As filed with the Securities and Exchange Commission on July 2, 2002
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FERRO CORPORATION
(Exact name of Registrant as specified in its charter)
Ohio 34-0217820
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
1000 Lakeside Avenue,
Cleveland, Ohio 44114
(Address of Principal Executive Offices) (Zip Code)
Ferro Corporation Bargaining Unit 401(k) Plan
(Full title of the plan)
Bret W. Wise
Senior Vice President and Chief Financial Officer
Ferro Corporation
1000 Lakeside Avenue, Cleveland, Ohio 44114
(Name and address of agent for service)
(216) 641-8580
(Telephone number, including area code, of agent for service)
With copy to:
Mary Ann Jorgenson, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower, 127 Public Square
Cleveland, Ohio 44114-1304
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered (1) Registered Share (2) Price (2) Registration Fee
============================= ================== ======================= ======================= ====================
Common Stock, par value 25,000 shares $ 30.18 $ 754,500 $ 69.41
$1.00 per share
============================= ================== ======================= ======================= ====================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests in
the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. Pursuant to Rule 457(h), the proposed maximum offering
price per share is based upon the average of the high and low prices for
the Common Stock as reported on the New York Stock Exchange on June 28,
2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Ferro Corporation (the "Registrant") and Ferro Corporation Bargaining
Unit 401(k) Plan (the "Plan") incorporate by reference and make part of this
Registration Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2002; and
(c) The description of the Registrant's Common Stock, contained in the
Registrant's Registration Statement on Form S-8 (Registration No.
33-12397) filed March 2, 1987, and any amendments or reports filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant or the Plan pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Mary Ann Jorgenson, the Secretary of the Registrant, is a partner in the
law firm of Squire, Sanders & Dempsey L.L.P., which the Registrant retains as
its outside counsel.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended Code of Regulations provides that it shall
indemnify any of its present or former directors or officers against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement,
which are actually and reasonably incurred by the person because of his or her
position with Registrant in connection with any threatened, pending or completed
action, suit or proceeding.
With the exception of a lawsuit brought by Registrant or in its right,
Ohio law permits indemnification of these individuals in these matters provided
that they have acted in good faith, in a manner reasonably believed to be in or
not opposed to Registrant's best interests and, with respect to any criminal
action or proceeding, had no reason to believe their conduct was illegal. In the
case of a lawsuit brought by Registrant or in its right, Ohio law, subject to
certain exceptions, permits indemnification of these individuals against
expenses, including attorneys' fees, actually and reasonably incurred by them in
connection with the settlement or defense of the lawsuit provided that they have
acted in good faith and in a manner reasonably believed to be in or not opposed
to Registrant's best interests. One exception to
2
this principal applies when the directors or officers are determined to be
liable for negligence or misconduct in the performance of their duty to
Registrant. In this case, Registrant is not permitted to indemnify the directors
and officers, unless a court determines that the person is fairly and reasonably
entitled to indemnity for such expenses and believes the expenses are
appropriate.
The Registrant maintains contracts insuring it, with certain exclusions,
against any liability to directors and officers that it may incur. The
Registrant insures its directors and officers against liability and expenses
(with certain exclusions), including legal fees, which they may incur because of
their position with Registrant.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
4.1 Eleventh Amended Articles of Incorporation. (Reference is made to
Exhibit (3)(a) to Ferro Corporation's Quarterly Report on Form 10-Q
for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.2 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed December 28, 1994. (Reference
is made to Exhibit (3)(b) to Ferro Corporation's Quarterly Report on
Form 10-Q for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.3 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed January 19, 1998. (Reference
is made to Exhibit (3)(c) to Ferro Corporation's Quarterly Report on
Form 10-Q for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.4 Amended Code of Regulations. (Reference is made to Exhibit (3)(d) to
Ferro Corporation's Quarterly Report on Form 10-Q for the three months
ended June 30, 1998, which Exhibit is Incorporated herein by
reference.)
4.5 Amended and Restated Shareholder Rights Agreement between Ferro
Corporation and National City Bank, Cleveland, Ohio, as Rights Agent,
dated as of December 10, 1999. (Reference is Made to Exhibit 4(k) to
Ferro Corporation's Form 10-K for the year ended December 31, 1999,
which Exhibit is incorporated herein by reference.)
5 The Registrant has submitted the Plan and the amendment thereto to the
Internal Revenue Service ("IRS") and hereby undertakes to make all
changes, if any, required by the IRS in order to qualify the Plan
under Section 401 of the Internal Revenue Code.
No opinion of counsel as to the legality of the securities being
registered is filed herewith since such securities are not expected to
be original issuance securities.
23 Consent of KPMG LLP
24 Powers of Attorney
99 Ferro Corporation Bargaining Unit 401(k) Plan (July 1, 1999
Restatement), dated November 15, 2000 and First Amendment to the Ferro
Corporation Bargaining Unit 401(k) Plan (July 1, 1999 Restatement),
dated February 27, 2002.
-------------------
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
3
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(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
Exchange Act and each filing of the Plan's annual report pursuant to Section
15(d) of the Exchange Act that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on 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 Cleveland, and the State of Ohio, on July 1, 2002.
FERRO CORPORATION
By: /s/ Hector R. Ortino
-----------------------------------
Hector R. Ortino
Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
indicated capacities as of the 1st day of July, 2002.
/s/ HECTOR R. ORTINO Chairman and Chief Executive Officer and Director
----------------------------------------------------- (Principal Executive Officer)
Hector R. Ortino
/s/ BRET W. WISE Senior Vice President and Chief Financial Officer
----------------------------------------------------- (Principal Financial Officer and Principal Accounting Officer)
Bret W. Wise
* /s/ MICHAEL H. BULKIN Director
-----------------------------------------------------
Michael H. Bulkin
* /s/ SANDRA AUSTIN CRAYTON Director
-----------------------------------------------------
Sandra Austin Crayton
* /s/ JENNIE S. HWANG Director
-----------------------------------------------------
Jennie S. Hwang
* /s/ WILLIAM B. LAWRENCE Director
-----------------------------------------------------
William B. Lawrence
* /s/ MICHAEL F. MEE Director
-----------------------------------------------------
Michael F. Mee
* /s/ WILLIAM J. SHARP Director
-----------------------------------------------------
William J. Sharp
* /s/ DENNIS W. SULLIVAN Director
-----------------------------------------------------
Dennis W. Sullivan
/s/ PADMASREE WARRIOR Director
-----------------------------------------------------
Padmasree Warrior
* /s/ ALBERTO WEISSER Director
-----------------------------------------------------
Alberto Weisser
* Pursuant to Power of Attorney
By: /s/ James C. Bays
------------------------------------------------
James C. Bays, Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the trustee
of or other persons who administer the Ferro Corporation Bargaining Unit 401(k)
Plan has duly caused this Registration Statement to be signed on such Plan's
behalf by the undersigned, thereunto duly authorized, in the City of Cleveland,
and the State of Ohio on the 1st day of July, 2002.
FERRO CORPORATION BARGAINING
UNIT 401(K) PLAN
By: /s/ James C. Bays
--------------------------------
James C. Bays
Vice President and General Counsel
EXHIBIT INDEX
NUMBER EXHIBIT
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4.1 Eleventh Amended Articles of Incorporation. (Reference is made to Exhibit (3)(a) to Ferro
Corporation's Quarterly Report on Form 10-Q for the three months ended June 30, 1998, which
Exhibit is incorporated herein by reference.)
4.2 Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro
Corporation filed December 28, 1994. (Reference is made to Exhibit (3)(b) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.3 Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro
Corporation filed January 19, 1998. (Reference is made to Exhibit (3)(c) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.4 Amended Code of Regulations. (Reference is made to Exhibit (3)(d) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30, 1998, which Exhibit is
Incorporated herein by reference.)
4.5 Amended and Restated Shareholder Rights Agreement between Ferro Corporation and National
City Bank, Cleveland, Ohio, as Rights Agent, dated as of December 10, 1999. (Reference is
Made to Exhibit 4(k) to Ferro Corporation's Form 10-K for the year ended December 31, 1999,
which Exhibit is incorporated herein by reference.)
5 The Registrant has submitted the Plan and the amendment thereto to the Internal Revenue
Service ("IRS") and hereby undertakes to make all changes, if any, required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code.
No opinion of counsel as to the legality of the securities being registered is filed
herewith since such securities are not expected to be original issuance securities.
23 Consent of KPMG LLP
24 Powers of Attorney
99 Ferro Corporation Bargaining Unit 401(k) Plan (July 1, 1999 Restatement), dated November 15, 2000
and First Amendment to the Ferro Corporation Bargaining Unit 401(k) Plan (July 1, 1999 Restatement),
dated February 27, 2002.