As filed with the Securities and Exchange Commission on March 14, 2002
Registration No. 333-AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION Washington,ON APRIL 10, 2002
REGISTRATION NO. 333-84322
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------------------
FERRO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Ohio
OHIO 34-0217820
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
-----------------------
---------------------
1000 Lakeside Avenue
Cleveland, OhioLAKESIDE AVENUE
CLEVELAND, OHIO 44114
(216) 641-8580
(Address, including zip code and telephone number,
Including area code, of registrant's principal executive offices)
-----------------------
Bret---------------------
BRET W. Wise
Senior Vice President and Chief Financial Officer
Ferro CorporationWISE
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FERRO CORPORATION
1000 Lakeside Avenue
Cleveland, OhioLAKESIDE AVENUE
CLEVELAND, OHIO 44114
(216) 641-8580
(Name, address, including zip code, and telephone number,
number including area code, of agent for service)
-----------------------
with copies to:
James C. Bays, Esq. Jeffrey J. Margulies, Esq.
Vice President & General Counsel Squire, Sanders & Dempsey L. L. P.
Ferro Corporation 4900 Key Tower
1000 Lakeside Avenue 127 Public Square
Cleveland, Ohio 44114-1147 Cleveland, Ohio---------------------
WITH COPIES TO:
JAMES C. BAYS, ESQ. JEFFREY J. MARGULIES, ESQ.
VICE PRESIDENT & GENERAL COUNSEL SQUIRE, SANDERS & DEMPSEY L. L. P.
FERRO CORPORATION 4900 KEY TOWER
1000 LAKESIDE AVENUE 127 PUBLIC SQUARE
CLEVELAND, OHIO 44114-1147 CLEVELAND, OHIO 44114-1304
(216) 875-6122 (216) 479-8500
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Approximate date of commencement of proposed sale to the public:
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement from the same offering. [ ]_______] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]_______] ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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Proposed Maximum Amount of
Title of Each Class of Securities Proposed Maximum Aggregate Offering Registration
to be Registered Amount to be Offering Price Per Price(1)(2)(3) Fee
Registered(1) Unit(1)(2)
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Debt Securities
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Common Stock, par value $1.00 per
share
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Preferred Stock, without par value
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Warrants
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Depositary Shares(4)
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Stock Purchase Contracts
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Stock Purchase Units
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Total $300,000,000 $300,000,000 $27,600
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(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. There is being registered under
this registration statement an indeterminate principal amount of debt
securities and an indeterminate number of shares of common stock; shares
of preferred stock; warrants to purchase common stock, preferred stock or
debt securities; depositary shares; stock purchase contracts and stock
purchase units that may be sold from time to time by the registrant.
There also is being registered under this registration statement an
indeterminate number of shares of common stock that may be issuable under
stock purchase contracts and stock purchase units, or upon conversion or
exchange of debt securities or depositary shares or preferred stock, or
upon exercise of warrants registered under this registration statement;
an indeterminate number of shares of preferred stock that may be issuable
under stock purchase contracts and stock purchase units, or upon
conversion or exchange of debt securities or depositary shares, or upon
exercise of warrants registered under this registration statement; and an
indeterminable principal amount of debt securities that may be issuable
upon exercise of warrants registered under this registration statement.
Securities registered under this registration statement may be sold
separately, together or in units with other securities registered under
this registration statement.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933. The proposed
maximum offering price per unit will be determined from time to time in
connection with the issuance by the registrant of securities registered
under this registration statement. If any debt securities are issued at
an original issue discount, then the offering price shall be in such
greater principal amount as shall result in an aggregate offering price
not in excess of $300,000,000, less the dollar amount of any securities
previously issued under this registration statement.
(3) Subject to Rule 462(b), the aggregate maximum offering price of all
securities issued under this registration statement will not exceed
$300,000,000 or the equivalent of such amount in one or more foreign
currencies or composite currencies, including European currency units. No
separate consideration will be received for shares of common stock or
preferred stock that are issued upon conversion or exchange of shares of
debt securities, preferred stock or depositary shares or upon exercise of
warrants, as applicable, registered under this registration statement, or
for shares of preferred stock distributed upon termination of a deposit
arrangement for depositary shares.
(4) In the event the registrant elects to offer to the public fractional
interests in shares of preferred stock registered under this registration
statement, depositary receipts will be distributed to those persons
purchasing such fractional interests and the shares of preferred stock
will be issued to the depositary under a deposit agreement.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MARCH 14,APRIL 10, 2002
PROSPECTUS
[LOGO][FERRO CORPORATION LOGO]
$300,000,000
FERRO $300,000,000
Ferro CorporationCORPORATION
We may offer, from time to time, separately, together or in units, the
following securities:
- debt securities,
- common stock,
- preferred stock,
- warrants to purchase common stock, preferred stock or debt securities,
- depositary shares representing interests in preferred stock,
- stock purchase contracts to purchase common stock or preferred stock, or
- stock purchase units comprised of stock purchase contracts and U.S.
government obligations.
We will provide the specific terms of securities we are offering in
prospectus supplements to this prospectus.
You should read this prospectus, the documents that are incorporated by
reference in this prospectus and any prospectus supplement carefully before you
decide to invest in any securities offered. This prospectus may not be used to
consummate sales of any offered securities unless it is accompanied by a
prospectus supplement describing the terms of that offering.
-----------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATEThe date of this prospectus is , 2002
TABLE OF THIS PROSPECTUS IS ____________, 2002
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Table of Contents
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Page
----
About Ferro............................................................... 1
Use of Proceeds........................................................... 1
Ratio of Earnings to Fixed Charges........................................ 1
Description of Debt Securities............................................ 1
General.............................................................. 2
Book-Entry Debt Securities........................................... 3
Restrictive Covenants................................................ 3
Applicable Definitions............................................... 4
Events of Default.................................................... 5
Modification and Waiver.............................................. 5
Consolidation, Merger and Sale of Assets............................. 6
Satisfaction and Discharge of the Indentures......................... 6
Defeasance and Covenant Defeasance................................... 7
Provisions Applicable to Subordinated Debt Securities................ 7
Concerning the Trustee............................................... 8
Description of Common Stock............................................... 8
General.............................................................. 8
Voting Rights........................................................ 8
Dividends............................................................ 9
Transfer Agent....................................................... 9
Antitakeover Provisions.............................................. 9
Description of Preferred Stock............................................ 11
General.............................................................. 11
Rank................................................................. 11
Voting Rights........................................................ 12
Distributions........................................................ 13
Redemption........................................................... 13
Liquidation Preference............................................... 13
Conversion Rights.................................................... 13
Description of Depositary Shares.......................................... 14
General.............................................................. 14
Dividends and Other Distributions.................................... 14
Withdrawal of Preferred Stock........................................ 14
Redemption of Depositary Shares...................................... 15
Voting of the Preferred Stock........................................ 15
Liquidation Preference............................................... 15
Conversion of Preferred Stock........................................ 15
Amendment and Termination of the Deposit Agreement................... 16
Description of Warrants................................................... 16
General.............................................................. 16
Exercise of Warrants................................................. 17
Description of Stock Purchase Contracts and Stock Purchase Units.......... 17
Book-Entry Securities..................................................... 18
Plan of Distribution......................................................CONTENTS
PAGE
----
About Ferro................................................. 1
Use of Proceeds............................................. 1
Ratio of Earnings to Fixed Charges.......................... 1
Description of Debt Securities.............................. 1
General................................................ 2
Book-Entry Debt Securities............................. 3
Restrictive Covenants.................................. 3
Applicable Definitions................................. 4
Events of Default...................................... 4
Modification and Waiver................................ 5
Consolidation, Merger and Sale of Assets............... 5
Satisfaction and Discharge of the Indentures........... 6
Defeasance and Covenant Defeasance..................... 6
Provisions Applicable to Subordinated Debt
Securities............................................ 7
Concerning the Trustee................................. 7
Description of Common Stock................................. 7
General................................................ 7
Voting Rights.......................................... 8
Dividends.............................................. 8
Transfer Agent......................................... 8
Antitakeover Provisions................................ 8
Description of Preferred Stock.............................. 10
General................................................ 10
Rank................................................... 11
Voting Rights.......................................... 11
Distributions.......................................... 12
Redemption............................................. 12
Liquidation Preference................................. 12
Conversion Rights...................................... 13
Description of Depositary Shares............................ 13
General................................................ 13
Dividends and Other Distributions...................... 13
Withdrawal of Preferred Stock.......................... 14
Redemption of Depositary Shares........................ 14
Voting of the Preferred Stock.......................... 14
Liquidation Preference................................. 14
Conversion of Preferred Stock.......................... 14
Amendment and Termination of the Deposit Agreement..... 15
Description of Warrants..................................... 15
General................................................ 15
Exercise of Warrants................................... 16
Description of Stock Purchase Contracts and Stock Purchase
Units..................................................... 16
Book-Entry Securities....................................... 17
Plan of Distribution........................................ 18
Legal Matters............................................... 19
Experts..................................................... 19
Legal Matters............................................................. 19
Experts................................................................... 20
i
No person has been authorized to give any information or to make any
representation other than those contained in this prospectus and any
accompanying prospectus supplement in connection with any applicable offering,
and, if given or made, such other information or representation must not be
relied upon as having been authorized by us or by any underwriter, dealer or
agent. Neither this prospectus nor any prospectus supplement shall constitute an
offer to sell or a solicitation of an offer to buy any securities offered in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation or sale in such jurisdiction. Neither the delivery of this
prospectus or any prospectus supplement nor any sale of securities made implies
that there has been no change in our affairs at any time subsequent to the date
of this prospectus or that the information in this prospectus is correct as of
any time subsequent to its date.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file with the SEC at their public reference rooms at the
following locations:
Public Reference Room Chicago Regional Office
450 Fifth Street, N.W
Public Reference Room Chicago Regional Office
450 Fifth Street, N.W. Citicorp Center
Room 1024 500 West Madison Street, Suite 1400
Washington, D.C. 20549 Chicago, Illinois 60661-2511
Please call the SEC at 1-800-SEC-0330 for further information on the
operations of the public reference rooms. Our SEC filings also are available to
the public at the SEC's web site at http://www.sec.gov and at the public
reference room of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005. Our common stock is listed on the New York Stock Exchange.
We have filed with the SEC a registration statement on Form S-3, of which
this prospectus is a part, with respect to the securities described in this
prospectus. As allowed by SEC rules, this prospectus does not contain all of the
information set forth in the registration statement and related exhibits. For
further information with respect to us and the securities described in this
prospectus, you should refer to the registration statement. Descriptions in the
registration statement relating to any document that is filed as an exhibit to
the registration statement are not necessarily complete, and you should review
the document that is filed as an exhibit for a full statement of the document's
provisions. This prospectus is qualified in all respects by such other
information in the registration statement and the related exhibits. The
registration statement may be inspected, without charge, at the SEC's principal
office at 450 Fifth Street, N.W., Washington, D.C. 20459, and copies may also be
obtained from the SEC upon the payment of prescribed fees.
INCORPORATION OF INFORMATION BY REFERENCE
We are "incorporating by reference" information into this prospectus. This
means we are disclosing important information to you by referring you to another
document that we have filed separately with the SEC. The information
incorporated by reference is considered to be part of this prospectus.
Any information we incorporate by reference that we filed prior to the date
of this prospectus or the applicable prospectus supplement will be modified or
superseded to the extent that information contained in this prospectus or the
applicable prospectus supplement (including information we subsequently file
with the SEC that we also incorporate by reference) modifies or supersedes such
information. Any such information so modified or superseded will not be
considered part of this prospectus or the applicable prospectus supplement.
Information that we file with the SEC after the date of this prospectus or the
applicable prospectus supplement will automatically modify and supersede the
information included or incorporated by reference in this prospectus or the
applicable prospectus supplement (including information we subsequently file
with the SEC that we also incorporate by reference) to the extent that the
subsequently filed information modifies or supersedes the existing information.
We incorporate by reference our future filings with the SEC under section 13(a),
13(c), 14 or 15(d)
ii
of the Securities Exchange Act of 1934 until we consummate the offering of the
securities made by this prospectus and the applicable prospectus supplement. We
also incorporate by reference our:
ii
- Annual Report on Form 10-K for the fiscal year ended December 31, 2000;
- Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2001, June 30, 2001 and September 30, 2001 (as
amended);2001;
- Proxy Statement for the 20012002 Annual Meeting of Shareholders;
- Current Report on Form 8-K filed September 21, 2001;
- Current Report on Form 8-K/A filed November 23, 2001;
- Current Report on Form 8-K/A-2 filed December 10, 2001;Shareholders, and related
letter dated April 2, 2002 supplementing such Proxy Statement;
- The description of our common stock contained in our registration
statement on Form S-8 (Registration No. 33-12397) filed March 2, 1987;
- The description of our common stock rights contained in our registration
statement on Form 8-A filed May 15, 1996, and
- The description of our preferred stock contained in our registration
statement on Form S-8 (Registration No. 33-28520) filed May 3, 1989.
Any statement made in this prospectus or the applicable prospectus
supplement concerning the contents of any agreement or other document is only a
summary of the actual document and is qualified in its entirety by reference to
the actual document. You may obtain a copy of any document summarized in this
prospectus or the applicable prospectus supplement or any document incorporated
by reference into this prospectus or the applicable prospectus supplement, at no
cost, by directing your request to: Director, Investor Relations, Ferro
Corporation, 1000 Lakeside Avenue, Cleveland, Ohio 44114, Telephone (216)
641-8580.
CAUTIONARY STATEMENTS
This prospectus (including information incorporated by reference in this
prospectus) contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. These forward-looking statements are not historical facts, but rather
are predictions and generally can be identified by use of statements that
include phrases such as "believe," "expect," "anticipate," "estimate," "intend,"
"plan," "foresee" or other words or phrases of similar import. Similarly,
statements that describe our future financial condition or results of
operations, objectives, plans, goals or future performance and business also are
forward-looking statements. These forward-looking statements are subject to
risks and uncertainties that could cause actual results to differ materially
from those currently anticipated. In light of these risks and uncertainties, the
forward-looking events might or might not occur. Important factors that could
cause actual results to differ materially from those suggested by these
forward-looking statements, and that could adversely affect our future financial
performance, are described in the documents incorporated by reference in this
prospectus and include the following:
- The outcome of our efforts to integrate the dmc2dmc(2) businesses we acquired
in 2001;
- Changes in customer requirements, markets or industries served;
- Economic downturns in some or all of our major product markets;
- Changes in the prices of major raw materials;
- The risks related to fluctuating currency rates, changing legal, tax and
regulatory requirements that affect our businesses and changing social
and political conditions in the many countries in which we operate;
iii
- Political or economic instability as a result of acts of terrorism; and
- Access to capital, primarily in the U.S. capital markets, and any
restrictions placed on us by current or future financing arrangements.
The risks and uncertainties identified above are not the only risks we face.
Additional risks and uncertainties not presently known to us or that we
currently believe to be immaterial also may adversely affect us. Should any
known or unknown risks and uncertainties develop into actual events, these
developments could have material adverse effects on our business, financial
condition and results of operations.
iviii
ABOUT FERRO
We are a leading global producer of a diverse array of performance
materials sold to a broad range of manufacturers in approximately 30 markets
throughout the world. We apply certain core scientific expertise in organic
chemistry, inorganic chemistry, polymer science and material science to develop
coatings for ceramics and metal; materials for passive electronic components;
pigments; enamels, pastes, and additives for the glass market; specialty plastic
compounds and colors; and polymer additives. Our products are classified as
performance materials, rather than commodities, because they are formulated to
perform specific and important functions both in the manufacturing processes and
in the finished products of our customers. Our performance materials require a
high degree of technical service on an individual customer basis. The value of
these performance materials stems from the results and performance they achieve
in actual use.
Our products are traditionally used in markets such as appliances,
automotive, building and renovation, electronics, household furnishings,
industrial products, pharmaceuticals, telecommunications and transportation. Our
leading customers include major chemical companies, producers of multi-layer
ceramic capacitors and manufacturers of tile, appliances and automobiles. Many
customers, particularly in the appliance and automotive markets, purchase
materials from more than one of our business units. Our customer base is also
well-diversified both geographically and by end-market.
Our principal executive offices are located at 1000 Lakeside Avenue,
Cleveland, Ohio 44114, and our telephone number is (216) 641-8580.
USE OF PROCEEDS
Except as otherwise described in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of securities offered by this
prospectus for general corporate purposes, which may include capital
expenditures, acquisitions and reductions of our indebtedness. We may
temporarily invest funds not immediately required for such purposes in
short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31,
SEPTEMBER 30,
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1996------------------------------------
1997 1998 1999 2000 2000 2001
---- ---- ---- ---- ---- ---- --------- ----- ----- -----
Ratio of earnings to fixed charges(1) 6.52x........... -- 6.85x 6.17x 5.13x 5.45x 2.95x2.49x
Ratio of earnings to combined fixed charges and
preferred 5.32xstock dividends..................... -- 5.82x 5.47x 4.68x 4.93x 2.79x
stock dividends5.64x 5.27x 4.57x 2.31x
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(1) The ratio of earnings to fixed charges has been calculated by dividing (i)
income before income taxes plus fixed charges by (ii) fixed charges. Fixed
charges are equal to interest expense (including amortization of deferred
financing costs), plus the portion of rent expense estimated to represent
interest. Preferred stock dividends consist of the amount of pre-tax
earnings to pay dividends on the outstanding preferred stock. Earnings were
insufficient to cover fixed charges by $49 million for the year ended
December 31, 1997.
DESCRIPTION OF DEBT SECURITIES
The following description is a general summary of the terms of the debt
securities that we may issue, which may consist of either senior debt securities
or subordinated debt securities. We may issue the debt securities under one or
more indentures, each dated on or prior to the issuance of the 1
applicable debt
securities. We may issue the senior debt securities and subordinated debt
securities under separate indentures referred to as the senior indenture and the
subordinated indenture. In this prospectus, we refer to the senior indenture and
the subordinated indenture collectively as the indentures or individually as an
indenture, and forms of the indentures are filed as exhibits to the registration
statement of which this prospectus is a part. The indentures will not limit the
amount of debt securities that we may issue and will provide that we may issue
the debt securities periodically in one or more series.
1
The particular terms of the debt securities offered by any prospectus
supplement will be described in the applicable prospectus supplement. The
following is a summary of the material provisions relating to the indentures. It
does not restate all of the terms of the indentures. Therefore, we urge you to
read the indentures because they, and not this description, will define your
rights as holders of any debt securities offered.
GENERAL
The debt securities will be our general unsecured obligations and will be
issued only in fully registered form without coupons in denominations of $1,000
or integral multiples of $1,000. Any payments of principal, premium and/or
interest will be payable at the office or agency as we may maintain for such
purpose. In addition, the transfer of the debt securities will be registered at
this office or agency. You will not be subject to a service charge for the
registration or transfer of the debt securities, but we may require you to pay
any applicable tax or other governmental fees.
The applicable prospectus supplement will describe the following terms of
any debt securities that we may offer:
- the title of the debt securities;
- whether they are senior debt securities or subordinated debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the prices at which the debt securities will be issued;
- the person to whom interest is payable, if other than a person whose name
is listed on the debt security;
- the principal payment date(s);
- the interest rates, if applicable, and the interest payment dates;
- the place(s) where the principal of and any premium or interest shall be
payable;
- the price(s) and period(s) during which the debt securities may be
redeemed, if applicable;
- our obligation, if any, and the price(s) to redeem or purchase the debt
securities under sinking fund or analogous provisions;
- the denominations of the debt securities;
- the currency in which payment shall be made, if other than U.S. dollars,
and the terms upon which we or the holder of the debt securities may
elect a different currency;
- if principal, premium or interest information may be determined by
reference to an index or formula, the manner in which shall amounts shall
be determined;
- if other than the principal amount, the portion of the principal amount
of the debt securities which shall be payable upon maturity;
2
- the applicability of provisions described below under "Defeasance and
Covenant Defeasance";
- if the debt securities will be issuable only as book-entry debt
securities, the depository for the book-entry security and the
circumstances in which the book-entry debt securities may be registered
for transfer or exchange or authenticated and delivered; and
- any other terms of the debt securities.
If the debt securities are sold at a substantial discount below their
stated principal amount, any applicable federal income tax consequences and
other special considerations applicable to the original issue discount debt
securities will be described in the applicable prospectus supplement. "Original
issue discount debt securities" means any debt security that provides for an
amount less than the principal amount to be due and payable upon the declaration
of acceleration of the maturity of the debt security upon the occurrence of an
event of default and its continuation. In addition, pursuant to the Internal
Revenue Code, debt securities having interest reset dates that
2
would cause any accrual period to be longer than one year are subject to the
original issue discount rules of the Internal Revenue Code, whether or not the
debt securities are original issue discount debt securities.
BOOK-ENTRY DEBT SECURITIES
The debt securities offered by this prospectus may be in whole or in part
issued in book-entry form. You should refer to the caption "Book-Entry
Securities" for more information regarding book-entry procedures.
RESTRICTIVE COVENANTS
Restrictions on Secured Debt and Limitations on Liens. If we or a Domestic
Subsidiary have any debt that is secured by a Mortgage on any Principal Domestic
Manufacturing Property or on any shares of stock or debt of any Domestic
Subsidiary, we (or the Domestic Subsidiary) will secure the debt securities and
any other debt of ours or of such Domestic Subsidiary which may be then
outstanding and entitled to the benefit of a similar covenant. This will be done
on an equal and ratable basis with (or prior to) such secured debt, unless the
aggregate amount of all such secured debt together with all of our Attributable
Debt and that of our Domestic Subsidiaries in respect of sale and leaseback
transactions involving Principal Domestic Manufacturing Properties would not
exceed 10% of our Consolidated Net Tangible Assets. In order to provide this
equal and ratable security, the principal amount of any series of original issue
discount debt securities issued shall be such portion of the principal amount as
specified in the terms of that series that would be payable upon acceleration of
the maturity of the debt securities at the time of such determination.
The following items will be excluded in computing secured debt, and the
restrictions described above do not apply to debt secured by:
- Mortgages by any corporation at the time the corporation becomes a
Domestic Subsidiary;
- Mortgages in favor of us or another Domestic Subsidiary;
- Mortgages in favor of any governmental bodies in order to secure partial,
progress or advance payments under the terms of a contract or statute;
- purchase money Mortgages, construction Mortgages or other Mortgages
existing at or incurred withwithin 120 days of the time of acquisition;
- Mortgages with any state or political subdivision which are used to
finance the acquisition or construction of property and on which interest
is not includable within the holder's gross income; and
- extensions, renewals or replacements of the Mortgages described in this
list.
The indentures, however, will not prevent us or our subsidiaries from
incurring additional unsecured debt.
3
Restrictions on Sale and Leaseback Transactions. The indentures will
restrict us (and our Domestic Subsidiaries) from entering into any sale and
leaseback transaction involving any Principal Domestic Manufacturing Property
that has been or is to be sold or transferred more than 120 days after
acquisition or the completion of construction and commencement of full
operations relating to the property, unless the following conditions are
satisfied:
- we or the Domestic Subsidiary could create debt secured by a Mortgage on
such property as described above under "Restrictions on Secured Debt and
Limitations on Liens" in an amount equal to the Attributable Debt with
respect to the sale and leaseback transaction without equally and ratably
securing the debt securities; or
- we, within 120 days, apply to the retirement of Funded Debt that is pari
passu with the debt securities an amount equal to the net proceeds of the
sale or the fair market value, whichever is greater, of the leased
Principal Domestic Manufacturing Property. The fair market value is
subject to certain credits for voluntary retirements of Funded Debt.
3
This restriction will not apply to any sale and leaseback transaction
between us and a Domestic Subsidiary, between Domestic Subsidiaries, or between
a Domestic Subsidiary and a foreign subsidiary, or involving the taking back of
a lease for a period of three years or less.
APPLICABLE DEFINITIONS
"Attributable Debt" means the total net amount of rent (discounted at the
rate of 1% per annum over the weighted average yield to maturity of the
outstanding debt securities compounded semi-annually) required to be paid during
the remaining term of any lease.
"Consolidated Net Tangible Assets" means the aggregate amount of all of our
assets and assets of our consolidated Subsidiaries (after deducting intangible
assets and the amount of all current liabilities).
"Domestic Subsidiary" means a Subsidiary substantially all the fixed assets
of which are located, or substantially all the business of which is carried on,
within the United States, or which owns or leases any Principal Domestic
Manufacturing Property, but such term excludes any Subsidiary the principal
business of which is the financing or ownership of the operations outside the
United States (but such Subsidiary is excluded only so long as it neither owns
nor leases any Principal Domestic Manufacturing Property).
"Funded Debt" means indebtedness for money borrowed having a maturity at or
being renewable or extendible to a date more than 12 months from the date of
determination.
"Mortgage" means any mortgage, pledge, lien, security interest, conditional
sale or other title retention agreement or similar encumbrance.
"Principal Domestic Manufacturing Property" means any facility (together
with the related land and fixtures) used primarily for manufacturing, processing
or warehousing of our products and located in the United States, owned or leased
by us or one of our Subsidiaries and having a gross book value in excess of 1%
of Consolidated Net Tangible Assets, other than any such facility or portion of
a facility that is financed by governmental obligations the interest on which is
excludable from gross income of the holder pursuant to the provisions of Section
103(a) of the Internal Revenue Code or Section 745 of Title 48 of the United
States Code, or which in the opinion of our board of directors is not of
material importance to the total business conducted by us and our Subsidiaries
as an entirety.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned directly or indirectly by us and/or one or more of our
Subsidiaries.
4
EVENTS OF DEFAULT
Any one of the following events will constitute an event of default under
the indentures:
- failure to pay any interest on any debt security for 30 days past the
applicable due date;
- failure to pay principal of or any premium on any debt security when due;
- failure to perform or a breach of any of our covenants or warranties set
forth in the indentures, other than a covenant included in the indenture
solely for the benefit of a different series of debt securities, which
continues for 90 days after written notice as provided in the indentures;
- default under indebtedness for money borrowed in an aggregate principal
amount exceeding $10,000,000 under an agreement by which we or any
Domestic Subsidiary is bound, which default shall have resulted in such
indebtedness becoming due and payable prior to the date on which it would
otherwise be due and payable, and the default is not cured or the
indebtedness discharged within 10 days after written notice as provided
in the indentures; or
- certain events in bankruptcy, insolvency or reorganization.
If any event of default with respect to the debt securities occurs and is
continuing, the trustee under the applicable indenture or the holders of at
least 25% in aggregate principal amount of the outstanding debt securities may
declare the principal amount of all the debt securities to be immediately due
and payable. The
4
holders of a majority in aggregate principal amount of outstanding debt
securities may, under certain circumstances, rescind and annul such acceleration
as long as no judgment or decree based on acceleration has been obtained. The
indentures will obligate the trustee to act with reasonable care during default.
They also will provide that the trustee is not obligated to exercise any of its
rights or powers under the indentures upon the request of the holders, unless
the holders have offered to indemnify the trustee.
If the holders of a majority in aggregate principal amount of the debt
securities offer to indemnify the trustee and meet certain other conditions,
holders may direct the time, method and place for conducting a proceeding for
any remedy available to the trustee. Before holders may institute any
proceeding,
- a particular holder must notify the trustee of the event of default;
- the trustee must have received a similar notice from the holders of at
least 25% of the principal amount of the outstanding debt securities, and
these holders offered to indemnify the trustee;
- the trustee must not have received a direction inconsistent from that
request from a majority of the holders of the principal amount of the
outstanding debt securities; and
- the trustee shall have failed to institute a proceeding within 60 days.
These limitations will not restrict a debt securities holder from initiating a
suit for payment of principal, premium or interest that is not paid on the
applicable due date. We will be required to furnish annual statements to the
trustee regarding performance of our obligations under the indentures.
MODIFICATION AND WAIVER
The trustee and we may execute additional indentures that modify the
provisions of an indenture or the rights or the holders of debt securities. The
holders of at least a majority of the principal amount of the outstanding debt
securities must also consent to any additional indenture.
5
Without obtaining the consent of the holder of each outstanding security
affected by any additional indenture, an additional indenture may not:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
- reduce the principal amount of, or the premium, if any, or interest on,
any debt security;
- change the place or currency of payment of principal of, premium, if any,
or interest on, any debt security;
- impair the right to institute suit for the enforcement of any payment on
any debt security on or after the stated maturity or redemption date; or
- reduce the percentage in principal amount of outstanding debt securities,
the consent of whose holders is required for modification or amendment of
the indentures or for waiver of compliance with certain provisions of the
indentures or for waiver of certain defaults.
The holders of at least a majority in aggregate principal amount of the
outstanding debt securities may waive our compliance with certain provisions of
an indenture on behalf of all holders. They may also waive any past default
under an indenture on behalf of all holders, unless a payment default relates to
one of the indenture provisions or covenants that cannot be modified without the
consent of each affected holder of the debt security.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The indentures will restrict us from engaging in any merger or purchase or
sale of substantially all of our assets, unless:
- the purchaser or successor-in-interest is a business organized under the
applicable law of the United States of America, any state or the District
of Columbia, and it expressly agrees to assume our obligations regarding
the debt securities under a supplemental indenture,
5
- immediately after giving effect to the transaction, no event of default,
and no event which, after notice or lapse of time or both, would become
an event of default, shall have occurred and be continuing,
- if our properties or assets become subject to a Mortgage not permitted by
the indenture, we or the successor-in-interest takes the necessary steps
to secure the debt securities equally and ratably with (or prior to) all
secured indebtedness, and
- we deliver to the trustee a certification and a legal opinion confirming
compliance with these conditions.
SATISFACTION AND DISCHARGE OF THE INDENTURES
We may terminate our obligations under either indenture with respect to the
debt securities of any series when:
- either:
- all outstanding debt securities of each series have been delivered
to the trustee for cancellation; or
- all debt securities of each series not previously delivered to the
trustee for cancellation have become due and payable, will become
due and payable at their stated maturity within one year or, if
redeemable at our option, are to be called for redemption within one
year under arrangements satisfactory to the trustee for the giving
of notice of redemption by the trustee in our name and our expense,
and we have irrevocably deposited with the trustee funds in an
amount sufficient to pay and discharge the entire indebtedness on
the debt securities which have not previously been 6
delivered to the
trustee for cancellation, for the principal of and, if any, interest
or premium, to the date of deposit or the stated maturity or date of
redemption;
- we have paid or caused to be paid all sums payable by us under the
applicable indenture; and
- we have delivered an officers' certificate and an opinion of counsel
relating to compliance with the conditions set forth in the indenture.
DEFEASANCE AND COVENANT DEFEASANCE
Our debt securities may be subject to the defeasance and covenant
defeasance provisions of the applicable indenture. If the provisions are
applicable, we have the option to elect either:
- defeasance --- which will discharge us from all obligations in respect of
the debt securities, subject to certain administrative limitations, or
- covenant defeasance --- which will permit us to be released from certain
restrictive covenants of the indentures, including those described under
"Certain Covenants" and "Event of Default."
To invoke either of these options with respect to any debt securities, we
must deposit, in trust, with the trustee an amount of money or U.S. government
obligations that, through the payment of principal and interest in accordance
with their terms, will provide an amount sufficient to pay any principal,
premium and interest on the debt securities in accordance with the terms of the
debt securities.
We may not establish this trust if there is a continuing event of default
or if the establishment of the trust would create a conflicting interest for the
trustee with respect to our other securities. Additionally, we must deliver a
legal opinion to the trustee that provides you will not recognize additional
income, gain or loss for federal income tax purposes as a result of the
defeasance or covenant defeasance election.
If we elect covenant defeasance with respect to any of the debt securities
and those debt securities become immediately due and payable because an event of
default occurs, other than an event of default relating to a covenant from which
we have been released through the covenant defeasance election, the amount of
money and U.S. government obligations on deposit with the trustee may be
insufficient to pay amounts due to you on the debt securities at the time of the
acceleration. However, we remain liable for any deficiency.
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PROVISIONS APPLICABLE TO SUBORDINATED DEBT SECURITIES
Any subordinated debt securities will be subordinate and junior in right of
payment to the prior payment in full of all our senior indebtedness. "Senior
indebtedness" is the principal (including sinking fund payments) of, and
premium, if any, and interest on any indebtedness that is for:
- money we borrow;
- any indebtedness as may be evidenced by notes, debentures, bonds,
securities or other instruments of indebtedness and for the payment of
which we are responsible or liable, by guarantees or otherwise;
- money borrowed by others, which we have assumed or guaranteed;
- capitalized lease obligations; and
- renewals, extensions, refundings, amendments and modifications of any
indebtedness of the kind described above or of the instruments creating
or evidencing such indebtedness, unless, in each case, the terms of the
instruments evidencing the indebtedness or such renewal, extension,
refunding, amendment or modification provide that it is not senior in
rights of payment to the subordinated debt securities.
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In the event we distribute our assets following dissolution, winding up,
liquidation or reorganization, the holders of senior indebtedness will be
entitled to be paid in full in respect of principal, premium, if any, and
interest before any payments are made to holders of the subordinated debt
securities. In addition, if an event of default occurs under the terms of the
subordinated indenture or we have failed to pay the principal, premium, if any,
sinking funds or interest on any senior indebtedness, then the holders of the
subordinated debt securities will not receive any payment of principal, premium,
sinking fund or interest until all of the payments in respect of the senior
indebtedness have been paid in full.
Subject to any applicable subordination provisions applying to them, our
creditors who are holders of senior indebtedness may recover more ratably than
holders of the subordinated debt securities due to this subordination.
If this prospectus is being delivered in connection with a series of
subordinated debt securities, the prospectus supplement or the information
incorporated in this prospectus by reference will set forth the approximate
amount of senior indebtedness outstanding as of the latest available date. The
prospectus supplement also will identify any limitations on the issuance of
additional senior indebtedness.
CONCERNING THE TRUSTEE
The trustee under each indenture will be identified in the applicable
prospectus supplement. The trustee may perform services for us in the ordinary
course of business.
Under the indentures, the trustee will be required to transmit annual
reports to all holders regarding its eligibility and qualifications as trustee
under the indentures and other related matters.
DESCRIPTION OF COMMON STOCK
The following description is a general summary of the terms of the common
stock that we may issue. The description below and in any prospectus supplement
does not include all of the terms of the common stock and should be read
together with our Amended Articles of Incorporation and Amended Code of
Regulations, copies of which have been filed previously with the SEC.
GENERAL
Under our Amended Articles of Incorporation, we are authorized to issue up
to 300,000,000 shares of common stock, par value $1.00 per share. As of March
4,29, 2002, 34,490,65034,840,055 shares of common stock (excluding treasury stock) were
issued and outstanding. In addition, as of that date, 7,057,3234,376,560 shares were
issuable under outstanding stock options granted under our stock option plans.
7
Our outstanding common stock is, and the shares of common stock offered by
this prospectus and any applicable prospectus supplement will be, when issued
and paid for as described in the applicable prospectus supplement, validly
issued, fully paid and nonassessable. Holders of common stock have no preemptive
rights to subscribe for any of our securities, nor do they have any preference,
conversion, exchange, sinking fund, redemption or appraisal rights.
Our common stock is listed on the New York Stock Exchange under the symbol
"FOE."
VOTING RIGHTS
Each holder of common stock is entitled to one vote for each share held of
record on the applicable record date on all matters presented to a vote of
shareholders. Shareholders have cumulative voting rights in the election of
directors if any shareholder gives notice in writing to the president, a vice
president or the secretary not less than 48 hours before the time fixed for
holding the meeting that cumulative voting at that election is desired. An
announcement of the giving of this notice must be made upon the convening of the
meeting by the chairman or the secretary or by or on behalf of the shareholder
giving the notice. In this event, each shareholder has the right to
8
cumulate
votes and give one nominee the number of votes to which the shareholder is
entitled, or to distribute votes on the same principle among two or more
nominees, as the shareholder sees fit.
DIVIDENDS
Subject to the rights of holders of any preferred stock, each record holder
of common stock on the applicable record date is entitled to receive dividends
on common stock to the extent authorized by our board of directors out of assets
legally available for the payment of dividends. In addition, subject to the
rights of holders of any preferred stock, holders of common stock are entitled
to share ratably in our assets legally available for distribution to our
shareholders in the event of our liquidation, dissolution or winding up after
payment of or adequate provision for all our known debts and liabilities.
TRANSFER AGENT
National City Bank is the registrar and transfer agent for our common
stock.
ANTITAKEOVER PROVISIONS
Our Amended Articles of Incorporation and Amended Code of Regulations and
Ohio corporate law contain provisions that could have the effect of delaying,
deferring or preventing a change in control of our ownership or management that
shareholders may consider favorable or beneficial. These provisions are intended
to discourage certain types of coercive takeover practices and inadequate
takeover bids and to encourage persons seeking to acquire control to negotiate
first with our board of directors. We believe that the benefits of these
provisions outweigh the potential disadvantages of discouraging such proposals
because, among other things, negotiation of such proposals might result in an
improvement of their terms. The following description is intended as a summary
only and should be read together with the Amended Articles of Incorporation, the
Amended Code of Regulations and the relevant provisions of Ohio corporate law.
Classified Board of DirectorsCLASSIFIED BOARD OF DIRECTORS
Our Amended Code of Regulations provides that the board of directors is
divided into three classes of directors, each consisting of not less than three
nor more than five directors, and that each class of directors serves a
staggered three-year term. The classification of directors has the effect of
making it more difficult for shareholders to change the composition of the board
of directors. We believe, however, that the longer time required to elect a
majority of a classified board of directors helps to ensure continuity and
stability of our management and policies. The classification provisions could
also have the effect of discouraging a third party from accumulating large
blocks of our capital stock or attempting to obtain control of us, even though
such an attempt might be beneficial to us and our shareholders. Accordingly,
shareholders could be deprived of certain opportunities to sell their shares of
common stock at a higher market price than might otherwise be the case.
Number of Directors; Filling Vacancies8
NUMBER OF DIRECTORS; FILLING VACANCIES
Our Amended Code of Regulations provides that the number of directors shall
be not less than nine nor more than fifteen as may be determined by the vote of
the shareholders at any annual meeting or special meeting called for the purpose
of electing directors. In addition to the authority of shareholders to fix or
change the number of directors, the board of directors may change the number of
directors, so long as the change is not more than two above or below the number
of directors authorized by the shareholders at the last annual or special
meeting. In no event may the board of directors fix the number of directors at
less than nine nor more than fifteen. The board of directors also may fill any
director's office that is created by an increase in the number of directors. Our
Amended Code of Regulations provides that any vacancies may be filled by a vote
of a majority of the remaining directors, even if less than a quorum.
9
Special MeetingsSPECIAL MEETINGS
Our Amended Code of Regulations provides that a special meeting of
shareholders may be called by the shareholders only if holders of 25% of the
outstanding shares of capital stock entitled to vote at such meeting participate
in the call. This provision may have the effect of delaying consideration of a
shareholder proposal until the next annual meeting.
Shareholder Rights PlanSHAREHOLDER RIGHTS PLAN
We have a shareholder rights plan pursuant to which each share of
outstanding common stock also represents ownership of one right, until the
occurrence of certain events. The rights become exercisable only if a person or
group acquires 20% or more of our common stock (10% under certain circumstances)
or commences a tender or exchange offer upon consummation of which such person
or group would control 20% or more of the common stock or is declared an
"adverse person" (as this term is defined in the shareholder rights plan) by the
board of directors. The rights, which do not have the right to vote or receive
dividends, expire on April 8, 2006. We may redeem the rights at a redemption
price of $0.0333 per right at any time until the 15th day following public
announcement that a person or group has acquired 20% or more of the voting
power, unless this period is extended by the board of directors while the rights
are redeemable.
If:
- any person becomes the owner of 20% or more of the common stock (10%
under certain circumstances),
- we are the surviving corporation in a merger with a 20% or more
shareholder and the terms of our common stock are not changed or
converted, or
- a 20% or more shareholder engages in certain self-dealing transactions
with us,
then each right not owned by such person or related parties will entitle its
holder to purchase a share of our common stock at a purchase price of 50% of the
then current market price of the common stock, up to a value of $73.33 per
right.
In the event we engage in a merger or other business combination
transaction in which we are not the surviving corporation or we are the
surviving corporation but our common stock is changed or exchanged or 50% or
more of our assets or earning power is sold or transferred, each holder of a
right will have the right to receive, upon exercise of the right at the then
current exercise price, that number of shares of common stock of the surviving
company which at the time of the transaction would have a market value of two
times the exercise price of the right.
Control Share AcquisitionsCONTROL SHARE ACQUISITIONS
Section 1701.831 of the Ohio Revised Code provides that specified notice
and informational filings and special shareholder meeting and voting procedures
must be followed prior to consummation of a proposed "control share
acquisition." The Ohio Revised Code defines a "control share acquisition" as any
acquisition of an issuer's shares that would entitle the acquirer, immediately
after the acquisition, directly or indirectly, to
9
exercise or direct the exercise of voting power of the issuer in the election of
directors within any one of the following ranges:
- one-fifth or more but less than one-third of that voting power;
- one-third or more but less than a majority of that voting power; or
- a majority or more of that voting power.
Assuming compliance with the notice and information filings prescribed by
the statute, the proposed control share acquisition may be made only if, at a
special meeting of the shareholders, the acquisition is approved by at least a
majority of the voting power of the issuer represented at the meeting and at
least a majority of the voting power remaining after excluding the combined
voting power of the "interested shares." "Interested shares" are the shares held
by the intended acquirer and the employee-directors and officers of the issuer,
as well as certain shares that were 10
acquired after the date of the first public
disclosure of the acquisition but before the record date for the meeting of
shareholders and shares that were transferred, together with the related voting
power, after the record date for the meeting of shareholders.
Business CombinationsBUSINESS COMBINATIONS
Chapter 1704 of the Ohio Revised Code prohibits certain business
combinations and transactions between an "issuing public corporation" and an
"interested shareholder" for at least three years after the interested
shareholder attains 10% ownership of the issuing public corporation, unless the
board of directors of the issuing public corporation approves the transaction
prior to the interested shareholder attaining such 10% ownership. An "issuing
public corporation" is an Ohio corporation with 50 or more shareholders that has
its principal place of business, principal executive offices or substantial
assets within the State of Ohio, and as to which no close corporation agreement
exists. An "interested shareholder" is a beneficial owner of 10% or more of the
shares of a corporation. Examples of transactions regulated by Chapter 1704
include the disposition of assets, mergers and consolidations, voluntary
dissolutions and the transfer of shares.
Subsequent to the three-year period, a transaction subject to Chapter 1704
may take place if specified conditions are satisfied, including:
- prior to the interested shareholder's share acquisition date, the board
of directors of the issuing public corporation approves the purchase of
shares by the interested shareholder;
- the transaction is approved by the holders of shares with at least
66 2/3% of the voting power of the corporation (or a different proportion
set forth in the articles of incorporation), including at least a
majority of the outstanding shares after excluding shares controlled by
the interested shareholder; or
- the business combination results in shareholders, other than the
interested shareholder, receiving a fair price plus interest for their
shares.
DESCRIPTION OF PREFERRED STOCK
The following description is a general summary of the terms of the
preferred stock that we may issue. The description below and in any prospectus
supplement does not include all of the terms of the preferred stock and should
be read together with our Amended Articles of Incorporation and Amended Code of
Regulations and the applicable terms of the related series of preferred stock as
established by the board of directors.
GENERAL
Under our Amended Articles of Incorporation, we are authorized to issue up
to 2,000,000 shares of preferred stock, without par value. In 1989, we
established a series of preferred stock called Series A ESOP Convertible
Preferred Stock and authorized the issuance of up to 1,762,500 shares of such
stock to National City Bank, as trustee for our Employee Stock Ownership Plan.
As of March 4,29, 2002, 852,825825,816 shares of Series A preferred stock were issued and
outstanding.
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We believe that the ability of the board of directors to issue one or more
classes or series of preferred stock provides us with increased flexibility in
structuring possible future financings and acquisitions, and in meeting other
corporate needs that might arise. The authorized shares of preferred stock, as
well as shares of common stock, are available for issuance without further
action by our shareholders, unless such action is required by applicable law or
the rules of any stock exchange or automated quotation system on which our
securities may be listed or traded.
RANK
Our preferred stock will have priority over our common stock with respect
to dividends and distribution of assets. Our Amended Articles of Incorporation
provide that all shares of preferred stock shall be of equal rank and shall be
identical except with respect to those matters that may be fixed by the board of
directors. The board of
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directors is authorized to provide for the issuance of
preferred stock in one or more series and to determine matters such as:
- the distinctive serial designations and the division of shares into
series and the number of shares of a particular series, which may be
increased or decreased, but not below the number of shares then
outstanding;
- the annual dividend rate for the particular series, and the date or dates
from which dividends on all shares of the series will be cumulative, if
dividends on stock of the particular series will be cumulative;
- the redemption price or prices for the particular series;
- the right, if any, of the holders of a particular series to convert the
stock into other classes of stock, and the terms and conditions of that
conversion to the extent not otherwise provided in the Amended Articles
of Incorporation; and
- the rights, if any, of the holders of a particular series of preferred
stock upon our voluntary liquidation, dissolution or winding-up or in the
event of any merger or consolidation of or sale of assets by us.
In the event of involuntary liquidation, dissolution or winding up of our
affairs, the preferred stock will be entitled to a liquidation preference of
$25.00 per share, plus accrued and unpaid dividends. The holders of shares of
preferred stock will not be entitled to any preemptive right to purchase or have
offered to them any shares of preferred stock or other securities.
You should refer to the prospectus supplement relating to the class or
series of preferred stock being offered for the specific terms of that class or
series, including the matters described above.
VOTING RIGHTS
The board of directors is not authorized to establish the voting rights of
preferred stock. Holders of preferred stock are generally entitled to one vote
for each share of stock held upon all matters presented to the shareholders,
plus special voting rights in the event of a default in the payment of preferred
dividends. If we are in default in the payment of six full quarterly dividends
(whether or not consecutive), the holders of preferred stock have the right to
elect two additional directors, who will remain in office until such dividends
in arrears are paid. The vote of the holders of at least two-thirds of the
outstanding shares of preferred stock is necessary to effect:
- any amendment, alteration or repeal of any of the provisions of the
Amended Articles of Incorporation or the Amended Code of Regulations that
affects adversely the voting powers, rights or preferences of the holders
of preferred stock, or
- the authorization or creation of, or the increase in the authorized
amount of, any shares of any class, or any security convertible into
shares of any class, ranking prior to the preferred stock, or
- the purchase or redemption of less than all of the preferred stock then
outstanding (except in accordance with a stock purchase offer made to all
holders of preferred stock) when any dividends or sinking fund
obligations on the preferred stock are in arrears.
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In addition, the vote of the holders of at least a majority of the
outstanding shares of preferred stock will be necessary to effect:
- the sale, lease or conveyance by us of all or substantially all of our
property or business, or our consolidation with or merger into any other
corporation, unless the resulting corporation will have no shares
authorized or outstanding ranking prior to or on a parity with the
preferred stock, except the same number with the same rights and
preferences as those of our preferred stock authorized and outstanding
immediately preceding the transaction, and each holder of preferred stock
immediately prior to the transaction receives the same number of shares,
with the same rights and preferences, of the resulting corporation, or
12
- the authorization of any shares ranking on a parity with the preferred
stock or an increase in the authorized number of shares of preferred
stock.
DISTRIBUTIONS
Holders of the preferred stock of each series will be entitled to receive,
to the extent declared by our board of directors, out of our assets legally
available for payment to shareholders, cash distributions or distributions in
kind or in other property if expressly permitted and described in the applicable
prospectus supplement, at such rates and on such dates as will be set forth in
the applicable prospectus supplement. Each such distribution will be payable to
holders of record as they appear on our stock transfer books on such record
dates as will be fixed by the board of directors. Distributions on any series of
preferred stock, if cumulative, will be cumulative from the date set forth in
the applicable prospectus supplement.
REDEMPTION
The terms and conditions, if any, upon which the preferred stock will be
subject to mandatory redemption or redemption at our option, either in whole or
in part, will be described in the applicable prospectus supplement.
LIQUIDATION PREFERENCE
Upon any voluntary liquidation, dissolution or winding up of our affairs,
then, before any distribution or payment may be made to the holders of common
stock or any other class or series of shares of our capital stock ranking junior
to the preferred stock in that circumstance, the holders of each series of
preferred stock shall be entitled to receive out of our assets legally available
for distribution to shareholders liquidating distributions in the amount of the
liquidation preference set forth in the applicable prospectus supplement, plus
an amount equal to all accumulated and unpaid distributions. After payment of
the full amount of the liquidating distributions to which they are entitled, the
holders of shares of preferred stock will have no right or claim to any of our
remaining assets.
If, upon any such voluntary liquidation, dissolution or winding up, our
available assets are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of preferred stock and the corresponding
amounts payable on all shares of other classes or series of our shares of
capital stock ranking on a parity with the preferred stock in the distribution
of assets, then the holders of the preferred stock and all other such classes or
series of shares of capital stock will share ratably in any distribution of
assets in proportion to the full liquidating distributions to which they would
otherwise be entitled.
If liquidating distributions have been made in full to all holders of
preferred stock, our remaining assets shall be distributed among the holders of
any other classes or series of shares of capital stock ranking junior to the
preferred stock upon liquidation, dissolution or winding up, according to their
rights and preferences and in each case according to their number of shares. For
such purposes, our consolidation or merger with or into any other corporation,
trust or entity, or the sale, lease or conveyance of all or substantially all of
our property or business, will not be deemed to constitute a liquidation,
dissolution or winding up of our affairs.
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CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of preferred stock
is convertible into common stock will be set forth in the applicable prospectus
supplement. Such terms will include:
- the number of shares of common stock into which the shares of preferred
stock are convertible;
- the conversion price or the manner of calculating the conversion price;
- the conversion date(s) or period(s);
- provisions as to whether conversion will be at the option of the holders
of the preferred stock or at our option;
- the events requiring an adjustment of the conversion price; and
13
- provisions affecting conversion in the event of the redemption of the
series of preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
The following description is a general summary of the terms of the
depositary shares that we may issue. The description below and in any prospectus
supplement does not include all of the terms of the depositary shares and should
be read together with the applicable deposit agreement and related depositary
receipts, which are filed as an exhibit to the registration statement of which
this prospectus is a part.
GENERAL
We may issue depositary shares, each of which will represent a fractional
interest of a share of a particular series of preferred stock, as specified in
the applicable prospectus supplement. Shares of preferred stock of each series
represented by depositary shares will be deposited under a separate deposit
agreement among us, the "depositary" named in the agreement and the holders from
time to time of the depositary shares. Subject to the terms of the deposit
agreement, each holder of a depositary share will be entitled, in proportion to
the fractional interest of a share of a particular series of preferred stock
represented by the depositary shares, to all the rights and preferences of the
preferred stock represented by those depositary shares, including dividend,
conversion, redemption and liquidation rights. The depositary shares will be
evidenced by depositary receipts issued pursuant to the applicable deposit
agreement. Immediately following the issuance and delivery of our preferred
stock to the depositary, we will cause the depositary to issue, on our behalf,
the depositary receipts.
The depositary will forward to holders of depositary shares any reports and
communications from us that are received by the depositary with respect to the
related preferred stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the holders of
depositary shares in proportion to the number of the depositary shares owned by
the holders. In connection with this distribution, holders will be required to
file proofs, certificates and other information and to pay specified charges and
expenses to the depositary.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the holders of depositary shares entitled
to that property, upon satisfaction by holders of their obligations to file
proofs, certificates and other information and to pay specified charges and
expenses to the depositary. However, if the depositary determines it is not
feasible to make a noncash distribution, the depositary may, with our approval,
sell the property and distribute the net proceeds from the sale to the holders.
No distribution will be made in respect of any depositary share to the
extent that it represents any preferred stock converted into other securities.
13
WITHDRAWAL OF PREFERRED STOCK
Holders of depositary shares will be entitled to surrender their depositary
shares and withdraw, in whole or in part, the corresponding number of whole or
fractional shares of preferred stock represented by the surrendered depositary
shares, so long as the surrendered depositary shares were not previously called
for redemption or converted into other securities. Holders will be required to
surrender the corresponding depositary receipt(s) at the corporate trust office
of the depositary, which will entitle those holders to delivery of the number of
whole or fractional shares of preferred stock and any money or other property
represented by the surrendered depositary shares. If the depositary shares
surrendered to the depositary represents a larger number of shares of preferred
stock than the holder desires to withdraw, then the depositary will deliver to
the holder new depositary shares, evidenced by a depositary receipt,
representing the excess number of shares of preferred stock.
14
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem shares of preferred stock held by the depositary, we
will pay in full to the depositary the redemption price of the preferred stock
to be redeemed plus an amount equal to any accrued and unpaid dividends to the
date fixed for redemption. The depositary then will redeem, as of the same
redemption date, the number of depositary shares representing shares of the
preferred stock so redeemed. The redemption price per depositary share will be
equal to the corresponding proportion of the redemption price and any other
amounts per share payable with respect to the preferred stock. If fewer than all
the depositary shares are to be redeemed, the depositary shares to be redeemed
will be selected pro rata, as nearly as may be practicable without creating
fractional depositary shares, or by another equitable method.
All dividends in respect of the shares of preferred stock called for
redemption will cease to accrue on the date fixed for redemption. In addition,
on that date, the depositary shares called for redemption will no longer be
deemed to be outstanding and all rights of the holders of the depositary shares
called for redemption will cease, except for the right to receive any moneys
payable upon the redemption of the depositary shares and any money or other
property to which the holders of the depositary shares were entitled upon the
redemption and surrender of the depositary shares to the depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the holders of the depositary shares which represent
such preferred stock. Each holder of depositary shares on the record date, which
will be the same date as the record date for the preferred stock, will be
entitled to instruct the depositary as to the exercise of the voting rights
pertaining to the amount of preferred stock represented by the holder's
depositary shares. The depositary will vote the amount of preferred stock
represented by the depositary shares in accordance with the instructions, and we
will agree to take all reasonable action which may be deemed necessary by the
depositary in order to enable the depositary to do so. The depositary will
abstain from voting the amount of preferred stock represented by the depositary
shares to the extent it does not receive specific instructions from the holders
of depositary shares. The depositary shall not be responsible for any failure to
carry out any instruction to vote, or for the manner or effect of any such vote
made, as long as that action or nonaction is in good faith and does not result
from negligence or willful misconduct of the depositary.
LIQUIDATION PREFERENCE
In the event of our liquidation, dissolution or winding up, whether
voluntary or involuntary, the holders of each depositary share will be entitled
to the fraction of the liquidation preference accorded each share of preferred
stock represented by the depositary shares, as set forth in the applicable
prospectus supplement.
CONVERSION OF PREFERRED STOCK
The depositary shares, as such, are not convertible into our common stock
or any of our other securities or property. Nevertheless, if specified in the
applicable prospectus supplement relating to an offering of depositary shares,
the depositary shares may be surrendered by their holders to the depositary with
written instructions to the
14
depositary to instruct us to cause conversion of the preferred stock represented
by the depositary shares into whole shares of our common stock, other shares of
our preferred stock or other of our equity securities. In those circumstances,
upon receipt of those instructions and any applicable amounts payable, we will
cause the conversion of that preferred stock utilizing the same procedures as
those provided for delivery of preferred stock to effect such conversion. If the
depositary shares are to be converted in part only, a new depositary receipt or
receipts will be issued for any depositary shares not to be converted. No
fractional shares of common stock will be issued upon conversion, and if such
conversion would result in a fractional share being issued, we will pay an
amount in cash equal to the value of the fractional interest determined as
specified in the applicable prospectus supplement.
15
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares that
represent the preferred stock and any provision of the deposit agreement may at
any time be amended by agreement between the depositary and us. However, any
amendment that materially and adversely alters the rights of the holders of
depositary shares or that would be materially and adversely inconsistent with
the rights granted to the holders of the related preferred stock will not be
effective unless the amendment has been approved by the holders of at least a
majority of the outstanding depositary shares. Subject to certain exceptions in
the deposit agreement, no amendment may impair the right of any holder of
depositary shares to surrender any depositary shares with instructions to
deliver to the holder the related preferred stock and all money and other
property, if any, represented by the depositary share. Every holder of an
outstanding depositary share at the time any amendment becomes effective will be
deemed, by continuing to hold such share, to consent and agree to the amendment
and to be bound by the amended deposit agreement.
Unless otherwise specified in the applicable prospectus supplement, we may
terminate the deposit agreement upon not less than 30 days prior written notice
to the depositary if a majority of each class of depositary shares affected by
the termination consents. In that case, the depositary will deliver or make
available to each holder of depositary shares, upon surrender of the depositary
shares held by the holder, the number of whole or fractional shares of preferred
stock as are represented by the depositary shares, together with any other
property held by the depositary with respect to the depositary shares. In
addition, the deposit agreement will automatically terminate if:
- all outstanding depositary shares have been redeemed;
- there has been a final distribution in respect of the related preferred
stock in connection with our liquidation, dissolution or winding up and
that distribution has been distributed to the holders of depositary
shares representing such preferred stock; or
- each share of the related preferred stock has been converted into our
securities not represented by depositary shares.
DESCRIPTION OF WARRANTS
The following description is a general summary of the terms of the warrants
that we may issue. The description below and in any prospectus supplement does
not include all of the terms of the warrants and should be read together with
the applicable warrant agreement, which is filed as an exhibit to the
registration statement of which this prospectus is a part.
GENERAL
We may issue, together with other securities or separately, warrants to
purchase our common stock, preferred stock or debt securities. We will issue the
warrants under warrant agreements to be entered into between us and a bank or
trust company, as warrant agent, all as will be set forth in the applicable
prospectus supplement. The warrant agent will act solely as our agent in
connection with the warrants of the series being offered and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants.
15
The applicable prospectus supplement will describe the following terms,
where applicable, of any warrants offered by this prospectus and the applicable
prospectus supplement:
- the title of the warrants;
- the designation, amount and terms of the securities for which the
warrants are exercisable and the procedures and conditions relating to
the exercise of the warrants;
- the designation and terms of the other securities, if any, with which the
warrants are to be issued and the number of warrants issued with each
such security;
- the price or prices at which the warrants will be issued;
16
- the aggregate number of warrants;
- any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or of the exercise price of the
warrants;
- the price or prices at which the securities purchasable upon exercise of
the warrants may be purchased;
- the date after which the warrants and the securities purchasable upon
exercise of the warrants will be separately transferable;
- a discussion of the material United States federal income tax
considerations applicable to the exercise of the warrants;
- the dates upon which the right to exercise the warrants will commence and
expire;
- the maximum or minimum number of warrants that may be exercised at any
time;
- information with respect to book-entry procedures, if any; and
- any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase for cash the number of
shares of common stock or preferred stock, or the amount of debt securities, at
the exercise price set forth in or determinable as set forth in the applicable
prospectus supplement. Warrants will be exercisable at any time up to the close
of business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised
warrants will become void.
Warrants will be exercisable as set forth in the applicable prospectus
supplement. Upon receipt of payment and the properly completed warrant
certificate at the corporate trust office of the warrant agent or any other
office indicated in the applicable prospectus supplement, we will forward the
purchased securities as soon as practicable. If less than all of the warrants
represented by a warrant certificate are exercised, a new warrant certificate
will be issued for the remaining warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, which are contracts obligating
holders to purchase from us, and us to sell to holders, a specified number of
shares of common stock or preferred stock at a future date or dates. The price
per share of common stock or preferred stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference to a specific
formula set forth in the stock purchase contracts. The stock purchase contracts
may be issued separately or as a part of units (referred to in this prospectus
as stock purchase units), each consisting of a stock purchase contract and debt
obligations of the United States of America or its agencies or instrumentalities
securing the holders' obligations to purchase the securities under the stock
purchase contracts. The stock purchase contracts may require us to make periodic
payments to the holders of the
16
stock purchase units or vice versa, and such payments may be unsecured or
prefunded on a specified basis. The stock purchase contracts may require holders
to secure their obligations in a specified manner.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units. The description in the applicable
prospectus supplement will be a general summary of the terms of the stock
purchase contracts or stock purchase units and will not include all of the terms
of the stock purchase contracts or stock purchase units. That description should
be read together with the applicable stock purchase contract and, if applicable,
collateral arrangements and depositary arrangements relating to the stock
purchase contracts or stock purchase units. The form of the purchase contract
agreement is filed as an exhibit to the registration statement of which this
prospectus is a part.
17
BOOK-ENTRY SECURITIES
The securities offered by this prospectus and any applicable prospectus
supplement may be issued in whole or in part in book-entry form. In that case,
beneficial owners of the securities will not receive certificates representing
their ownership interests in the securities, except in the event the book-entry
system for the securities is discontinued. Securities issued in book-entry form
will be evidenced by one or more global securities that will be deposited with,
or on behalf of, a depositary identified in the applicable prospectus supplement
relating to the securities. The Depository Trust Company is expected to serve as
depository. A global security may not be transferred except as a whole between
the depository and one or more of its nominees or a successor. Global securities
may be issued in either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect to
a class or series of securities that differ from the terms described in this
prospectus will be described in the applicable prospectus supplement.
Unless otherwise indicated in the applicable prospectus supplement, we
anticipate that the following provisions will apply to depository arrangements.
Upon the issuance of a global security, the depository for the global
security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual securities represented
by the global security to the respective accounts of the beneficial owners of
the individual securities, who are called "participants." The accounts will be
designated by the underwriters, dealers or agents with respect to the securities
or by us if we directly offer and sell the securities. Ownership of a beneficial
interest in a global security will be limited to the depository's participants
and will be shown on the records maintained by the depository or its nominee.
Transfers of that ownership interest will be effected only through those
records. Others may hold a beneficial interest in a global security but only
through the ownership of a participant. Ownership and any transfer of that
beneficial ownership will be shown on and effected through records maintained by
the participant. The laws of some states require that certain purchasers of
securities take physical delivery of the securities in definitive form. These
laws may impair the ability to own, pledge or transfer beneficial interests in a
global security.
So long as the depository for a global security or its nominee is the
registered owner of the global security, the depository or nominee, as the case
may be, will be considered the sole owner of the securities represented by the
global security for all purposes under the applicable instrument defining the
rights of a holder of the underlying securities. Except as described below or in
the applicable prospectus supplement, participants, or anyone holding through a
participant, will not be entitled to have any of the underlying securities
registered in their names, will not receive or be entitled to receive physical
delivery of any of the underlying securities in definitive form and will not be
considered the owners of the underlying securities under the applicable
instrument defining the rights of the holders of the underlying securities.
Amounts payable with respect to the underlying securities will be paid to
the depository or its nominee, as the case may be, as the registered owner of
the global security. Neither we, nor any of our officers or directors, nor any
paying agent or security registrar for an individual series of securities will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a global
security or for maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
17
We expect that the depository for a series of securities issued in
book-entry form, upon receipt of any payment of a dividend or any other amount
in respect of a global security, will immediately credit its participants'
accounts with payments in amounts proportionate to their respective interests in
the global security as shown on the records of the depository or its nominee. We
also expect that payments by participants to owners of beneficial interests in
the global security held through the participants will be governed by standing
instructions and customary practices, as is the case with securities held for
the account of customers in bearer form or registered in "street name." Such
payments will be the responsibility of the participants.
If a depository for a series of securities is at any time unwilling, unable
or ineligible to continue as depository and a successor depository is not
appointed by us within 90 days, we will issue individual securities of that
series in exchange for the global security representing the series of
securities. In addition, we may, at any time and in our sole discretion, subject
to any limitations described in the applicable prospectus supplement relating to
the securities,
18
determine not to have any securities of a series represented by
one or more global securities and, in such event, will issue individual
securities of the series in exchange for the global security or securities
representing that series of securities.
PLAN OF DISTRIBUTION
We may sell the securities to one or more underwriters for public offering
and sale by them or we may sell the securities to investors directly or through
agents. Any underwriter or agent involved in the offer and sale of the
securities will be named in the applicable prospectus supplement.
If we use underwriters for an offering of securities, the underwriters will
acquire the securities for their own accounts. The underwriters may resell the
securities at a fixed price or prices, which may be changed, at prices related
to the prevailing market prices at the time of sale, or at negotiated prices. We
also may, from time to time, authorize underwriters acting as our agents to
offer and sell the securities upon the terms and conditions as will be set forth
in the applicable prospectus supplement. In connection with the sale of the
securities, underwriters may be deemed to have received compensation from us in
the form of underwriting discounts or commissions and also may receive
commissions from purchasers of the securities. Underwriters may sell the
securities to or through dealers, who may receive compensation in the form of
discounts, concessions from the underwriters and/or commissions from the
purchasers of the securities.
Any underwriting compensation paid by us to underwriters or agents in
connection with any offering of the securities and any discounts, concessions or
commissions allowed by underwriters to participating dealers will be set forth
in the applicable prospectus supplement. Underwriters, dealers and agents
participating in the distribution of the securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting
discounts and commissions. We may agree to indemnify underwriters, dealers and
agents against civil liabilities, including liabilities under the Securities
Act, or to contribute with respect to payments underwriters, dealers or agents
may be required to make.
If so indicated in the applicable prospectus supplement, we may authorize
underwriters, dealers or agents to solicit offers from certain types of
institutions to purchase securities from us at the public offering price set
forth in the applicable prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date. Institutions with
which delayed delivery contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions. The applicable prospectus
supplement will set forth the commission payable for solicitation of such
offers.
Any underwriter may engage in overallotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934. Overallotment involves sales in
excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short-covering transactions
involve purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the
18
securities originally sold by the dealer are purchased in a covering transaction
to cover short positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the underwriters may
discontinue any of these activities at any time.
Underwriters and their affiliates may engage in transactions with or
perform services for us in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the securities to be offered by
this prospectus, including their legality, will be passed upon for us by Squire,
Sanders & Dempsey L.L.P., Cleveland, Ohio. Mary Ann Jorgenson, Esq., a partner
in such firm, is Secretary of the Company.
19
EXPERTS
The consolidated financial statements of Ferro Corporation and subsidiaries
as of December 31, 20002001 and 1999,2000, and for each of the years in the three-year
period ended December 31, 2000,2001, have been incorporated by reference in this
prospectus in reliance upon the reports of KPMG LLP, independent accountants,
incorporated by reference in this prospectus, and upon the authority of said
firm as experts in accounting and auditing.
The combined balance sheets of the electronic materials, performance
pigments and colors, glass systems and Cerdec Ceramics businesses of dmc2
Degussa Metals Catalysts Cerdec Aktiengesellschaft as of December 31, 2000 and
1999 and September 30, 1999, and the related combined statements of operations,
shareholder's equity and cash flows for the year ended December 31, 2000, the
three months ended December 31, 1999, and the year ended September 30, 1999,
have been incorporated by reference herein in reliance upon the report of KPMG
Deutsche Treuhand - Gesellschaft Aktiengesellschaft
Wirtschaftspruefungsgesellschaft, independent accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
2019
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ItemITEM 14. Other Expenses of Issuance and Distribution.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
We estimate that expenses, other than underwriting compensation, in
connection with the offering of securities described in this Registration
Statement will be as follows:
SEC registration fee $ 27,600
Trustee fees 10,000
Printing expenses 50,000
Legal fees 75,000
Accounting fees 35,000
Blue Sky fees and expenses 5,000
Miscellaneous 22,400
----------
Total $ 225,000
Item
SEC registration fee........................................ $ 27,600
Trustee fees................................................ 10,000
Printing expenses........................................... 50,000
Legal fees.................................................. 75,000
Accounting fees............................................. 35,000
Blue Sky fees and expenses.................................. 5,000
Miscellaneous............................................... 22,400
--------
Total............................................. $225,000
ITEM 15. Indemnification of Directors and Officers.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Amended Code of Regulations provides that we shall indemnify any of our
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 us in
connection with any threatened, pending or completed action, suit or proceeding.
With the exception of a lawsuit brought by us or in our 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 our 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 us or in our 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 manner reasonably believed to be in or not opposed to our best interests.
One exception to this principle applies when the directors or officers are
determined to be liable for negligence or misconduct in the performance of their
duty to us. In this case, we are 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.
We maintain contracts insuring us, with certain exclusions, against any
liability to directors and officers that we may incur. We insure our directors
and officers against liability and expenses (with certain exclusions), including
legal fees, which they may incur because of their position with us.
ItemITEM 16. Exhibits.
Number Exhibit
- ------ -------
1(a) Form of Underwriting Agreement for Debt Securities, Common Stock,
Preferred Stock and Warrants
1(b)EXHIBITS.
NUMBER EXHIBIT
- ------ -------
1(a)** Form of Underwriting Agreement for Depositary Shares, Stock Purchase
Contracts and Stock Purchase Units
4(a) Form of Senior Indenture (with Form of Senior Debt Security)
4(b) Form of Subordinated Indenture (with Form of Subordinated Debt
Security)
4(c) Form of Common Stock Certificate (Reference is made to Exhibit 4c to
Ferro Corporation's Registration Statement on Form S-3 (Registration
No.33-63855) filed on October 31, 1995, which Exhibit is
incorporated herein by reference)
4(d) Form of Preferred Stock Certificate (Reference is made to Exhibit 4d
to Ferro Corporation's Registration Statement on Form S-3
(Registration No.33-63855) filed on October 31, 1995, which Exhibit
is incorporated herein by reference)
4(e) Form of Warrant Agreement for Debt Securities, Common
Stock, Preferred Stock and Warrants
1(b)* Form of Underwriting Agreement for Depositary Shares, Stock
Purchase Contracts and Stock Purchase Units
2(a) OMG-Ferro Purchase Agreement between the Company and OM
Group, Inc. dated as of August 31, 2001. (Reference is made
to Exhibit 2.0 to Ferro Corporation's Current Report on Form
8-K for the event dated September 7, 2001, which Exhibit is
incorporated herein by reference)
The Company agrees that it shall, upon request, furnish to
the Securities and Exchange Commission a copy of any exhibit
or annex to the OMG-Ferro Purchase Agreement that is not
filed with Exhibit 2(a).
II-1
4(e-1) Form of Warrant Agreement for Equity Securities
4(f) Form of Purchase Contract Agreement
4(f-1) Form of Pledge Agreement
4(g) Form of Deposit Agreement
4(h) 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(i) 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 20, 1998, which
Exhibit is incorporated herein by reference)
4(j) 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(k) 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(l) 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(l) to Ferro Corporation's Form 10-K for the year ended December
31, 1999, which Exhibit is incorporated herein by reference)
5
NUMBER EXHIBIT
- ------ -------
2(b) Heads of Agreement between the Company and OM Group, Inc.
dated as of April 23, 2001. (Reference is made to Exhibit
10(b) to Ferro Corporation's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2001, which Exhibit is
incorporated herein by reference)
The Company agrees that it shall, upon request, furnish to
the Securities and Exchange Commission a copy of any exhibit
or annex to the Heads of Agreement that is not filed with
Exhibit 2(b).
4(a)** Form of Senior Indenture (with Form of Senior Debt Security)
4(b)** Form of Subordinated Indenture (with Form of Subordinated
Debt Security)
4(c) Form of Common Stock Certificate (Reference is made to
Exhibit 4c to Ferro Corporation's Registration Statement on
Form S-3 (Registration No. 33-63855) filed on October 31,
1995, which Exhibit is incorporated herein by reference)
4(d) Form of Preferred Stock Certificate (Reference is made to
Exhibit 4d to Ferro Corporation's Registration Statement on
Form S-3 (Registration No. 33-63855) filed on October 31,
1995, which Exhibit is incorporated herein by reference)
4(e)** Form of Warrant Agreement for Debt Securities
4(e-1)** Form of Warrant Agreement for Equity Securities
4(f)** Form of Purchase Contract Agreement
4(f-1)** Form of Pledge Agreement
4(g)** Form of Deposit Agreement
4(h) 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(i) 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 20, 1998, which Exhibit is incorporated herein by
reference)
4(j) 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(k) 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(l) 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(l) to Ferro Corporation's Form 10-K for
the year ended December 31, 1999, which Exhibit is
incorporated herein by reference)
5** Opinion of Squire, Sanders & Dempsey L.L.P. regarding the
legality of the securities being registered
12 Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
23(a) Consent of KPMG LLP
23(b) Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftspruefungsgesellschaft
23(c)** Consent of Squire, Sanders & Dempsey L.L.P. (included in
Exhibit 5)
24 Powers of Attorney for Mr. Mee and Ms. Warrior
25* Statement of Eligibility and Qualification of the Trustee on
Form T-1 under the Trust Indenture Act of 1939
- -------------------------
* To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in thethis Registration Statement.
Item** Previously filed with initial filing of this Registration Statement on
March 14, 2002.
II-2
ITEM 17. Undertakings.UNDERTAKINGS.
(a) The 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:
(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;
(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.
II-2
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 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.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(6) To file an application for the purpose of determining eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
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 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ferro
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
amendment to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio,
on this 14th10th day of March,April, 2002.
FERRO CORPORATION
By: * /s/ HectorHECTOR R. Ortino
--------------------------------ORTINO
------------------------------------
Hector R. Ortino,
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to Registration Statement has been signed by the following persons in their
indicated capacities as of the 14th10th day of March,April, 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
Bret W. Wise Principal Accounting Officer)
* /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
Director
- ------------------------------------
Michael F. Mee
* /s/ JOHN C. MORLEY Director
- ------------------------------------
John C. Morley
* /s/ WILLIAM J. SHARP Director
- ------------------------------------
William J. Sharp
* /s/ DENNIS W. SULLIVAN Director
- ------------------------------------
Dennis W. Sullivan
Director
- ------------------------------------
Padmasree Warrior
* /s/ ALBERTO WEISSER Director
- ------------------------------------
Alberto Weisser
*By /s/ James C. Bays
---------------------------------------
James C. Bays, Attorney-in Fact
/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
Bret W. Wise Principal Accounting Officer)
* /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/ JOHN C. MORLEY Director
- --------------------------------------------------
John C. Morley
* /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
*By /s/ JAMES C. BAYS
------------------------------------------
James C. Bays, Attorney-in-Fact
II-4
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------ -------
1(a) Form of Underwriting Agreement for Debt Securities, Common Stock,
Preferred Stock and Warrants
1(b)* Form of Underwriting Agreement for Depositary Shares, Stock
Purchase Contracts and Stock Purchase Units
4(a) Form of Senior Indenture (with Form of Senior Debt Security)
4(b) Form of Subordinated Indenture (with Form of Subordinated Debt
Security)
4(c) Form of Common Stock Certificate (Reference is made to Exhibit 4c
to Ferro Corporation's Registration Statement on Form S-3
(Registration No. 33-6385) filed on October 31, 1995, which
Exhibit is incorporated herein by reference)
4(d) Form of Preferred Stock Certificate (Reference is made to Exhibit
4d to Ferro Corporation's Registration Statement on Form S-3
(Registration No. 33-6385)
NUMBER EXHIBIT
- ------ -------
1(a)** Form of Underwriting Agreement for Debt Securities, Common
Stock, Preferred Stock and Warrants
1(b)* Form of Underwriting Agreement for Depositary Shares, Stock
Purchase Contracts and Stock Purchase Units
2(a) OMG-Ferro Purchase Agreement between the Company and OM
Group, Inc. dated as of August 31, 2001. (Reference is made
to Exhibit 2.0 to Ferro Corporation's Current Report on Form
8-K for the event dated September 7, 2001, which Exhibit is
incorporated herein by reference)
The Company agrees that it shall, upon request, furnish to
the Securities and Exchange Commission a copy of any exhibit
or annex to the OMG-Ferro Purchase Agreement that is not
filed with Exhibit 2(a).
2(b) Heads of Agreement between the Company and OM Group, Inc.
dated as of April 23, 2001. (Reference is made to Exhibit
10(b) to Ferro Corporation's Quarterly Report on Form 10-Q
for the quarter ended June 30, 2001, which Exhibit is
incorporated herein by reference)
The Company agrees that it shall, upon request, furnish to
the Securities and Exchange Commission a copy of any exhibit
or annex to the Heads of Agreement that is not filed with
Exhibit 2(b).
4(a)** Form of Senior Indenture (with Form of Senior Debt Security)
4(b)** Form of Subordinated Indenture (with Form of Subordinated
Debt Security)
4(c) Form of Common Stock Certificate (Reference is made to
Exhibit 4c to Ferro Corporation's Registration Statement on
Form S-3 (Registration No. 33-63855) filed on October 31,
1995, which Exhibit is incorporated herein by reference)
4(d) Form of Preferred Stock Certificate (Reference is made to
Exhibit 4d to Ferro Corporation's Registration Statement on
Form S-3 (Registration No. 33-63855) filed on October 31,
1995, which Exhibit is incorporated herein by reference)
4(e)** Form of Warrant Agreement for Debt Securities
4(e-1)** Form of Warrant Agreement for Equity Securities
4(f)** Form of Purchase Contract Agreement
4(f-1)** Form of Pledge Agreement
4(g)** Form of Deposit Agreement
4(h) 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(i) 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 20, 1998, which Exhibit is incorporated herein by
reference)
4(j) 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(k) 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(l) 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(l) to Ferro Corporation's Form 10-K for
the year ended December 31, 1999, which Exhibit is
incorporated herein by reference)
5
NUMBER EXHIBIT
- ------ -------
5** Opinion of Squire, Sanders & Dempsey L.L.P. regarding the
legality of the securities being registered
12 Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
23(a) Consent of KPMG LLP
23(b) Consent of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftspruefungsgesellschaft
23(c)** Consent of Squire, Sanders & Dempsey L.L.P. (included in
Exhibit 5)
24 Powers of Attorney of Mr. Mee and Ms. Warrior
25* Statement of Eligibility and Qualification of the Trustee on
Form T-1 under the Trust Indenture Act of 1939
- -------------------------
* To be filed by amendment or as an exhibit to a document to be incorporated or
deemed to be incorporated by reference in thethis Registration Statement.
** Previously filed with initial filing of this Registration Statement on March
14, 2002.