-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NdeouiIyGWBJPk3JIHj64Y/xAZ/DNoCcmM75952ko9gOHYIt0ZVq9S7eY2hL/Oef 1aRc+CSf04gjI/iQGiXz2A== 0000892569-99-000616.txt : 19990305 0000892569-99-000616.hdr.sgml : 19990305 ACCESSION NUMBER: 0000892569-99-000616 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990304 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MODTECH HOLDINGS INC CENTRAL INDEX KEY: 0001075066 STANDARD INDUSTRIAL CLASSIFICATION: PREFABRICATED WOOD BLDGS & COMPONENTS [2452] IRS NUMBER: 330825386 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: SEC FILE NUMBER: 333-69033 FILM NUMBER: 99556701 BUSINESS ADDRESS: STREET 1: 2830 BARRETT AVE STREET 2: PO BOX 1240 CITY: PERRIS STATE: CA ZIP: 92571 BUSINESS PHONE: 9099434014 MAIL ADDRESS: STREET 1: 4675 MACARTHUR CT., STREET 2: SUITE 710 CITY: NEWPORT STATE: CA ZIP: 92660 POS AM 1 POST-EFFECTIVE AMENDMENT #1 TO FORM S-4 1 As filed with the Securities and Exchange Commission on March 3, 1999 Registration No. 333-69033 ================================================================================ SECURITIES AND EXCHANGE COMMISSION POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-4 Registration Statement Under the Securities Act of 1933 MODTECH HOLDINGS, INC. (Exact name of registrant as specified in its charter) DELAWARE 33-0825386 (State of Incorporation) (I.R.S. Employer Identification No.) 2830 BARRETT AVENUE, PERRIS, CALIFORNIA 92571, (909) 943-4014 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) EVAN M. GRUBER, CHIEF EXECUTIVE OFFICER 2830 BARRETT AVENUE, PERRIS, CALIFORNIA 92571, (909) 943-4014 (Name, address, including zip code, and telephone number, including area code, of agent for service of process) COPIES TO: Jon R. Haddan, Esq. Kevin A. Cudney, Esq. Haddan & Zepfel LLP Dorsey & Whitney LLP 4675 MacArthur Court, Suite 710 370 17th Street, Suite 4400 Newport Beach, California 92660 Denver, Colorado 80202 If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Securities Act"), check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ X ] ================================================================================ 2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Post-Effective Amendment to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in Newport Beach, California on March 3, 1999. MODTECH HOLDINGS, INC. By: /s/ Evan M. Gruber --------------------------------------- Evan M. Gruber, Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment to Registration Statement has been signed by each of the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/Evan M. Gruber Chief Executive Officer March 3, 1999 - --------------------------- and Director Evan M. Gruber Chief Operating and Chief March 3, 1999 - --------------------------- Financial Officer (principal *Michael G. Rhodes financial and accounting officer) - --------------------------- President, Director March 3, 1999 *Patrick Van Den Bossche - --------------------------- Director March 3, 1999 *Charles A. Hamilton - --------------------------- Director March 3, 1999 *Charles R. Gwirtsman - --------------------------- Director March 3, 1999 *Charles C. McGettigan - --------------------------- Director March 3, 1999 *Myron A. Wick III - --------------------------- Director March 3, 1999 *Daniel J. Donahoe III - --------------------------- Director March 3, 1999 *Robert W. Campbell *By: Evan M. Gruber, Attorney in Fact /s/ Evan M. Gruber - ------------------------------------- Evan M. Gruber
3 EXHIBIT INDEX
NUMBER NAME OF EXHIBIT - ------ --------------- 2+ Agreement and Plan of Reorganization and Merger, dated as of September 28, 1998, by and between Modtech, Inc. and SPI Holdings, Inc. (included as Annex I to the Joint Proxy Statement/Prospectus) 3.1+ Certificate of Incorporation of Modtech Holdings, Inc. 3.2+ Bylaws of Modtech Holdings, Inc. 3.3+ Articles of Incorporation of Modtech, Inc. 3.4+ Bylaws of Modtech, Inc. 3.5+ Articles of Incorporation of SPI Holdings, Inc. 3.6+ Bylaws of SPI Holdings, Inc. 3.7+ Certificate of Designation of Modtech Holdings, Inc. Series A Preferred Stock 3.8+ Designation of SPI Holdings, Inc. Series A-1, A-2, A-3, A-4, A-5 and A-6 Convertible Preferred Stock 4+ Registration Rights Agreement 5+ Opinion of Haddan & Zepfel LLP regarding the validity of securities offered hereby 8.1 Executed opinion of Gibson, Dunn & Crutcher LLP regarding certain tax matters, delivered at the closing. 8.2 Executed opinion of Dorsey & Whitney LLP regarding certain tax matters, delivered at the closing. 10.1+ Transaction Advisory Agreement 10.2+ Employment Agreement -- Evan M. Gruber 10.3+ Employment Agreement -- Patrick Van Den Bossche 10.4+ Employment Agreement -- Michael G. Rhodes 10.5+ Lease between Modtech, Inc. and Pacific Continental Modular Enterprises, relating to the Barrett Street property in Perris, California 10.6+ Lease between Modtech, Inc. and Gerald Bashaw, relating to the Morgan Street Property in Perris, California 10.7+ Lease between Modtech, Inc. and BMG2, relating to the property in Lathrop, California 10.8+ Industrial Development Bond agreements 10.9+ Lease between Office Master of Texas, Inc. and Bertrand L. Taylor, relating to the Gibbs Boulevard property in Glen Rose, Texas. 10.10+ Lease between Baron Homes, Inc. and David V. Homme and Mary B. Homme, relating to the South Cucamonga Avenue property in Rancho Cucamonga, California, assigned to SPI. 10.11+ Lease between Ronfran Incorporated d/b/a Standard Pacific Industries and Toth Enterprises, relating to the Hermosa Avenue property in Rancho Cucamonga, California, assigned to SPI.
1 4 10.12+ Lease between Arizona Millwork, Inc. and The Rosenfield Family Trust, relating to the Madison Avenue property in Phoenix, Arizona. 10.13+ Letter agreement dated June 10, 1998 between McGettigan, Wick & Co., Inc. and Modtech, Inc. 23.1+ Consent of KPMG LLP 23.2+ Consent of Arthur Andersen LLP 23.3+ Consent of Haddan & Zepfel LLP (included in Exhibit 5) 23.4+ Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 8.1) 23.5+ Consent of Dorsey & Whitney LLP (included in Exhibit 8.2) 24+ Powers of attorney (included on Page II-4 hereof) 27+ Financial Data Schedule 99.1+ Form of Modtech, Inc. proxy 99.2+ Form of SPI Holdings, Inc. proxy
- --------------- + Previously filed. 2 EX-8.1 2 EXECUTED OPINION OF GIBSON, DUNN & CRUTCHER LLP 1 EXHIBIT 8.1 [GIBSON, DUNN & CRUTCHER LLP LETTERHEAD] February 16, 1999 Modtech, Inc. 2830 Barrett Avenue Perris, California 92571 Re: Tax Opinion for Registration Statement on Form S-4 (File No. 333-69033) Gentlemen: We are acting as special tax counsel to Modtech, Inc., a California corporation ("Modtech"), in connection with the Agreement and Plan of Reorganization and Merger (the "Agreement") dated as of September 28, 1998, by and between Modtec and SPI Holdings, Inc., a Colorado corporation ("SPI"). Pursuant to the terms of the Agreement, Modtec and SPI shall form Modtec Holdings, Inc., a Delaware corporation ("Modtec Holdings"), which in turn will form Modtec Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Modtec Holdings ("Modtec Sub"), and SPI Merger Sub, Inc., a Colorado corporation and wholly owned subsidiary of Modtec Holdings ("SPI Sub"). At the effective time, Modtec Sub will merge with and into Modtec (the "Modtech Merger") and SPI Sub will merge with and into SPI (the "SPI Merger"). The Agreement is attached as Annex I to Registration Statement on Form S-4, File No. 333-69033 (the "Registration Statement"), filed with the Securities and Exchange Commission in connection with the Modtech Merger and SPI Merger. You have requested our opinion as to the material federal income tax consequences of the Modtech Merger to the shareholders of Modtech. This opinion is being rendered pursuant to Section 6.2(e) of the Agreement. In rendering our opinion, we have examined the Agreement and have, with your permission, relied upon, and assumed as correct as of the effective date of the Modtech Merger, (i) the factual information contained in the Registration Statement, (ii) the representations and covenants contained in the Agreement, (iii) certain factual representations made by Modtech and SPI and (iv) such other materials as we have deemed necessary or appropriate as a basis for our opinion. On the basis of the information, representations and covenants contained in the foregoing materials and assuming the Modtech Merger is consummated in the manner 2 Modtech, Inc. February 16, 1999 Page 2 described in the Agreement and the Proxy Statement/Prospectus included in the Registration Statement, we are of the opinion that: (i) The formation of Modtech Sub and its merger with and into Modtech will be disregarded for federal income tax purposes and the Modtech Merger will be viewed as transfers by the Modtech stockholders of their shares of Modtech common stock, par value $.01 per share ("MODTECH COMMON STOCK"), in exchange for (i) cash, (ii) shares of common stock, par value $.01 per share of Modtech Holdings ("HOLDINGS COMMON STOCK"), and, if elected, (iii) shares of non-voting convertible preferred stock, Series A, of Holdings ("HOLDINGS SERIES A PREFERRED STOCK"). The exchange will constitute an exchange within the meaning of Section 351 of the Internal Revenue Code of 1986, as amended (the "CODE"). (ii) No gain or loss will be recognized by a Modtech stockholder upon the exchange of Modtech Common Stock for Holdings Common Stock and Holdings Series A Preferred Stock. (iii) A Modtech stockholder will recognize gain (but not loss) upon the exchange of Modtech Common Stock for cash equal to the lesser of (i) the amount of cash received, and (ii) the amount of gain realized by such stockholder in the exchange. (iv) The discussion in the Proxy Statement/Prospectus under the caption "The Mergers--Material Federal Income Tax Consequences," to the extent it constitutes summaries of legal matters or legal conclusions, is accurate in all material respects. This opinion expresses our views only as to federal income tax laws in effect as of the date hereof, including the Code, applicable Treasury Regulations, published rulings and administrative practices of the Internal Revenue Service (the "SERVICE") and court decisions. This opinion represents our best legal judgment as to the matters addressed herein, but is not binding on the Service or the courts. Furthermore, the legal authorities upon which we rely are subject to change either prospectively or retroactively. Any change in such authorities or any change in the facts or representations, or any past or future actions by Modtech, SPI, or Modtech Holdings contrary to such representations might adversely affect the conclusions stated herein. We hereby consent to the filing of this opinion as an exhibit to the Registration statement and further consent to the use of our name under the caption "The Mergers--Material Federal Income Tax Consequences" in the Proxy Statement/Prospectus included in the Registration Statement. Very truly yours, /s/ Gibson, Dunn & Crutcher LLP ------------------------------- GIBSON, DUNN & CRUTCHER LLP EX-8.2 3 EXECUTED OPINION OF DORSEY & WHITNEY LLP 1 EXHIBIT 8.2 [DORSEY & WHITNEY LLP LETTERHEAD] February 16, 1999 SPI Holdings, Inc. 9550 Hermosa Avenue Rancho Cucamonga, CA 91730 Re: Federal Income Tax Consequences of Merger of SPI Merger Sub, Inc. with and into SPI Holdings, Inc. Ladies and Gentlemen: We have acted as counsel to SPI Holdings, Inc., a Colorado corporation ("SPI"), in connection with the merger of SPI Merger Sub, Inc., a Colorado corporation ("Merger Subsidiary"), a wholly owned subsidiary of Modtech Holdings, Inc., a Delaware corporation ("Holdings"), with and into SPI, pursuant to that certain Agreement and Plan of Reorganization and Merger dated as of September 28, 1998 (the "Merger Agreement"), by and between SPI and Modtech, Inc., a California corporation ("Modtech"). In accordance with the Merger Agreement, we are rendering the following opinion to SPI. Unless otherwise provided herein, capitalized terms used herein shall have the meanings assigned to them in the Merger Agreement. At the Effective Time of the SPI Merger and pursuant to the Merger Agreement, Merger Subsidiary will be merged with and into SPI and the separate existence of Merger Subsidiary will cease. Pursuant to the SPI Merger, each share of SPI Common Stock and SPI Preferred Stock (collectively, "SPI Capital Stock") issued and outstanding at the Effective Time of the SPI Merger (other than shares as to which statutory dissenters' appraisal rights have been exercised) will be converted into and exchanged for 1.8785 shares of Holdings Common Stock or, at the SPI shareholder's election, for $49.4097 for up to 5.9176% of the shareholder's SPI Capital Stock. 2 SPI Holdings, Inc. Page 2 SPI has asked for our opinion concerning certain federal income tax consequences of the SPI Merger. For purposes of rendering this opinion, we have examined the Merger Agreement and such other instruments and documents as we have deemed necessary or appropriate, and we have reviewed such questions of law as we have considered necessary or appropriate. Our opinion is based upon the existing provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the current Treasury Department Regulations issued thereunder, the current published administrative positions of the Internal Revenue Service contained in revenue rulings, revenue procedures and other administrative pronouncements, and judicial decisions, all of which are subject to change prospectively and retroactively. Any change in such authorities may affect the opinions rendered herein. In rendering this opinion, we have relied upon the representations and warranties set forth in the Merger Agreement and the representations set forth in the Certificates dated the date hereof delivered to us by SPI and Holdings (collectively, the "Certificates"). Our opinion is also based on the assumption that SPI and Merger Subsidiary will at all times comply with the terms of the Merger Agreement and that the SPI Merger will be consummated in the manner described therein. An opinion of counsel is predicated upon all facts and conditions set forth in the opinion and is based upon counsel's analysis of the statutes, regulatory interpretation and case law in effect as of the date of the opinion. It is not a guarantee of the current status of the law and should not be accepted as a guarantee that a court of law or an administrative agency will concur in the opinion. Based upon the foregoing, it is our opinion that the following federal income tax consequences will result from the SPI Merger: 1. The SPI Merger will qualify as a reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(B) of the Code and SPI, Holdings and Merger Subsidiary each will be a party to the reorganization within the meaning of Section 368(b) of the Code. 2. No income, gain or loss will be recognized by SPI or Holdings as a result of the SPI Merger. 3. No gain or loss will be recognized by the holders of SPI Capital Stock upon the exchange of SPI Capital Stock solely for Holdings Common Stock pursuant to the SPI Merger. 3 SPI Holdings, Inc. Page 3 4. Gain, if any, but not loss, will be recognized by an SPI shareholder upon the exchange of SPI Capital Stock for cash in the SPI Merger. Such gain will be recognized in an amount equal to the difference between the fair market value of the Holdings Common Stock and cash received, and the SPI shareholder's adjusted tax basis in the SPI Capital Stock surrendered in the SPI Merger; provided, however, that the amount of gain recognized will not exceed the amount of cash received. If, as described below, the exchange has the effect of a distribution of a dividend, the gain recognized will be treated as a dividend to the extent of the shareholder's ratable share of SPI's earnings and profits, as determined for federal tax purposes. Any gain which does not have the effect of a distribution of a dividend or which exceeds the shareholder's ratable share of SPI's earnings and profits will be capital gain (provided that the SPI Capital Stock held by the SPI shareholder was held as a capital asset at the Effective Time). 5. The basis of the Holdings Common Stock (including any fractional shares for which cash is received as described below) received by an SPI shareholder who exchanges SPI Capital Stock for Holdings Common Stock and cash will be the same as the basis of the SPI Capital Stock surrendered in the SPI Merger, decreased by the amount of cash received by such shareholder, and increased by the amount of capital gain recognized by such shareholder and the amount treated as a dividend to such shareholder. 6. The holding period of the Holdings Common Stock received by an SPI shareholder will include the period during which the SPI Capital Stock surrendered in exchange therefor was held (provided that such SPI Capital Stock was held as a capital asset at the Effective Time). 7. Cash received by an SPI shareholder in lieu of a fractional share of Holdings Common Stock will be treated as having been received as a distribution in full payment in exchange for the fractional share of Holdings Common Stock which such shareholder would otherwise be entitled to receive, and will qualify as capital gain or loss (assuming the Holdings Common Stock was a capital asset in such shareholder's hands at the Effective Time). The determination of whether the exchange of SPI Capital Stock for cash pursuant to the SPI Merger has the effect of a distribution of a dividend will be made, on a shareholder-by-shareholder basis, by applying the rules of Section 302 of the Code and by comparing the 4 SPI Holdings, Inc. Page 4 proportionate, percentage interest of a former SPI shareholder in Holdings after the SPI Merger with the proportionate, percentage interest in Holdings such shareholder would have had if such shareholder had received solely Holdings Common Stock pursuant to the SPI Merger. This comparison is made as though Holdings had issued solely Holdings Common Stock to such shareholder in the SPI Merger and in a hypothetical redemption Holdings had then redeemed a portion of its Holdings Common Stock for the amount of cash the shareholder actually received in the SPI Merger. In making this comparison, it is likely that the effect of the merger of a separate subsidiary of Holdings with and into Modtech, Inc. (the "Modtech Merger") must be taken into account as though Holdings had issued solely Holdings Common Stock in the Modtech Merger and in a hypothetical redemption Holdings had then redeemed a portion of its Holdings Common Stock for the amount of cash received by the Modtech shareholders. In the hypothetical redemption analysis, there also must be taken into account any shares of Holdings Common Stock considered to be owned by such SPI shareholder by reason of the constructive ownership rules set forth in Section 318 of the Code. These constructive ownership rules apply in certain specified circumstances to attribute ownership of shares of a corporation from the shareholder actually owning the shares, whether an individual, trust, partnership or corporation, to certain members of such individuals's family or to certain other individuals, trusts, partnerships or corporations. Under these rules, a shareholder is also considered to own any shares with respect to which the shareholder holds stock options. Under applicable Internal Revenue Service guidelines, such a hypothetical redemption, as described above, involving a holder of a minority interest in Holdings whose relative stock interest in Holdings is minimal, who exercises no control over the affairs of Holdings and who experiences a reduction in the shareholder's proportionate interest in Holdings, both directly and by application of the foregoing constructive ownership rules, generally will not be deemed to have resulted in a distribution of a dividend under the rules set forth in Section 302(b)(1) of the Code. The determination of whether cash received pursuant to the SPI Merger will be treated as the distribution of a dividend generally will depend upon the facts and circumstances peculiar to each SPI shareholder. The Merger Agreement provides that, subject to the limits therein, each SPI shareholder may elect which of such shareholder's SPI Capital Stock, if any, will be exchanged for cash in the SPI Merger. In the event the receipt of cash by an SPI shareholder is not treated as a dividend, as explained above, the tax treatment of the cash may be different depending on which shares of SPI Capital Stock are deemed to be exchanged for cash and which shares are deemed to be exchanged for Holdings Common Stock. While there is some authority suggesting that a shareholder's allocation of stock and cash to certain shares of SPI Capital Stock should be respected, there can be no assurance that the Service will not take a contrary position. 5 SPI Holdings, Inc. Page 5 The foregoing opinion is being furnished to you solely for your benefit in connection with the SPI Merger and may not be relied upon by, nor may copies be delivered to, any person without our prior written consent. Our opinion is limited to the matters expressly addressed in the seven (7) numbered paragraphs above. No opinion is expressed and none should be inferred as to any other matter. Our opinion is effective as of the date hereof and will remain effective as of the Effective Time of the SPI Merger provided that (i) the representations and warranties set forth in the Merger Agreement remain true and correct as of the Effective Time of the SPI Merger, (ii) the representations set forth in the Certificates remain true and correct as of the Effective Time of the SPI Merger, (iii) the assumptions set forth above prove to be true and correct, (iv) the SPI Merger is consummated in accordance with the present terms of the Merger Agreement, and (v) there are no relevant changes in the Code, the Treasury Department Regulations issued thereunder or administrative or judicial interpretations thereof. Very truly yours, /s/ Dorsey & Whitney LLP WHH:JTA -----END PRIVACY-ENHANCED MESSAGE-----