have authorized any other person to provide you with additional or different
information. If anyone provides you with additional or different information,
you should not rely on it. Neither we nor the underwriters are making an offer
to sell the common stock in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
supplement, the accompanying prospectus, any such free writing prospectus and
the documents incorporated by reference herein and therein is accurate only as
of their respective dates. Our business, financial condition, results of
operations and prospects may have changed since those dates.
Unless
the context otherwise requires, references in this prospectus supplement to the
“Company”, “we”, “us” and “our” refer to Standard Motor Products, Inc. and its
subsidiaries.
Our
disclosure and analysis in this prospectus supplement, the accompanying
prospectus, and in any documents that are incorporated by reference into this
prospectus supplement and the accompanying prospectus may be deemed
“forward-looking” statements under Section 21E of the Exchange Act and the
Private Securities Litigation Reform Act of 1995 and are subject to numerous
risks and uncertainties. These and other forward-looking statements made by us
in reports that we file with the Securities and Exchange Commission, press
releases, and public statements of our officers, corporate spokespersons or our
representatives are based on a number of assumptions and relate to, without
limitation: our substantial leverage; economic and market conditions (including
access to the credit and financial markets); the performance of the aftermarket
sector; changes in business relationships with our major customers’ programs;
changes in the product and distribution channel mix; the ability of our
customers to achieve their projected sales; competitive product and pricing
pressures; increases in production or material costs that cannot be recouped in
product pricing; successful integration of acquired businesses; our ability to
achieve cost savings from our restructuring activities; product and
environmental liability matters (including, without limitation, those related to
asbestos-related contingent liabilities or environmental remediation
liabilities); as well as other risks and uncertainties. The words “believe,”
“expect,” “anticipate,” “intend,” “plan,” “estimate” or other expressions which
predict or indicate future events and trends and do not relate to historical
matters identify forward-looking statements. You are cautioned not to place
undue reliance on these forward-looking statements as they involve risks and
uncertainties and such forward-looking statements may turn out to be wrong.
Actual results could differ materially from those currently anticipated due to a
number of factors, including those set forth in the section entitled “Risk
Factors” in our most recent Annual Report on Form 10-K and any subsequent
Quarterly Report on Form 10-Q, which are incorporated by reference into this
prospectus supplement or the accompanying prospectus.
This
summary highlights selected information contained elsewhere or incorporated by
reference in this prospectus supplement and the accompanying prospectus. This is
only a summary and does not contain all of the information you should consider
before investing in our common stock. You should read this prospectus supplement
and the accompanying prospectus and the documents incorporated by reference
herein and therein, especially the risks of investing in our common stock
discussed under “Risk Factors” in this prospectus supplement, our most recent
Annual Report on Form 10-K and any subsequent Quarterly Report on
Form 10-Q and our consolidated financial statements and notes to those
consolidated financial statements incorporated by reference herein, before
making an investment decision.
Standard
Motor Products, Inc.
We are a
leading independent manufacturer and distributor of replacement parts for motor
vehicles in the automotive aftermarket industry, with an increasing focus on the
original equipment and original equipment service markets. We are organized into
two major operating segments, each of which focuses on a specific line of
replacement parts. Our Engine Management Segment manufactures ignition and
emission parts, ignition wires, battery cables and fuel system parts. Our
Temperature Control Segment manufactures and remanufactures air conditioning
compressors, air conditioning and heating parts, engine cooling system parts,
power window accessories, and windshield washer system parts. We also sell our
products in Europe through our European Segment.
We sell
our products primarily to warehouse distributors, large retail chains, original
equipment manufacturers and original equipment service part operations in the
United States, Canada and Latin America. Our customers consist of many of the
leading warehouse distributors, such as CARQUEST and NAPA Auto Parts, as well as
many of the leading auto parts retail chains, such as Advance Auto Parts,
AutoZone, O’Reilly Automotive/CSK Auto, Canadian Tire and Pep Boys. Our
customers also include national program distribution groups and specialty market
distributors. We distribute parts under our own brand names, such as Standard,
BWD, Intermotor, Four Seasons, ACi and Hayden, and through private labels, such
as CARQUEST and NAPA Echlin.
Recent
Developments
On
October 27, 2009, we announced that we are engaged in exploratory discussions
with the managers of our European business regarding their interest in acquiring
the business via a management buy-out. Proposed terms of a transaction would
include the sale of our European distribution business for £1.8 million ($2.9
million) in cash and a promissory note and approximately £1.8 million ($2.9
million) in assumed debt. In connection with the proposed sale, we
would retain our manufacturing operation in Poland, certain land available for
sale in the United Kingdom and a small investment in a joint
venture. If we consummate the proposed transaction under the above
terms, our estimated non-cash charges for the transaction would range from £4.0
million ($6.4 million) to £4.5 million ($7.2 million). Any such
transaction would require approval of our Board of Directors, which has not yet
been obtained. There can be no assurance that we will complete a
transaction under the proposed terms, or at all. (U.S. dollar
equivalents are calculated at an assumed foreign currency exchange rate of GBP
1.60.)
The
Offering
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Common
stock offered by us
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3,000,000
shares of common stock
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|
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Common
stock to be outstanding after this offering(1)
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22,060,855
shares of common stock
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|
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Underwriters’
option to purchase additional shares from us
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450,000
shares of common stock
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Use
of proceeds
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We
intend to use the net proceeds from the sale of our common stock in this
offering to repay a portion of our outstanding indebtedness under our
revolving credit facility. We then
intend
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| to borrow funds from time to time under our revolving credit facility for general corporate purposes. | ||
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Risk
factors
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An
investment in our common stock is subject to risks. Please refer to “Risk
Factors” and other information included or incorporated by reference in
this prospectus supplement or the accompanying prospectus for a discussion
of factors you should carefully consider before investing in shares of our
common stock.
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New
York Stock Exchange symbol
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“SMP”
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(1)
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The
number of shares of common stock that will be outstanding after this
offering is based on 19,060,855 shares of common stock outstanding at
September 30, 2009.
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Unless we
specifically state otherwise, the information in this prospectus
supplement:
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•
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does
not take into account the sale of up to 450,000 shares of common stock
that the underwriters have the option to purchase from
us;
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|
•
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excludes
384,144 shares of common stock issuable upon exercise of outstanding
options and 820,000 shares of common stock reserved for issuance upon
conversion of our 15% convertible subordinated
debentures.
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An
investment in our common stock involves a high degree of risk. The trading price
of our common stock could decline due to any of these risks, and you may lose
all or part of your investment. Before making a decision to invest in the common
stock, you should carefully consider the following:
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•
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the risk factors described
below and those contained in the documents incorporated by reference in
this prospectus supplement or the accompanying prospectus;
and
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|
•
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the other information included
in this prospectus supplement, the accompanying prospectus and the
documents incorporated by reference in this prospectus supplement or the
accompanying
prospectus.
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Risks
Related to Our Common Stock
Future
Sales of Substantial Amounts of Our Common Stock Could Affect the Market Price
of Our Common Stock.
Future
sales of substantial amounts of our common stock, or securities convertible or
exchangeable into shares of our common stock, into the public market, including
shares of common stock issued upon exercise of options or warrants or conversion
of our convertible debentures, or perceptions that those sales and/or
conversions could occur, could adversely affect the prevailing market price of
our common stock and our ability to raise capital in the future.
Our
Issuance of Preferred Stock May Cause Our Common Stock Price to Decline, Which
May Negatively Impact Your Investment.
Our board
of directors is authorized to issue a series of shares of preferred stock
without any action on the part of our stockholders. Our board of directors also
has the power, without stockholder approval, to set the terms of any such series
of shares of preferred stock that may be issued, including voting rights,
conversion rights, dividend rights, preferences over our common stock or
preferred stock with respect to dividends or if we liquidate, dissolve or wind
up our business and other terms. If we issue preferred stock in the future that
has preference over our common stock with respect to the payment of dividends or
upon our liquidation, dissolution or winding up, or if we issue preferred stock
with voting rights that dilute the voting power of our common stock, the market
price of our common stock could decrease.
Our
Stock Price Has Been and Could Remain Volatile.
The
market price for our common stock has been and may continue to be volatile. As
the price of our common stock on the New York Stock Exchange constantly changes,
it is impossible to predict whether the price of our common stock will rise or
fall. Trading prices of our common stock will be influenced by our financial
condition, operating results and prospects and by economic, financial and other
factors, such as prevailing interest rates, interest rate volatility and changes
in our industry and competitors. Our stock price may decline due to changes in
financial estimates or publication of research reports and recommendations by
financial analysts or actions taken by rating agencies with respect to our
common stock or those of our competitors, failure to meet analysts’ revenue or
earnings estimates, speculation in the press or investment community generally
or relating to our reputation or our industry, strategic actions by us or our
competitors, such as acquisitions, restructurings, dispositions or financings,
actions by our current stockholders, including sales of common stock by existing
stockholders and/or directors and executive officers, changes in the frequency
or amount of dividends or share repurchases, anticipated or pending
investigations, proceedings, or litigation that involve or affect us. In
addition, general market conditions, including the level of, and fluctuations
in, the trading prices of stocks generally and sales of substantial amounts of
common stock by us in the market could affect the price of shares of our common
stock.
Our
Business is Seasonal and Our Results for Earlier Quarters May Not be Indicative
of Results to be Expected for Our Fourth Quarter.
Historically,
our operating results have fluctuated by quarter, with the greatest sales
occurring in the second and third quarters of the year. As a result,
our results for earlier quarters may not be indicative of results to be expected
for the fourth quarter. Due to the seasonal nature of our Temperature
Control business in particular, we typically budget a small loss for the fourth
quarter of each year and we expect that our results for the fourth quarter of
2009 will follow historical patterns.
Provisions
of our Restated Certificate of Incorporation, our Restated By-Laws and New York
Law may Inhibit or Discourage a Takeover Attempt and Negatively Affect the Value
of Your Shares.
Provisions
of our Restated Certificate of Incorporation, our Restated By-laws and of the
New York Business Corporation Law could discourage potential acquisition
proposals or make it more difficult for a third party to acquire control of the
Company, even if doing so might be beneficial to our stockholders, which may
negatively affect the price of our Common Stock. See “Description of
Capital Stock” in the accompanying prospectus for a summary description of some
of these provisions.
Our
Ability to Declare Dividends on our Common Stock May Be
Limited.
We have
not declared nor paid any dividends on the outstanding shares of our common
stock since the first quarter of 2009. The declaration and payment of
dividends is at the discretion of our board of directors, and we may continue
not to pay any dividends on shares of our common stock. In addition, under the
terms of our revolving credit facility, our ability to declare and pay dividends
on our common stock is subject to certain conditions (including maintenance of a
certain amount of remaining drawdown capacity and the absence of an event of
default) and a yearly aggregate dividend limit of $10 million. This could
adversely affect the market price of our common stock.
We intend
to use the net proceeds from the sale of our common stock in this offering to
repay a portion of our outstanding indebtedness under our revolving credit
facility. We then intend to borrow funds from time to time under our revolving
credit facility for general corporate purposes. Our revolving credit
facility has an interest rate based on an index rate plus a margin between 2.25%
and 2.75% on index rate loans and based on LIBOR plus a margin between 3.75% and
4.25% on LIBOR loans. As of September 30, 2009, we had
approximately $90 million outstanding under the revolving credit facility, which
expires in March 2013.
The
following table sets forth our cash and cash equivalents and our capitalization
as of September 30, 2009 on an actual and as adjusted basis giving effect to the
completion of this offering and the anticipated use of proceeds at the public
offering price of $8.50 per share after deducting underwriting discounts and
estimated offering expenses payable by us, and assuming no exercise of the
underwriter’s option to purchase additional shares, as if the transaction
occurred as of September 30, 2009.
The
information set forth in this table should be read in conjunction with
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and our consolidated financial statements and notes thereto included
in our annual report on Form 10-K for the year ended December 31, 2008
and in our quarterly reports on Form 10-Q for the quarters ended
March 31, 2009, June 30, 2009, and September 30, 2009, each of
which are incorporated by reference in this prospectus supplement.
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As
of September 30, 2009
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||||||||
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Actual
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As
Adjusted
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|||||||
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(In
thousands, except share data)
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||||||||
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Cash
and cash equivalents
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$
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10,456
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$
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10,456
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||||
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Senior
debt:
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||||||||
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Revolving
credit facilities(1)
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$
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92,521
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$
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68,796
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||||
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Other
senior debt
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670
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670
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||||||
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Total
senior debt
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93,191
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69,466
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||||||
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Other
debt:
|
||||||||
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15%
convertible subordinated debentures
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12,300
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12,300
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||||||
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15%
unsecured promissory notes(2)
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5,370
|
5,370
|
||||||
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Total other debt
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17,670
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17,670
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||||||
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Total debt
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110,861
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87,136
|
||||||
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Stockholder’s
equity
|
||||||||
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Common
stock, par value $2.00 per share; 30,000,000 shares authorized; 20,486,036
shares issued (actual), and 23,486,036 shares issued (as
adjusted)
|
40,972
|
46,972
|
||||||
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Capital
in excess of par value
|
56,504
|
74,229
|
||||||
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Retained
earnings
|
85,528
|
85,528
|
||||||
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Accumulated
other comprehensive income
|
6,929
|
6,929
|
||||||
|
Treasury
stock, at cost 1,562,491 shares
|
(16,788
|
)
|
(16,788
|
)
|
||||
|
Total
stockholders’ equity
|
173,145
|
196,870
|
||||||
|
Total
capitalization
|
$
|
284,006
|
$
|
284,006
|
||||
__________________________________
(1)
Consists of the Second Amended and Restated Credit Agreement with General
Electric Credit Corporation, as agent, the Canadian Term Loan Agreement with GE
Canada Finance Holding Company, as agent, and the European revolving credit
facilities.
(2)
In July 2009, the Company issued $5.4 million aggregate principal amount of 15%
unsecured promissory notes to certain directors and executive officers and
to the trustees of its Supplemental Executive Retirement Plan on behalf of the
plan participants.
The
following is a summary of certain United States federal income and estate tax
consequences of the purchase, ownership and disposition of our common stock as
of the date hereof. Except where noted, this summary deals only with common
stock that is held as a capital asset by a non-U.S. holder.
A
“non-U.S. holder” means a person (other than a partnership) that is not for
United States federal income tax purposes any of the following:
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•
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an
individual citizen or resident of the United
States;
|
|
•
|
a
corporation (or any other entity treated as a corporation for United
States federal income tax purposes) created or organized in or under the
laws of the United States, any state thereof or the District of
Columbia;
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|
•
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an
estate the income of which is subject to United States federal income
taxation regardless of its
source; or
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|
•
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a
trust if it (1) is subject to the primary supervision of a court
within the United States and one or more United States persons have the
authority to control all substantial decisions of the trust or
(2) has a valid election in effect under applicable United States
Treasury regulations to be treated as a United States
person.
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This
summary is based upon provisions of the Internal Revenue Code of 1986, as
amended (the “Code”), and regulations, rulings and judicial decisions as of the
date hereof. Those authorities may be changed, perhaps retroactively, so as to
result in United States federal income and estate tax consequences different
from those summarized below. This summary does not address all aspects of United
States federal income and estate taxes and does not deal with foreign, state,
local or other tax considerations that may be relevant to non-U.S. holders
in light of their personal circumstances. In addition, it does not represent a
detailed description of the United States federal income tax consequences
applicable to a non-U.S. holder that is subject to special treatment under
the United States federal income tax laws (including if a
non-U.S. holder is a United States expatriate, “controlled foreign
corporation”, “passive foreign investment company” or a partnership or other
pass-through entity for United States federal income tax purposes). We cannot
assure a prospective holder that a change in law will not alter significantly
the tax considerations that we describe in this summary.
If a
partnership holds our common stock, the tax treatment of a partner will
generally depend upon the status of the partner and the activities of the
partnership. A partner of a partnership holding our common stock should consult
its own tax advisors.
Each
prospective purchaser of our common stock should consult its own tax advisors
concerning the particular United States federal income and estate tax
consequences to such purchaser of the ownership of the common stock, as well as
the consequences to such purchaser arising under the laws of any other taxing
jurisdiction.
Dividends
We expect
that stock dividends that are received by a non-U.S. holder as part of a
pro rata distribution to all of our shareholders generally will not be subject
to U.S. federal income or withholding tax.
Cash
dividends paid to a non-U.S. holder of our common stock generally will be
subject to withholding of United States federal income tax at a 30% rate or such
lower rate as may be specified by an applicable income tax treaty. However, cash
dividends that are effectively connected with the conduct of a trade or business
by the non-U.S. holder within the United States (and, if required by an
applicable income tax treaty, are attributable to a United States permanent
establishment) are not subject to the withholding tax, provided certain
certification and disclosure requirements are satisfied. Instead, such dividends
are subject to United States federal income tax on a net income basis in the
same manner as if the non-U.S. holder were a United States person as
defined under the Code. Any such effectively connected dividends received by a
foreign corporation may be subject to an additional “branch profits tax” at a
30% rate or such lower rate as may be specified by an applicable income tax
treaty.
A
non-U.S. holder of our common stock who wishes to claim the benefit of an
applicable treaty rate and avoid backup withholding, as discussed below, for
cash dividends will be required (a) to complete Internal Revenue Service
Form W-8BEN (or other applicable form) and certify under penalty of perjury
that such holder is not a United States person as defined under the Code and is
eligible for treaty benefits or (b) if our common stock is held through
certain foreign intermediaries, to satisfy the relevant certification
requirements of applicable United States Treasury regulations. Special
certification and other requirements apply to certain non-U.S. holders that
are pass-through entities rather than corporations or individuals.
A
non-U.S. holder of our common stock eligible for a reduced rate of United
States withholding tax pursuant to an income tax treaty may obtain a refund of
any excess amounts withheld by filing an appropriate claim for refund with the
Internal Revenue Service.
Gain
on Disposition of Common Stock
Any gain
realized on the disposition of our common stock by a non-U.S. holder
generally will not be subject to United States federal income tax
unless:
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•
|
the
gain is effectively connected with a trade or business of the
non-U.S. holder in the United States (and, if required by an
applicable income tax treaty, is attributable to a United States
permanent establishment of the
non-U.S. holder);
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|
•
|
the
non-U.S. holder is an individual who is present in the United States
for 183 days or more in the taxable year of that disposition, and
certain other conditions are
met; or
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|
•
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we
are or have been at any time within the shorter of the five-year period
preceding the disposition or the period the non-U.S. holder held our
common stock a “United States real property holding corporation” for
United States federal income tax purposes and an exception applicable to
“regularly traded” securities (discussed below) does not
apply.
|
A
domestic corporation is a United States real property holding corporation if the
fair market value of its United States real property interests is 50% or more of
the aggregate fair market value of its United States and foreign real property
interests and any other assets used or held for use by it in a trade or
business. Based upon our existing assets, we believe that we are not
presently a United States real property holding corporation. However,
because the determination of United States real property holding corporation
status in the future will be based upon the composition of our assets from time
to time, there can be no assurance that we will not become a United States real
property holding corporation in the future. If we were to become a
United States real property holding corporation, then gain on the disposition of
our common stock by a non-U.S. holder would generally be subject to United
States tax. However, an exception to United States tax applies to
certain stock of a United States real property holding corporation if (x) at any
time during the calendar year, any class of stock of the corporation is
regularly traded on an established securities market and (y) a non-U.S. holder
owns five percent or less of such regularly traded stock at any time during the
shorter of the five-year period preceding the disposition of the stock or the
period during which the non-U.S. holder held the stock. Non-U.S.
holders should consult with their tax advisors concerning any United States tax
consequences that may arise if we constitute a United States real property
corporation.
An
individual non-U.S. holder described in the first bullet point immediately
above will generally be subject to tax on the net gain derived from the sale
under regular graduated United States federal income tax rates. An individual
non-U.S. holder described in the second bullet point immediately above will
be subject to a flat 30% tax on the gain derived from the sale, which may be
offset by United States source capital losses, even though the individual is not
considered a resident of the United States. If a non-U.S. holder that is a
foreign corporation falls under the first bullet point immediately above, it
will be subject to tax on its net gain in the same manner as if it were a United
States person as defined under the Code and, in addition, may be subject to the
branch profits tax equal to 30% of its effectively connected earnings and
profits or at such lower rate as may be specified by an applicable income tax
treaty.
We
believe we are not and do not anticipate becoming a “United States real property
holding corporation” for United States federal income tax purposes.
Federal
Estate Tax
Common
stock held by an individual non-U.S. holder at the time of death will be
included in such holder’s gross estate for United States federal estate tax
purposes, unless an applicable estate tax treaty provides
otherwise.
Information
Reporting and Backup Withholding
We must
report annually to the Internal Revenue Service and to each non-U.S. holder
the amount of dividends paid to such holder and the tax withheld with respect to
such dividends, regardless of whether withholding was required. Copies of the
information returns reporting such dividends and withholding may also be
made
available
to the tax authorities in the country in which the non-U.S. holder resides
under the provisions of an applicable income tax treaty.
A
non-U.S. holder will be subject to backup withholding for dividends paid to
such holder unless such holder certifies under penalty of perjury that it is a
non-U.S. holder (and the payor does not have actual knowledge or reason to
know that such holder is a United States person as defined under the Code), or
such holder otherwise establishes an exemption.
Information
reporting and, depending on the circumstances, backup withholding will apply to
the proceeds of a sale of our common stock within the United States or conducted
through certain United States-related financial intermediaries, unless the
beneficial owner certifies under penalty of perjury that it is a
non-U.S. holder (and the payor does not have actual knowledge or reason to
know that the beneficial owner is a United States person as defined under the
Code), or such owner otherwise establishes an exemption.
Any
amounts withheld under the backup withholding rules may be allowed as a refund
or a credit against a non-U.S. holder’s United States federal income tax
liability provided the required information is furnished to the Internal Revenue
Service.
The
Company has entered into an underwriting agreement with Goldman,
Sachs & Co., as representative of the underwriters named below, with
respect to the shares being offered. Subject to certain conditions, each
underwriter has severally agreed to purchase the number of shares indicated in
the following table.
|
Underwriter
|
Number of
Shares
|
|||
|
Goldman,
Sachs & Co.
|
2,700,000 | |||
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
LLC
|
300,000 | |||
|
Total:
|
3,000,000 | |||
The
underwriters are committed to take and pay for all of the shares being offered,
if any are taken, other than the shares covered by the option described below
unless and until this option is exercised.
The
underwriters have an option to buy up to an additional 450,000 shares from the
Company. The underwriters may exercise that option for 30 days. If the
shares are purchased pursuant to this option, the underwriters will severally
purchase shares in the same proportion as set forth above.
The
following table shows the per share and total underwriting discounts and
commissions to be paid to the underwriters by the Company. Such amounts are
shown assuming both no exercise and full exercise of the underwriters’ option to
purchase additional shares.
|
No
Exercise
|
Full
Exercise
|
|||||||
|
Per
Share
|
$ | 0.4250 | $ | 0.4250 | ||||
|
Total
|
$ | 1,275,000 | $ | 1,466,250 | ||||
Shares
sold by the underwriters to the public will initially be offered at the initial
public offering price set forth on the cover of this prospectus supplement. Any
shares sold by the underwriters to securities dealers may be sold at a discount
of up to $0.2550 per share from the public offering price. If all the shares are
not sold at the public offering price, the underwriters may change the offering
price and the other selling terms. The offering of the shares by the
underwriters is subject to receipt and acceptance and subject to the
underwriters’ right to reject any order in whole or in part.
The
Company has agreed with Goldman, Sachs & Co., as representative of the
underwriters, subject to certain exceptions, not to pledge, dispose of or hedge
any of its common stock or securities convertible into or exchangeable for
shares of common stock during the period from the date of this prospectus
supplement continuing through the date 90 days after the date of this
prospectus supplement, except with the prior written consent of Goldman, Sachs
& Co. This agreement does not apply to any existing employee benefit plans
or currently outstanding convertible securities.
All of
our directors and certain of our executive officers have agreed with Goldman,
Sachs & Co., as representative of the underwriters, that, subject to certain
exceptions, through and including the date 90 days after the date hereof, they
will not directly or indirectly offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose of any shares of
our common stock, or any options or warrants to purchase any shares of our
common stock, or any securities convertible into, exchangeable for or that
represent the right to receive shares of our common stock, whether now owned or
hereinafter acquired, owned directly by the applicable director or executive
officer (including holding as a custodian) or with respect to which such person
has beneficial ownership within the rules and regulations of the SEC
(collectively, the “covered shares”). The foregoing restriction is expressly
agreed to preclude them from engaging in any hedging or other transaction which
is designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the covered shares even if such shares would be disposed
of by someone other than them. Such prohibited hedging or other transactions
would include without limitation any short sale or any purchase, sale or grant
of any right (including without limitation any put or call option) with respect
to any of the covered shares or with respect to any security that includes,
relates to, or derives any significant part of its value from such
shares. However, the foregoing restriction does not apply to (i) any
gift, when the recipient agrees to be bound to the foregoing restriction, (ii)
transfer to any trust for the benefit of such individuals or their respective
immediate family members, when the trust agrees to be bound to the foregoing
restriction and when such transfer shall not involve a disposition for value,
(iii) transfer among such individuals, (iv) transfer to the Company, (v)
transfer pursuant to a will or other testamentary document or applicable laws of
descent, (vi) transfer with the prior written consent of Goldman, Sachs &
Co. or (vii) transfer of an aggregate of 5,000 shares per individual that is not
otherwise allowed during the period the foregoing restriction
applies.
In
connection with the offering, the underwriters may purchase and sell shares of
common stock in the open market. These transactions may include short sales,
stabilizing transactions and purchases to cover positions created by short
sales. Short sales involve the sale by the underwriters of a greater number of
shares than they are required to purchase in the offering. “Covered” short sales
are sales made in an amount not greater than the underwriters’ option to
purchase additional shares from the Company in the offering. The underwriters
may close out any covered short position by either exercising their option to
purchase additional shares or purchasing shares in the open market. In
determining the source of shares to close out the covered short position, the
underwriters will consider, among other things, the price of shares available
for purchase in the open market as compared to the price at which they may
purchase additional shares pursuant to the option granted to them. “Naked” short
sales are any sales in excess of such option. The underwriters must close out
any naked short position by purchasing shares in the open market. A naked short
position is more likely to be created if the underwriters are concerned that
there may be downward pressure on the price of the common stock in the open
market after pricing that could adversely affect investors who purchase in the
offering. Stabilizing transactions consist of various bids for or purchases of
common stock made by the underwriters in the open market prior to the completion
of the offering.
The
underwriters may also impose a penalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the underwriting discount
received by it because the underwriter has repurchased shares sold by or for the
account of such underwriter in stabilizing or short covering
transactions.
Purchases
to cover a short position and stabilizing transactions, as well as other
purchases by the underwriters for their own accounts, may have the effect of
preventing or retarding a decline in the market price of the common stock, and
together with the imposition of the penalty bid, may stabilize, maintain or
otherwise affect the market price of the common stock. As a result, the price of
the common stock may be higher than the price that otherwise might exist in the
open market. If these activities are commenced, they may be discontinued at any
time. These transactions may be effected on the NYSE, in the over-the-counter
market or otherwise.
It is
expected that delivery of the shares of common stock will be made against
payment therefor on November 4, 2009, which is the fourth business day following
the date of this prospectus supplement. Under Rule
15c6-1
adopted under the Exchange Act, trades in the secondary market generally are
required to settle in three business days, unless the parties to any such trade
expressly agree otherwise. Accordingly, purchasers who wish to trade
the common stock prior to the closing date will be required, by virtue of the
fact that the shares of common stock are initially expected to settle in four
business days, to specify alternative settlement arrangements to prevent a
failed settlement.
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
underwriter has represented and agreed that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the “Relevant Implementation Date”) it has not made and will not make an
offer of shares to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the shares which has been approved by
the competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of shares to the public in that Relevant
Member State at any time:
|
•
|
to
legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in
securities;
|
|
•
|
to
any legal entity which has two or more of (1) an average of at least
250 employees during the last financial year; (2) a total
balance sheet of more than €43,000,000 and (3) an annual net turnover
of more than €50,000,000, as shown in its last annual or consolidated
accounts;
|
|
•
|
to
fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the prior
consent of the representative for any such
offer; or
|
|
•
|
in
any other circumstances which do not require the publication by the
Company of a prospectus pursuant to Article 3 of the Prospectus
Directive.
|
For the
purposes of this provision, the expression an “offer of shares to the public” in
relation to any shares in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms of the offer
and the shares to be offered so as to enable an investor to decide to purchase
or subscribe the shares, as the same may be varied in that Relevant Member State
by any measure implementing the Prospectus Directive in that Relevant Member
State and the expression “Prospectus Directive” means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member
State.
Each
underwriter has represented and agreed that:
|
•
|
it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of
the FSMA) received by it in connection with the issue or sale of the
shares in circumstances in which Section 21(1) of the FSMA does not
apply to the Company; and
|
|
•
|
it
has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the shares in, from or
otherwise involving the United
Kingdom.
|
The
shares may not be offered or sold by means of any document other than
(i) in circumstances which do not constitute an offer to the public within
the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), or
(ii) to “professional investors” within the meaning of the Securities and
Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder,
or (iii) in other circumstances which do not result in the document being a
“prospectus” within the meaning of the Companies Ordinance (Cap. 32, Laws of
Hong Kong), and no advertisement, invitation or document relating to the shares
may be issued or may be in the possession of any person for the purpose of issue
(in each case whether in Hong Kong or elsewhere), which is directed at, or the
contents of which are likely to be accessed or read by, the public in Hong Kong
(except if permitted to do so under the laws of Hong Kong) other than with
respect to shares which are or are intended to be disposed of only to persons
outside
Hong Kong
or only to “professional investors” within the meaning of the Securities and
Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made
thereunder.
Neither
this prospectus supplement nor the accompanying prospectus has been registered
as a prospectus with the Monetary Authority of Singapore. Accordingly, this
prospectus supplement, the accompanying prospectus and any other document or
material in connection with the offer or sale, or invitation for subscription or
purchase, of the shares may not be circulated or distributed, nor may the shares
be offered or sold, or be made the subject of an invitation for subscription or
purchase, whether directly or indirectly, to persons in Singapore other than
(i) to an institutional investor under Section 274 of the Securities
and Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a
relevant person, or any person pursuant to Section 275(1A), and in
accordance with the conditions, specified in Section 275 of the SFA or
(iii) otherwise pursuant to, and in accordance with the conditions of, any
other applicable provision of the SFA.
Where the
shares are subscribed or purchased under Section 275 by a relevant person
which is: (a) a corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share capital of which
is owned by one or more individuals, each of whom is an accredited investor; or
(b) a trust (where the trustee is not an accredited investor) whose sole
purpose is to hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that corporation or the
beneficiaries’ rights and interest in that trust shall not be transferable for
6 months after that corporation or that trust has acquired the shares under
Section 275 except: (1) to an institutional investor under
Section 274 of the SFA or to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions, specified in
Section 275 of the SFA; (2) where no consideration is given for the
transfer; or (3) by operation of law.
The
shares have not been and will not be registered under the Financial Instruments
and Exchange Law of Japan (the Financial Instruments and Exchange Law) and each
underwriter has agreed that it will not offer or sell any shares, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan, including any
corporation or other entity organized under the laws of Japan), or to others for
re-offering or resale, directly or indirectly, in Japan or to a resident of
Japan, except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Financial Instruments and Exchange Law and
any other applicable laws, regulations and ministerial guidelines of
Japan.
The
Company estimates that the total expenses of the offering, excluding
underwriting discounts and commissions, will be approximately $0.5 million, all
of which will be paid by the Company.
The
Company has agreed to indemnify the several underwriters against certain
liabilities, including liabilities under the Securities Act of
1933.
Certain
of the several underwriters and their respective affiliates have, from time to
time, performed, and may in the future perform, various financial advisory and
investment banking services for the Company, for which they received or will
receive customary fees and expenses.
The
validity of the common stock offered hereby will be passed upon for us by Kelley
Drye & Warren LLP, New York, New York and Stamford, Connecticut and for the
underwriters by Sullivan & Cromwell LLP, New York, New York.
The
consolidated financial statements, financial statement schedule and management’s
assessment of the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus supplement have been so
incorporated by reference in reliance upon the reports of Grant
Thornton LLP, independent registered public accountants (which report on
the consolidated financial statements expressed an unqualified opinion and
contained explanatory paragraphs related to the adoption of Statement of
Financial Accounting Standards No. 123 (revised 2004), Share-Based Payment,
effective January 1, 2006, the adoption of Statement of Financial Accounting
Standards
No. 158, Employers’ Accounting for Defined Benefit Pension and Other
Postretirement Plans: an amendment of FASB Statements No. 87, 88, 106 and
132(R), effective December 31, 2006, and the adoption of Financial
Accounting Standards Board Interpretation No. 48, Accounting for
Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109,
effective January 1, 2007), upon the authority of said firm as experts in
accounting and auditing in giving said reports.
We are a
reporting company and file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any
document that we file at the Public Reference Room of the SEC at
100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. In addition, the SEC maintains an Internet site at
http:/www.sec.gov, from which interested persons can electronically access our
SEC filings, including the registration statement of which this prospectus
supplement forms a part, and the exhibits and schedules thereto.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that 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 supplement, and information that we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and all documents we file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), on or after the date of this prospectus
supplement and prior to the termination of the offering under this prospectus
supplement (other than in each case unless otherwise indicated, documents or
information deemed to have been furnished and not filed in accordance with SEC
rules):
|
•
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008 and Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2009, June 30, 2009 and September 30,
2009;
|
|
•
|
Our
Current Reports on Form 8-K filed on January 16, 2009, March 6, 2009
and May 4, 2009, two Current Reports on Form 8-K both filed on May 6,
2009, and our Current Reports on Form 8-K filed on June 29, 2009, July 13,
2009, July 15, 2009, August 5, 2009 and October 27, 2009 (to the extent
filed but not furnished); and
|
|
•
|
The
description of our common stock set forth under the caption “Description
of Capital Stock – Common Stock” at page 73 of the prospectus forming a
part of Amendment No. 1 to our Registration Statement on Form S-3 filed
with the SEC on June 4, 2003.
|
You may
request a copy of these filings at no cost, by writing or
telephoning:
Standard
Motor Products, Inc.
37-18
Northern Boulevard
Long
Island City, New York 11101
Attn: Carmine
J. Broccole, Esq.
Vice
President General Counsel
and
Secretary
Telephone:
(718) 392-0200
The
accompanying prospectus is part of a registration statement on Form S-3 we
have filed with the SEC under the Securities Act. Neither this prospectus
supplement nor the accompanying prospectus contains all of the information in
the registration statement. We have omitted certain parts of the registration
statement, as permitted by the rules and regulations of the SEC. You may inspect
and copy the registration statement, including exhibits, at the SEC’s Public
Reference Room or on our website at www.smpcorp.com. Information contained on
our website is not and should not be deemed a part of this prospectus
supplement, the accompanying prospectus or any other report or filing filed with
the SEC. Our statements in this prospectus supplement about the contents of any
contract or other document are not necessarily complete. You should refer to the
copy of each contract or other document we have filed as an exhibit to the
registration statement for complete information.
$75,000,000
Standard
Motor Products, Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Depositary
Shares
Stock
Purchase Contracts
Units
From time
to time, we may offer up to $75,000,000 of any combination of the securities
described in this prospectus, either individually or in units. We may also offer
common stock or preferred stock upon conversion of debt securities, common stock
upon conversion of preferred stock, or common stock, preferred stock or debt
securities upon the exercise of warrants. Such securities may be offered and
sold by us in one or more offerings with a total aggregate principal amount or
initial purchase price not to exceed $75,000,000.
This
prospectus provides a general description of these securities. Each time we sell
these securities we will provide specific information and the terms of the
securities being offered in supplements to this prospectus. The supplements may
also add, update or change information contained in this prospectus. Please read
this prospectus and any prospectus supplements together with any documents
incorporated by reference carefully before investing. This prospectus may not be
used to sell securities unless accompanied by the applicable prospectus
supplement.
Our
common stock is traded on the New York Stock Exchange under the symbol “SMP.” On
October 2, 2009, the last reported sale price for our common stock on the New
York Stock Exchange was $13.93 per share.
Our
principal executive offices are located at 37-18 Northern Boulevard, Long Island
City, New York 11101, and our telephone number is (718) 392-0200.
We may
offer these securities directly to investors, through underwriters, dealers or
agents, on a continuous or delayed basis. See “Plan of Distribution.” Each
prospectus supplement will provide the terms of the plan of distribution
relating to the securities being offered.
Investing in our securities involves
risks that you should consider and that are described in our most recent Annual
Report on Form
10-K , and any
subsequent Quarterly Report on Form 10-Q, which are incorporated by
reference into this prospectus or any applicable prospectus
supplement. See also “Risk Factors” on page 3 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission 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.
The
date of this prospectus is October 7, 2009.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf” registration, or continuous
offering, process. Under this shelf registration process, we may, from time to
time, offer shares of our common stock, preferred stock, either separately or
represented by depositary shares, or warrants to purchase any of such
securities, either individually or in units, or various series of debt
securities, in one or more offerings, up to a total initial issuance amount of
$75,000,000.
This
prospectus provides you with a general description of the securities we may
offer. The specific terms of any securities to be offered will be described in a
prospectus supplement. Any prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also add, update or
change information contained in this prospectus. Any statement that we make in
this prospectus will be modified or superseded by any inconsistent statement
made by us in a prospectus supplement. The registration statement we filed with
the SEC includes exhibits that provide more detail on descriptions of the
matters discussed in this prospectus. You should read this prospectus and the
related exhibits filed with the SEC and any prospectus supplement, together with
additional information described under the heading “Where You Can Find More
Information.”
Unless
the context otherwise requires, references in this prospectus and the
accompanying prospectus supplement to “we,” “us” and “our” refer to Standard
Motor Products, Inc. and its subsidiaries.
TABLE
OF CONTENTS
|
Page
|
|||
|
Standard Motor Products,
Inc.
|
3
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||
|
The Securities We May
Offer
|
3
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||
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Risk
Factors
|
3
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||
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Incorporation by
Reference
|
4
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||
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Where You Can Find More
Information
|
4
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||
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Special Note About
Forward-Looking Statements
|
5
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||
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Use of
Proceeds
|
5
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||
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Ratio of Earnings to Fixed
Charges
|
5
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||
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Description of Capital
Stock
|
6
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||
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Description of Debt
Securities
|
7
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||
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Description of
Warrants
|
16
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||
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Description of Depositary
Shares
|
17
|
||
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Description of Stock Purchase
Contracts
|
19
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||
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Description of
Units
|
20
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||
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Plan of
Distribution
|
21
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||
|
Legal
Matters
|
23
|
||
|
Experts
|
23
|
||
You
should rely only on the information incorporated by reference or provided in
this prospectus, any prospectus supplement, the registration statement and any
other free writing prospectus authorized by us to be provided to you. We have
not authorized anyone else to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not making an offer to sell these securities in any state where the
offer or sale is not permitted. You should assume that the information in this
prospectus and any prospectus supplement, or incorporated by reference, is
accurate only as of the dates of those documents. Our business, financial
condition, results of operations and prospects may have changed since those
dates.
We are a
leading independent manufacturer and distributor of replacement parts for motor
vehicles in the automotive aftermarket industry, with an increasing focus on the
original equipment and original equipment service markets. We are organized into
two major operating segments, each of which focuses on a specific line of
replacement parts. Our Engine Management Segment manufactures ignition and
emission parts, ignition wires, battery cables and fuel system parts. Our
Temperature Control Segment manufactures and remanufactures air conditioning
compressors, air conditioning and heating parts, engine cooling system parts,
power window accessories, and windshield washer system parts. We also sell our
products in Europe through our European Segment.
We sell
our products primarily to warehouse distributors, large retail chains, original
equipment manufacturers and original equipment service part operations in the
United States, Canada and Latin America. Our customers consist of many of the
leading warehouse distributors, such as CARQUEST and NAPA Auto Parts, as well as
many of the leading auto parts retail chains, such as Advance Auto Parts,
AutoZone, O’Reilly Automotive/CSK Auto, Canadian Tire and Pep Boys. Our
customers also include national program distribution groups and specialty market
distributors. We distribute parts under our own brand names, such as Standard,
ACi, BWD, Hayden and Four Seasons, and through private labels, such as CARQUEST
and NAPA Echlin.
We may
offer shares of our common stock, preferred stock, either separately or
represented by depositary shares, or warrants to purchase any of such
securities, either individually or in units, or various series of debt
securities, with a total offering price of up to $75,000,000 from time to time
under this prospectus at prices and on terms to be determined by market
conditions at the time of any offering. This prospectus provides you with a
general description of the securities we may offer. Each time we offer a type or
series of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important
terms of the securities, including, to the extent applicable:
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•
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Designation or
classification;
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•
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Aggregate principal amount or
aggregate offering price;
|
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•
|
Maturity, if
applicable;
|
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•
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Original issue discount, if
any;
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•
|
Rates and times of payment of
interest or dividends, if
any;
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•
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Redemption, conversion, exercise,
exchange or sinking fund terms, if
any;
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•
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Ranking;
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•
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Restrictive covenants, if
any;
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•
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Voting or other rights, if
any;
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•
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Conversion prices, if any;
and
|
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•
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Material U.S. federal income tax
considerations.
|
The
prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference.
However, no prospectus supplement or free writing prospectus will offer a
security that is not registered and described in this prospectus at the time of
the effectiveness of the registration statement of which this prospectus is a
part.
An
investment in our securities involves a high degree of risk. Prior to making a
decision about investing in our securities, you should carefully consider the
specific risk factors discussed in the sections entitled “Risk Factors”
contained in any applicable prospectus supplement and our filings with the SEC
and incorporated by reference in this prospectus, together with all of the other
information contained in this prospectus, or any applicable prospectus
supplement. If any of the risks or uncertainties described in our SEC filings or
any prospectus supplement or any additional risks and uncertainties actually
occur, our business, financial condition and results of operations could be
materially
and adversely affected. In that case, the trading price of our securities could
decline and you might lose all or part of the value of your
investment.
The
following documents filed with the SEC by Standard Motor Products, Inc. (the
“Company”) pursuant to the Securities Act of 1933, as amended (the “Securities
Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
are hereby incorporated by reference in this registration
statement:
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•
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008 and Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2009 and June 30,
2009;
|
|
|
•
|
Our
Current Reports on Form 8-K filed on January 16, 2009, March 6, 2009
and May 4, 2009, two Current Reports on Form 8-K both filed on May 6,
2009, and our Current Reports on Form 8-K filed on June 29, 2009, July 13,
2009, July 15, 2009 and August 5, 2009 (to the extent filed but not
furnished); and
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|
|
•
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The description of our common
stock set forth under the caption “Description of Capital Stock – Common
Stock” at page 73 of the prospectus forming a part of Amendment No. 1 to
our Registration Statement on Form S-3 filed with the SEC on June 4,
2003.
|
All
documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this registration statement and
prior to the filing of a post-effective amendment to the registration statement
of which this prospectus forms a part (to the extent filed but not furnished)
indicating that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this prospectus and to be a part hereof from the date of filing
of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
Copies of
the above documents (other than exhibits to such documents) may be obtained upon
request without charge upon oral or written request to Standard Motor Products,
Inc., Attn: Carmine J. Broccole, Esq., Vice President General Counsel and
Secretary, 37-18 Northern Boulevard, Long Island City, New York 11101, Telephone
(718) 392-0200.
We are a
reporting company and file annual, quarterly and current reports, proxy
statements and other information with the Securities and Exchange Commission, or
SEC. In addition, we have filed with the SEC a Registration Statement on Form
S-3, of which this prospectus is a part, under the Securities Act with respect
to the securities offered hereby. This prospectus does not contain all of the
information set forth in the registration statement or the exhibits which are a
part of the registration statement. You may read and copy the registration
statement and any document we file with the SEC at the public reference room
maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may
obtain information on the operation of the public reference room by calling the
SEC at 1-800-SEC-0330. Our filings with the SEC are also available to the public
through the SEC’s Internet site at http://www.sec.gov and
through the New York Stock Exchange, 20 Broad Street, New York, New York 10005,
on which our common stock is listed.
Our
disclosure and analysis in this prospectus, the documents that are incorporated
by reference into this prospectus and in any prospectus supplement may be deemed
“forward-looking” statements under Section 21E of the Exchange Act and the
Private Securities Litigation Reform Act of 1995 and are subject to numerous
risks and uncertainties. These and other forward-looking statements made by us
in reports that we file with the Securities and Exchange Commission, press
releases, and public statements of our officers, corporate spokespersons or our
representatives are based on a number of assumptions and relate to, without
limitation: our substantial leverage; economic and market conditions (including
access to the credit and financial markets); the performance of the aftermarket
sector; changes in business relationships with our major customers’ programs;
changes in the product and distribution channel mix; the ability of our
customers to achieve their projected sales; competitive product and pricing
pressures; increases in production or material costs that cannot be recouped in
product pricing; successful integration of acquired businesses; our ability to
achieve cost savings from our restructuring activities; product and
environmental liability matters (including, without limitation, those related to
asbestos-related contingent liabilities or environmental remediation
liabilities); as well as other risks and uncertainties. The words “believe,”
“expect,” “anticipate,” “intend,” “plan,” “estimate” or other expressions which
predict or indicate future events and trends and do not relate to historical
matters identify forward-looking statements. You are cautioned not to place
undue reliance on these forward-looking statements as they involve risks and
uncertainties and such forward-looking statements may turn out to be wrong.
Actual results could differ materially from those currently anticipated due to a
number of factors, including those set forth in the section entitled “Risk
Factors” in our most recent Annual Report on Form 10-K and any subsequent
Quarterly Report on Form 10-Q, which are incorporated by reference into this
prospectus.
Unless
otherwise specified in the applicable prospectus supplement, we intend to use
the net proceeds from the sale of the securities in the prospectus and any
prospectus supplement to repay a portion of our outstanding indebtedness under
our revolving credit facility. We then intend to borrow funds from
time to time under our revolving credit facility for general corporate purposes,
which could include:
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Working
capital;
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Capital expenditures;
and
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Acquisitions.
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The
following table sets forth the historical ratio of our earnings to our fixed
charges for the periods indicated:
For
purposes of calculating the ratio of earnings to fixed charges, earnings consist
of income before taxes, discontinued operations and fixed charges. In
addition, we had no preferred stock outstanding for any period presented, and
accordingly, the ratio of earnings to combined fixed charges and preferred stock
dividends is the same as the ratio of earnings to fixed charges.
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Years
Ended
December
31,
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Six
Months
Ended
June
30,
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2004
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2005
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2006
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2007
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2008
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2009
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Ratio
of earnings to fixed charges
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0.4
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1.0
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1.6
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1.4
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—(a)
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2.7
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__________________________
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(a)
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Earnings
were inadequate to cover fixed charges for the year ended December 31,
2008. The deficiency in earnings for the year ended December
31, 2008 was approximately $28.6
million.
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We are
currently authorized by our Restated Certificate of Incorporation, as amended,
to issue up to 30,000,000 shares of common stock, $2 par value per share, and
500,000 shares of preferred stock, $20 par value per share, of which 30,000
shares of preferred stock have been designated as Series A Participating
Preferred Stock and reserved for future issuance. As of September 30,
2009, there were 19,060,855 shares of common stock outstanding held of record by
544 holders of record, and no shares of preferred stock
outstanding.
The
statements under this caption are brief summaries of certain material provisions
of our Restated Certificate of Incorporation and our Restated
By-laws. Such summaries do not purport to be complete, and are
subject to, and are qualified in their entirety by reference to, such
documents.
Common
Stock
Holders
of common stock are entitled to one vote per share on all matters on which
holders of common stock are entitled to vote. The holders of shares
of common stock do not have cumulative voting rights. Therefore, the
holders of more than 50% of the shares of common stock voting for the election
of directors can elect all of the directors, and the remaining holders will not
be able to elect any directors. Subject to the rights of the holders
of any shares of preferred stock, holders of common stock are entitled to
receive ratably such dividends as may from time to time be declared by our Board
of Directors out of funds legally available therefor. Holders of
common stock have no pre-emptive, conversion, redemption, subscription or
similar rights. In the event of our liquidation, dissolution or
winding up, whether voluntary or involuntary, holders of shares of common stock
are entitled to share ratably in our assets which are legally available for
distribution, if any, remaining after the payment or provision for the payment
of all of our debts and other liabilities and the payment of any preferential
amount due to the holders of shares of any series of preferred
stock. All of the outstanding shares of common stock are fully paid
and non-assessable. See “–Restated Certificate of Incorporation and
Restated By-Laws” below for a discussion of supermajority voting requirements
contained in the Restated Certificate of Incorporation and Restated
By-laws.
The
transfer agent for our common stock is Registrar and Transfer
Company.
Preferred
Stock
Our
Restated Certificate of Incorporation authorizes our Board of Directors to issue
from time to time up to 500,000 shares of preferred stock in one or more series
and to establish and fix the number of shares of such series and the relative
rights, preferences and limitations of each series. Preferred stock,
if issued, will rank senior to the common stock as to dividends and as to
liquidation preference and could decrease the amount of earnings and assets
available for distribution to holders of common stock. The issuance
of the preferred stock may have the effect of delaying, deterring, or preventing
a change in control of Standard Motor Products, Inc. and may adversely affect
the rights of holders of common stock. Preferred stock, upon
issuance, against full payment of the purchase price therefor, will be fully
paid and non-assessable. As of the date of this prospectus, no shares
of preferred stock are outstanding.
New
York Business Corporation Law
We are
subject to Section 912 of the New York Business Corporation Law, which prohibits
certain “business combinations” (as defined in Section 912 generally to include
mergers, sales and leases of assets, issuances of securities and similar
transactions) by us or one of our subsidiaries with an “interested shareholder”
(as defined in Section 912 generally to mean any person, other than us or any of
our subsidiaries, that beneficially owns, directly or indirectly, 20% or more of
our outstanding voting stock or is one of such person’s affiliates or
associates) for five years after the person or entity becomes an interested
shareholder unless (1) our Board of Directors shall have approved the
transaction before the person became an interested shareholder, (2) the business
combination is approved by the holders of a majority of our outstanding voting
stock, excluding shares held by the interested shareholder, at a meeting called
for such purpose not earlier than five years after such interested shareholder’s
acquisition or (3) the transaction meets certain “best price”
conditions.
In
addition, Article 16 of the New York Business Corporation Law requires that any
offeror making a takeover bid for a New York corporation file with the New York
Attorney General, as soon as practicable on the date of commencement of the
takeover bid, a registration statement containing specified details regarding
the proposed takeover. The New York Business Corporation Law also
contains provisions permitting directors in taking action (including taking
action relating to a change in control) to consider employees, retirees,
customers, creditors and the community, and preventing New York corporations
from paying “greenmail” without a shareholder vote. These statutory
provisions may have the effect of delaying, deterring or preventing a future
takeover or change in control of Standard Motor Products, Inc., unless such
takeover or change in control is approved by our Board of
Directors.
Restated
Certificate of Incorporation and Restated By-Laws
Our
Restated Certificate of Incorporation and Restated By-laws include certain other
provisions which are intended to enhance the likelihood of continuity and
stability in our ownership and which may have the effect of delaying, deterring
or preventing a future takeover or change in control of Standard Motor Products,
Inc., unless such takeover or change in control is approved by our Board of
Directors. Specifically, our Restated Certificate of Incorporation
requires that, absent Board approval, any merger or consolidation of us or any
of our subsidiaries with or into any other corporation; any sale, lease,
exchange or other disposition by us or any of our subsidiaries of all or
substantially all of our or any of our subsidiaries’ assets to any other
corporation, person or entity; or any purchase, lease or other acquisition by us
or any of our subsidiaries, of any assets and/or securities from any other
corporation, person or entity in exchange for our voting securities (or
securities convertible thereinto, or options, warrants or rights to purchase any
such securities) or those of any of our subsidiaries, requires the affirmative
vote of the holders of (a) at least 75% of the outstanding shares of each class
of our capital stock entitled to vote in an election of directors and (b) at
least a majority of the remaining outstanding shares, which are not directly or
indirectly beneficially owned by such other corporation, person or entity to the
transaction, of each such class of our capital stock entitled to vote in
elections of directors, if, as of the record date for the determination of
shareholders entitled to notice thereof and to vote thereon, such other party to
the transaction is the beneficial owner, directly or indirectly, of 5% or more
of the outstanding shares of any class entitled to so vote. Repeal or
amendment of the foregoing provisions of the Restated Certificate of
Incorporation requires a vote of the holders of at least 75% of the outstanding
shares of each class of our stock entitled to vote on such repeal or
amendment.
Our
Restated Certificate of Incorporation and Restated By-laws also provide that any
director may be removed at any time, without cause, by the affirmative vote, at
any shareholders’ meeting, of the holders of at least 75% of the outstanding
shares of each class of our capital stock entitled to vote at such
meeting.
The
following is a general description of the terms of debt securities we may issue
from time to time unless we provide otherwise in the prospectus supplement.
Particular terms of any debt securities we offer will be described in the
prospectus supplement relating to such debt securities.
As
required by Federal law for all bonds and notes of companies that are publicly
offered, any debt securities we issue will be governed by a document called an
“indenture.” An indenture is a contract between us and a financial institution
acting as trustee on behalf of the holders of the debt securities, and is
subject to and governed by the Trust Indenture Act of 1939, as amended. The
trustee has two main roles. First, the trustee can enforce holders’ rights
against us if we default. There are some limitations on the extent to which the
trustee acts on holders’ behalf, described in the second paragraph under
“Description of Debt Securities—Events of Default—Remedies if an Event of
Default Occurs.” Second, the trustee performs certain administrative duties,
such as sending interest and principal payments to holders.
Because
this section is a summary, it does not describe every aspect of any debt
securities we may issue or the indenture governing any such debt securities.
Particular terms of any debt securities we offer will be described in the
prospectus supplement relating to such debt securities, and we urge you to read
the applicable indenture, which will be filed with the SEC at the time of any
offering of debt securities, because it, and not this description, will define
the rights of holders of such debt securities.
A
prospectus supplement will describe the particular terms of any series of debt
securities we may issue, including the following:
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the
designation or title of the series of debt
securities;
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the
total principal amount of the series of debt securities, the denominations
in which the offered debt securities will be issued and whether the
offering may be reopened for additional securities of that series and on
what terms;
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•
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the
percentage of the principal amount at which the series of debt securities
will be offered;
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the
date or dates on which principal will be
payable;
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the
rate or rates (which may be either fixed or variable) and/or the method of
determining such rate or rates of interest, if
any;
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the
date or dates from which any interest will accrue, or the method of
determining such date or dates, and the date or dates on which any
interest will be payable;
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the
terms for redemption, extension or early repayment, if
any;
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•
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the
currencies in which the series of debt securities are issued and
payable;
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whether
the amount of payments of principal, interest or premium, if any, on a
series of debt securities will be determined with reference to an index,
formula or other method and how these amounts will be
determined;
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the
place or places of payment, transfer, conversion and/or exchange of the
debt securities;
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•
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the
provision for any sinking fund;
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any
restrictive covenants;
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events
of default;
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•
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whether
the series of debt securities are issuable in certificated
form;
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any
provisions for legal defeasance or covenant
defeasance;
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whether
and under what circumstances we will pay additional amounts in respect of
any tax, assessment or governmental charge and, if so, whether we will
have the option to redeem the debt securities rather than pay the
additional amounts (and the terms of this
option);
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any
provisions for convertibility or exchangeability of the debt securities
into or for any other securities;
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whether
the debt securities are subject to subordination and the terms of such
subordination;
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the
listing, if any, on a securities
exchange;
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if
applicable, a discussion of certain U.S. Federal income tax
considerations, including those related to original issue discount, if
applicable; and
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any
other terms.
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The debt
securities may be secured or unsecured obligations. Unless the prospectus
supplement states otherwise, principal, interest and premium, if any, will be
paid by us in immediately available funds.
General
The
indenture may provide that any debt securities proposed to be sold under this
prospectus and the applicable prospectus supplement relating to such debt
securities (“offered debt securities”) and any debt securities issuable upon the
exercise of warrants or upon conversion or exchange of other offered securities
(“underlying debt securities”) may be issued under the indenture in one or more
series.
For
purposes of this prospectus, any reference to the payment of principal of, or
interest or premium, if any, on, debt securities will include additional amounts
if required by the terms of the debt securities.
Debt
securities issued under an indenture, when a single trustee is acting for all
debt securities issued under the indenture, are called the “indenture
securities.” The indenture may also provide that there may be more than one
trustee thereunder, each with respect to one or more different series of
securities issued thereunder. See “Description of Debt Securities—Resignation of
Trustee” below. At a time when two or more trustees are acting under an
indenture, each with respect to only certain series, the term “indenture
securities” means the one or more series of debt securities with respect to
which each respective trustee is acting. In the event that there is more than
one trustee under an indenture, the powers and trust obligations of each trustee
described in this prospectus will extend only to the one or more series of
indenture securities for which it is trustee. If two or more trustees are acting
under an indenture, then the indenture securities for which each trustee is
acting would be treated as if issued under separate indentures.
We refer
you to the applicable prospectus supplement relating to any debt securities we
may issue from time to time for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection, that will be applicable with respect
to such debt securities.
We have
the ability to issue indenture securities with terms different from those of
indenture securities previously issued and, without the consent of the holders
thereof, to reopen a previous issue of a series of indenture securities and
issue additional indenture securities of that series unless the reopening was
restricted when that series was created.
Conversion
and Exchange
If any
debt securities are convertible into or exchangeable for other securities, the
related prospectus supplement will explain the terms and conditions of the
conversion or exchange, including the conversion price or exchange ratio (or the
calculation method), the conversion or exchange period (or how the period will
be determined), if conversion or exchange will be mandatory or at the option of
the holder or us, provisions for adjusting the conversion price or the exchange
ratio and provisions affecting conversion or exchange in the event of the
redemption of the underlying debt securities. These terms may also include
provisions under which the number or amount of other securities to be received
by the holders of the debt securities upon conversion or exchange would be
calculated according to the market price of the other securities as of a time
stated in the prospectus supplement.
Payment
and Paying Agents
We will
pay interest to the person listed in the applicable trustee’s records as the
owner of the debt security at the close of business on a particular day in
advance of each due date for interest, even if that person no longer owns the
debt security on the interest due date. That day, often approximately two weeks
in advance of the interest due date, is called the “record date.” Because we
will pay all the interest for an interest period to the holders on the record
date, holders buying and selling debt securities must work out between
themselves the appropriate purchase
price.
The most common manner is to adjust the sales price of the debt securities to
prorate interest fairly between buyer and seller based on their respective
ownership periods within the particular interest period. This prorated interest
amount is called “accrued interest.”
Events
of Default
Holders
of debt securities of any series will have rights if an Event of Default occurs
in respect of the debt securities of such series and is not cured, as described
later in this subsection.
The term
“Event of Default” in respect of the debt securities of any series means any of
the following:
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we
do not pay the principal of, or any premium on, a debt security of the
series within five days of its due
date;
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we
do not pay interest on a debt security of the series within 30 days
of its due date;
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we
do not deposit any sinking fund payment in respect of debt securities of
the series on its due date and we do not cure this default within five
days;
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we
remain in breach of a covenant in respect of debt securities of the series
for 60 days after we receive a written notice of default stating we
are in breach. The notice must be sent by either the trustee or holders of
at least 25% of the principal amount of debt securities of the
series;
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we
file for bankruptcy or certain other events of bankruptcy, insolvency or
reorganization occur; and
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any
other Event of Default occurs in respect of debt securities of the series
described in the prospectus
supplement.
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An Event
of Default for a particular series of debt securities does not necessarily
constitute an Event of Default for any other series of debt securities issued
under the same or any other indenture. The trustee may withhold notice to the
holders of debt securities of any default, except in the payment of principal,
premium or interest, if it considers the withholding of notice to be in the best
interests of the holders.
Remedies
if an Event of Default Occurs
If an
Event of Default has occurred and has not been cured or waived, the trustee or
the holders of not less than 25% in principal amount of the debt securities of
the affected series may declare the entire principal amount of all the debt
securities of that series to be due and immediately payable. This is called a
declaration of acceleration of maturity. A declaration of acceleration of
maturity may be canceled by the holders of a majority in principal amount of the
debt securities of the affected series if the default is cured or waived and
certain other conditions are satisfied.
Except in
cases of default, where the trustee has some special duties, the trustee
typically is not required to take any action under an indenture at the request
of any holders unless the holders offer the trustee reasonable protection from
expenses and liability (called an “indemnity”). If reasonable indemnity is
provided, the holders of a majority in principal amount of the outstanding debt
securities of the relevant series may direct the time, method and place of
conducting any lawsuit or other formal legal action seeking any remedy available
to the trustee. The trustee may refuse to follow those directions in certain
circumstances.
Before a
holder is allowed to bypass the trustee and bring its own lawsuit or other
formal legal action or take other steps to enforce its rights or protect its
interests relating to any debt securities, the following must
occur:
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the
holder must give the trustee written notice that an Event of Default has
occurred and remains uncured;
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the
holders of at least 25% in principal amount of all outstanding debt
securities of the relevant series must make a written request that the
trustee take action because of the default and must offer reasonable
indemnity to the trustee against the cost and other liabilities of taking
that action;
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the
trustee must not have taken action for 60 days after receipt of the
above notice and offer of indemnity;
and
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the
holders of a majority in principal amount of the debt securities must not
have given the trustee a direction inconsistent with the above notice
during that 60-day period.
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However,
a holder is entitled at any time to bring a lawsuit for the payment of money due
on its debt securities on or after the due date.
Each
year, we will furnish to each trustee a written statement of certain of our
officers certifying that to their knowledge we are in compliance with the
indenture and the debt securities, or else specifying any default.
Waiver
of Default
The
holders of a majority in principal amount of the relevant series of debt
securities may waive a default for all such series of debt securities. If this
happens, the default will be treated as if it had not occurred. No one can waive
a payment default on a holder’s debt security, however, without the holder’s
approval.
Merger
or Consolidation
Under the
terms of an indenture, we may be permitted to consolidate or merge with another
entity. We may also be permitted to sell all or substantially all of our assets
to another entity. However, typically we may not take any of these actions
unless all the following conditions are met:
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if
we do not survive such transaction or we convey, transfer or lease our
properties and assets substantially as an entirety, the acquiring company
must be a corporation, limited liability company, partnership or trust, or
other corporate form, organized under the laws of any state of the United
States or the District of Columbia and such company must agree to be
legally responsible for our debt securities, and, if not already subject
to the jurisdiction of any state of the United States or the District of
Columbia, the new company must submit to such jurisdiction for all
purposes with respect to the debt securities and appoint an agent for
service of process;
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alternatively,
we must be the surviving company;
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immediately
after the transaction no Event of Default will
exist;
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we
must deliver certain certificates and documents to the trustee;
and
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we
must satisfy any other requirements specified in the prospectus supplement
relating to a particular series of debt
securities.
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Modification
or Waiver
There are
three types of changes we may make to an indenture and the debt securities
issued thereunder.
Changes
Requiring Approval
First,
there are changes that we cannot make to debt securities without specific
approval of all of the holders. The following is a list of the types of changes
that may require specific approval:
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change
the stated maturity of the principal of or interest on a debt
security;
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reduce
any amounts due on a debt security;
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reduce
the amount of principal payable upon acceleration of the maturity of a
security following a default;
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at
any time after a change of control has occurred, reduce any premium
payable upon a change of control;
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change
the place or currency of payment on a debt security (except as otherwise
described in the prospectus or prospectus
supplement);
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impair
the right of holders to sue for
payment;
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adversely
affect any right to convert or exchange a debt security in accordance with
its terms;
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reduce
the percentage of holders of debt securities whose consent is needed to
modify or amend the indenture;
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reduce
the percentage of holders of debt securities whose consent is needed to
waive compliance with certain provisions of the indenture or to waive
certain defaults;
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modify
any other aspect of the provisions of the indenture dealing with
supplemental indentures, modification and waiver of past defaults, changes
to the quorum or voting requirements or the waiver of certain covenants;
and
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change
any obligation we have to pay additional
amounts.
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Changes
Not Requiring Approval
The
second type of change does not require any vote by the holders of the debt
securities. This type is limited to clarifications and certain other changes
that would not adversely affect holders of the outstanding debt securities in
any material respect, including the addition of covenants and guarantees. We
also do not need any approval to make any change that affects only debt
securities to be issued under the indenture after the change takes
effect.
Changes
Requiring Majority Approval
Any other
change to the indenture and the debt securities may require the following
approval:
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if
the change affects only one series of debt securities, it must be approved
by the holders of a majority in principal amount outstanding of that
series; and
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if
the change affects more than one series of debt securities issued under
the same indenture, it must be approved by the holders of a majority in
principal amount outstanding of all of the series affected by the change,
with all affected series voting together as one class for this
purpose.
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In each
case, the required approval must be given by written consent.
The
holders of a majority in principal amount outstanding of all of the series of
debt securities issued under an indenture, voting together as one class for this
purpose, may waive our compliance obligations with respect to some of our
covenants in that indenture. However, we cannot obtain a waiver of a payment
default or of any of the matters covered by the bullet points included above
under “Description of Debt Securities—Modification or Waiver—Changes Requiring
Approval.”
Further
Details Concerning Voting
When
taking a vote, we expect to use the following rules to decide how much principal
to attribute to a debt security:
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for
original issue discount securities, we will use the principal amount that
would be due and payable on the voting date if the maturity of these debt
securities were accelerated to that date because of a
default;
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for
debt securities whose principal amount is not known (for example, because
it is based on an index), we will use a special rule for that debt
security described in the related prospectus supplement;
and
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for
debt securities denominated in one or more foreign currencies, we will use
the U.S. dollar equivalent.
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Debt
securities will not be considered outstanding, and therefore not eligible to
vote, if we have deposited or set aside in trust money for their payment or
redemption. Debt securities will also not be eligible to vote if they have been
fully defeased as described later under “Description of Debt
Securities—Defeasance—Legal Defeasance.”
We will
generally be entitled to set any day as a record date for the purpose of
determining the holders of outstanding indenture securities that are entitled to
vote or take other action under the indenture. If we set a record date for a
vote or other action to be taken by holders of one or more series, that vote or
action may be taken only by persons who are holders of outstanding indenture
securities of those series on the record date and must be taken within eleven
months following the record date.
Book-entry
and other indirect holders should consult their banks or brokers for information
on how approval may be granted or denied if we seek to change the indenture or
the debt securities or request a waiver.
Defeasance
The
following provisions will be applicable to each series of debt securities unless
we state in the applicable prospectus supplement that the provisions of covenant
defeasance and legal defeasance will not be applicable to that
series.
Covenant
Defeasance
We can
make the deposit described below and be released from some of the restrictive
covenants in the indenture under which the particular series was issued. This is
called “covenant defeasance.” In that event, the holders would lose the
protection of those restrictive covenants but would gain the protection of
having money and government securities set aside in trust to repay holders’ debt
securities. If applicable, a holder also would be released from the
subordination provisions described under “Description of Debt
Securities—Indenture Provisions—Subordination” below. In order to achieve
covenant defeasance, we must do the following:
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If
the debt securities of the particular series are denominated in U.S.
dollars, we must deposit in trust for the benefit of all holders of such
debt securities a combination of money and U.S. government or U.S.
government agency notes or bonds that will generate enough cash to make
interest, principal and any other payments on the debt securities on their
various due dates;
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We
may be required to deliver to the trustee a legal opinion of our counsel
confirming that, under current U.S. Federal income tax law, we may make
the above deposit without causing the holders to be taxed on the debt
securities any differently than if we did not make the deposit and just
repaid the debt securities ourselves at maturity;
and
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We
must deliver to the trustee certain documentation stating that all
conditions precedent to covenant defeasance have been complied
with.
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If we
accomplish covenant defeasance, holders can still look to us for repayment of
the debt securities if there were to be a shortfall in the trust deposit or the
trustee is prevented from making payment. In fact, if one of the remaining
Events of Default occurred (such as our bankruptcy) and the debt securities
became immediately due and payable, there might be a shortfall. Depending on the
event causing the default, holders may not be able to obtain payment of the
shortfall.
Legal
Defeasance
As
described below, we can legally release ourselves from all payment and other
obligations on the debt securities of a particular series (called “legal
defeasance”), without causing the holders to be taxed on the debt securities any
differently than absent the release (1) if there is a change in U.S.
Federal tax law and (2) if we put in place the following other arrangements
for holders to be repaid:
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If
the debt securities of the particular series are denominated in U.S.
dollars, we must deposit in trust for the benefit of all holders of such
debt securities a combination of money and U.S. government or U.S.
government agency notes or bonds that will generate enough cash to make
interest, principal and any other payments on the debt securities on their
various due dates;
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We
may be required to deliver to the trustee a legal opinion confirming that
there has been a change in current U.S. Federal tax law or an Internal
Revenue Service ruling that allows us to make the above deposit without
causing the holders to be taxed on the debt securities any differently
than if we did not make the deposit and just repaid the debt securities
ourselves at maturity. Under current U.S. Federal tax law, the deposit and
our legal release from the debt securities would be treated as though we
paid each holder its share of the cash and notes or bonds at the time the
cash and notes or bonds were deposited in trust in exchange for its debt
securities and holders would recognize gain or loss on the debt securities
at the time of the deposit; and
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We
must deliver to the trustee a legal opinion and officers’ certificate
stating that all conditions precedent to legal defeasance have been
complied with.
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If we
ever did accomplish legal defeasance, as described above, holders would have to
rely solely on the trust deposit for repayment of the debt securities. Holders
could not look to us for repayment in the unlikely event of any shortfall.
Conversely, the trust deposit would most likely be protected from claims of our
lenders and other creditors if we ever became bankrupt or insolvent. If
applicable, holders would also be released from the subordination provisions
described later under “Description of Debt Securities—Indenture
Provisions—Subordination.”
Resignation
of Trustee
Each
trustee may resign or be removed with respect to one or more series of indenture
securities provided that a successor trustee is appointed to act with respect to
such series. In the event that two or more persons are acting as trustee with
respect to different series of indenture securities under the indenture, each of
the trustees will be a trustee of a trust separate and apart from the trust
administered by any other trustee.
Indenture
Provisions—Subordination
Upon any
distribution of our assets upon our dissolution, winding up, liquidation or
reorganization, the payment of the principal of (and premium, if any) and
interest on any indenture securities denominated as subordinated debt securities
is to be subordinated to the extent provided in the indenture in right of
payment to the prior payment in full of all Senior Indebtedness (as defined
below), but our obligation to holders to make payment of the principal of (and
premium, if any) and interest on such subordinated debt securities will not
otherwise be affected. In addition, no payment on account of principal (or
premium, if any), interest or sinking fund, if any, may
be made
on such subordinated debt securities at any time unless full payment of all
amounts due in respect of the principal (and premium, if any), interest and
sinking fund, if any, on Senior Indebtedness has been made or duly provided for
in money or money’s worth.
In the
event that, notwithstanding the foregoing, any payment from us is received by
the trustee in respect of subordinated debt securities or by the holders of any
of such subordinated debt securities before all Senior Indebtedness is paid in
full, the payment or distribution must be paid over to the holders of the Senior
Indebtedness or on their behalf for application to the payment of all the Senior
Indebtedness remaining unpaid until all the Senior Indebtedness has been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of the Senior Indebtedness. Subject to the payment in full of all Senior
Indebtedness, the holders of such subordinated debt securities will be
subrogated to the rights of the holders of the Senior Indebtedness to the extent
of payments made to the holders of the Senior Indebtedness out of the
distributive share of such subordinated debt securities.
By reason
of this subordination, in the event of a distribution of our assets upon our
insolvency, certain of our senior creditors may recover more, ratably, than
holders of any subordinated debt securities. The related indenture will provide
that these subordination provisions will not apply to money and securities held
in trust under the defeasance provisions of the indenture.
“Senior
Indebtedness” will be defined in an applicable indenture as the principal of
(and premium, if any) and unpaid interest on:
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our
indebtedness (including indebtedness of others guaranteed by us), whenever
created, incurred, assumed or guaranteed, for money borrowed (other than
indenture securities issued under the indenture and denominated as
subordinated debt securities), unless in the instrument creating or
evidencing the same or under which the same is outstanding it is provided
that this indebtedness is not senior or prior in right of payment to the
subordinated debt securities; and
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renewals,
extensions, modifications and refinancings of any of such
indebtedness.
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The
prospectus supplement accompanying any series of indenture securities
denominated as subordinated debt securities will set forth the approximate
amount of our Senior Indebtedness outstanding as of a recent date.
Trustee
We intend
to name the indenture trustee for each series of indenture securities in the
related prospectus supplement.
No
Individual Liability of Incorporators, Stockholders or Directors
The
indenture will provide that no incorporator and no past, present or future
stockholder, officer or director of ours or any successor corporation, in their
capacity as such shall have any individual liability for any of our obligations,
covenants or agreements under the indenture securities or the
indenture.
Certain
Considerations Relating to Foreign Currencies
Debt
securities denominated or payable in foreign currencies may entail significant
risks. These risks include the possibility of significant fluctuations in the
foreign currency markets, the imposition or modification of foreign exchange
controls and potential illiquidity in the secondary market. These risks will
vary depending upon the currency or currencies involved and will be more fully
described in the applicable prospectus supplement.
Governing
Law
The
indenture and the debt securities will be governed by, and construed in
accordance with, the laws of the State of New York.
We may
issue warrants for the purchase of common stock, preferred stock and/or debt
securities in one or more series. We may issue warrants independently or
together with common stock, preferred stock and/or debt securities, and the
warrants may be attached to or separate from these securities. While the terms
summarized below will apply generally to any warrants that we may offer, we will
describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement. The terms of any warrants offered under a
prospectus supplement may differ from the terms described below.
We will
file as exhibits to the registration statement of which this prospectus is a
part, or will incorporate by reference from reports that we file with the SEC,
the form of warrant agreement, including a form of warrant certificate, that
describes the terms of the particular series of warrants we are offering before
the issuance of the related series of warrants. The following summaries of
material provisions of the warrants and the warrant agreements are subject to,
and qualified in their entirety by reference to, all the provisions of the
warrant agreement and warrant certificate applicable to the particular series of
warrants that we may offer under this prospectus. We urge you to read the
applicable prospectus supplements related to the particular series of warrants
that we may offer under this prospectus and the complete warrant agreements and
warrant certificates that contain the terms of the warrants.
We will
describe in the applicable prospectus supplement the terms of the series of
warrants being offered, including:
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The
offering price and aggregate number of warrants
offered;
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The
currency for which the warrants may be
purchased;
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If
applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such
security;
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If
applicable, the date on and after which the warrants and the related
securities will be separately
transferable;
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In
the case of warrants to purchase debt securities, the principal amount of
debt securities purchasable upon exercise of one warrant and the price at,
and currency in which, this principal amount of debt securities may be
purchased upon such exercise;
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In
the case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these
shares may be purchased upon such
exercise;
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The
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreements and the
warrants;
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The
terms of our rights to redeem or sell the
warrants;
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Any
provisions for changes to or adjustments in the exercise price or number
of securities issuable upon exercise of the
warrants;
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The
dates on which the right to exercise the warrants will commence and
expire;
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The
manner in which the warrant agreements and warrants may be
modified;
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A
discussion of any material U.S. federal income tax consequences of holding
or exercising the warrants;
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The
terms of the securities issuable upon exercise of the warrants;
and
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Any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
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Each
warrant will entitle the holder to purchase the securities that we specify in
the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Holders of the warrants may exercise the
warrants at any time up to the specified time on the expiration date that we set
forth in the applicable prospectus supplement. After such time on the expiration
date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We will set forth on
the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we will issue
and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will
issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for
warrants.
Unless we
provide otherwise in the applicable prospectus supplement, the warrants and
warrant agreements will be governed by and construed in accordance with the laws
of the State of New York.
The
following is a general description of the depositary shares that we may offer
from time to time. The particular terms of the depositary shares being offered
and the extent to which such general provisions may apply will be set forth in
the applicable prospectus supplement.
General
We may
issue receipts for depositary shares, each of which will represent a fractional
interest in a share of a particular series of a class of our preferred stock. We
will deposit the shares of preferred stock of any series represented by
depositary shares with a depositary under a deposit agreement. We will identify
the depositary in a prospectus supplement. Subject to the terms of the deposit
agreement, the holders of depositary shares will be entitled, in proportion to
the fraction of the share of preferred stock represented by such holder’s
depositary share, to all of the rights and preferences to which such holder
would be entitled if the holder owned the share of preferred stock represented
by the depositary share directly (including dividend, voting, redemption,
subscription and liquidation rights).
The
depositary shares will be represented by depositary receipts issued pursuant to
the applicable deposit agreement. Immediately following the issuance and
delivery of our preferred stock to the depositary, we will cause the depositary
to issue, on our behalf, the depositary receipts. Upon request, we will provide
the holder with copies of the applicable form of deposit agreement. The
depositary shares will be issued in book entry form only.
Dividends
and Other Provisions
If the
holder is a “record holder” (as defined below) of depositary receipts and we pay
a cash dividend or other cash distribution with respect to the preferred stock
represented by the depositary share, the depositary will distribute all cash
dividends or other cash distributions it receives in respect of the preferred
stock represented by the
depositary
receipts in proportion to the numbers of depositary shares owned by such holder
on the record date for that dividend or distribution.
If we
make a distribution in a form other than cash, the depositary will distribute
the property it receives to the record holders of depositary receipts in an
equitable manner, unless the depositary determines that it is not feasible to do
so. If the depositary decides it cannot feasibly distribute the property, it may
sell the property and distribute the net proceeds from the sale to the record
holders. The amount the depositary distributes in any of the foregoing cases may
be reduced by any amounts that we or the depositary is required to withhold on
account of taxes.
A “record
holder” is a person who holds depositary receipts on the record date for any
dividend, distribution or other action. The record date for depositary shares
will be the same as the record date for the preferred stock represented by those
depositary receipts.
Withdrawal
of Preferred Stock
If a
holder surrenders depositary receipts, the depositary will be required to
deliver certificates to such holder evidencing the number of shares of preferred
stock represented by those receipts (but only in whole shares). If a holder
delivers depositary receipts representing a number of depositary shares that is
greater than the number of whole shares to be withdrawn, the depositary will
deliver to such holder at the same time a new depositary receipt evidencing the
fractional shares.
Redemption
of Depositary Shares
If we
redeem a series of shares of preferred stock represented by depositary receipts,
the depositary will redeem depositary shares from the proceeds it receives after
redemption of the preferred stock. The redemption price per depositary share
will be equal to the applicable fraction of the redemption price per share
payable with respect to that series of shares of preferred stock. If fewer than
all the depositary shares are to be redeemed, the depositary will select shares
to be redeemed by lot, pro rata or by any other equitable method it may
determine. After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. All rights of the holders of those
depositary shares will cease, except the right to receive the redemption price
that the holders of the depositary shares were entitled to receive upon
redemption. Payments will be made when holders surrender their depositary
receipts to the depositary.
Voting
the Preferred Stock
When the
depositary receives notice of any meeting at which the holders of preferred
stock are entitled to vote, the depositary will mail information contained in
the notice to each record holder of the depositary shares relating to the
preferred stock. Each record holder of the depositary shares on the record date
(which will be the same date as the record date for the preferred stock) will be
entitled to instruct the depositary as to how such holder would like his or her
votes to be exercised. The depositary will endeavor, insofar as practicable, to
vote the number of shares of preferred stock represented by the depositary
shares in accordance with each holder’s instructions. We will agree to take all
reasonable action that the depositary may deem necessary to enable the
depositary to do this. If a holder does not send specific instructions, the
depositary will not vote the preferred stock represented by such depositary
shares.
Liquidation
Preference
In the
event of our liquidation, dissolution or winding up, whether voluntary or
involuntary, each holder will be entitled, as a record holder of depositary
shares, to the fraction of the liquidation preference accorded each applicable
share of preferred stock, as has been set forth in a prospectus
supplement.
Amendment
and Termination of the Deposit Agreement
We and
the depositary may amend the form of depositary receipt and any provision of the
deposit agreement at any time. However, any amendment which materially and
adversely alters the rights of the holders of depositary shares will not be
effective unless the holders of at least a majority of the depositary shares
then outstanding approve the amendment. The deposit agreement will only
terminate if:
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We
redeem all outstanding depositary shares;
or
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We
make a final distribution in respect of the related preferred stock to
which the depositary shares and agreement relate, including in connection
with any liquidation, dissolution or winding up and the distribution has
been distributed to the holders of depositary
shares.
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Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering notice to us of its election to
do so. Additionally, we may remove the depositary at any time. Any resignation
or removal will take effect when we appoint a successor depositary and the
successor accepts the appointment. We must appoint a successor depositary within
60 days after delivery of the notice of resignation or removal. A successor
depositary must be a bank or trust company having its principal office in the
U.S. and having a combined capital and surplus of at least
$50 million.
Charges
of Depositary
We will
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. We will pay charges of the
depositary in connection with the initial deposit of the preferred stock and
issuance of depositary receipts, all withdrawals of preferred stock by owners of
the depositary shares and any redemption of the preferred stock. Each holder
will pay other transfer and other taxes, governmental charges and other charges
expressly provided for in the deposit agreement.
Miscellaneous
The
depositary will forward to each holder all reports and communications from us
that we are required, or otherwise determine, to furnish to the holders of the
preferred stock.
Neither
we nor the depositary will be liable under the deposit agreement to the holders
other than for the depositary’s gross negligence, willful misconduct or bad
faith. Neither we nor the depositary will be obligated to prosecute or defend
any legal proceeding in respect of any depositary shares or preferred stock
unless satisfactory indemnity is furnished. We and the depositary may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting preferred stock for deposit, holders of depositary receipts
or other persons believed to be competent and on documents believed to be
genuine.
The
following is a general summary of certain provisions of the stock purchase
contracts and does not purport to be complete and is subject to, and qualified
in its entirety by reference to, the provisions of the stock purchase contract
that will be filed with the SEC in connection with the offering of such
securities.
We may
issue stock purchase contracts, including contracts obligating holders to
purchase from us, and obligating us to sell to the holders, a specified number
of shares of common stock or other securities at a future date or dates, which
we refer to in this prospectus as “stock purchase contracts.” The
price per share of the securities and the number of shares of the securities may
be fixed at the time the stock purchase contracts are issued or may be
determined by reference to a specific formula set forth in the stock purchase
contracts. The stock purchase contracts may require holders to secure
their obligations under the stock purchase contracts in a specified
manner. The stock purchase contracts
also may
require us to make periodic payments to the holders of the stock purchase units
or vice versa, and those payments may be unsecured or refunded on some
basis.
The
applicable prospectus supplement will describe the terms of the stock purchase
contracts. The description in the prospectus supplement will not
necessarily be complete, and reference will be made to the stock purchase
contracts, and, if applicable, collateral or depositary arrangements, relating
to the stock purchase contracts which will be filed with the SEC each time we
issue stock purchase contracts. Material United States federal income
tax considerations applicable to the stock purchase contracts will also be
discussed in the applicable prospectus supplement.
We may
issue, in one more series, units consisting of common stock, preferred stock,
debt securities and/or warrants or contracts for the purchase of common stock,
preferred stock and/or debt securities in any combination in such amounts and in
such numerous distinct series as we determine. While the terms we have
summarized below will apply generally to any units that we may offer under this
prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described
below.
We will
file as exhibits to the registration statement of which this prospectus is a
part, or will incorporate by reference from reports that we file with the SEC,
the form of unit agreement that describes the terms of the series of units we
are offering, and any supplemental agreements, before the issuance of the
related series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their entirety by
reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the
applicable prospectus supplements related to the particular series of units that
we may offer under this prospectus, as well as any related free writing
prospectuses and the complete unit agreement and any supplemental agreements
that contain the terms of the units.
Each unit
will be issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time before a
specified date.
We will
describe in the applicable prospectus supplement the terms of the series of
units being offered, including:
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The
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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Any
provisions of the governing unit agreement that differ from those
described below; and
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Any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units.
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The
provisions described in this section, as well as those described under
“Description of Capital Stock,” “Description of Debt Securities” and
“Description of Warrants” will apply to each unit and to any common stock,
preferred stock, debt security or warrant included in each unit,
respectively.
Each unit
agent will act solely as our agent under the applicable unit agreement and will
not assume any obligation or relationship of agency or trust with any holder of
any unit. A single bank or trust company may act as unit agent for more than one
series of units. A unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit, including any duty or
responsibility to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a unit may, without the consent of the related
unit
agent or
the holder of any other unit, enforce by appropriate legal action its rights as
holder under any security included in the unit.
We, and
any unit agent and any of their agents, may treat the registered holder of any
unit certificate as an absolute owner of the units evidenced by that certificate
for any purpose and as the person entitled to exercise the rights attaching to
the units so requested, despite any notice to the contrary.
We may
sell the securities offered by this prospectus in any one or more of the
following ways from time to time:
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Directly
to investors, including through a specific bidding, auction or other
process;
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To
investors through agents;
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Directly
to agents;
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To
or through brokers or dealers;
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To
the public through underwriting syndicates led by one or more managing
underwriters;
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To
one or more underwriters acting alone for resale to investors or to the
public; or
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Through
a combination of any such methods of
sale.
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We may
also sell the securities offered by this prospectus in “at the market offerings”
within the meaning of Rule 415(a)(4) of the Securities Act, to or through a
market maker or into an existing trading market, on an exchange or
otherwise.
The
accompanying prospectus supplement will set forth the terms of the offering and
the method of distribution and will identify any firms acting as underwriters,
dealers or agents in connection with the offering, including:
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The
name or names of any underwriters, dealers or
agents;
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The
purchase price of the securities and the proceeds to us from the
sale;
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Any
options under which the underwriters may purchase additional securities
from us;
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Any
underwriting discounts and other items constituting compensation to
underwriters, dealers or agents;
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Any
public offering price;
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Any
discounts or concessions allowed or reallowed or paid to dealers;
or
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Any
securities exchange or market on which the securities offered in the
prospectus supplement may be
listed.
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Only
those underwriters identified in such prospectus supplement are deemed to be
underwriters in connection with the securities offered in the prospectus
supplement. Any underwritten offering may be on a best efforts or a firm
commitment basis.
The
distribution of the securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at varying prices
determined at the time of sale, or at prices determined as the applicable
prospectus supplement specifies. The securities may be sold through a rights
offering, forward contracts or similar arrangements. In any distribution of
subscription rights to stockholders, if all of the underlying securities are not
subscribed for, we may then sell the unsubscribed securities directly to third
parties or may engage the services of one or more underwriters, dealers or
agents, including standby underwriters, to sell the unsubscribed securities to
third parties.
In
connection with the sale of the securities, underwriters, dealers or agents may
be deemed to have received compensation from us in the form of underwriting
discounts or commissions and also may receive commissions from securities
purchasers for whom they may act as agent. Underwriters may sell the securities
to or through dealers, and the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions from
the purchasers for whom they may act as agent.
We will
provide in the applicable prospectus supplement information regarding any
underwriting discounts or other compensation that we pay to underwriters or
agents in connection with the securities offering, and any discounts,
concessions or commissions which underwriters allow to dealers. Underwriters,
dealers and agents participating in the securities distribution may be deemed to
be underwriters, and any discounts and commissions they receive and any profit
they realize on the resale of the securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Underwriters and their
controlling persons, dealers and agents may be entitled, under agreements
entered into with us, to indemnification against and contribution toward
specific civil liabilities, including liabilities under the Securities
Act.
Unless
otherwise specified in the related prospectus supplement, each series of
securities will be a new issue with no established trading market, other than
shares of common stock of Standard Motor Products, Inc., which are listed on the
NYSE. Any common stock sold pursuant to a prospectus supplement will be listed
on the NYSE, subject to official notice of issuance. We may elect to list any
series of debt securities or preferred stock on an exchange, but we are not
obligated to do so. It is possible that one or more underwriters may make a
market in the securities, but such underwriters will not be obligated to do so
and may discontinue any market making at any time without notice. No assurance
can be given as to the liquidity of, or the trading market for, any offered
securities.
In
connection with an offering, the underwriters may purchase and sell securities
in the open market. These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short sales. Short
sales involve the sale by the underwriters of a greater number of securities
than they are required to purchase in an offering. Stabilizing transactions
consist of bids or purchases made for the purpose of preventing or retarding a
decline in the market price of the securities while an offering is in progress.
The underwriters also may impose a penalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the underwriting discount
received by it because the underwriters have repurchased securities sold by or
for the account of that underwriter in stabilizing or short-covering
transactions. These activities by the underwriters may stabilize, maintain or
otherwise affect the market price of the securities. As a result, the price of
the securities may be higher than the price that otherwise might exist in the
open market. If these activities are commenced, they may be discontinued by the
underwriters at any time. Underwriters may engage in over-allotment. If any
underwriters create a short position in the securities in an offering in which
they sell more securities than are set forth on the cover page of the applicable
prospectus supplement, the underwriters may reduce that short position by
purchasing the securities in the open market.
Underwriters,
dealers or agents that participate in the offer of securities, or their
affiliates or associates, may have engaged or engage in transactions with and
perform services for, us or our affiliates in the ordinary course of business
for which they may have received or receive customary fees and reimbursement of
expenses.
In
compliance with the guidelines of the Financial Industry Regulatory Authority,
Inc. (“FINRA”), the maximum discount or commission to be received by any FINRA
member or independent broker-dealer may not exceed 8% of the aggregate offering
price of the shares offered hereby.
The
validity of any securities offered by this prospectus will be passed upon for us
by Kelley Drye & Warren LLP, New York, New York and Stamford, Connecticut.
If legal matters in connection with offerings made pursuant to this prospectus
are passed upon by counsel to underwriters, dealers or agents, if any, such
counsel will be named in the prospectus supplement related to such
offering.
The
consolidated financial statements, financial statement schedule and management’s
assessment of the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the registration
statement have been so incorporated by reference in reliance upon the reports of
Grant Thornton LLP, independent registered public accountants (which report
on the consolidated financial statements expressed an unqualified opinion and
contained explanatory paragraphs related to the adoption of Statement of
Financial Accounting Standards No. 123 (revised 2004), Share-Based Payment,
effective January 1, 2006, the adoption of Statement of Financial Accounting
Standards No. 158, Employers’ Accounting for Defined Benefit Pension and
Other Postretirement Plans: an amendment of FASB Statements No. 87, 88, 106
and 132(R), effective December 31, 2006, and the adoption of Financial
Accounting Standards Board Interpretation No. 48, Accounting for
Uncertainty in Income Taxes—an interpretation of FASB Statement No. 109,
effective January 1, 2007), upon the authority of said firm as experts in
accounting and auditing in giving said reports.
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