AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 27, 2004
Amendment No. 2 to Registration Statement No. 333-110546
Post-Effective Amendment No. 4 to Registration Statement No. 333-52658
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
----------------------------
EMERSON ELECTRIC CO.
(Exact name of registrant as specified in its charter)
MISSOURI 43-0259330
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
8000 WEST FLORISSANT AVENUE, STATION 2431, P.O. BOX 4100
ST. LOUIS, MISSOURI 63136
(Address of principal executive offices)
Registrant's telephone number including area code: (314) 553-2000
----------------------------
HARLEY M. SMITH, ESQ.
Assistant General Counsel and Assistant Secretary
Emerson Electric Co.
8000 West Florissant Avenue, Station 2431, P.O. Box 4100
St. Louis, Missouri 63136
(314) 553-2431
(Name, address and telephone number of Agent for service)
----------------------------
COPIES OF ALL COMMUNICATIONS TO:
Mary Anne O'Connell
Husch & Eppenberger, LLC
190 Carondelet Plaza, Ste. 600
St. Louis, MO 63105-3441
(314) 480-1715
(314) 480-1505 - facsimile
----------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
------------------------------
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Offering Price Proposed Maximum
Title of Each Class of Securities Amount To Be Per Aggregate Amount of
To Be registered Registered(1)(2) Unit (3) Offering Price(4) Registration fee
------------------------------------ ---------------- ---------------- ----------------- ----------------
Convertible Debt Securities
Non-Convertible Debt Securities (5)
Medium Term Notes
Preferred Stock $2.50 per share (5)
Common Stock $0.50 per share (5) (6) $2,500,000,000 -- $2,500,000,000 $77,250(10)
Warrants (5) (7)
Share Purchase Contracts (8) and
Share Purchase Units (9)
(1) Such indeterminate number of shares of common stock, preferred
stock, warrants, share purchase contracts and share purchase units and such
indeterminate principal amount of debt securities as may from time to time be
issued at indeterminate prices, not specified as to each class of securities
pursuant to General Instruction II-D of Form S-3.
(2) Represents the aggregate initial offering price of all
securities sold, (or, for any debt securities issued at an original issue
discount, the initial accreted value of such debt securities) not in excess of
$2,500,000,000 to the Registrant (including the $500,000,000 of debt securities
carried forward from a prior registration statement as described in note 10), or
if any securities are issued with an offering price payable in foreign currency,
such amount as shall result in an aggregate initial offering price equivalent to
$2,500,000,000 at the time of initial offering.
(3) The proposed maximum offering price per unit or share will be
determined from time to time by the registrant in connection with the issuance
by the registrant of securities registered hereunder, and is not specified as to
each class of securities pursuant to General Instruction II-D of Form S-3.
(4) Estimated solely for purposes of calculating the registration
fee in accordance with Rule 457(o) under the Securities Act of 1933 and
exclusive of accrued interest and dividends, if any.
(5) Also includes such indeterminate number of shares of common
stock and preferred stock or amount of debt securities as may be issued upon
conversion or exercise of, or exchange for, any convertible debt securities,
convertible preferred stock, or warrants. The number and amount of such
securities also include securities issued in connection with share purchase
contracts and share purchase units. No separate consideration will be received
for the preferred stock or common stock or debt securities issuable upon
conversion of or in exchange for debt securities or preferred stock. Also
includes such indeterminate number of shares of common stock and preferred stock
or amount of debt securities as may be required for delivery upon exercise of
warrants, or conversion of any convertible debt securities or convertible
preferred stock, as a result of anti-dilution provisions thereof.
(6) Each share of common stock issued also represents one
preferred stock purchase right. Preferred stock purchase rights currently cannot
trade separately from the underlying common stock and, therefore, do not carry a
separate price, or necessitate an additional registration fee.
(7) Represents an indeterminate number of warrants as may be
issued at indeterminate prices, representing rights to purchase common stock,
preferred stock and debt securities, or any combination. Such warrants may be
issued independently or together with debt securities, preferred stock or common
stock, and the warrants may be sold at the same or different time as those
offered securities.
(8) Represents an indeterminate number of share purchase contracts
as may be issued at indeterminate prices, representing obligations to purchase
common stock and preferred stock. Such share purchase contracts may be issued
separately or as part of share purchase units.
(9) Represents an indeterminate amount and number of share
purchase units, consisting of share purchase contracts together with debt
securities, preferred stock or debt obligations of third parties securing the
holders' obligations to purchase common stock or preferred stock under the share
purchase contracts.
(10) Previously paid. $500,000,000 principal amount of Debt
Securities was previously registered on Form S-3 and declared effective on
January 5, 2001 (Registration No. 333-52658) and is carried forward as a portion
of the $2,500,000,000 being registered on this Form S-3. The amount of filing
fee associated with those Debt Securities paid with such earlier registration
statement and offset against the filing fee was $125,000. Pursuant to Rule 429
under the Securities Act of 1933, as amended, the Prospectus contained herein
will also be used in connection with Registration Statement No. 333-52658
previously filed by the Registrant. This Amendment No. 2 to Registration
Statement also constitutes Post-Effective Amendment No. 4 to Registration
Statement No. 333-52658 and such Amendment shall become effective concurrently
with the effectiveness of this Registration Statement and in accordance with
Section 8(c) of the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
2
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 27, 2004
$2,500,000,000
[INSERT LOGO]
EMERSON ELECTRIC CO.
CONVERTIBLE DEBT SECURITIES
NON-CONVERTIBLE DEBT SECURITIES
MEDIUM TERM NOTES
PREFERRED STOCK ($2.50 PAR VALUE)
COMMON STOCK ($0.50 PAR VALUE)
WARRANTS
SHARE PURCHASE CONTRACTS
SHARE PURCHASE UNITS
---------------------------
We may offer and issue debt securities, preferred stock, common stock,
warrants, share purchase contracts and share purchase units from time to time.
The shares of preferred stock or debt securities may be convertible into or
exchangeable for shares of our common stock, preferred stock or debt securities.
This Prospectus describes the general terms of these securities and the general
manner in which we will offer them. We will provide the specific terms of these
securities in supplements to this prospectus. The prospectus supplements will
also describe the specific manner in which we will offer these securities. You
should read this prospectus and any prospectus supplement carefully before you
invest.
Our common stock is listed on the New York Stock Exchange and the
Chicago Stock Exchange under the symbol "EMR." On April 26, 2004, the closing
price of our common stock was $62.11 per share.
Investing in our securities involves risk. See "Risk Factors" beginning
on Page 1 of this Prospectus.
---------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED THAT
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------------
We may offer these securities in amounts, at prices and on terms
determined at the time of offering.
We may sell securities at fixed prices, which may change, or at
negotiated prices, or, in the case of our common stock or securities convertible
into our common stock, at market prices prevailing at the time of the sales or
prices related to such prevailing market prices.
We may sell the securities directly to you, through agents we select,
or through underwriters and dealers we select. More information about the way we
will distribute the securities is under the heading "Plan of Distribution."
Information about the underwriters or agents who will participate in any
particular sale of securities will be in the prospectus supplement relating to
that series of securities. Unless we state otherwise in a prospectus supplement,
we will not list any of the debt securities on any securities exchange.
---------------------------
THE DATE OF THIS PROSPECTUS IS APRIL 27, 2004.
TABLE OF CONTENTS
INFORMATION ABOUT EMERSON.............................................. 1
RISK FACTORS........................................................... 1
ABOUT THIS PROSPECTUS.................................................. 4
WHERE YOU CAN FIND MORE INFORMATION.................................... 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................ 5
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS.............. 5
USE OF PROCEEDS........................................................ 6
RATIO OF EARNINGS TO FIXED CHARGES..................................... 6
DESCRIPTION OF THE DEBT SECURITIES..................................... 6
BOOK-ENTRY DEBT SECURITIES............................................. 12
DESCRIPTION OF CAPITAL STOCK OF EMERSON................................ 13
DESCRIPTION OF WARRANTS................................................ 26
DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS....... 28
PLAN OF DISTRIBUTION................................................... 29
LEGAL MATTERS.......................................................... 31
EXPERTS................................................................ 32
INFORMATION ABOUT EMERSON
Emerson Electric Co. was incorporated in Missouri in 1890. We were
originally engaged in the manufacture and sale of electric motors and fans. We
subsequently expanded our product lines through internal growth and
acquisitions. We now engage principally in the design, manufacture and sale of a
broad range of electrical, electromechanical and electronic products and systems
throughout the world. Our principal executive offices are at 8000 West
Florissant Avenue, P. O. Box 4100, St. Louis, Missouri 63136. Our telephone
number is (314) 553-2000.
RISK FACTORS
Investing in our securities involves risks. Before you invest in our
securities, you should carefully consider the risks described below and any
risks in the accompanying prospectus supplement, as well as the other
information included or incorporated by reference in this prospectus and the
prospectus supplement. We may amend or supplement these risk factors from time
to time by other reports we file with the SEC in the future.
RISKS RELATED TO OUR BUSINESS
WE OPERATE IN BUSINESSES THAT ARE SUBJECT TO COMPETITIVE PRESSURES THAT COULD
AFFECT PRICES OR DEMAND FOR OUR PRODUCTS.
Our businesses operate in markets that are highly competitive, and we
compete on the basis of product performance, quality, service and/or price
across the industries and markets served. A significant element of our
competitive strategy is to deliver solutions to our customers by manufacturing
high quality products at the lowest relevant global cost. Some of our
competitors have greater sales, assets and financial resources than us.
Competitive pressures could affect prices or customer demand for our products,
impacting our profit margins and/or resulting in a loss of market share.
OUR OPERATING RESULTS DEPEND IN PART ON CONTINUED SUCCESSFUL RESEARCH,
DEVELOPMENT AND MARKETING OF NEW AND/OR IMPROVED PRODUCTS AND SERVICES, AND
THERE CAN BE NO ASSURANCE THAT WE WILL CONTINUE TO SUCCESSFULLY INTRODUCE NEW
PRODUCTS AND SERVICES.
The success of new and improved products and services depends on their
initial and continued acceptance by our customers. Our businesses are affected
by varying degrees of technological change and corresponding shifts in customer
demand, which result in unpredictable product transitions, shortened life cycles
and increased importance of being first to market with new products and
services. We may experience difficulties or delays in the research, development,
production and/or marketing of new products and services which may negatively
impact our operating results and prevent us from recouping or realizing a return
on the investments required to bring new products and services to market.
WE ENGAGE IN ACQUISITIONS, AND MAY ENCOUNTER DIFFICULTIES IN INTEGRATING THESE
BUSINESSES AND THEREFORE WE MAY NOT REALIZE THE ANTICIPATED BENEFITS OF THE
ACQUISITIONS.
We are a company that, from time to time, seeks to grow through
strategic acquisitions. In the past several years, we have made various
acquisitions and entered into joint venture arrangements intended to complement
or expand our business, and may continue to do so in the future. The success of
these transactions will depend on our ability to integrate assets and personnel
acquired in these transactions and to cooperate with our strategic partners. We
may encounter difficulties in integrating acquisitions with our operations, and
in managing strategic investments. Furthermore, we may not realize the degree,
or timing, of benefits we anticipated when we first enter into a transaction.
Any of the foregoing could adversely affect our business and results of
operations.
ACCESS TO FUNDING THROUGH THE CAPITAL MARKETS IS ESSENTIAL TO THE EXECUTION OF
OUR BUSINESS PLAN.
Our ability to invest in our businesses, make strategic acquisitions
and refinance maturing debt obligations requires access to the capital markets
and sufficient bank credit lines to support short-term borrowings.
WE USE A VARIETY OF RAW MATERIALS AND COMPONENTS IN OUR BUSINESSES, AND
SIGNIFICANT SHORTAGES OR PRICE INCREASES COULD INCREASE OUR OPERATING COSTS AND
ADVERSELY IMPACT THE COMPETITIVE POSITIONS OF OUR PRODUCTS.
Our major requirements for raw materials include steel, copper, cast
iron, electronics, aluminum and brass and, to a lesser extent, plastics and
other petroleum based chemicals. Emerson has multiple sources of supply for each
of its major requirements and is not significantly dependent on any one or a few
suppliers. Significant shortages or price increases could affect the prices our
affected businesses charge, their operating costs and the competitive position
of their products and services, which could adversely affect our results of
operations.
OUR OPERATIONS DEPEND ON PRODUCTION FACILITIES THROUGHOUT THE WORLD, A MAJORITY
OF WHICH ARE OUTSIDE THIS COUNTRY AND SUBJECT TO INCREASED RISKS OF DISRUPTED
PRODUCTION CAUSING DELAYS IN SHIPMENTS AND LOSS OF CUSTOMERS AND REVENUE.
We manage businesses with 290 manufacturing facilities worldwide,
approximately 60% of which are located outside the United States. Serving a
global customer base requires that we place more production in emerging markets
to capitalize on market opportunities and maintain our best-cost position. Our
international production facilities and operations could be disrupted by a
natural disaster, labor strike, war, political unrest, terrorist activity or
public health concerns, particularly in emerging countries that are not
well-equipped to handle such occurrences. Our manufacturing facilities abroad
also may be more susceptible to changes in laws and policies in host countries
and economic and political upheaval than our domestic facilities. Any such
disruption could cause delays in shipments of products and the loss of sales and
customers and insurance proceeds may not adequately compensate us.
OUR SUBSTANTIAL SALES ABROAD SUBJECT US TO ECONOMIC RISK AS OUR RESULTS OF
OPERATIONS MAY BE ADVERSELY AFFECTED BY FOREIGN CURRENCY FLUCTUATIONS AND
CHANGES IN LOCAL GOVERNMENT REGULATIONS AND POLICIES.
2
We sell, manufacture, engineer, and purchase products in overseas
markets. Approximately 45% of our sales in 2003 were outside the United States,
and we expect sales from non - U.S. markets to continue to represent a
significant portion of our total sales. International sales and operations are
subject to changes in local government regulations and policies, including those
related to tariffs and trade barriers, investments, taxation, exchange controls,
and repatriation of earnings. Changes in the relative values of currencies occur
from time to time and could affect our operating results. While we monitor our
exchange rate exposures and attempt to reduce this exposure through hedging
activities, this risk could adversely affect our operating results.
DOWNTURNS IN THE END MARKETS THAT WE SERVE MAY NEGATIVELY IMPACT OUR SEGMENT
REVENUES AND PROFITABILITY.
Our segment revenues, operating results and profitability have varied
in the past and may vary significantly from quarter to quarter in the future.
Profitability can be negatively impacted by volatility in the end markets that
we serve. Future downturns in any of the markets that we serve could adversely
affect our overall sales and operating results. For example, we experienced a
significant decline in our Electronics and Telecommunications segment operating
results in 2001 and 2002 as a result of extremely difficult market conditions.
WE ARE SUBJECT TO LITIGATION AND ENVIRONMENTAL REGULATIONS THAT COULD ADVERSELY
IMPACT OUR OPERATING RESULTS.
We are, and may in the future be, a party to a number of legal
proceedings and claims, including those involving product liability and
environmental matters, several of which claim significant damages. Given the
inherent uncertainty of litigation, we can offer no assurance that existing
litigation or a future adverse development will not have a material adverse
impact. We also are subject to various laws and regulations relating to
environmental protection and the discharge of materials into the environment,
and we could incur substantial costs as a result of the noncompliance with or
liability for cleanup or other costs or damages under environmental laws.
RISKS RELATED TO OUR SECURITIES
THERE MAY BE NO ESTABLISHED TRADING MARKET FOR SOME OF OUR SECURITIES OFFERED
THAT COULD MAKE SELLING SUCH SECURITIES DIFFICULT AND ALSO IMPACT THE PRICE OF
SUCH SECURITIES.
There may be no established trading market for some of our securities
offered by this prospectus. For example, some of our securities may not be
listed on any securities exchange or included in any automated quotation system.
We cannot assure you that an active trading market for such securities will
develop or, if such market develops, that you will be able to sell such
securities. If a trading market does not develop or is not maintained, holders
of the securities may experience difficulty in reselling, or an inability to
sell, such securities. As a result, the liquidity of such securities may be
limited and, under certain circumstances, nonexistent. If a market does develop,
any such market may be discontinued at any time.
The liquidity of, pricing of, and trading market for, our securities
may be adversely affected by, among other things, changes in the overall markets
for debt and equity securities, changes in our financial performance and
prospects, the prospects in general for companies in our industry, the number of
holders of the various securities, the interest of securities dealers in making
a market in our securities, adverse credit rating actions and prevailing
interest rates.
NET PROCEEDS FROM THE SALE OF OUR SECURITIES MAY NOT RESULT IN AN INCREASE IN
INVESTMENT VALUE.
Our management will have considerable discretion in the application of
the net proceeds from offerings pursuant to this prospectus. For example, the
net proceeds from an offering of our securities may be used for
3
general corporate purposes. Under such circumstances, you may not have the
opportunity, as part of your investment decision, to evaluate the economic,
financial, or other information on which we base our decisions on how to use the
proceeds, or to assess how the proceeds will be used.
IF YOU PURCHASE CERTAIN DEBT SECURITIES THAT WE MAY OFFER, YOU MAY BE REQUIRED
TO ACCRUE ORIGINAL ISSUE DISCOUNT ON THE NOTES FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES AND YOU MAY BE REQUIRED TO PAY TAXES ON DISTRIBUTIONS THAT YOU HAVE
NOT RECEIVED.
Because of the manner in which the interest rate on certain debt
securities is calculated, those notes may be classified as contingent payment
debt instruments. If the notes are so treated, you will be required to accrue
original issue discount on the notes in your gross income, such that you may
have to pay taxes with respect to distributions that you have not received. For
additional information, see "Description of Securities - Original Issue Discount
Securities."
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, which we refer to as the "SEC,"
utilizing a "shelf" registration process. Under this shelf process, we may, from
time to time, sell any combination of the securities described in this
prospectus in one or more offerings up to a total amount of $2,500,000,000, or
the equivalent of this amount in foreign currencies or foreign currency units.
In this prospectus, "we," "us," "our," the "Company" and "Emerson"
refer to Emerson Electric Co.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. We will file each prospectus supplement with the SEC. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information" below.
You should rely only on the information provided in this prospectus and
in any prospectus supplement, including the information incorporated by
reference. We have not authorized anyone to provide you with different
information. You should not assume that the information in this prospectus, or
any supplement to this prospectus, is accurate at any date other than the date
indicated on the cover page of these documents. This prospectus is not an offer
to sell or a solicitation of an offer to buy any securities other than the
securities referred to in the prospectus supplement. This prospectus is not an
offer to sell or a solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. You should not
interpret the delivery of this prospectus, or any sale of securities, as an
indication that there has been no change in our affairs since the date of this
prospectus. You should also be aware that information in this prospectus may
change after this date.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934. As a result, we file annual, quarterly and special
reports, proxy statements and other information with the SEC. You may read and
copy any of these documents at the SEC's public reference room in Washington,
D.C. Please call the SEC at 1-800-SEC-0330 for further information on the public
reference room. Our SEC filings are also available to the public at the SEC's
web site at http://www.sec.gov. Because our common stock trades on the New York
Stock Exchange
4
and the Chicago Stock Exchange under the symbol "EMR," those materials can also
be inspected and copied at the offices of those organizations.
We have filed with the SEC a registration statement under the
Securities Act that registers the distribution of these securities. The
registration statement, including the attached exhibits and schedules, contains
additional relevant information about us and the securities. The rules and
regulations of the SEC allow us to omit certain information included in the
registration statement from this prospectus. You can get a copy of the
registration statement from the sources referred to above.
INFORMATION WE INCORPORATE BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with it in this prospectus, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, except
for any information that is superceded by other information that is included in
or incorporated by reference into this document.
We incorporate by reference into this prospectus the documents listed
below that we have previously filed with the SEC. These documents contain
important information about us.
- Our Annual Report on Form 10-K for the year ended September
30, 2003.
- Our Quarterly Report on Form 10-Q for the quarter ended
December 31, 2003.
- The description of our common stock contained in our
Registration Statement on Form 10 as amended by our Form 8
filed on January 19, 1981.
- The description of our preferred stock purchase rights
contained in our Registration Statement on Form 8-A filed
October 6, 1998.
We incorporate by reference into this prospectus any additional
documents that we may file with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 between the date we first filed the
registration statement to which this prospectus relates and the termination of
the offering of the securities. These documents may include periodic reports,
like Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K, as well as Proxy Statements. Any material that we
subsequently file with the SEC will automatically update and replace the
information previously filed with the SEC.
You may receive a copy of any of the documents incorporated by
reference in this prospectus from the SEC on its web site (http://www.sec.gov),
or you may read and copy any materials we file with the SEC at the SEC's Public
Reference Room at 450 Fifth Street, N.W., 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. You can also obtain these documents from us, without charge, by
contacting H. M. Smith, our Assistant Secretary and Assistant General Counsel,
at Emerson Electric Co., Station 2431, 8000 West Florissant Avenue, P.O. Box
4100, St. Louis, Missouri 63136, telephone 314-553-2431, e-mail
harley.smith@emrsn.com. Information on our web site is not part of this
prospectus or the registration statement of which this prospectus is part.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Statements in this registration statement contain various
forward-looking statements and include assumptions concerning our operations,
future results and prospects. These forward-looking statements are based on
current expectations and are subject to risk and uncertainties. We undertake no
obligation to update any such statement to reflect
5
later developments. In connection with the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995, we provide the following
cautionary statement identifying important economic, political and technological
factors, among others, changes in which could cause the actual results or events
to differ materially from those set forth in or implied by the forward-looking
statements and related assumptions.
Such factors include the following: (i) current and future business
environment, including interest rates and capital and consumer spending; (ii)
volatility of the end markets served, as demonstrated by the recent decline in
the electronics and telecommunications market; (iii) competitive factors and
competitor responses to Emerson initiatives; (iv) development and market
introduction of anticipated new products; (v) availability of raw materials and
purchased components; (vi) government laws and regulations, including taxes;
(vii) outcome of pending and future litigation, including environmental
compliance; (viii) stable governments and business conditions in emerging
economies; (ix) penetration of emerging economies; (x) favorable environment for
acquisitions, domestic and foreign, including regulatory requirements and market
values of candidates; (xi) integration of acquisitions; (xii) favorable access
to capital markets; and (xiii) execution of cost-reduction efforts.
USE OF PROCEEDS
We expect to use the proceeds from the sale of the securities for
general corporate purposes, which may include, but are not limited to, working
capital, capital expenditures, financing acquisitions and the repayment of short
or long term borrowings. Before we use the proceeds for these purposes, we may
invest them in short term investments. If we anticipate that proceeds will be
earmarked for a specific purpose, such as to repay debt or make an acquisition,
we will disclose the principal purpose for the net proceeds from each sale of
our securities, and the amounts intended for each such purpose, in the relevant
prospectus supplement. If the prospectus supplement does not disclose the
principal purposes for the net proceeds of the offering and the approximate
amounts to be used for each such purpose, we will include a discussion of our
reasons for conducting that offering in the prospectus supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges
for the periods indicated. For purposes of computation of the ratio of earnings
to fixed charges, earnings consist of earnings from continuing operations before
income taxes and cumulative effects of changes in accounting principles and
minority interests in the income of consolidated subsidiaries with fixed charges
plus the amount of fixed charges. Fixed charges consist of interest expense and
that portion of rental expense deemed to represent interest.
QUARTER
ENDED
YEAR ENDED SEPTEMBER 30, DECEMBER 31,
------------------------------ -------------
1999 2000 2001 2002 2003 2003
---- ---- ---- ---- ---- ----
Ratio of
Earnings to
Fixed Charges 9.0x 7.1x 5.4x 6.1x 5.5x 5.5x
==== ==== ==== ==== ==== ===
DESCRIPTION OF THE DEBT SECURITIES
This section describes some of the general terms of the debt securities
that we may issue, either separately, or upon exercise of a warrant, or as part
of a share purchase unit. Each prospectus supplement describes the
6
particular terms of the debt securities we are offering under that supplement.
The prospectus supplement also indicates the extent, if any, to which such
general provisions may not apply to the particular debt securities we are
offering under that supplement. When we refer to a prospectus supplement we are
also referring to any applicable pricing supplement.
We will issue the debt securities under an Indenture between us and The
Bank of New York, which is serving as Trustee. We are summarizing certain
important provisions of the Indenture and all material known provisions of the
debt securities. We do not restate the Indenture or the debt securities in their
entirety. We urge you to read the Indenture and the debt securities because
they, and not this description, define your rights as holders of the debt
securities. We filed the Indenture with the SEC in the past, and it is
incorporated by reference as an exhibit to the registration statement that
includes this prospectus. When we use capitalized terms that we don't define
here, those terms have the meanings given in the Indenture. When we use
references to Sections, we mean Sections in the Indenture.
GENERAL
The debt securities will be our unsecured obligations. The debt
securities may be referred to as debentures, notes (including notes commonly
referred to as medium term notes) or other unsecured evidence of indebtedness.
The Indenture does not limit the amount of debt securities that we may
issue under the Indenture, nor does it limit other debt that we may issue. We
may issue the debt securities at various times in different series, each of
which may have different terms. (Section 2.3)
The prospectus supplement relating to the particular series of debt
securities we are offering will include the following information concerning
those debt securities:
- The title of the debt securities.
- Any limit on the amount of such debt securities that we may
offer.
- The price at which we are offering the debt securities. We
will usually express the price as a percentage of the
principal amount.
- The amortization schedule, maturity date or retirement of the
debt securities.
- The interest rate per annum on the debt securities. We may
specify a fixed rate or a variable rate, or we may offer debt
securities that do not bear interest but are sold at a
substantial discount from the amount payable at maturity.
- The date from which interest on the debt securities will
accrue.
- The dates on which we will pay interest and the regular record
dates for determining which holders are entitled to receive
the interest.
- If applicable, the dates on which or after which, and the
prices at which, we are required to redeem the debt securities
or have the option to redeem the debt securities.
- If applicable, any provisions with respect to amortization,
sinking funds or retirement.
- If applicable, any limitations on our right to defease our
obligations under the debt securities by depositing cash or
securities.
- The amount that we would be required to pay if the maturity of
the debt securities is accelerated, if that amount is other
than the principal amount.
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- Any additional restrictive covenants or other material terms
relating to the debt securities.
- The terms, if any, upon which the debt securities may be
converted into or exchanged for common stock, preferred stock
or debt securities.
- Any additional events of default that will apply to the debt
securities.
- If we will make payments on the debt securities in any
currency other than United States dollars, the currency or
composite currency in which we will make those payments. If
the currency will be determined under an index, the details
concerning such index.
- Any other material terms of the debt securities.
PAYMENTS ON DEBT SECURITIES
We will make payments on the debt securities at the office or agency we
will maintain for that purpose (which will be the Corporate Trust Office of the
Trustee in New York, New York unless we indicate otherwise in the prospectus
supplement) or at such other places and at the respective times and in the
manner as we designate in the prospectus supplement. (Sections 3.1 and 3.2) As
explained under "Book-Entry Debt Securities" below, all debt securities will be
book-entry and The Depository Trust Company or its nominee will be the initial
registered Holder unless the prospectus supplement provides otherwise.
FORM, DENOMINATIONS AND TRANSFERS
Unless otherwise indicated in the prospectus supplement:
- The debt securities will be in fully registered form, without
coupons, in denominations of $1,000 or any multiple thereof.
- We will not charge any fee to register any transfer or
exchange of the debt securities, except for taxes or other
governmental charges (if any). (Section 2.8)
ORIGINAL ISSUE DISCOUNT SECURITIES
If debt securities are Original Issue Discount Securities, we will
offer and sell them at a substantial discount below their stated principal
amount. "Original Issue Discount Security" means any security which provides
that less than the full principal amount will be due if the maturity is
accelerated or if the security is redeemed before its maturity. (Section 1.1)
If we issue Original Issue Discount Securities:
- For federal income tax purposes, you will need to include in
your income the total amount of the original issue discount,
or OID, as ordinary income over the life of the Original Issue
Discount Security. The amount that the Original Issue Discount
Security increases in value each tax year must be included in
your taxable income as interest on your tax return. You must
report OID as it accrues, whether or not you receive any
taxable interest payments. This means that you must recognize
income gradually over the life of the Original Issue Discount
Security, even though you may not receive actual payments.
This rule applies whether you are on the cash or accrual basis
of accounting.
- The OID accrues on a "constant yield" basis. The general
result of this method of allocating annual interest is that
interest accrual will be smaller in the earlier years after
issuance of the Original Issue Discount Security and larger in
the later years.
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- Your basis in the Original Issue Discount Security will
increase as you recognize the OID as income. Your basis will
decrease by the amount of any payments you receive on the
Original Issue Discount Security (other than certain stated
interest that is not taken into account in the calculation of
OID).
We will describe specific Federal income tax consequences and other
special considerations applicable to any such Original Issue Discount Securities
in the prospectus supplement, and we will file an opinion of counsel with
respect to any such material tax consequences.
INDEXED DEBT SECURITIES
We may issue debt securities under which the principal amount payable
at maturity or the amount of interest payable will be determined by reference to
currency exchange rates, commodity prices, equity indices or other factors. In
that case, the amount we will pay to the Holders will depend on the value of the
applicable currency, commodity, equity index or other factor at the time our
payment obligation is calculated. All payments of principal and interest with
respect to any indexed debt securities will be paid in cash. We will include
information in the prospectus supplement for such debt securities about how we
will calculate the principal and/or interest payable, and will specify the
currencies, commodities, equity indices or other factors to which the principal
amount payable at maturity or interest is linked. We will also provide
information about certain additional tax considerations which would apply to the
Holders of those debt securities in the applicable prospectus supplement, and
file any required opinion of counsel with respect to any related material tax
consequences.
CERTAIN RESTRICTIONS
Unless we otherwise specify in the prospectus supplement, there will
not be any covenants in the Indenture or the debt securities that would protect
you against a highly leveraged or other transaction involving Emerson that may
adversely affect you as a holder of debt securities. If there are provisions
that offer such protection, they will be described in the particular prospectus
supplement.
Limitations on Liens. Under the Indenture, we and our Restricted
Subsidiaries (defined below) may not issue any debt for money borrowed, or
assume or guarantee any such debt, which is secured by a mortgage on a Principal
Property (defined below) or shares of stock or indebtedness of any Restricted
Subsidiary, unless such mortgage similarly secures your debt securities. A
Principal Property is any manufacturing plant or manufacturing facility that we
or any Restricted Subsidiary owns, is located within the continental United
States and, in the opinion of our board of directors, is of material importance
to our total business that we and our Restricted Subsidiaries conduct, taken as
a whole. The above restriction will not apply to debt that is secured by:
- mortgages on property, shares of stock or indebtedness of any
corporation that exists when it becomes a Restricted
Subsidiary;
- mortgages on property that exist when we acquire the property
and mortgages that secure payment of the purchase price of and
improvements to the mortgaged property;
- mortgages that secure debt which a Restricted Subsidiary owes
to us or to another Restricted Subsidiary;
- mortgages that existed at the date of the Indenture;
- mortgages on property of a company that exist when we acquire
the company;
- mortgages in favor of a government to secure debt that we
incur to finance the purchase price or cost of construction of
the property that we mortgage; or
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- extensions, renewals or replacement of any of the mortgages
described above.
A Restricted Subsidiary is a direct or indirect subsidiary of Emerson
if substantially all of its property is located in the continental United States
and if it owns any Principal Property (except a subsidiary principally engaged
in leasing or in financing installment receivables or overseas operations).
The Indenture also excepts from this limitation on liens secured debt
in an amount up to 10% of our consolidated net tangible assets. (Section 3.6)
Limitation on Sale and Leaseback Transactions. We and our Restricted
Subsidiaries may not enter into sale and leaseback transactions involving any
Principal Property (except for leases of up to three years, and except for
leases between us and a Restricted Subsidiary or between Restricted
Subsidiaries) unless
- we could issue debt secured by the property involved (under
the limitations on liens described above) in an amount equal
to the Attributable Debt which would be calculated under the
Indenture based on the rental payments to be received, or
- we pay other debt within 90 days in an amount not less than
such Attributable Debt amount. (Section 3.7)
Restrictions on Consolidation, Merger or Sale. We may not consolidate
or merge or sell or convey all or substantially all of our assets unless (1) we
are the surviving corporation or (2)(a) the surviving corporation (if it is not
Emerson) is a domestic (U.S.) corporation and assumes our obligations on your
debt securities and under the Indenture and (2)(b) immediately after such
transactions, there is no default. (Section 9.1)
DEFEASANCE
The Indenture includes provisions allowing defeasance that we may
choose to apply to debt securities of any series. If we do so, we would deposit
with the Trustee or another trustee money or U. S. Government Obligations
sufficient to make all payments on the defeased debt securities. If we make such
a deposit with respect to your debt securities, we may elect either:
- to be discharged from all our obligations on your debt
securities, except for our obligations to register transfers
and exchanges, to replace temporary or mutilated, destroyed,
lost or stolen debt securities, to maintain an office or
agency in respect of the debt securities and to hold moneys
for payment in trust; or
- to be released from our restrictions described above relating
to liens and sale/leaseback transactions.
To establish such a trust, we must deliver to the Trustee an opinion of
our counsel that the Holders of the debt securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had not
occurred. There may be additional provisions relating to defeasance which we
will describe in the Prospectus Supplement. (Sections 12.1 through 12.4)
EVENTS OF DEFAULT, NOTICE AND WAIVER
If certain Events of Default by us specified in the Indenture happen
and are continuing, either the Trustee or the Holders of 25% in principal amount
of the outstanding debt securities of the defaulted series may declare the
principal, and accrued interest, if any, of all securities of such series to be
immediately due and payable. If other
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specified Events of Default happen and are continuing, either the Trustee or the
Holders of 25% in principal amount of the outstanding debt securities of all
series may declare the principal, and accrued interest, if any, of all the
outstanding debt securities to be due and payable. (Section 5.1)
An Event of Default in respect of any series of debt securities means:
- default for 30 days in payment of any interest installment;
- default in payment of principal, premium, sinking fund
installment or analogous obligation when due;
- unless stayed by litigation, default in performance of any
other covenant in the Indenture governing such series, for 90
days after notice to us by the Trustee or by the Holders of
25% in principal amount of the outstanding debt securities of
such series; and
- certain events of our bankruptcy, insolvency and
reorganization. (Section 5.1)
Within 90 days after a default in respect of any series of debt
securities, the Trustee must give to the Holders of such series notice of all
uncured and unwaived defaults by us known to it. However, except in the case of
default in payment, the Trustee may withhold such notice if it in good faith
determines that such withholding is in the interest of such Holders. The term
"default" means, for this purpose, the happening of any Event of Default,
disregarding any grace period or notice requirement. (Section 5.11)
Before the Trustee is required to exercise rights under the Indenture
at the request of Holders, it is entitled to be indemnified by such Holders,
subject to its duty, during an Event of Default, to act with the required
standard of care. (Sections 6.1 through 6.13)
If any Event of Default has occurred, in certain cases, the Holders of
a majority in principal amount of the outstanding debt securities of any series
may direct the time, method and place of conducting proceedings for remedies
available to the Trustee, or exercising any trust or power conferred on the
Trustee, in respect of such series. (Section 5.9)
If an Event of Default occurs, the Trustee will distribute the money it
collects in the following order:
- First, to the Trustee and its agents and attorneys an amount
sufficient to cover its reasonable compensation, costs,
expenses, liabilities and advances made.
- Second, in the case the principal of the defaulted series is
not yet due and payable, ratably to the persons entitled to
payment of interest on the defaulted series in order of the
maturity of the installments of such interest, with interest
on the overdue installments of interest, or, in the case the
principal of the defaulted series is due and payable, ratably,
based on the aggregate of principal and accrued and unpaid
interest, to persons entitled to payment of principal and
interest on the defaulted series, with interest on the overdue
principal and overdue installments of interest.
- Third, the remainder to us or any other person entitled to it.
(Section 5.3)
We must file an annual certificate with the Trustee that we are in
compliance with conditions and covenants under the Indenture. (Section 3.5)
In certain cases, the Holders of a majority in principal amount of the
outstanding debt securities of a series, on behalf of the Holders of all debt
securities of such series, or the Holders of a majority of all outstanding debt
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securities voting as a single class, on behalf of the Holders of all outstanding
debt securities, may waive any past default or Event of Default, or compliance
with certain provisions of the Indenture, but may not waive, among other things,
an uncured default in payment. (Sections 5.1 and 5.10)
MODIFICATION OR AMENDMENT OF THE INDENTURE
If we receive the consent of the Holders of a majority in principal
amount of the outstanding debt securities affected, we may enter into
supplemental indentures with the Trustee that would
- add, change or eliminate provisions in the Indenture; or
- change the rights of the Holders of debt securities.
However, unless we receive the consent of all of the affected Holders,
we may not enter into supplemental indentures that would with respect to the
debt securities of such Holders:
- change the maturity;
- reduce the principal amount or any premium;
- reduce the interest rate or extend the time of payment of
interest;
- reduce any amount payable on redemption or reduce the amount
of the principal of an Original Issue Discount Security that
would be payable on acceleration;
- impair or affect the right of any Holder to institute suit for
payment;
- change any right of the Holder to require repayment; or
- reduce the requirement for approval of supplemental
indentures. (Section 8.2)
REGARDING THE TRUSTEE
The Trustee is The Bank of New York. The Trustee is a lender to us
under our revolving credit agreement and is also an investment manager for one
of our pension funds. From time to time, we may enter into other banking
relationships with the Trustee.
Under certain circumstances, the Holders of a majority in principal
amount of the Securities of each series may remove the Trustee with respect to
such series and appoint a new successor Trustee for such series, or any
Securityholder of at least six months may petition a court for the removal of
the Trustee and the appointment of a successor Trustee with respect to a
particular series. (Section 6.10)
BOOK-ENTRY DEBT SECURITIES
The Prospectus Supplement will indicate whether we are issuing the
related debt securities as book-entry securities. Book entry securities of a
series will be issued in the form of one or more global notes that will be
deposited with The Depository Trust Company, or DTC, 55 Water Street, New York,
New York 10041. The global note(s) will evidence all of the debt securities of
that series. This means that we will not issue certificates to each Holder. We
will issue one or more global securities to DTC, which will keep a computerized
record of its participants (for example, your broker) whose clients have
purchased the debt securities. The participant will then keep a record of its
clients who own the debt securities. Unless it is exchanged in whole or in part
for a security evidenced by individual certificates, a global security may not
be transferred, except that DTC, its nominees and their successors may transfer
a global security as a whole to one another. Beneficial interests in global
book-entry securities will be shown on, and transfers of beneficial interests in
global notes will be made only through, records
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maintained by DTC and its participants. Each person owning a beneficial interest
in a global security must rely on the procedures of DTC and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest, to exercise any rights of a Holder of debt securities
under the Indenture.
The laws of some jurisdictions require that certain purchasers of
securities such as debt securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair your ability to acquire or
transfer beneficial interests in the global book-entry security.
We will make payments on each series of book-entry debt securities to
DTC or its nominee, as the sole registered owner and holder of the global
book-entry security. Neither Emerson, the Trustee nor any of their agents will
be responsible or liable for any aspect of DTC's records relating to or payments
made on account of beneficial ownership interests in a global security or for
maintaining, supervising or reviewing any of DTC's records relating to such
beneficial ownership interests.
DTC has advised us that, when it receives any payment on a global
security, it will immediately, on its book-entry registration and transfer
system, credit the accounts of participants with payments in amounts
proportionate to their beneficial interests in the global security as shown on
DTC's records. Payments by participants to you, as an owner of a beneficial
interest in the global security, will be governed by standing instructions and
customary practices (as is now the case with securities held for customer
accounts registered in "street name") and will be the sole responsibility of
such participants.
A global security representing a series will be exchanged for
certificated debt securities of that series only if (x) DTC notifies us that it
is unwilling or unable to continue as Depositary or if DTC ceases to be a
clearing agency registered under the 1934 Act and we don't appoint a successor
within 90 days, (y) we decide that the global security shall be exchangeable or
(z) there is an Event of Default under the Indenture or an event which with the
giving of notice or lapse of time or both would become an Event of Default with
respect to the debt securities represented by such global security. If that
occurs, we will issue debt securities of that series in certificated form in
exchange for such global security. An owner of a beneficial interest in the
global security then will be entitled to physical delivery of a certificate for
debt securities of such series equal in principal amount to such beneficial
interest and to have such debt securities registered in its name. We would issue
the certificates for such debt securities in denominations of $1,000 or any
larger amount that is an integral multiple thereof, and we would issue them in
registered form only, without coupons.
DTC has advised us that it is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered under the 1934 Act. DTC was created to hold the
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for
physical movement of securities certificates. DTC's participants include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations, some of whom (and/or their representatives) own
DTC. Access to DTC's book-entry system is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC. No fees
or costs of DTC will be charged to you.
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DESCRIPTION OF CAPITAL STOCK OF EMERSON
The following is a summary of the material terms of our capital stock
and the provisions of our restated articles of incorporation, bylaws and rights
agreement. It also summarizes some relevant provisions of the Missouri General
and Business Corporation Law, which we refer to as Missouri law. Since the terms
of our restated articles of incorporation, bylaws and rights agreement, and
Missouri law, are more detailed than the general information provided below, you
should only rely on the actual provisions of those documents and Missouri law.
If you would like to read those documents, they are on file with the SEC, as
described under the heading "Where You Can Find More Information."
GENERAL
Our authorized capital stock consists of 1,200,000,000 shares of common
stock, par value $0.50 per share, and 5,400,000 shares of preferred stock, par
value $2.50 per share.
COMMON STOCK
All of our outstanding shares of common stock are fully paid and
non-assessable. Any shares of common stock issued in an offering pursuant to
this prospectus, including those issuable upon the exercise of warrants or upon
conversion of preferred stock or debt securities issued pursuant to this
Prospectus or in connection with the obligations of a holder of share purchase
contracts to purchase our common stock, will be fully paid and non-assessable.
Subject to the prior rights of the holders of any shares of preferred stock
which later may be issued and outstanding, holders of common stock are entitled
to receive dividends as and when declared by us out of legally available funds.
In the event of any such declaration or payment, the holders of common stock
will be entitled, to the exclusion of the holders of the preferred stock, to
share therein. If we liquidate, dissolve, or wind up Emerson, after distribution
and payment in full is made to holders of preferred stock, if any, the remainder
of assets, if any, will be distributed pro rata among the holders of common
stock of the company. Each holder of common stock is entitled to one vote for
each share held of record on all matters presented to a vote of shareholders,
including the election of directors. Holders of common stock have no cumulative
voting rights or preemptive rights to purchase or subscribe for any stock or
other securities and there are no conversion rights or redemption or sinking
fund provisions for the common stock. We may issue additional shares of
authorized common stock without shareholder approval, subject to applicable
rules of the New York Stock Exchange and the Chicago Stock Exchange.
Mellon Investor Services LLC is the registrar and transfer agent for
our common stock. Our common stock is listed on the New York Stock Exchange and
on the Chicago Stock Exchange under the symbol "EMR."
PREFERRED STOCK
Our restated articles of incorporation, as amended, vest our board of
directors with authority to issue up to 5,400,000 shares of preferred stock from
time to time in one or more series and by resolution or resolutions:
- To fix the distinctive serial designation of the shares of any
such series;
- To fix the rate or amount per annum at which the holders of
the shares of any series shall be entitled to receive
dividends, the dates on which such dividends shall be payable,
and the date or dates from which such dividends shall be
cumulative;
- To fix the price or prices at which, the times during which,
and the other terms upon which the shares of any such series
may be redeemed;
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- To fix the amounts payable on the shares of any series in the
event of dissolution or liquidation of the Company;
- From time to time to include additional shares of preferred
stock which the Company is authorized to issue in any such
series;
- To determine whether or not the shares of any such series
shall be made convertible into or exchangeable for shares of
the common stock of the Company, shares of any other series of
the preferred stock of the Company, now or hereafter
authorized, or any new class of preferred stock of the Company
hereafter authorized, or debt securities, the conversion price
or prices, or the rate or rates of exchange at which such
conversion or exchange may be made, and the terms and
conditions upon which any such conversion right shall be
exercised;
- To fix such other preferences and rights, privileges and
restrictions applicable to any such series as may be permitted
by law;
- To determine if a sinking fund shall be provided for the
purchase or redemption of shares of any series and, if so, to
fix the terms and amount or amounts of such sinking fund; and
- The consideration for which the shares of the series are to be
issued.
Except as otherwise provided in any prospectus supplement, all shares
of the same series of preferred stock will be identical with each other share of
said stock. The shares of different series may differ, including as to rank, as
may be provided in our restated articles of incorporation, or as may be fixed by
our board of directors as described above. We may from time to time amend our
restated articles of incorporation to increase or decrease the number of
authorized shares of preferred stock. Unless otherwise provided in any
prospectus supplement, all shares of preferred stock will be fully paid and
non-assessable.
The material terms of any series of preferred stock being offered by us
will be described in the prospectus supplement relating to that series of
preferred stock. If so indicated in the prospectus supplement and if permitted
by law and the restated articles of incorporation, the terms of any such series
may differ from the terms set forth below. That prospectus supplement may not
restate the amendment to our restated articles of incorporation or the board
resolution that establishes a particular series of preferred stock in its
entirety. We urge you to read that amendment or board resolution because it, and
not the description in the prospectus supplement, will define your rights as a
holder of preferred stock. The certificate of amendment to our restated articles
of incorporation or board resolution will be filed with the Secretary of State
of the State of Missouri and with the SEC.
Dividend Rights. The preferred stock will be preferred as to payment of
dividends over our common stock or any other stock ranking junior to the
preferred stock as to dividends. No dividend may be declared or paid and no
distribution may be made on our common stock or stock of junior rank, other than
dividends or distributions payable in common stock, until the full cumulative
dividends on the preferred stock of all series up to the end of the then
quarterly dividend period shall have been declared and paid (or appropriated and
set aside) by the board of directors. We will pay those dividends either in
cash, shares of common stock or preferred stock or otherwise, at the rate and on
the date or dates indicated in the applicable prospectus supplement. With
respect to each series of preferred stock, the dividends on each share of that
series will be cumulative from the date of issue of the share unless some
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other date is set forth in the prospectus supplement relating to the series.
Accruals of dividends will not bear interest. If the amount determined by our
board of directors to be declared and payable as dividends on the preferred
stock is insufficient to pay the full dividend, including accumulations, on all
outstanding series, such amount shall be paid on all outstanding shares of all
series on pro rata basis generally based on the amount of the full dividend for
that series.
Rights upon Liquidation. The preferred stock will be preferred over
common stock, or any other stock ranking junior to the preferred stock with
respect to distribution earnings and assets, so that the holders of each series
of preferred stock will be entitled to be paid, upon voluntary or involuntary
liquidation, dissolution or winding up and before any distribution is made to
the holders of common stock or stock of junior rank, the amount set forth in the
applicable prospectus supplement. However, in this case the holders of preferred
stock will not be entitled to any other or further payment. In addition, the
rights of the preferred stock in the event of a dissolution, liquidation or
winding up shall not restrict or prevent the Company from paying dividends on
common stock if the payment of such dividends is not restricted by any other
terms of the preferred stock. If upon any liquidation, dissolution or winding up
amounts available for payment are insufficient to permit the payment in full of
the respective amounts to which the holders of all outstanding preferred stock
are entitled, the amount available will be distributed among the holders of each
series of preferred stock in an amount proportional to the full amounts to which
the holders of each series are entitled.
Redemption. All shares of any series of preferred stock will be
redeemable to the extent set forth in the prospectus supplement relating to the
series.
Conversion or Exchange. Shares of any series of preferred stock will be
convertible into or exchangeable for shares of common stock or preferred stock
or debt securities to the extent set forth in the applicable prospectus
supplement.
Preemptive Rights. No holder of shares of any series of preferred stock
will have any preemptive or preferential rights to subscribe to or purchase
shares of any class or series of stock, now or hereafter authorized, or any
securities convertible into, or warrants or other evidences of optional rights
to purchase or subscribe to, shares of any series, now or hereafter authorized.
Voting Rights. Except as indicated in the applicable prospectus
supplement, the holders of preferred stock will be entitled to one vote for each
share of preferred stock held by them on all matters properly presented to
shareholders. The holders of common stock and the holders of all series of
preferred stock will vote together as one class, except as otherwise provided by
law and except as set forth below.
The preferences, priorities, special rights and powers given to the
preferred stock under our restated articles of incorporation, or to any series
thereof by any authorizing action of our board, may be altered or terminated, as
provided by law, upon the affirmative vote of the holders of two-thirds (2/3) of
each series of preferred stock issued and outstanding whose rights will be
affected by such proposed alteration or termination. No additional shares of the
preferred stock except the shares provided for in our restated articles of
incorporation shall be authorized, and no additional shares of any other class
of preferred stock having a priority over, or entitled to participate on a
parity with, the preferred stock shall be authorized, except upon the
affirmative vote of the holders of a majority of each series of the preferred
stock issued and outstanding; provided, however, that the authorizing resolution
for any series of preferred stock may provide for the vote of a greater
percentage of the shares.
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Currently under Missouri law, even if shares of a particular class or
series of stock are not otherwise entitled to a vote on any matter submitted to
the shareholders, amendments to the restated articles of incorporation which
adversely affect those shares require a vote of the class or series of which
such shares are a part, including amendments which would:
- increase or decrease the aggregate number or par value of
authorized shares of the class or series;
- create a new class of shares having rights and preferences
prior or superior to the shares of the class or series;
- increase the rights and preferences, or the number of
authorized shares, of any class having rights and preferences
prior to or superior to the rights of the class or series; or
- alter or change the powers, preferences or special rights of
the shares of such class or series so as to affect such shares
adversely.
Board Representation. Our restated articles of incorporation provide
that in addition to the voting rights set forth above, if, and whenever, six (6)
or more quarterly dividends, whether or not consecutive, on the preferred stock
shall be in arrears, in whole or in part, the holders of the preferred stock,
including all series thereof, voting as a single class, shall have the right to
elect a number of the members of the board of directors equal to the whole
number obtained by dividing seven (7), into the number of directors of the
Company authorized at such time by the restated articles of incorporation of the
Company, but not less than two (2) directors. In such event, the remainder of
the directors shall be elected by the holders of the common stock and preferred
stock, voting as a single class. Whenever all dividends in arrears and current
dividends on the preferred stock then outstanding have been paid or declared and
a sum sufficient for the payment thereof set aside, then the right of the
holders of the preferred stock to elect such number of directors shall then
cease. During the time when the preferred stock is vested with the power of
board representation, the secretary of the Company may (shall upon the written
request of the holders of record of ten percent (10%) or more in number of
shares of the preferred stock outstanding) call a special meeting of the holders
of the preferred stock for the election of the directors to be elected by them
subject to provisions of our restated articles of incorporation. In the case of
additional authorized shares of preferred stock or a different class of
preferred stock shall be created and issued, nothing herein contained shall
prevent any such additional shares or class of the preferred stock from having
the same voting rights on a pari passu basis with the shares of preferred stock
entitled to vote on any matters.
Many of our operations are conducted through our subsidiaries, and thus
our ability to pay dividends on our common stock or any series of preferred
stock is dependent on their financial condition, results of operations, cash
requirements and other related factors.
Depending upon the rights of holders of the preferred stock, an
issuance of preferred stock could adversely affect holders of common stock by
delaying or preventing a change of control of Emerson, making removal of the
management of Emerson difficult, or restricting the payment of dividends and
other distributions to the holders of common stock. Except as otherwise
contemplated by our shareholder rights plan described below, we presently have
no intention to issue any shares of preferred stock.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
We may issue additional shares of common stock or preferred stock
without shareholder approval, subject to applicable rules of the New York Stock
Exchange and the Chicago Stock Exchange, for a variety of corporate
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purposes, including raising additional capital, corporate acquisitions and
employee benefit plans. The existence of unissued and unreserved common and
preferred stock may enable us to issue shares to persons who are friendly to
current management, which could discourage an attempt to obtain control of
Emerson through a merger, tender offer, proxy contest, or otherwise, and protect
the continuity of management and possibly deprive you of opportunities to sell
your shares at prices higher than the prevailing market prices. We could also
use additional shares to dilute the stock ownership of persons seeking to obtain
control of Emerson pursuant to the operation of the rights plan or otherwise.
See also "Certain Charter and Bylaw Provisions" below.
RIGHTS PLAN
Under our shareholder rights plan, we distributed one preferred stock
purchase right for each outstanding share of common stock. The rights agreement,
as amended, between Emerson and Mellon Investor Services LLC (formerly
ChaseMellon Shareholder Services, L.L.C.), as rights agent, dated as of November
1, 1998, contains the terms of the shareholder rights plan. Since the terms of
our shareholder rights plan are more extensive than the general summary
information we are providing, you should only rely on the actual provisions of
the rights agreement. If you would like to read the rights agreement, it is on
file with the SEC or you may request a copy from us.
Exercisability of Rights
Under the rights agreement, one right attaches to each outstanding
share of our common stock and, when exercisable, entitles the registered holder
to purchase from us one one-thousandth (1/1,000th) of a share of Series B Junior
participating preferred stock, par value $2.50 per share, at an initial purchase
price of $260 (originally set in 1998) per one one-thousandth (1/1,000th) of a
share, subject to customary antidilution adjustments. Until a right is
exercised, the holder thereof, as such, will have no rights as a stockholder of
the Company, including, without limitation, the right to vote or to receive
dividends. For a description of the terms of the Series B Junior participating
preferred stock. See "Description of Capital Stock -- Series B Junior
participating preferred stock" below.
Generally, the rights will not become exercisable until the earlier of
(the "Distribution Date"):
- 10 business days following a public announcement (or the date
on which we first have notice or determine) that a person or
group, other than the Company, any subsidiary of the Company
or any employee benefit plan of the Company ("Acquiring
Person"), has become the beneficial owner of 20% or more of
the outstanding shares of voting stock of the Company, without
a qualified written approval of our board of directors; and
- 10 business days, or such later date as we may determine,
following the commencement of, or the announcement of an
intention to commence, a tender offer or exchange offer that
would result in an Acquiring Person becoming the beneficial
owner of securities representing 20% or more of our voting
stock, without a qualified written approval of our board of
directors.
Prior to the Distribution Date, the rights are not exercisable but
trade with and are inseparable from our common stock. The rights will expire, if
not previously exercised, on November 1, 2008, unless this date is extended. At
the Distribution Date, the flip-in features of the rights or, at the discretion
of our board of directors, the exchange features of the rights, may be exercised
by any holder, except by the Acquiring Person. A summary description of each of
these features follows:
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"Flip In" Feature
In the event an Acquiring Person becomes the beneficial owner of
securities representing 20% or more of our outstanding voting stock without the
prior written consent of our board of directors, each right, except those held
by the Acquiring Person, would entitle each holder of a right to acquire such
number of shares of our common stock as shall equal the result obtained by
multiplying the then current purchase price (originally set at $260 in 1998) by
the number of one one-thousandths of a share of preferred stock for which a
right is then exercisable and dividing that product by 50% of the then current
market price of our common stock. For example, if we assume that the initial
purchase price of $260 per one one-thousandth (1/1,000th) of a share of Series B
junior participating preferred stock is in effect on the date that the flip-in
feature of the right is exercised, any holder of a right, except for the
Acquiring Person that has become the beneficial owner of 20% of our outstanding
voting stock, can exercise one of his or her rights by paying us $260 in order
to receive from us shares of our common stock having a value equal to $520.
"Exchange" Feature
At any time after an Acquiring Person acquires more than 20% but less
than 50% of our outstanding common stock without prior written consent of our
board of directors, each right, except those held by the Acquiring Persons, may
be exchanged by our board of directors for one share of our common stock. Use of
this exchange feature means that eligible rights holders would not have to pay a
purchase price before receiving shares of our common stock.
"Flip Over" Feature
In the event we are acquired in a merger or other business combination
transaction where we are not the surviving corporation, where our common stock
is exchanged or changed or 50% or more of our assets or earning power is sold in
one or several transactions without the prior written consent of our board of
directors, each right would entitle the holders thereof, except for the
Acquiring Person, to receive such number of shares of the acquiring company's
common stock as shall be equal to the result obtained by multiplying the then
current purchase price (originally set at $260 in 1998) by the number of one
one-thousandths of a share of preferred stock for which a right is then
exercisable and dividing that product by 50% of the then current market price
per share of the common stock of the acquiring company on the date of such
merger or other business combination.
Redemption of Rights
At any time prior to the time an Acquiring Person becomes such, the
board of directors may redeem all the rights in whole, but not in part, at a
redemption price of $0.005 per right, subject to adjustment. The right to
exercise the rights, as described above under " -- Exercisability of Rights,"
will terminate upon redemption, and at such time, the holders of the rights will
have the right to receive only the redemption price for each right held.
Amendment of Rights Agreement
The terms of the rights may be amended by the board of directors
without the consent of the holders of the rights, including, but not limited to,
an amendment to lower certain thresholds. However, if at any time after a person
or group becomes an Acquiring Person, our board of directors may not adopt
amendments to the rights agreement that adversely affect the interests of
holders of the rights.
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Termination of Rights
If not previously exercised, the rights will expire on November 1,
2008, unless we earlier redeem or exchange the rights or extend the final
expiration date.
Anti-takeover Effects
The rights have certain anti-takeover effects. Once the rights have
become exercisable, the rights will cause substantial dilution to a person or
group that attempts to acquire or merge with us in certain circumstances.
Accordingly, the existence of the rights may deter potential acquirers from
making a takeover proposal or tender offer. The rights should not interfere with
any merger or other business combination approved by our board of directors
because we may redeem the rights as described above and because a transaction
approved by our board of directors would not cause the rights to become
exercisable.
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
In connection with the creation of the rights, as described above, our
board has authorized the issuance of 1,200,000 shares of preferred stock as
Series B junior participating preferred stock.
We have designed the dividend, liquidation, voting and redemption
features of the Series B junior participating preferred stock so that the value
of one one-thousandth (1/1,000th) of a share of Series B junior participating
preferred stock approximates the value of one share of common stock. Shares of
Series B junior participating preferred stock may only be purchased after the
rights have become exercisable, and each share of the Series B junior
participating preferred stock:
- is non-redeemable and junior to all other series of preferred
stock, unless otherwise provided in the terms of those series
of preferred stock;
- will have a preferential cumulative quarterly dividend in an
amount equal to the greater of $1.00 and 1,000 times any
dividend declared on each share of common stock;
- in the event of liquidation, dissolution or winding-up, will
entitle its holder to receive a preferred liquidation payment
equal to the greater of $1,000 and 1,000 times the payment
made per share of common stock;
- will have one vote, voting together with our common stock and
any other capital stock with general voting rights, except as
otherwise provided by the restated articles of incorporation
and by law; and
- in the event of any merger, consolidation or other transaction
in which shares of common stock are converted or exchanged,
will be entitled to receive 1,000 times the amount and type of
consideration received per share of common stock.
The rights of the Series B junior participating preferred stock as to
dividends, liquidation and voting, and in the event of mergers and
consolidations, are protected by customary antidilution provisions.
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CERTAIN CHARTER AND BYLAW PROVISIONS
Our restated articles of incorporation and bylaws:
- provide for a classified board of directors;
- limit the right of shareholders to remove directors or change
the size of the board of directors;
- limit the right of shareholders to fill vacancies on the board
of directors;
- limit the right of shareholders to call a special meeting of
shareholders or propose other actions;
- require a higher percentage of shareholders than would
otherwise be required to amend, alter, change, or repeal
certain provisions of our articles of incorporation; and
- provide that the bylaws may be amended only by the majority
vote of the board of directors.
Shareholders will not be able to amend the bylaws without first
amending the restated articles of incorporation. These provisions may discourage
certain types of transactions that involve an actual or threatened change of
control of Emerson. Since the terms of our restated articles of incorporation
and bylaws may differ from the general information we are providing, you should
only rely on the actual provisions of our restated articles of incorporation and
bylaws. If you would like to read our articles of incorporation and bylaws, they
are on file with the SEC or you may request a copy from us.
Size of Board
Our Restated Articles of Incorporation provide that the number of
directors will be fixed by our bylaws; provided that the bylaws must provide for
three or more directors. Our bylaws provide for a board of directors of at least
three directors and permit the board of directors to set the number of directors
from time to time. In accordance with our bylaws, our board of directors has
fixed the number of directors at sixteen. Our articles of incorporation further
provide that our bylaws may be amended only by majority vote of our entire board
of directors.
Election of Directors
In order for you to nominate a candidate for director, our articles of
incorporation require that you give timely notice to us in advance of the
meeting. Ordinarily, you must give notice not less than 90 days nor more than
120 days before the meeting (but if we give less than 100 days' notice of the
meeting, then you must give notice within ten days after we mail notice of the
meeting or make a public disclosure of the meeting). Your notice must describe
various matters regarding the nominee, including the nominee's name, address,
occupation, and shares held. Our bylaws do not permit cumulative voting in the
election of directors. Accordingly, the holders of a majority of the then
outstanding shares of common stock can elect all the directors of the class then
being elected at that meeting of shareholders.
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Classified Board
Our articles of incorporation and bylaws provide that our board will be
divided into three classes, with the classes to be as nearly equal in number as
possible, and that one class shall be elected each year and serve for a
three-year term.
Removal of Directors
Missouri law provides that, unless a corporation's articles of
incorporation provide otherwise, the holders of a majority of the corporation's
voting stock may remove any director from office. Our articles of incorporation
provide that shareholders may remove a director with or without "cause" and with
the approval of the holders of 85% of Emerson's voting stock. Our board of
directors may remove a director, with or without cause, only in the event the
director fails to meet the qualifications stated in the bylaws for election as a
director or in the event the director is in breach of any agreement between such
director and Emerson relating to such director's service as a director or
employee of Emerson.
Filling Vacancies
Missouri law further provides that, unless a corporation's articles of
incorporation or bylaws provide otherwise, all vacancies on a corporation's
board of directors, including any vacancies resulting from an increase in the
number of directors, may be filled by the vote of a majority of the remaining
directors even if that number is less than a quorum. Our articles of
incorporation provide that, subject to the rights, if any, of the holders of any
class of preferred stock then outstanding and except as described below, only
the vote of a majority of the remaining directors may fill vacancies.
Limitations on Shareholder Action by Written Consent
Missouri law provides that any action by written consent of
shareholders in lieu of a meeting must be unanimous.
Limitations on Calling Shareholder Meetings
Under our articles of incorporation and bylaws, special meetings of
shareholders may be called only by our board of directors, our chairman of the
board, our chief executive officer and by the holders of not less than 85% of
our voting stock.
Limitations on Proposals of Other Business
In order for you to bring a proposal before a shareholder meeting, our
articles of incorporation require that you give timely notice to us in advance
of the meeting. Ordinarily, you must give notice at least 90 days but not more
than 120 days before the meeting (but if we give less than 100 days' notice of
the meeting, then you must give notice within ten days after we mail notice of
the meeting or make other public disclosure of the meeting). Your notice must
include a description of the proposal, the reasons for the proposal, and other
specified matters. Our board may reject any proposals that have not followed
these procedures or that are not a proper subject for shareholder action in
accordance with the provisions of applicable law.
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Amendment of Articles
Our restated articles of incorporation may be amended by the
affirmative vote of the holders of shares representing a majority of the votes
entitled to be cast on the amendment; provided that certain provisions contained
in our restated articles of incorporation respecting business combinations, the
board of directors, removal of directors, amendment of bylaws and special
meetings of shareholders may be amended only by the affirmative vote of the
holders of 85% of the total voting power of all outstanding shares of Emerson,
voting as a single class. However, the provisions respecting business
combinations may be amended upon the affirmative vote of the holders of a
majority of the total voting power of all outstanding shares of Emerson if such
amendment shall first have been approved and recommended by a majority of those
directors who meet certain criteria of independence from parties seeking a
business combination.
Business Combination Provisions in Articles of Incorporation
Certain business combinations involving Emerson require the affirmative
vote of the holders of 85% of the outstanding shares of Emerson common stock
unless (i) a majority of the continuing directors (as defined in the Emerson
restated articles of incorporation) have approved the proposed business
combination, or (ii) various conditions intended to ensure the adequacy of the
consideration offered by the party seeking the combination are satisfied.
Limitation on Directors' Liability
Our restated articles of incorporation limit the liability of our
directors to us or any of our shareholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted under the Missouri
General and Business Corporation Law.
Anti-Takeover Effects of Provisions
The classification of directors, the inability to vote shares
cumulatively, the advance notice requirements for nominations, and the
provisions in our articles of incorporation that limit the ability of
shareholders to increase the size of our board or to remove directors and that
permit the remaining directors to fill any vacancies on our board make it more
difficult for shareholders to change the composition of our board. As a result,
at least two annual meetings of shareholders may be required for the
shareholders to change a majority of the directors, whether or not a change in
our board would benefit Emerson and its shareholders and whether or not a
majority of our shareholders believes that the change would be desirable.
The provision of Missouri law which requires unanimity for shareholder
action by written consent gives all our shareholders entitled to vote on a
proposed action the opportunity to participate in the action and prevents the
holders of a majority of the voting power of Emerson from using the written
consent procedure to take shareholder action. The bylaw provision requiring
advance notice of other proposals may make it more difficult for shareholders to
take action opposed by the board. Moreover, a shareholder cannot force a
shareholder consideration of a proposal over the opposition of our board of
directors by calling a special meeting of shareholders.
These provisions make it more difficult and time-consuming to obtain
majority control of our board of directors or otherwise bring a matter before
shareholders without our board's consent, and thus reduce the vulnerability of
Emerson to an unsolicited takeover proposal. These provisions enable Emerson to
develop its business in a manner which will foster its long-term growth, by
reducing to the extent practicable the threat of a
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takeover not in the best interests of Emerson and its shareholders and the
potential disruption entailed by the threat. On the other hand, these provisions
may adversely affect the ability of shareholders to influence the governance of
Emerson and the possibility that shareholders would receive a premium above
market price for their securities from a potential acquirer who is unfriendly to
management. The provisions requiring an 85% vote of shareholders for amendments
to certain provisions of our restated articles of incorporation and for certain
business combinations have the effect of limiting the ability of shareholders
and others to change the terms of Emerson's restated articles of incorporation
and to change control of Emerson.
MISSOURI STATUTORY PROVISIONS
Missouri law also contains certain provisions which may have an
anti-takeover effect and otherwise discourage third parties from effecting
transactions with us, including control share acquisition and business
combination statutes.
Business Combination Statute
Missouri law contains a "business combination statute" which restricts
certain "business combinations" between us and an "interested shareholder," or
affiliates of the interested shareholder, for a period of five years after the
date of the transaction in which the person becomes an interested shareholder,
unless either such transaction or the interested shareholder's acquisition of
stock is approved by our board on or before the date the interested shareholder
obtains such status.
The statute also prohibits business combinations after the five-year
period following the transaction in which the person becomes an interested
shareholder unless the business combination or purchase of stock prior to
becoming an interested shareholder is approved by our board prior to the date
the interested shareholder obtains such status. The statute provides that, after
the expiration of such five-year period, business combinations are prohibited
unless:
- the holders of a majority of the outstanding voting stock,
other than the stock owned by the interested shareholder,
approve the business combination; or
- the business combination satisfies certain detailed fairness
and procedural requirements.
A "business combination" includes a merger or consolidation, some
sales, leases, exchanges, pledges and similar dispositions of corporate assets
or stock and any reclassifications or recapitalizations that increase the
proportionate voting power of the interested shareholder. An "interested
shareholder" generally means any person who, together with his or her affiliates
and associates, owns or controls 20% or more of the outstanding shares of the
corporation's voting stock.
A Missouri corporation may opt out of coverage by the business
combination statute by including a provision to that effect in its governing
corporate documents. We have not done so.
The business combination statute may make it more difficult for a 20%
beneficial owner to effect other transactions with us and may encourage persons
that seek to acquire us to negotiate with our board prior to acquiring a 20%
interest. It is possible that such a provision could make it more difficult to
accomplish a transaction which shareholders may otherwise deem to be in their
best interest.
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Control Share Acquisition Statute
Missouri also has a "control share acquisition statute." This statute
may limit the rights of a shareholder to vote some or all of his shares. A
shareholder whose acquisition of shares results in that shareholder having
voting power, when added to the shares previously held by him, to exercise or
direct the exercise of more than a specified percentage of our outstanding stock
(beginning at 20%), will lose the right to vote some or all of his shares in
excess of such percentage unless the shareholders approve the acquisition of
such shares.
In order for the shareholders to grant approval, the acquiring
shareholder must meet certain disclosure requirements specified in the statute.
In addition, a majority of the outstanding voting shares, as determined before
the acquisition, must approve the acquisition. Furthermore, a majority of the
outstanding voting shares, as determined after the acquisition, but excluding
shares held by (i) the acquiring shareholder, (ii) employee directors or (iii)
officers appointed by the board of directors, must approve the acquisition. If
the acquisition is approved, the statute grants certain rights to dissenting
shareholders.
Not all acquisitions of shares constitute control share acquisitions.
The following acquisitions do not constitute control share acquisitions:
- good faith gifts;
- transfers in accordance with wills or the laws of descent and
distribution;
- purchases made in connection with an issuance by us;
- purchases by any compensation or benefit plan;
- the conversion of debt securities;
- purchases from holders of shares representing two-thirds of
our voting power; provided such holders act simultaneously;
- satisfaction of a pledge or other security interest created in
good faith;
- mergers involving us which satisfy the other requirements of
the General and Business Corporation Law of Missouri;
- transactions with a person who owned a majority of our voting
power within the prior year; or
- purchases from a person who previously satisfied the
requirements of the control share statute, so long as the
acquiring person does not have voting power after the
ownership in a different ownership range than the selling
shareholder prior to the sale.
A Missouri corporation may opt out of coverage by the control share
acquisition statute by including a provision to that effect in its governing
corporate documents. We have not opted out of the control share acquisition
statute.
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Take-Over Bid Disclosure Statute
Missouri's "take-over bid disclosure statute" requires that, under some
circumstances, before making a tender offer that would result in the offeror
acquiring control of us, the offeror must file certain disclosure materials with
the Commissioner of the Missouri Department of Securities.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our common stock, preferred stock,
debt securities or any combination thereof. We may issue warrants independently
or together with debt securities, preferred stock or common stock, and the
warrants may be sold at the same or different time as those offered securities.
Each warrant will entitle the holder to purchase for cash an amount or number of
securities at the exercise price specified in the prospectus supplement relating
to the warrants.
We will issue our warrants in one or more series, each under a warrant
agreement between us and a bank or trust company, as warrant agent. The warrant
agent will act solely as our agent in connection with the warrants and will not
assume any obligation or relationship of agency or trust for or with any holders
or beneficial owners of the warrants.
We will file a copy of each warrant agreement that we enter into with
the warrant agent in our Current Reports on Form 8-K, which will be incorporated
herein by reference, or by an amendment to the registration statement of which
this prospectus forms a part. The terms of any warrants to be issued and a
description of the material provisions of the applicable warrant agreement will
be set forth in a prospectus supplement.
GENERAL TERMS
The applicable prospectus supplement will contain, where appropriate,
information relating to the warrants, including the following:
- the title of the warrants;
- the aggregate number of warrants offered;
- the price and prices at which the warrants will be issued;
- the various factors considered in determining the exercise
prices;
- the currency or currencies in which the price of the warrants
will be payable;
- the dates upon which the right to exercise the warrants will
begin and end;
- if the warrants are not continuously exercisable, the specific
date or dates on which they may be exercised;
- the place or places where, and the manner in which, the
warrants may be exercised;
- the exercise price, the procedures for exercise and the
circumstances, if any, that will deem the warrants to be
automatically exercised;
- any provisions for changes to or adjustments in the exercise
price;
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- the designation and terms of the securities purchasable upon
exercise of the warrants and the number or amount of such
securities issuable upon exercise of the warrants;
- any provisions for adjustment of the number or amount of
securities receivable upon exercise of the warrants;
- any minimum or maximum number of warrants which may be
exercised at any one time;
- if warrants are issued together with debt securities, common
stock or preferred stock, the title of the securities, their
terms, the number of warrants accompanying each other security
and the date that the warrants and other securities will
become separately transferable;
- whether the warrants will be issued in registered or bearer
form or both and whether they will be issued in certificated
or uncertificated form;
- information with respect to book-entry procedures, if any;
- the terms of any mandatory or optional redemption or call
provisions;
- the exchanges, if any, on which the warrants may be listed;
- the identity of the warrant agent;
- the terms of the warrant agreement entered into with the
warrant agent;
- the U.S. Federal income tax consequences applicable to the
warrants; and
- any other material terms of the warrants.
Prior to the exercise of the warrants, warrant holders will not have
any rights of holders of our securities purchasable upon exercise of those
warrants, including (1) in the case of warrants for the purchase of our debt
securities, the right to receive payments of principal, premium or interest, if
any, on those debt securities or to enforce covenants in the governing
Indenture, or (2) in the case of warrants for the purchase of preferred stock or
common stock, the right to receive payments of dividends, if any, on that
preferred stock or common stock or to exercise any applicable right to vote.
EXERCISE OF WARRANTS
Warrants may be exercised as set forth in the applicable prospectus
supplement. Any warrants not exercised by the expiration date will be void.
Unless otherwise set forth in the applicable prospectus supplement, holders of
warrants may exercise them by delivering properly completed warrant certificates
and payment of the exercise price to the warrant agent at its corporate trust
office. As soon as practicable after such delivery, we will issue and deliver to
the holder the securities purchased upon exercise of the warrants. If the
warrants are certificated and a holder does not exercise all of the warrants
represented by a particular certificate, we will also issue a new certificate
for the remaining number of warrants.
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AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENT
Except as otherwise set forth in the prospectus supplement, we and the
warrant agent may amend or supplement the warrant agreement for a series of
warrants without the consent of the holders of the warrants issued thereunder to
effect changes that are not inconsistent with the provisions of the warrants and
that do not materially and adversely affect the interests of the holders of the
warrants. However, except as otherwise set forth in the prospectus supplement,
any amendment that materially and adversely alters the rights of the holders of
warrants will not be effective unless the holders of at least a majority of the
applicable warrants then outstanding approve the amendment. Except as otherwise
set forth in the prospectus supplement, every holder of an outstanding warrant
at the time any amendment becomes effective, by continuing to hold the warrant,
will be bound by the applicable warrant agreement as amended. The prospectus
supplement applicable to a particular series of warrants may provide that
certain provisions of the warrants, including the securities for which they may
be exercisable, the exercise price and the expiration date, may not be altered
without the consent of the holder of each warrant.
DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
We may issue share purchase contracts obligating holders to purchase
from us and obligating us to sell to holders at a future date a specified number
of shares of our common stock or preferred stock, or a number of shares of
common stock or preferred stock to be determined by reference to a specific
formula set forth in the share purchase contract. The price per share may be
fixed at the time that the share purchase contracts are issued or may be
determined by reference to a specific formula set forth in the share purchase
contracts. Share purchase contracts may include anti-dilution provisions to
adjust the number of shares issuable pursuant to such share purchase contract
upon the occurrence of certain events.
We may issue the share purchase contracts separately or as a part of
units, which we refer to as "share purchase units." Each such unit will consist
of a share purchase contract and one or more of: (i) our debt securities, (ii)
our preferred stock, or (iii) debt obligations of third parties, including U.S.
Treasury securities, which in each case will be pledged to secure the
purchasers' obligation to purchase common stock or preferred stock under the
related share purchase contract.
The share purchase contracts may:
- require us to make periodic payments to holders of the share
purchase units, or vice versa, and such payments may be
unsecured or prefunded on some basis;
- require holders to pay their payment obligations at the time
the share purchase contracts are issued, which we refer to as
"prepaid share purchase contracts," or at the time of
settlement;
- require holders to secure their obligations under the share
purchase contracts in a specified manner; and
- permit us to deliver, in certain circumstances, newly issued
prepaid share purchase contracts, often known as "prepaid
securities," upon release to a holder of any collateral
securing such holder's obligations under the original share
purchase contract.
The applicable prospectus supplement will describe the material terms
of the share purchase contracts or share purchase units and, if applicable,
prepaid securities. The description in the applicable prospectus supplement will
not contain all of the information that you may find useful. For more
information, you should review the share purchase contracts, the collateral
arrangements and depositary arrangements, if applicable, relating to such share
28
purchase contracts or share purchase units and, if applicable, the prepaid
securities and the document pursuant to which the prepaid securities will be
issued. We will file a copy of each of these documents in our Current Reports on
Form 8-K, which will be incorporated herein by reference, or by an amendment to
the registration statement of which this prospectus forms a part. Material
United States federal income tax considerations applicable to the share purchase
contracts and the share purchase units will also be discussed in the related
prospectus supplement.
PLAN OF DISTRIBUTION
We may sell any of the securities offered by this prospectus to or
through one or more underwriters or dealers, and also may sell the securities
directly to other purchasers or through agents. Such firms may also act as our
agents in the sale of the securities. We have no definitive plans to sell any of
the securities offered by this prospectus directly to purchasers, but it is
possible that we may make direct sales to one or more institutional investors.
Any of our officers involved in such direct sales will rely on the exemption
from broker-dealer registration provided by Rule 3a4-1 under the Securities
Exchange Act and will comply with all elements of that rule.
Only underwriters named in the prospectus supplement will be considered
as underwriters of the securities offered by such supplement. All participating
underwriters, dealers and agents will be registered broker-dealers or associated
persons of registered broker-dealers. If the registration statement related to
this prospectus is declared effective without naming all of the underwriters
that will participate in an offering of our securities, we will file a
post-effective amendment to such registration statement that will name all of
the participating underwriters in any "at the market" equity offering.
We may distribute securities at different times in one or more
transactions. We may sell securities at fixed prices, which may change, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of the securities, underwriters may receive
compensation from us or from purchasers of the securities in the form of
discounts, concessions or commissions. Underwriters, dealers and agents that
participate in the distribution of the securities may be deemed to be
underwriters. Discounts or commissions they receive and any profit on their
resale of the securities may be considered underwriting discounts and
commissions under the Securities Act of 1933. We will identify any such
underwriter, dealer or agent, and we will describe any such compensation, in the
prospectus supplement. We will describe our expected offering expenses in the
prospectus supplement relating to a particular offering.
We may agree to indemnify underwriters, dealers and agents who
participate in the distribution of the securities against certain liabilities,
including liabilities under the Securities Act of 1933. We may also agree to
contribute to payments which the underwriters, dealers or agents may be required
to make in respect of such liabilities.
Agents designated by us may solicit offers to purchase the securities
from time to time. The prospectus supplement will name any such agent involved
in the offer or sale of the securities and will set forth any commissions
payable by us to such agent. Unless otherwise indicated in such prospectus
supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment or, if indicated in the applicable prospectus
supplement, on a firm commitment basis. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act of 1933, of the
securities so offered and sold.
29
If the securities are sold by means of an underwritten offering, we
will execute an underwriting agreement with an underwriter or underwriters at
the time an agreement for such sale is reached. A prospectus supplement will be
used by the underwriters to make resales of the securities to the public and
will set forth the names of the specific managing underwriter or underwriters,
as well as any other underwriters, and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any. If underwriters are utilized in the sale of the securities, the
securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by
the underwriter at the time of sale. The securities may be offered to the public
either through underwriting syndicates represented by managing underwriters or
directly by the managing underwriters. If any underwriters are utilized in the
sale of the securities, unless otherwise indicated in the prospectus supplement,
the underwriting agreement will provide that the obligations of the underwriters
are subject to certain conditions precedent and that the underwriters will be
obligated to purchase all such securities if any are purchased.
If a dealer is utilized in the sale of the securities, we will sell
such securities to the dealer as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such dealer at
the time of resale. Any such dealer may be deemed to be an underwriter, as such
term is defined in the Securities Act of 1933, of the securities so offered and
sold. The prospectus supplement will set forth the name of the dealer and the
terms of the transaction.
We may directly solicit offers to purchase the securities and may sell
such securities directly to institutional investors or others, who may be deemed
to be underwriters within the meaning of the Securities Act of 1933 with respect
to any resale thereof. The prospectus supplement will describe the terms of any
such sales.
We may determine the price or other terms of the securities offered
under this prospectus by use of an electronic auction. In the event that we
conduct an electronic auction, we will file a post-effective amendment to the
registration statement of which this prospectus (as supplemented) forms a part,
describing the auction. We will include the price and terms to be established by
the auction, a summary of the auction process and how you may participate in the
auction, a description (or screen shots) of the Internet web pages that you will
see before the auction and a description of the underwriters' obligations.
Each series of securities will be a new issue with no established
trading market, other than the common stock which is listed on the New York
Stock Exchange and the Chicago Stock Exchange. Any common stock sold pursuant to
a prospectus supplement will be listed on such exchange, subject to official
notice of issuance. We may elect to list any series of debt securities or
preferred stock on an exchange, but we will not be obligated to do so. It is
possible that one or more underwriters may make a market in a series of the
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, we can give no assurance as to the
liquidity of the trading market for the securities.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, us and our subsidiaries in the
ordinary course of business.
We may enter into derivative or other hedging transactions with
financial institutions. These financial institutions may in turn engage in sales
of common stock to hedge their position, deliver this prospectus in connection
with some or all of those sales and use the shares covered by this prospectus to
close out any short position created in connection with those sales. We may also
sell shares of common stock short using this prospectus and deliver common stock
covered by this prospectus to close out such short positions, or loan or pledge
30
common stock to financial institutions that in turn may sell the shares of
common stock using this prospectus. We may pledge or grant a security interest
in some or all of the common stock covered by this prospectus to support a
derivative or hedging position or other obligation and, if we default in the
performance of our obligations, the pledgees or secured parties may offer and
sell the common stock from time to time pursuant to this prospectus.
The securities may also be offered and sold, if so indicated in the
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with their terms, or otherwise, by one or more firms, which we refer
to as "remarketing firms," acting as principals for their own accounts or as
agents for us. The prospectus supplement will identify any remarketing firm and
will describe the terms of its agreement, if any, with us and its compensation.
Remarketing firms may be deemed to be underwriters, as such term is defined in
the Securities Act of 1933, in connection with the securities remarketed
thereby. Under agreements which may be entered into with us, we may be required
to provide indemnification or contribution to remarketing firms against certain
civil liabilities, including liabilities under the Securities Act of 1933.
Remarketing firms may also be customers of, engage in transactions with or
perform services for us and our subsidiaries in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we may
authorize agents, underwriters or dealers to solicit offers by certain
institutions to purchase the securities from us at the public offering prices
set forth in the applicable prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date or dates. The
applicable prospectus supplement will indicate the commission to be paid to
underwriters, dealers and agents soliciting purchases of the securities pursuant
to contracts accepted by us.
In connection with an offering of the securities, underwriters may
engage in transactions that stabilize, maintain or otherwise affect the price of
the securities. Specifically, underwriters may over-allot in connection with the
offering, creating a syndicate short position in the securities for their own
account. In addition, underwriters may bid for, and purchase, securities in the
open market to cover short positions or to stabilize the price of the
securities. Finally, underwriters may engage in penalty bids or reclaim selling
concessions allowed for distributing the securities in the offering if the
underwriters repurchase previously distributed securities in transactions to
cover short positions, in stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of the securities above
independent market levels. Underwriters are not required to engage in any of
these activities and may end any of these activities at any time.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, H.
M. Smith, Esq., our Assistant General Counsel, will pass upon the legality of
the offered securities for us. Unless otherwise indicated in the applicable
prospectus supplement, Davis Polk & Wardwell, 450 Lexington Avenue, New York,
New York 10017, will pass upon the legality of the offered securities for the
underwriters, if any. Mr. Smith is paid a salary by Emerson, is a participant in
various employee benefit plans offered by us and owns or has options to purchase
shares of Emerson common stock. Davis, Polk & Wardwell will rely on the opinion
of H. M. Smith with respect to matters of Missouri law. Arthur F. Golden, one of
our directors, is a partner of Davis Polk & Wardwell. Davis Polk & Wardwell acts
as counsel to us from time to time with respect to various matters but not with
respect to the offered securities. Husch & Eppenberger, LLC, St. Louis,
Missouri, is also representing us in connection with some of the aspects of this
offering.
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EXPERTS
The consolidated financial statements of Emerson Electric Co. and
subsidiaries as of September 30, 2003 and 2002, and for each of the years in the
three-year period ended September 30, 2003 have been incorporated by reference
herein in reliance upon the report of KPMG LLP, independent accountants,
incorporated by reference herein and upon the authority of said firm as experts
in accounting and auditing. The audit report covering the September 30, 2002,
consolidated financial statements refers to a change in accounting for goodwill
and other intangible assets.
32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth estimated expenses in connection with
the issuance and distribution of the securities being registered:
Registration Fee................................................. $ 77,250
Printing and Engraving........................................... 60,000*
Trustee's Charges ............................................... 40,000*
Accounting Fees ................................................. 225,000*
Rating Agency Fees .............................................. 680,000*
Legal Fees ...................................................... 160,000*
Miscellaneous ................................................... 10,000*
----------
Total................................................. $1,252,250*
==========
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Emerson is a Missouri corporation. Section 351.355(1) of the Revised
Statutes of Missouri provides that a corporation may indemnify a director,
officer, employee or agent of the corporation in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the corporation,
against expenses, including attorneys' fees, judgments, fines and settlement
amounts actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Section 351.355(2) provides that the
corporation may indemnify any such person in any threatened, pending or
completed action or suit by or in the right of the corporation against expenses,
including attorneys' fees and settlement amounts actually and reasonably
incurred by him in connection with the defense or settlement of the action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, except that he may not
be indemnified in respect of any claim, issue or matter in which he has been
adjudged liable for negligence or misconduct in the performance of his duty to
the corporation, unless, and only to the extent, authorized by the court.
Section 351.355(3) provides that, to the extent that such person has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in Sections 351.355(1) or 351.355(2), or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
with the action, suit or proceeding. Section 351.355(7) provides that a
corporation shall have the power to give any further indemnity to any such
person, in addition to the indemnity otherwise authorized under Section 351.355,
provided such further indemnity is either (i) authorized, directed or provided
for in the articles of incorporation of the corporation or any duly adopted
amendment thereof or (ii) is authorized, directed or provided for in any bylaw
or agreement of the corporation which has been adopted by a vote of the
shareholders of the corporation, provided that no such indemnity shall indemnify
any person from or on account of such person's conduct which was finally
adjudged to have been knowingly fraudulent, deliberately dishonest or willful
misconduct.
At the Annual Meeting of Shareholders held on February 10, 1987,
Emerson shareholders adopted indemnification agreements with the directors of
Emerson and amendments to the Bylaws of Emerson which incorporate indemnity
provisions permitted by Section 351.355(7) described above. The agreements and
amended Bylaws provide that Emerson will indemnify
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its directors and officers against all expenses (including attorneys' fees),
judgments, fines and settlement amounts, paid or incurred in any action or
proceeding, including any action by or on behalf of Emerson, on account of their
service as a director or officer of Emerson, any subsidiary of Emerson or any
other company or enterprise when they are serving in such capacities at the
request of Emerson, excepting only cases where (i) the conduct of such person is
adjudged to be knowingly fraudulent, deliberately dishonest or willful
misconduct, (ii) a final court adjudication shall determine that such
indemnification is not lawful, (iii) judgment is rendered against such person
for an accounting of profits made from a purchase or sale of securities of
Emerson in violation of Section 16(b) of the Securities Exchange Act of 1934 or
of any similar statutory law, or (iv) any remuneration paid to such person is
adjudicated to have been paid in violation of law. Such person shall be
indemnified only to the extent that the aggregate of losses to be indemnified
exceeds the amount of such losses for which the director or officer is insured
pursuant to any directors' or officers' liability insurance policy maintained by
Emerson.
The directors and officers of Emerson are insured under a policy of
directors' and officers' liability insurance maintained by Emerson.
Our articles of incorporation limit the liability of our directors to
us or any of our shareholders for monetary damages for breach of fiduciary duty
as a director to the fullest extent permitted under the Missouri General and
Business Corporation Law.
ITEM 16. EXHIBITS.
1.1 - Form of Underwriting Agreement Standard Provisions, incorporated by
reference herein to Exhibit 1.1 to the Registration Statement on Form
S-3 (File No. 333-66865) (the "November 1998 S-3").
1.2 - Form of Pricing Agreement (included in Exhibit 1.1).
1.3 - Form of Distribution Agreement incorporated by reference herein to
Exhibit 1.3 to the Registration Statement on Form S-3 (File No.
333-84673) (the "August 1999 S-3").
1.4* - Form of Underwriting Agreement (Debt).
1.5* - Form of Underwriting Agreement (Equity).
4.1 - Indenture between the Registrant and The Bank of New York, as
Trustee, incorporated by reference herein to Exhibit 4(b) to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998.
4.2 - Form of Debt Security, incorporated by reference herein to Exhibit
4.2 to the November 1998 S-3.
4.3 - Form of Fixed Rate Medium-Term Note incorporated by reference herein
to Exhibit 4.3 to Post-Effective Amendment No. 1 to the Registration
Statement on Form S-3 filed October 15, 2002 (File No. 333-52658).
4.4 - Form of Floating Rate Medium-Term Note incorporated by reference
herein to Exhibit 4.4 Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 filed October 15, 2002 (File No.
333-52658).
4.5 - Restated Articles of Incorporation of Emerson Electric Co.,
incorporated by reference to Exhibit 3(a) of Emerson Electric Co. Form
10-Q for the quarter ended March 31, 2001.
4.6 - Certificate of Designation, Preferences and Rights of Series B Junior
Participating Preferred Stock, incorporated by reference herein to
Exhibit 3(a)(ii) of Emerson Electric Co. Form 10-K for the fiscal year
ended September 30, 1998.
4.7 - Bylaws of Emerson Electric Co., as amended through November 6, 2001,
incorporated by reference to Emerson Electric Co. 2001 Form 10-K,
Exhibit 3(b).
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4.8 - Rights Agreement dated as of November 1, 1998, between Emerson
Electric Co. and ChaseMellon Shareholder Services, L.L.C. (now Mellon
Investor Services LLC) incorporated by reference to Emerson Electric
Co. Form 8-A, dated October 6, 1998, Exhibit 1.
4.9* - Form of Preferred Stock -- Any amendment to Emerson Electric Co.'s
restated articles of incorporation authorizing the creation of any
series of preferred stock setting forth the rights, preferences and
designations thereof will be filed as an exhibit subsequently included
or incorporated by reference herein.
5 - Opinion of H. M. Smith, Esq.
8* - Opinion regarding tax matters.
12 - Statement re computation of ratios of earnings to fixed charges
incorporated by reference herein to Exhibit 12 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended September 30,
2003.
23.1 - Consent of H. M. Smith, Esq. (included in Exhibit 5).
23.2 - Independent Auditors' Consent.
24** - Powers of Attorney executed by certain of the officers and directors
of the Registrant (included on the signature page).
25*** - Form T-1, Statement of Eligibility under the Trust Indenture Act of
1939, of The Bank of New York, as Trustee
* To be filed either by an amendment to the Registration Statement or as an
exhibit to a report filed under the Securities Exchange Act of 1934, as amended,
and incorporated herein by reference.
** Previously filed with Registration Statement on Form S-3 (File No.
333-110546), on November 17, 2003.
*** Previously filed with Post-Effective Amendment No. 1 to the Registration
Statement on Form S-3 (File No. 333-110546) on February 2, 2004.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post effective
amendment to this registration statement (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement; provided, however, that the undertakings
set forth in subparagraphs (i) and (ii) above do not apply if the
information required to be included in a post effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the
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Securities and Exchange Commission by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(5) If the securities registered are to be offered at
competitive bidding: (1) to use its best efforts to distribute prior to
the opening of bids, to prospective bidders, underwriters, and dealers,
a reasonable number of copies of a prospectus which at that time meets
the requirements of Section 10(a) of the Act, and relating to the
securities offered at competitive bidding, as contained in the
registration statement, together with any supplements thereto, and (2)
to file an amendment to the registration statement reflecting the
results of bidding, the terms of the reoffering and related matters to
the extent required by the applicable form, not later than the first
use, authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at competitive bidding,
unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be
made.
(6) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) That for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused these Amendments to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
County of St. Louis, State of Missouri, on April 27, 2004.
EMERSON ELECTRIC CO.
By: /s/ W. J. Galvin
---------------------------------
W. J. Galvin
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement No. 333-110546, which also constitutes
Post-Effective Amendment No. 4 to Registration Statement No. 333-52658, has been
signed below on April 27, 2004 by the following persons in the capacities
indicated:
SIGNATURE TITLE
/s/ D. N. Farr Chief Executive Officer and Director
-----------------------
(D. N. Farr)
/s/ C. F. Knight* Chairman of the Board and Director
-----------------------
(C. F. Knight)
/s/ W. J. Galvin Executive Vice President and Chief
----------------------- Financial Officer and Director
(W. J. Galvin)
/s/ J. G. Berges* President and Director
-----------------------
(J. G. Berges)
/s/ R. J. Schlueter Vice President and Chief Accounting Officer
-----------------------
(R. J. Schlueter)
/s/ A. A. Busch III* Director
-----------------------
(A. A. Busch III)
/s/ D. C. Farrell* Director
-----------------------
(D. C. Farrell)
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/s/ C. Fernandez G.* Director
-------------------------
(C. Fernandez G.)
/s/ A. F. Golden* Director
-------------------------
(A. F. Golden)
/s/ R. B. Horton* Director
-------------------------
(R. B. Horton)
/s/ G. A. Lodge* Director
-------------------------
(G. A. Lodge)
/s/ V. R. Loucks, Jr.* Director
-------------------------
(V. R. Loucks, Jr.)
/s/ J. B. Menzer* Director
-------------------------
(J. B. Menzer)
/s/ C. A. Peters* Director
-------------------------
(C. A. Peters)
/s/ J. W. Prueher* Director
-------------------------
(J. W. Prueher)
/s/ R. L. Ridgway* Director
-------------------------
(R. L. Ridgway)
/s/ E. E. Whitacre, Jr.* Director
-------------------------
(E. E. Whitacre, Jr.)
*By /s/ W. J. Galvin, Attorney-in-Fact
---------------------------------------
(W.J. Galvin)
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
5 - Opinion of H. M. Smith, Esq.
23.1 - Consent of H. M. Smith, Esq. (included in Exhibit 5).
23.2 - Independent Auditors' Consent.