You
should rely only on the information contained in this prospectus or any
supplement. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to sell
these shares in any jurisdiction where the offer or sale is not permitted. You
should not assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front cover of such
documents. Our business, financial condition, results of operations and
prospects may have changed since that date.
When
used in this prospectus and any prospectus supplement, the terms “Quixote,”
“we,” “our,” “us” and “Company” refer to Quixote Corporation and its subsidiaries.
R
ISK FACTORS
Before
you invest in our shares, you should be aware that the occurrence of any of the
events described in this Risk Factors section and elsewhere in this prospectus
or in a supplement to this prospectus could have a material adverse effect on
our business, financial condition and results of operations. You should
carefully consider these risk factors and the specific risks set forth under
the caption “Risk Factors” in any supplement to this prospectus, together with
all of the other information included in this prospectus or in a supplement to
this prospectus and in documents we incorporate by reference before you decide
to purchase our shares. This prospectus contains forward-looking statements
that involve risks and uncertainties.
Investors
are cautioned that all forward-looking statements involve risks and
uncertainties, including those detailed in the Company’s public filings with
the SEC, news releases and other communications, which speak only as of the
dates of those filings or communications. There can be no assurance that actual
results will not differ materially from the Company’s expectations.
The
effects of the weakening global economic conditions and the distressed
financial markets may adversely affect our sales, capital structure and
liquidity.
The
current weakening global economic conditions and the distressed financial
markets have generally resulted in reduced demand for products, volatility in
the capital markets, and constricted credit availability. Continuation of these
economic conditions can further reduce our sales, and the uncertainty in the
capital and credit markets may adversely affect our ability to access necessary
capital, whether by refinancing our existing debt, or obtaining agreements for
new debt, or by issuing securities, as well as increase the cost of such
capital. Reduced access to capital and credit markets combined with reduced
cash flow from operations would adversely affect our liquidity.
The downturn in the global economy and the
transportation safety and highway construction industries may adversely affect
our operating results.
General
economic downturns, including downturns in the transportation safety and
highway construction industries, could result in a material decrease in our
revenues and operating results. We believe that the current downturn of global
economic conditions and the related reduction in government funding adversely
impacted our performance in fiscal year 2008 and in the first half of fiscal
2009. Sales of our products are sensitive to foreign, domestic and regional
economies in general, and in particular, changes in government infrastructure
spending which can be adversely impacted by reduced tax revenues. In addition,
trends toward privatization of highways may impact the nature of spending on
transportation safety products. Many of our costs are fixed and cannot be
quickly reduced in response to decreased demand.
A
decrease or delay in federal government funding of transportation safety and
highway construction and maintenance may cause our revenues, profits and cash
flow to decrease.
We
depend substantially on federal, state and municipal funding for transportation
safety, highway construction and maintenance and other related infrastructure
projects. Federal government funding for infrastructure projects is usually
accomplished through highway authorization bills, which establish funding over
a multi-year period. The most recent highway authorization legislation,
SAFETEA-LU, expires September 30, 2009. We anticipate that delays in the
passage of a new highway bill will occur, which may increase uncertainty in
state and municipal governments and delays in commencing infrastructure
projects. SAFETEA-LU was delayed more than two years after the previous law had
expired. Even after federal legislation is enacted, funding appropriations may
be revised in future congressional sessions, and federal funding for
infrastructure projects may be reduced in the future.
Federal
transportation spending is funded through a highway trust fund which derives
most of its money from gasoline tax revenue. When the price of gasoline
increased in 2008, the number of miles driven decreased significantly which
depleted the surplus in the federal highway trust fund. In September, 2008,
legislation was enacted to transfer $8 billion from the general fund to the
highway trust fund in an attempt to keep the fund solvent until October 2009.
Reduced tax revenues and altered driving patterns may impact the future
solvency of the highway trust fund.
2
Congress
is currently considering passage of an economic recovery package which includes
an unprecedented $30 billion in federal funding for highway improvements, aimed
at increasing jobs through infrastructure projects. There is no assurance that
this legislation will become law, or if enacted, that such a law will contain
provisions that will positively affect demand for our products.
Any
change in the availability of federal funds and the timing of the release of
those funds to the state and local governments can have an adverse impact on
our revenues, profits and cash flow.
Constraints
on state and local government budgets and decreases in state highway funding
may adversely affect our financial performance.
States
and municipalities may reduce spending on highways due to reduced tax revenues
and other budget constraints and priorities. Loss of tax revenues and such
budgetary constraints adversely affect the ability of states to fund transportation,
highway and infrastructure projects, and therefore reduce the demand for our
products. Municipalities also suffer from budget constraints that can reduce
transportation safety spending.
Like
the federal highway trust fund which depends on gasoline tax revenue, state
highway funds also are dependent on revenue from state gasoline taxes. A number
of states also contribute a portion of their sales tax on new car purchases
into their state highway funds. A decrease in miles driven or new car sales may
adversely affect the ability of states to fund transportation projects, and
correspondingly, reduce the demand for our products.
Our
business could be adversely affected by reduced levels of cash, whether from
operations or pursuant to the terms of our debt.
Historically,
our principal sources of cash have been cash flows from operations and
borrowings from banks and other sources. Given the weakening global economic
conditions, operations may continue to generate less cash and could result in
our failing to comply with our bank credit agreement covenants. We have
obtained waivers from our bank for failure to comply with certain covenants,
and we are seeking to amend our current credit facility. Our ability to remain
in compliance in the future will depend on our future financial performance and
may be affected by events beyond our control. There can be no assurance that we
will generate sufficient earnings and cash flow to remain in compliance with
our credit agreement, or that we will be able to obtain amendments to our
credit agreement to avoid a default. In the event of a default, there can be no
assurance that we could negotiate a new credit agreement or that we could
obtain a new credit agreement with satisfactory terms and conditions within a
reasonable time period.
In
addition, the holders of our $40,000,000 of 7% Senior Subordinated Convertible
Notes may as of February 2010 require us to repurchase those Notes at 100% of
the principal plus unpaid interest.
Reduced
levels of cash could adversely affect our plans to grow our business
domestically and internationally, because we would not have sufficient cash to
fund research and development projects, or enter new markets, or acquire new
products.
We
depend on principal customers.
Although
we depend on principal customers, no single customer of Quixote represents a
significant portion of total revenues. In fiscal 2008, approximately 7%, 7% and
6% of our consolidated revenues resulted from sales to customers in the States
of New York, Texas and California, respectively. Customers may include
distributors, contractors, departments of transportation, state agencies, local
governments or municipalities. Any reduction in state transportation safety
spending could materially affect our sales in those states, whether caused by
reduced tax revenues or other budget constraints or priorities. The loss of, or
a significant reduction in, orders from our customers in these states could
have a material adverse effect on our financial condition and results of
operations. Many state governments, including New York, Texas and California,
have announced budget short-falls, which could further adversely affect sales
of our products.
3
Our
customers and suppliers may be adversely affected by the current global
economic conditions, reduced government spending on transportation and highway
projects, and the distressed credit markets. In turn, delays in placing orders
and payment for products and higher default rates by our customers, as well as
increased costs and imposition of more stringent terms and conditions by our
suppliers could adversely affect our financial performance.
We are in a competitive marketplace.
To
the extent one or more of our current or future competitors introduce products
that better address customer requirements, or are less expensive than our
products, our business could be adversely affected and we may be unable to
maintain our leadership position in certain product lines. Competition may
adversely affect the selling prices and the profit margins on our products. We
may not be successful in developing and marketing our existing products or new
products or incorporating new technology on a timely basis or at a reduced
cost. If we are unable to timely develop and introduce new products, or enhance
existing products, or reduce costs in response to changing market conditions or
customer requirements or demands, our business and results of operations could
be materially and adversely affected.
We
have acquired complementary businesses in the past and, as a part of our
strategy, may continue to acquire complementary businesses. The gross profit
margins of certain acquired product lines are lower than our historical gross
profit margin, which adversely affects our gross profit margin. Given
competitive conditions, we may be unable to improve our gross profit margins
for these products.
We
have been affected by increased prices for certain commodities, particularly
steel, aluminum and resin, which are a significant component of the cost of
certain of our products. Such price increases negatively impact our gross
margin for certain products, if we are unable to pass along to our customers
cost increases. Increasing fuel and freight costs adversely affected our
performance beginning in fiscal 2006 and into fiscal 2009.
Our
products often are subject to government testing, inspection and approval.
We
frequently supply products and services pursuant to agreements with general
contractors or government agencies. The successful completion of our
obligations under these contracts is often subject to satisfactory testing,
inspection and approval of such products and services. Although we endeavor to
satisfy the requirements of each of these contracts to which we are a party, no
assurance can be given that the necessary approval of our products and services
will be granted on a timely basis or at all, and that we will receive any
payments due to us. In some cases, we may be dependent on others to complete
these projects which may also delay payments to us. Any failure to obtain these
approvals and payments may have a material adverse effect on our business and
future financial performance.
Global economic conditions, as well as difficulties in
managing and expanding in international markets, could affect future growth in
these markets.
In
fiscal year 2008, international sales were $24,642,000 or 24% of our total
sales and we believe international markets are an important source of our
growth. We plan to continue to increase our presence in these markets. However,
the current deterioration of the global economy has had an adverse impact on
our international sales, and we anticipate, will continue to adversely affect
our international sales, as foreign governments reduce spending for
transportation and infrastructure projects.
In
connection with an increase in international sales efforts, we need to hire,
train and retain qualified personnel in countries where language, cultural or
regulatory barriers may exist. Moreover, funding and government requirements
vary by country with respect to transportation safety. In a number of countries
there are no governmental requirements or funding for transportation safety and
we must educate officials and demonstrate the need for and the benefits of our
products. In addition, our international revenues are subject to the following
risks:
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fluctuating
currency exchange rates could reduce the demand for or profitability of
foreign sales by affecting the pricing of our products;
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the burden
of complying with a wide variety of foreign laws and regulations, including
the requirements for additional testing of our products;
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dependence
on foreign sales agents;
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difficulty
collecting foreign receivables,
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political
and economic instability of foreign governments; and
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the
imposition of protective legislation such as import or export barriers.
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There
are risks associated with doing business in China.
Some
of our future business projects will be located in China, where we opened a new
facility in Beijing during fiscal 2007. As a consequence, the economic,
political, legal and social conditions in China could have an adverse effect on
our business, results of operations and financial condition. The current
economic condition in China has affected, and we anticipate will continue to
affect, adversely our financial performance in China. Some of the other risks
related to doing business in China include:
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The legal
environment in China is uncertain and our ability to legally protect our
investment could be limited;
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The Chinese
government exerts substantial influence over the manner in which we must
conduct our business activities;
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Future
inflation in China may inhibit our activity to conduct business in China;
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Receivables
may be more difficult to collect in China;
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Restrictions
on currency exchange may limit our ability to receive and use our cash
effectively; and
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More
restrictive rules on foreign investment could adversely affect our ability to
expand our operation in China or repatriate any profits earned there.
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If
we are unable to protect our proprietary technology from infringement or if our
technology infringes technology owned by others, then the demand for our
products may decrease or we may be forced to modify our products which could
increase our costs.
We
hold numerous patents covering technology and applications related to many of
our products and systems, and numerous trademarks and trade names registered
with the U.S. Patent and Trademark Office and in foreign countries. Our
existing and future patents and trademarks may not adequately protect us
against infringements, especially in certain foreign countries, and pending
patent or trademark applications may not result in issued patents or
trademarks. Our patents, registered trademarks and patent applications may not
be upheld if challenged, and competitors may develop similar or superior
methods or products outside the protection of our patents. This could increase
competition for our products and materially decrease our revenues. If our
products are deemed to infringe the patents or proprietary rights of others, we
could be required to modify the design of our products, change the name of our
products or obtain a license for the use of some of the technologies used in
our products. We may be unable to do any of the foregoing in a timely manner,
upon acceptable terms and conditions, or at all, and the failure to do so could
cause us to incur additional costs or lose expected revenue.
Past
and future acquisitions involve risks that could adversely affect our future
financial results.
Historically
we have grown by acquisitions and we may acquire additional businesses in the
future. We may be unable to achieve the benefits expected to be realized from
our acquisitions. We may incur additional costs and our management’s attention
may be diverted because of unforeseen expenses, complications, delays and other
risks inherent in acquiring businesses, including the following:
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we may have
difficulty integrating the acquired businesses as planned, which may include
integration of systems of internal controls over financial reporting and
other financial and administrative functions;
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acquisitions
may divert management’s attention from our existing operations;
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we may have
difficulty in competing successfully for available acquisition candidates,
completing future acquisitions or accurately estimating the financial effect
of any businesses we acquire;
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we may have
delays in realizing the benefits of our strategies for an acquired business;
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we may not
be able to retain key employees necessary to continue the operations of an
acquired business;
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acquisition
costs may be met with cash or debt, increasing the risk that we will be
unable to satisfy current financial obligations;
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we may
acquire businesses that are less profitable or have lower profit margins than
our historical profit margins; and
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acquired
companies may have unknown liabilities that could require us to spend
significant amounts of additional capital.
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Management’s
estimates and assumptions affect reported amounts of expenses and changes in
those estimates could impact operating results.
Goodwill
and other indefinite-lived intangible assets are tested for impairment at least
annually, and the results of such testing may adversely affect our financial
results. We use a variety of valuation techniques in determining fair value.
The impairment review is highly judgmental and involves the use of significant
estimates and assumptions. These estimates and assumptions have a significant
impact on the amount of any impairment charge recorded, and actual results may
differ significantly from the estimates and assumptions used.
We
recognize deferred tax assets and liabilities for the expected future tax
consequences of events which are included in the financial statements or tax
returns. In assessing the realizability of the deferred tax assets, management
makes certain assumptions about whether the deferred tax assets will be
realized. We expect the deferred tax assets currently recorded to be fully
realizable, however there can be no assurance that an increased valuation
allowance would not need to be recorded in the future.
Our
success depends on our management and other employees.
To
execute our business plans, we need to attract, develop and retain qualified
personnel. Our success in attracting qualified people is dependent on the
resources available in individual geographic areas and the impact on the labor
supply due to general economic conditions as well as our ability to provide a
competitive compensation package and work environment. Our ability to attract
and retain executives, qualified engineers, skilled manufacturing and marketing
personnel and other professionals, either through direct hiring or acquisition
of other businesses employing such professionals, is an important factor in
determining our future success.
Our
facilities or facilities of our customers and suppliers could be susceptible to
natural disasters.
One
of our major manufacturing facilities is located in the Southeastern U.S.
Should a natural disaster such as a hurricane, tornado, earthquake or flood
severely damage one of our major manufacturing facilities, or damage a major
facility of one or more of our significant customers or suppliers, our business
could be materially disrupted.
Our
insurance coverage could be inadequate.
In
accordance with risk management practices, we continually re-evaluate risks,
their potential costs and the cost of minimizing them. To reduce our exposure
to material risks, we purchase insurance in certain circumstances. We believe
that we maintain adequate insurance coverage to effectively mitigate risk when
possible. However, certain risks are inherent in our business and our insurance
may not be adequate to cover potential claims or may be unavailable.
Our
quarterly operating results are likely to fluctuate, which may affect our stock
price.
Our
quarterly revenues, expenses, operating results and gross profit margins vary
significantly from quarter to quarter. As a result, our operating results may
fall below the expectations of securities analysts and investors in some
quarters, which could result in a decrease in the market price of our common
stock. The reasons our quarterly results may fluctuate include:
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seasonality
inherent in the transportation safety and highway construction and
maintenance industry;
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variations
in profit margins attributable to product mix;
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changes in the
general competitive and economic conditions;
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delays in,
or uneven timing in the delivery of, customer orders;
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the
introduction of new products by us or our competitors; and
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delays in
federal highway funding and budgetary restraints on state and local
government spending.
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Period
to period comparisons of our results should not be relied on as indications of
future performance.
We
may experience volatility in our stock price.
The
market price of our common stock may be subject to significant fluctuations in
response to various factors, including:
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the
relatively small public float of our stock;
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quarterly
fluctuations in our operating results, as described in the prior risk factor;
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changes in
securities analysts’ estimates of our future earnings; and
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loss of
significant customers or significant business developments relating to us or
our competitors.
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Our
failure to meet analysts’ expectations, even if minor, could cause the market
price of our common stock to decline. In addition, stock markets have generally
experienced a high level of price and volume volatility, and the market prices
of equity securities of many companies have experienced wide price fluctuations
not necessarily related to the operating performance of such companies. These
broad market fluctuations may adversely affect our common stock’s market price.
In the past, securities class action lawsuits have been instituted against
companies following periods of volatility in the market price of such
companies’ securities. If any such litigation is instigated against us, it
could result in substantial costs and a diversion of management’s attention and
resources, which could have a material adverse effect on our business, results
of operations and financial condition.
Acts
of war or terrorism could adversely impact our business and operating results.
Acts
of war or terrorism (wherever located around the world) may cause damage or
disruption to our employees, facilities, suppliers, distributors or customers,
which could significantly impact our sales, costs, expenses and financial
condition. The potential for acts of war or hostility or terrorism may create
many economic and political uncertainties, which could adversely affect our
business and results of operations in ways that cannot presently be predicted.
We are uninsured for losses and interruption caused by acts of war.
Certain
provisions of Delaware law, our certificate of incorporation and our bylaws
have potential anti-takeover effects.
Certain
provisions of Delaware law and of our Certificate of Incorporation and By-Laws
could make a merger, tender offer, or proxy contest involving us more
difficult, even if such events could be beneficial to the interests of our
stockholders. These provisions include:
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Section 203
of the Delaware General Corporation Law which prohibits us from engaging in
any business combination with any interested stockholder for a period of
three years from the date the person became an interested stockholder unless
specific conditions are met;
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the
requirement that 60% of the stockholders entitled to vote thereon approve
certain transactions; and
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the
existence of “blank check” preferred stock that may be issued by our board of
directors without stockholder approval on such terms as the board may
determine.
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See
“Description of Capital Stock”.
* * *
7
The
foregoing list is not exhaustive. There can be no assurance that we have
correctly identified and evaluated all factors affecting our business.
Additional risks and uncertainties not presently known to us or that we
currently believe to be immaterial also may adversely impact us. Should any
risks and uncertainties develop into actual events, these developments could
have material adverse effects on our business, financial condition and results
of operations. For these reasons, the reader is cautioned not to place undue
reliance on our forward-looking statements.
8
Q
UIXOTE CORPORATION
The
following summary contains basic information about us. It likely does not
contain all the information that is important to you. We encourage you to read
this entire prospectus and the documents we have referred you to, including our consolidated financial statements
and the notes thereto that are incorporated by reference into this prospectus.
Our Business
Quixote
and its subsidiaries develop, manufacture and market highway and transportation
safety products in both domestic and international markets. Our two reportable segments are: the manufacture
and sale of highway and transportation safety products which Protect and
Direct; and the manufacture and sale of products and services which Inform
motorists and highway personnel. The Protect and Direct segment provides
solutions for improving safety on the roads either by minimizing the severity
of crashes that occur or by preventing crashes from occurring by directing or
guiding traffic. The primary product lines within the Protect and Direct
segment include energy-absorbing products such as crash cushions, truck-mounted
attenuators, sand-filled barrels and water-filled barriers, and directing and
guiding products such as flexible post delineators and glare screen systems.
The Inform segment provides solutions for improving traffic flow and safety on
roads and runways by providing information. The primary product lines within
the Inform segment include advanced sensing products which measure distance,
count and classify vehicles, weather sensing systems, and computerized highway
advisory radio transmitting systems. Our
products are sold worldwide through a distribution network, and supplemented by
a direct sales force to customers in the highway construction and safety
business, state and municipal departments of transportation and other
governmental transportation agencies.
In the
United States our business is directly affected by federal, state and municipal
government funding for transportation safety, highway construction and
maintenance, and other infrastructure projects. A significant part of our sales
is ultimately financed by funds provided to the states by the federal
government through the federal transportation funding bill. The current bill,
SAFETEA-LU, expires September 30, 2009 and we anticipate that delays in the
passage of a new highway bill will occur. Until new legislation is enacted, the
transportation safety allotment in federal and state budgets may be uncertain
which may adversely impact sales of our products and services.
During
fiscal 2008 and continuing into 2009, the global economic downturn has and
continues to adversely affect our business. In the United States, many states
and municipalities face budgetary constraints and deficits. In addition, basic
material costs including steel, asphalt and other materials for building and
maintaining roads and bridges have increased. Facing these issues, many states
postponed or cancelled many transportation projects which adversely impacted
the domestic demand for our products. Although our international sales also
were affected by the weakening economic conditions worldwide, we expect that
international sales will be an increasing part of our business and may
partially offset the softness in domestic sales that we are experiencing.
On
July 25, 2008, we sold our Intersection Control segment to Signal
Group, Inc. for $20 million in cash. The Intersection Control segment
sells products including traffic controllers, traffic and pedestrian signals,
traffic uninterruptible power supply (UPS) systems, video detection equipment
and toll road monitoring systems. Accordingly, we have reflected the results of
those operations in our consolidated financial statements and the notes thereto
that are incorporated by reference in this prospectus as discontinued
operations for all periods presented.
Our
principal executive offices are located at 35 East Wacker Drive, Suite 1100,
Chicago, Illinois 60601, and our telephone number at that address is (312)
467-6755. Our website is located at http://www.quixotecorp.com. Information
contained in our website is not a part of this prospectus. As of
February 11, 2009, we employed approximately 453 people.
9
USE OF
PROCEEDS
All
shares of common stock sold pursuant to this prospectus will be sold by the
selling stockholders and Quixote will not receive any of the proceeds from such
sales.
SELLING
STOCKHOLDERS
The
common stock being registered by this prospectus consists of 300,000 shares of
common stock that will be held by the Plan or by persons who acquired or will
acquire those shares from the Plan, pursuant to its terms. The Plan is an
employee benefit plan that complies with Section 401(k) of the Internal Revenue
Code. Employees of the Company and its subsidiaries may acquire shares of
common stock pursuant to the terms of the Plan, and may sell such shares either
directly or indirectly by requesting the Plan to sell the shares.
See
“Plan of Distribution” on page 14 of this prospectus.
DESCRIPTION OF
CAPITAL STOCK
Our
authorized capital stock consists of 30,000,000 shares of common stock,
$0.01-2/3 par value, and 100,000 shares of preferred stock, no par value per
share. The following summary is qualified in its entirety by reference to our
certificate of incorporation and bylaws, copies of which are filed as exhibits
to our previous filings with the Securities and Exchange Commission and
incorporated herein by reference.
Common Stock
We
are authorized to issue 30,000,000 shares of common stock, $0.01-2/3 par value
per share. Each holder of our common stock is entitled to one vote for each
share held. Except as provided below under “Certain Other Anti-Takeover
Matters”, stockholders do not have the right to cumulate their votes in
elections of directors. Directors are elected if they receive at least sixty
percent of all votes of shares entitled to vote. We have a classified board of
directors, as described at “Certain Other Anti-Takeover Matters.”
Our
common stock is listed on The Nasdaq Global Market
SM
. On January 8,
2009, the Board of Directors suspended our dividend program. The Board may
declare dividends in the future based upon the Company’s ongoing financial
results. Dividends are payable only out of unreserved and unrestricted surplus
that is legally available for the payment of dividends. Dividends that may be
declared on our common stock will be paid in an equal amount to the holder of
each share of common stock subject to the preferential rights of any holders of
any outstanding series of preferred stock. No pre-emptive rights are conferred
upon the holders of such stock and there are no liquidation or conversion
rights. There are no redemption or sinking fund provisions and there is no
liability to further calls or to assessments by us. Any determination to
declare or pay dividends in the future will be at the discretion of our board
of directors and will depend on our results of operations, financial condition,
contractual or legal restrictions and other factors deemed relevant by our
board of directors. Upon our liquidation, holders of our common stock will be
entitled to a pro rata distribution of our assets, after payment of all amounts
owed to our creditors and the preferential amounts owing with respect to any of
our outstanding preferred stock.
Preferred Stock
The
rights, preferences and privileges of holders of common stock are subject to,
and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock that we may designate and issue in the future.
Our
certificate of incorporation provides for the issuance of up to 100,000 shares
of preferred stock. Our board of directors will have the authority, without
further action by the stockholders, to issue up to 100,000 shares of preferred
stock in one or more series and to designate the rights, preferences,
privileges and restrictions of each such series. The issuance of preferred
stock could have the effect of restricting dividends on the common stock,
diluting the voting power of the common stock, impairing the liquidation rights
of the common stock or delaying or preventing a change in control without
further action by the stockholders. Subject to the rights of the holders of any
series of preferred stock, the number of authorized shares of any series of
preferred stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by resolution adopted by our board of
directors.
10
In
connection with our expired stockholder rights plans, we authorized 10,000
shares of Series A preferred stock and 10,000 shares of Series B junior
participating preferred stock, none of which was issued. We have no plans to
issue any other shares of preferred stock.
Certificate Of Incorporation Provisions
Requiring Supermajority Approval Of Certain Actions
Our
certificate of incorporation provides that holders of at least sixty percent
(60%) of our issued and outstanding shares must agree to:
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amend our
certificate of incorporation;
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adopt or
approve any agreement or plan of merger or consolidation or any transaction
including a merger of consolidation of Quixote;
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elect
directors;
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transfer all
or substantially all of our property and assets; and
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adopt or
approve a plan of liquidation or dissolution.
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Limitation of Liability and Indemnification
Matters
Our
certificate of incorporation provides that a director of Quixote will not be
liable to Quixote or its stockholders for monetary damages for breach of
fiduciary duty as a director, except in certain cases where liability is
mandated by the Delaware General Corporation Law. Our by-laws provide for
indemnification, to the fullest extent permitted by law, of any person made or
threatened to be made a party to any action, suit or proceeding by reason of
the fact that such person is or was a director or officer of Quixote, or is or
was a director of a subsidiary of Quixote, or, at the request of Quixote,
serves or served as a director or officer of or in any other capacity for, or
in relation to, any other enterprise, against all expenses, liabilities, losses
and claims actually incurred or suffered by such person in connection with the
action, suit or proceeding. Our by-laws also provide that, to the extent
authorized from time to time by our board of directors, Quixote may provide to
any one or more employees and other agents of Quixote or any subsidiary or
other enterprise, rights of indemnification and to receive payment or
reimbursement of expenses, including attorneys’ fees, that are similar to the
rights conferred by the by-laws on directors and officers of Quixote or any
subsidiary or other enterprise.
Our By-Laws Require Advance Notice of
Stockholder Business and Nominations
Our
by-laws require that a stockholder provide advance notice of the stockholder’s
intention to nominate a candidate for Director of our Company or to bring
before a meeting of stockholders any other proper business. The written notice
must be delivered to our Secretary not later than 60 days before and not
earlier than the 120 days before the first anniversary of the preceding year’s
annual meeting of stockholders. The by-laws also identify specific information
to be provided in the written notice.
Section 203 of the Delaware General
Corporation Law
We
are subject to the provisions of Section 203 of the Delaware General
Corporation Law. In general, Section 203 prohibits a publicly held Delaware
corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. A “business combination”
includes a merger, asset sale or a transaction resulting in a financial benefit
to the interested stockholder. An “interested stockholder” under Section 203 is
a person who, together with affiliates and associates, owns (or, in certain
cases, within three years prior, did own) 15% or more of the corporation’s
outstanding voting stock. Under Section 203, a business combination between
Quixote and a Section 203 interested stockholder is prohibited unless it
satisfies one of the following conditions:
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prior to the
time the stockholder became a Section 203 interested stockholder, our board
of directors must have previously approved either the business combination or
the transaction that resulted in the stockholder becoming a Section 203
interested stockholder;
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on
consummation of the transaction that resulted in the stockholder becoming a
Section 203 interested stockholder, the Section 203 interested stockholder
owned at least 85% of our voting stock outstanding at the time the
transaction commenced (excluding, for purposes of determining the number of
shares outstanding, shares owned by persons who are directors and officers);
or
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the business
combination is approved by our board of directors and authorized at an annual
or special meeting of the stockholders by the affirmative vote of at least 66
2/3% of the outstanding voting stock which is not owned by the Section 203
interested stockholder.
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Certain Other Anti-Takeover Matters
Business
Combination and Limitations in our
Certificate of Incorporation
. In addition
to the requirements of Section 203 described above, our certificate of
incorporation requires the affirmative vote of the holders of at least 60% of
our outstanding voting stock not owned by an interested stockholder (as defined
below), for the approval of certain business combinations and certain other
transactions with an interested stockholder unless certain minimum price and
procedural requirements are met and for the amendment or repeal of these
provisions. An “interested stockholder” is defined by our certificate of
incorporation as any person or entity that either (i) beneficially owns 5% or
more of our outstanding voting stock, (ii) is an affiliate of Quixote and, at
any time within the two years prior to the date the determination is made, was
the beneficial owner of 5% or more of our voting stock or (iii) is the assignee
of, or otherwise succeeds to, shares beneficially owned by an interested
stockholder during the two years prior to the date the determination is made
(other than as a result of a public offering under the Securities Act of 1933).
This super-majority approval would not be required if (1) the business
combination has been approved by a majority of disinterested directors (being
those directors who are not affiliated with the interested stockholder and who
were directors prior to the time the interested stockholder became an
interested stockholder) or (2) all following conditions are satisfied: (a) the
cash or fair market value of the consideration to be received per share by
holders of the common stock is not less than the higher of (i) the highest
price paid for any common stock by any person who is an interested stockholder
during the two years prior to the announcement of the proposed business
combination or in the transaction in which such person became an interested
stockholder (whichever is higher) or (ii) the price of our common stock on the
announcement date or the date on which the interested stockholder became an
interested stockholder (whichever is higher); (b) the consideration to be
received by holders of a particular class of outstanding voting stock shall be
in cash or in the same form as the interested stockholder has previously paid
for shares of such class of voting stock; (c) after becoming an interested
stockholder and prior to consummation of such business combination, (i) there
has been no reduction in dividends, or an effective reduction in the number of
common shares outstanding, unless approved by the board, (ii) such interested
stockholder shall not have become the beneficial owner of any additional shares
of common stock except as part of the transaction which resulted in such
stockholder becoming an interested stockholder and (iii) the interested
stockholder shall not have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans or other financial assistance
provided by us, or made any major change in our equity capital structure; and
(d) if such proposal otherwise requires stockholder approval, a proxy statement
responsive to the requirements of the Securities Exchange Act of 1934, whether
or not we are subject to such requirements, shall be mailed to our stockholders
for the purpose of soliciting stockholder approval of such business
combination.
Cumulative
Voting Triggered by 60% Stockholder
.
The certificate of incorporation also provides that in any election of
directors on or after the date on which any person becomes the beneficial
holder of 60% of our outstanding voting stock, and until such time as no 60%
stockholder any longer exists:
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there shall
be cumulative voting for the election of directors so that any holder of
shares of voting stock entitled to vote in such election may cumulate such
stockholder’s votes and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of votes to which
stockholder’s shares are entitled, or distribute such stockholder’s votes on
the same principle among as many candidates as such stockholder sees fit; and
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any person
who is the beneficial owner of shares of voting stock with a market price of
$100,000 or more shall have the right to nominate one or more candidates for
election to the board of directors and such candidates shall be entitled to
include in any proxy statement or other communication with respect to such
election to be sent to the holders of shares of voting stock during such
period, at our expense, descriptions and other statements of such candidates
which shall receive equal space, coverage and treatment as is received by
candidates nominated by the board of directors or our management.
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Our
certificate of incorporation and by-laws include a number of other provisions
that may have the effect of encouraging persons considering unsolicited tender
offers or other unilateral takeover proposals to negotiate with our board of
directors rather than pursue non-negotiated takeover attempts. These provisions
include:
Classified
Board of Directors
.
Our certificate of incorporation provides for a board of directors that
consists of three to nine members divided into three classes, with one class to
be elected each year to serve for a three-year term. As a result, at least two
annual meetings of stockholders may be required for the stockholders to change
a majority of our board of directors. In addition, the stockholders can only
remove directors by the affirmative vote of the holders of not less than 75% of
the outstanding shares of our capital stock entitled to vote in the election of
directors. Vacancies on our board of directors may be filled only by our board
of directors. The classification of directors and the inability of stockholders
to remove directors without a supermajority vote and to fill vacancies on the
board of directors will make it more difficult to change the composition of our
board of directors, but will promote a continuity of existing management.
No
Written Consent of Stockholders; Limitations on
Call of Special Meetings
. Our certificate
of incorporation requires all stockholder actions to be taken by a vote of the
stockholders at an annual or special meeting, and does not permit our
stockholders to act by written consent, without a meeting. Our bylaws provide
that only our chairman, our president or a majority of our board may call a
special stockholders’ meeting.
Supermajority
Approval of Amendment of Charter
.
Our certificate of incorporation requires the approval of not less than 65% of
our outstanding voting stock to amend the provisions of the certificate of
incorporation which provide for a classified board, limit stockholder actions
by consent or by the calling of a special meeting of stockholders and business
combinations with an interested shareholder. Those provisions will make it more
difficult to dilute the anti-takeover effects of our certificate of
incorporation.
Blank
Check Preferred Stock
.
Our certificate of incorporation provides for 100,000 authorized shares of
preferred stock. The existence of authorized but unissued shares of preferred
stock may enable the board of directors to render more difficult or to
discourage an attempt to obtain control of Quixote by means of a merger, tender
offer, proxy contest or otherwise. For example, if in the due exercise of its fiduciary
obligations, the board of directors were to determine that a takeover proposal
is not in the best interests of Quixote, the board of directors could cause
shares of preferred stock to be issued without stockholder approval in one or
more private offerings or other transactions that might dilute the voting or
other rights of the proposed acquiror or insurgent stockholder or stockholder
group. In this regard, the certificate of incorporation grants our board of
directors broad power to establish the rights and preferences of authorized and
unissued shares of preferred stock. The issuance of shares of preferred stock
could decrease the amount of earnings and assets available for distribution to
holders of shares of common stock and nonvoting common stock. The issuance may
also adversely affect the rights and powers, including voting rights, of such
holders and may have the effect of delaying, deterring or preventing a change
in control of Quixote. The board of directors currently does not intend to seek
stockholder approval prior to any issuance of shares of preferred stock, unless
otherwise required by law.
Listing
Our
common stock is listed on The Nasdaq Global Market
SM
.
Transfer Agent
The
transfer agent for our common stock is Computershare Trust Company, N.A.
13
PLAN OF
DISTRIBUTION
The
selling stockholders, or the Plan at the request of the selling stockholders,
may from time to time sell the shares of common stock directly to purchasers on
The Nasdaq Global Market
SM
(or on any other national securities
exchange where the shares of common stock may be trading) or other
over-the-counter market at prices and at terms then prevailing or at prices
related to the then current market price or in negotiated transactions. These
shares of common stock may be sold by one or more of the following:
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a block
trade in which the broker or dealer will attempt to sell shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction;
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purchases by
a broker or dealer as principal and resale by a broker or dealer for its
account using this prospectus;
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through the
writing of options;
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ordinary
brokerage transactions in which the broker does not solicit purchasers and
transactions in which the broker does solicit purchasers;
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transactions
directly with a market maker; and
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in privately
negotiated transactions not involving a broker or dealer.
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Each
sale may be made either at market prices prevailing at the time of the sale, at
negotiated prices, at fixed prices which may be changed, or at prices related
to prevailing market prices.
The
selling stockholders will act independently of Quixote in making decisions with
respect to the timing, manner and size of each sale.
Brokers
or dealers engaged by any of the selling stockholders to sell the shares may
arrange for other brokers or dealers to participate. Brokers or dealers engaged
to sell the shares will receive compensation in the form of commissions or
discounts in amounts to be negotiated before each sale and which may be in
excess of customary discounts or commissions. These brokers or dealers and any
other participating brokers or dealers may be determined to be underwriters
within the meaning of the Securities Act of 1933. We will receive no proceeds
from any resales of the shares offered by this prospectus, and we anticipate
that the brokers or dealers, if any, participating in the sales of the shares
will receive their usual and customary selling commissions.
Some
persons participating in this offering may engage in transactions that
stabilize, maintain or otherwise affect the price of the securities, including
the entry of stabilizing bids or syndicate covering transactions or the
imposition of penalty bids. The selling stockholders and any other person
participating in a distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder including Regulation M.
This regulation may limit the timing of purchases and sales of any of the
securities by the selling stockholders and any other person. The
anti-manipulation rules under the Exchange Act may apply to sales of securities
in the market and to the activities of the selling stockholders and their
affiliates. Furthermore, Regulation M of the Exchange Act may restrict the
ability of any person engaged in the distribution of the securities to engage
in market-making activities with respect to the particular securities being
distributed for a period of up to five business days before the distribution.
All of the foregoing may affect the marketability of the securities and the
ability of any person or entity to engage in market-making activities with respect
to the securities.
The
selling stockholders may enter into hedging transactions. Persons with whom
they enter into hedging transactions may engage in short sales of our common
stock. The selling stockholders may engage in short sales of our common stock
and transactions involving options, swaps, derivatives and other transactions
involving our securities or its investments in those securities, and may sell
and deliver the shares covered by this prospectus under agreements to undertake
these transactions or in settlement of securities loans. These transactions may
be entered into with broker-dealers or other financial institutions that may
resell those shares. The selling stockholders may pledge their shares to secure
borrowings. Upon delivery of the shares or a default by a selling stockholder,
the broker-dealer or financial institution may offer and sell the pledged
shares.
14
Selling
stockholders may resell all or a portion of their shares in open market
transactions in reliance upon available exemptions under the Securities Act
including in reliance upon Rule 144 under the Securities Act, provided they
meet the criteria and conform to the requirements of one of these exemptions.
The selling stockholders may decide not to sell all or a portion of the shares
offered under this prospectus.
A
selling stockholder may from time to time pledge or grant a security interest
in some or all of the common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from time to time under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 amending the list of
selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
To
comply with the securities laws of some states, if applicable, the shares will
be sold in those states only through brokers or dealers. The shares may not be
sold in some states unless they have been registered or qualified for sale in
those states or an exemption from registration or qualification is available
and is complied with.
If
necessary, the specific shares of our common stock to be sold, the name of the
selling stockholder, the purchase and public offering prices, the names of any
agent, dealer or underwriter, and any applicable commissions or discounts will
be disclosed in an accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement of which this prospectus
is a part.
We
will bear all expenses of the offering of the common stock that is offered in
this prospectus including without limitation all filing, registration and
qualification, printing, legal and accounting fees, except that the selling
stockholders will pay any applicable underwriting commissions and expenses,
brokerage fees and transfer taxes, and the fees and disbursements of their
counsel and experts.
The
selling stockholders are not restricted as to the price or prices at which they
may sell the shares of our common stock offered under this prospectus. Sales of
shares at less than the market price may depress the market price of our stock.
Moreover, the selling stockholders are not restricted as to the number of
shares which may be sold at any one time, and it is possible that a significant
number of shares could be sold at the same time which may also depress the
market price of our stock.
L
EGAL MATTERS
The
validity of the shares of common stock offered pursuant to this prospectus will
be passed upon by Joan R. Riley, Esq., General Counsel of Quixote. Ms. Riley
beneficially owns, or has rights to acquire under Quixote’s employee benefit
plans, an aggregate of less than 2% of Quixote’s common stock.
W
HERE YOU CAN FIND
MORE INFORMATION
We
file annual, quarterly and special reports, proxy statements, and other
information with the Securities and Exchange Commission (“Commission”). You may
read and copy any materials we file with the Commission at the Commission’s public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the Commission at 1-800-SEC-0330 for more information on its public reference
rooms. The Commission also maintains an Internet Website at http://www.sec.gov
that contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the Commission.
We
maintain an internet website
http://www.quixotecorp.com
, at which you can
access our annual report on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K, and amendments to those reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act. We make those filings available on our
website as soon as reasonably practicable after such material is filed, or
furnished, to the Securities and Exchange Commission.
We
have filed a registration statement on Form S-8 to register with the Commission
the securities described herein. This prospectus is a part of that registration
statement and constitutes a prospectus of Quixote. As allowed by Commission
rules, this prospectus does not contain all the information that can be found
in the registration statement or the exhibits to the registration statement.
15
I
NCORPORATION BY
REFERENCE
The
Commission allows us to “incorporate by reference” the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and later information that we file
with the Commission will automatically update and supersede this information.
In all cases, you should rely on the later information over comparable but
earlier dated information included in this prospectus. We incorporate by
reference the documents listed below and any future filings we make with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended:
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Annual Report on Form 10-K for
the year ended June 30, 2008 (including information specifically incorporated
by reference into our Form 10-K from our definitive Proxy Statement) filed
with the Commission on September 15, 2008.
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All documents subsequently
filed by Quixote pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, shall be deemed to be
incorporated by reference in this prospectus and to be part hereof from the
date of filing of such documents.
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All documents filed by Quixote
after the date of filing the initial registration statement on Form S-8, of
which this prospectus is a part, and prior to the effectiveness of such
registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, shall be deemed to be
incorporated by reference into this prospectus and to be part hereof from the
date of filing of such documents.
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On
request we will provide, at no cost to each person, including any beneficial
owner who receives a copy of this prospectus, a copy of any or all of the
documents incorporated in this prospectus by reference. We will not provide
exhibits to any such documents, however, unless such exhibits are specifically
incorporated by reference into those documents. Written or telephone requests
for such copies should be addressed to Quixote’s executive offices located at
35 East Wacker Drive, Chicago, Illinois 60601, Attention: Corporate Secretary,
telephone number (312) 467-6755.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
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ITEM
3.
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INCORPORATION
OF DOCUMENTS BY REFERENCE
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Quixote
Corporation (the “Company”) hereby incorporated into this Registration
Statement by reference the following documents filed with the Securities and
Exchange Commission (the “Commission”) (File No. 001-08123):
(a) The
Company’s Annual Report on Form 10-K filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934 as amended (the “Securities Exchange Act”) for
the fiscal year ended June 30, 2008 (including information specifically
incorporated by reference into our form 10-K Report from our Proxy Statement
for the annual meeting of stockholders on November 13, 2008) filed with the
Commission on September 15, 2008; and
(b) The
description of the Common Stock of the Company contained in the registration
statement filed by the Company under the Securities Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All
documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents. Any statement contained in a document incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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ITEM
5.
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INTERESTS
OF NAMED EXPERTS AND COUNSEL
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The
validity of the shares of Common Stock being registered pursuant to this
Registration Statement has been passed upon by Joan R. Riley, Esq., Vice
President, Secretary and General Counsel of the Company. Ms. Riley beneficially
owns or has rights to acquire under Quixote’s employee benefit plans an
aggregate of less than 2% of the shares of Common Stock of the Company.
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ITEM
6.
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INDEMNIFICATION
OF OFFICERS AND DIRECTORS
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The
Company is subject to the Delaware General Corporation Law. Delaware law
provides that officers and directors may receive indemnification from their
corporations for certain actual or threatened lawsuits. Delaware law sets out
the standard of conduct which the officers and directors must meet in order to
be indemnified, the parties who are to determine whether the standard has been
met, and the types of expenditures which will be indemnified. Delaware law
further provides that a corporation may purchase indemnification insurance
providing indemnification for the officers and directors whether or not the
corporation would have the power to indemnity them against such liability under
the provisions of the Delaware law.
S-1
The
Company has adopted a provision within its By-Laws which provides that the
Company will indemnify its officers and directors to the full extent permitted
by Delaware law. Further, the Company is covered by insurance which will
reimburse it for certain amounts it is obligated to pay in lawsuits involving
officers and directors serving in such capacities in which the damages,
judgments, settlements, costs, charges or expenses incurred in connection with
the defense of the action, suit or proceeding are reimbursable pursuant to law.
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4
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(a)
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Restated Certificate of Incorporation dated November
22, 2005 filed as Exhibit 3(a) to the Registrant’s Form 10-Q Report for the
quarter ended December 31, 2005, File No. 001-08123, and incorporated herein
by reference.
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(b)
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Amended and Restated By-Laws of the Registrant as
amended through July 24, 2008, filed as Exhibit 3 to the Registrant’s
Form 8-K Report dated July 24, 2008, and filed July 28, 2008, file
No. 001-08123, and incorporated herein by reference.
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5
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(a)
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Opinion of Counsel
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(b)
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Internal Revenue Service determination letter dated
June 6, 2007
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(a)
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Consent of Grant Thornton, LLP
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(c)*
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Consent of Joan R. Riley, Esq.
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24
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Powers of Attorney
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99
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(a)
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Quixote Corporation Incentive Savings Plan as
amended and restated January 1, 2006 and as amended through December 10,
2008.
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*Not filed; incorporated in Exhibit 5
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(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being, made, a
post-effective amendment to this registration statement:
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(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
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(ii) To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) promulgated
under the Securities Act 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;
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(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;
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S-2
Provided;
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(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 the registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to
any purchaser:
(i) If
the registrant is relying on Rule 430B:
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(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
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(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), or (vii), or (x) for the purpose
of providing the information required by section 10(a) of the Securities Act
of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Provided,
however,
that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as
to a purchaser with a time contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date; or
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(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used
after effectiveness.
Provided, however,
that no statement
made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of
contract or sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior to
such date of first use.
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(b) The
undersigned registrant hereby undertakes 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 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
S-3
(c) 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 foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling persons 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
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The
undersigned registrant hereby undertakes that:
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(i) 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 continued 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.
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(ii) For
purposes 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.
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S-4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing of Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois on the 12 day of
February, 2009.
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QUIXOTE
CORPORATION
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By:
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/s/ Bruce Reimer
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Bruce Reimer
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President and Chief
Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
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Date
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/s/ Bruce Reimer
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President and Chief Executive Officer and Director
(Principal Executive Officer)
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February 12, 2009
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Bruce Reimer
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/s/ Daniel P. Gorey
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Executive Vice President, Chief Financial Officer,
Treasurer and Director (Principal Financial Officer
and Principal Accounting Officer)
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February 12, 2009
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Daniel P. Gorey
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/s/ Leslie J. Jezuit
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Chairman and Director
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February 12, 2009
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Leslie J. Jezuit
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/s/ James H. DeVries
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Director
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February 12, 2009
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James H. DeVries
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/s/ Lawrence C. McQuade
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Director
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February 12, 2009
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Lawrence C. McQuade
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/s/ Duane M. Tyler
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Director
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February 12, 2009
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Duane M. Tyler
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/s/ Robert D. van Roijen
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Director
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February 12, 2009
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Robert D. van Roijen
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/s/ Victor Schwartz
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Director
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February 12, 2009
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Victor Schwartz
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S-5
EXHIBIT INDEX
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Exhibit No.
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Exhibit
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5 (a)
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Opinion of Counsel
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5(b)
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Internal Revenue Service Determination Letter dated
June 6, 2007
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23(a)
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Consent of Grant Thornton LLP
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24
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Power of Attorney
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99(a)
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Quixote Corporation Incentive Savings Plan as
amended and restated January 1, 2006 and as amended through December 10, 2008
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S-6
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