As filed with the Securities and Exchange Commission on September 14, 2009
Registration No. 333-161136
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 2002
REGISTRATION NO. 333-84322
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SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.DC 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNDER
THE SECURITIES ACT OF 1933
FERRO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
| Ohio (State or Other Jurisdiction of | 34-0217820 (I.R.S. Employer Identification Number) |
1000 LAKESIDE AVENUE
CLEVELAND, OHIOLakeside Avenue
Cleveland, Ohio 44114
(216) 641-8580
(Address, including zip code
Cleveland, Ohio 44114
(216) 641-8580
(Address, Including Zip Code, and telephone number,Telephone Number, Including area code,Area Code, of registrant's principal executive offices)
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BRET W. WISE
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FERRO CORPORATION
Registrant’s Principal Executive Offices)
Sallie B. Bailey
Vice President and Chief Financial Officer
Ferro Corporation
1000LAKESIDE AVENUE
CLEVELAND, OHIOLakeside Avenue
Cleveland, Ohio 44114
(216) 641-8580
(Name, address, including zip code,
Vice President and Chief Financial Officer
Ferro Corporation
1000
Cleveland, Ohio 44114
(216) 641-8580
(Name, Address, Including Zip Code, and telephone number,
number including area code,Telephone Number, Including Area Code, of agent for service)
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WITH COPIES TO:
Agent For Service)
Copies To:
| Mark H. Duesenberg Vice President, General Counsel and Secretary Ferro Corporation 1000 Lakeside Avenue Cleveland, Ohio 44114 (216) 641-8580 | Christopher M. Kelly Michael J. Jones Day 901 Lakeside Avenue Cleveland, Ohio 44114 Phone: (216) Fax: (216) |
Approximate date of commencement of proposed sale to the public:From time to time after the effective date of this Registration Statement.
registration statement becomes effective.
registration statement becomes effective.
If the only securities being registered on this Formform are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ]box.o
If any of the securities being registered on this Formform are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box: [X]box.þ
If this Formform 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 fromfor the same offering. [ ] ____________o
If this Formform 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. [ ] ____________o
If delivery ofthis form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THISo
If this form is a post-effective amendment to a registration statement pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filerþ | Accelerated filero | Non-accelerated filero | Smaller reporting companyo |
| (Do not check if a smaller reporting company) |
CALCULATION OF 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 OFFEE
| Proposed | ||||||||||||||||||||||
| Maximum | Proposed Maximum | |||||||||||||||||||||
| Title of Each Class of | Amount to be | Offering Price Per | Aggregate Offering | Amount of | ||||||||||||||||||
| Securities to be Registered | Registered (1) | Unit (1) (2) | Price (1) (3) | Registration Fee (1) | ||||||||||||||||||
| Common Stock, par value $1.00 per share (4)(11) | ||||||||||||||||||||||
| Preferred Stock, without par value (5)(11) | ||||||||||||||||||||||
| Depositary Shares (6)(11) | ||||||||||||||||||||||
| Warrants (7)(11) | ||||||||||||||||||||||
| Subscription Rights (8)(11) | ||||||||||||||||||||||
| Debt Securities (9)(11) | ||||||||||||||||||||||
| Units (10)(11) | ||||||||||||||||||||||
| Total | $300,000,000 | 100% | $300,000,000 (12) | $16,740 (13) | ||||||||||||||||||
| (1) | Not specified as to each class of securities to be registered pursuant to General Instruction II.D. to Form S-3. | |
| (2) | The proposed maximum offering price per unit will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder. | |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). | |
| (4) | Subject to note (12) below, there is being registered an indeterminate number of shares of common stock. | |
| (5) | Subject to note (12) below, there is being registered an indeterminate number of shares of preferred stock. | |
| (6) | Subject to note (12) below, there is being registered an indeterminate number of depositary shares to be evidenced by depositary receipts issued pursuant to a deposit agreement. If the registrant elects to offer to the public fractional interests in shares of preferred stock, then depositary receipts will be distributed to those persons purchasing the fractional interests and the shares will be issued to the depositary under the deposit agreement. | |
| (7) | Subject to note (12) below, there is being registered hereunder an indeterminate amount and number of warrants. The warrants may represent the right to purchase common stock, preferred stock or debt securities. | |
| (8) | Subject to note (12) below, there is being registered an indeterminate number of subscription rights that may represent a right to purchase common stock, preferred stock or debt securities. | |
| (9) | Subject to note (12) below, there is being registered an indeterminate principal amount of debt securities. | |
| (10) | Subject to note (12) below, there is being registered an indeterminate number of units. Each unit will be issued under a unit agreement and will represent an interest in a combination of one or more of the securities registered hereunder. | |
| (11) | Subject to note (12) below, this registration statement also covers an indeterminate amount of securities as may be issued in exchange for, or upon conversion or exercise of, as the case may be, the preferred stock, depositary shares, warrants, subscription rights or debt securities registered hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. No separate consideration will be received for any securities registered hereunder that are issued in exchange for, or upon conversion of, as the case may be, the preferred stock, depositary shares, warrants, subscription rights or debt securities. | |
| (12) | In no event will the aggregate initial offering price of all securities issued from time to time pursuant to the prospectus contained in this registration statement exceed $300,000,000 or the equivalent thereof in one or more foreign currencies or foreign currency units. Such amount represents the offering price of any common stock, preferred stock and depositary shares, the principal amount of any debt securities issued at their stated principal amount, the issue price rather than the principal amount of any debt securities issued at an original issue discount, the issue price of any warrants, the exercise price of any securities issuable upon the exercise of warrants and the issue price of any securities issuable upon the exercise of subscription rights. The aggregate principal amount of debt securities may be increased if any debt securities are issued at an original issue discount by an amount such that the offering price to be received by the registrant shall be equal to the above amount to be registered. Any offering of securities denominated other than in United States dollars will be treated as the equivalent of United States dollars based on the exchange rate applicable to the purchase of such securities at the time of initial offering. The securities registered hereunder may be sold separately or as units with other securities registered hereunder. | |
| (13) | Previously paid. | |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A)or until the 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 APRIL 10, 2002
PROSPECTUS
[FERRO CORPORATION LOGO]
$300,000,000
FERRO CORPORATIONmay determine.
The information in this preliminary prospectus is not complete and may be changed. We may not sell securities under this registration statement until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell any securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated September 14, 2009
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Depositary Shares
Warrants
Subscription Rights
Debt Securities
Units
Preferred Stock
Depositary Shares
Warrants
Subscription Rights
Debt Securities
Units
We may offer and sell from time to time separately, together or in units, the
following securities:
- debt securities,
- common stock,
- preferred stock,
- warrants to purchaseour common stock, preferred stock, ordepositary shares, warrants, subscription rights and debt securities, - depositary shares representing interestsas well as units that include any of these securities. We may sell any combination of these securities in preferred stock,
- stock purchase contracts to purchase common stockone or preferred stock,more offerings with an aggregate initial offering price of $300,000,000 or - stock purchase units comprised of stock purchase contracts and U.S.
government obligations.the equivalent amount in other currencies or currency units.
We will provide the specific terms of the securities we are offeringto be offered in prospectusone or more supplements to this prospectus. You should read this prospectus and the documentsapplicable prospectus supplement carefully before you invest in our securities. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement describing the method and terms of the offering of those offered securities.
We may sell the securities directly or to or through underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents that are included in a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus supplement. In addition, the underwriters, if any, may over-allot a portion of the securities.
Investing in any of our securities involves risk. Please read carefully the section entitled “Risk Factors” beginning on page 4 of this prospectus.
Our common stock is listed on the New York Stock Exchange under the symbol “FOE.” The closing price of our common stock on the New York Stock Exchange on September 11, 2009 was $8.26. None of the other securities that we may offer under this prospectus are currently publicly traded.
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 date of this prospectus is , 2009
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC using a “shelf” registration process. Under this shelf process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $300,000,000 or the equivalent amount in other currencies or currency units.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information under the heading “Where You Can Find More Information” and “Information We Incorporate By Reference.”
You should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus supplement carefully before you
decide to investor in any securities offered. Thisfree writing prospectus that we may provide you. We have not be usedauthorized anyone to consummate sales of any offered securities unless it is accompanied by a
prospectus supplement describingprovide you with different information. You should not assume that the terms of that offering.
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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 date of this prospectus is , 2002
TABLE OF CONTENTS
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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
offerany document incorporated by reference or any free writing prospectus is accurate as of any date, other than the date mentioned on the cover page of these documents. We are not making offers to sell or a solicitation of an offer to buy anythe securities offered in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to any persondo so or to anyone to whom it is unlawful to make suchan 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 informationsolicitation.
References in this prospectus is correct as of
any time subsequent to the terms “we,” “us” or “the Company” or other similar terms mean Ferro Corporation and its date.
consolidated subsidiaries, unless we state otherwise or the context indicates otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the Securities Exchange Act of 1934. We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission.SEC. Our SEC filings are available over the Internet at the SEC’s web site at http://www.sec.gov. You may read and copy any document we file with the SEC at their public reference roomsreports, statements and other information filed by us at the following locations:
SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operations of the public reference rooms. OurPublic Reference Room. You may also inspect our SEC filings also are available to
the publicreports and other information 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 listed10005, or at our web site at http://www.ferro.com. We do not intend for information contained 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 consideredor accessible through our web site to be part of this prospectus.
Any information we incorporate by reference that we filed prior toprospectus, other than 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.
Informationdocuments that we file with the SEC that are incorporated by reference into this prospectus.
INFORMATION WE INCORPORATE BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them, which means:
| • | incorporated documents are considered part of the prospectus; | ||
| • | we can disclose important information to you by referring you to those documents; and | ||
| • | information that we file with the SEC after the date of this prospectus will automatically update and supersede the information contained in this prospectus and incorporated filings. |
We incorporate by reference the documents listed below that we filed with the SEC under the Exchange Act:
| • | our Annual Report on Form 10-K for the year ended December 31, 2008; | ||
| • | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009 and June 30, 2009; | ||
| • | our Current Reports on Form 8-K filed on January 7, 2009; January 28, 2009; February 4, 2009; March 11, 2009; June 3, 2009; August 6, 2009 and August 17, 2009; | ||
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| • | the description of our common stock contained in the registration statement on Form S-8 (Registration No. 33-12397) filed with the SEC on March 2, 1987, and all amendments and reports filed for the purpose of updating that description; and | ||
| • | the description of our preferred stock contained in the registration statement on Form S-8 (registration No. 33-28520) filed May 3, 1989, and all amendments and reports filed for the purpose of updating that description. |
Our Current Report on Form 8-K filed on August 6, 2009 updates Items 1A, 6, 7, 8, 9A, and 15 of our annual Report on Form 10-K for the year ended December 31, 2008.
We also incorporate by reference each of the documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the initial filing of this registration statement, of which this prospectus forms a part, prior to the effectiveness of this registration statement and (2) after the date of this prospectus until the offering of the securities terminates. We will not, however, incorporate by reference in this prospectus any documents or portions thereof that are not deemed “filed” with the applicableSEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of our current reports on Form 8-K after the date of this prospectus supplementunless, and except to the extent, specified in such current reports.
We will automatically modifyprovide you with a copy of any of these filings (other than an exhibit to these filings, unless the exhibit is specifically incorporated by reference into the filing requested) at no cost, if you submit a request to us by writing or telephoning us at the following address and supersede the
information includedtelephone number:
Ferro Corporation
1000 Lakeside Avenue
Cleveland, Ohio 44114
Telephone Number: (216) 641-8580
Attn: Secretary
1000 Lakeside Avenue
Cleveland, Ohio 44114
Telephone Number: (216) 641-8580
Attn: Secretary
Any statement contained or incorporated by reference in this prospectus shall be deemed to be modified or the
applicablesuperseded for purposes of this prospectus supplement (including information we subsequently file
with the SEC that we also incorporate by reference) to the extent that thea statement contained herein, or in any subsequently filed informationdocument which also is incorporated herein by reference, modifies or supersedes the existing information.
We incorporate by reference our future filings with the SEC under section 13(a),
13(c), 14such earlier statement. Any statement so modified or 15(d)
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superseded shall not be deemed, except as so modified or superseded, to constitute a part 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:
- Annual Report on Form 10-K for the fiscal year ended December 31, 2001;
- Proxy Statement for the 2002 Annual Meeting of 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.prospectus. Any statement made in this prospectus or the applicable prospectus
supplement concerning the contents of any contract, agreement or other document is only a summary of the actual contract, agreement or other document. If we have filed or incorporated by reference any contract, agreement or other document andas an exhibit to the registration statement, you should read the exhibit for a more complete understanding of the document or matter involved. Each statement regarding a contract, agreement or other document is qualified in its entirety by reference to the actual document. You may obtain
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THE COMPANY
Ferro Corporation was incorporated in Ohio in 1919 as an enameling company. Today, we are a copyleading producer of any document summarizedspecialty materials and chemicals that are sold to a broad range of manufacturers who, in turn, make products for many end-use markets. Through manufacturing sites around the world, we produce the following types of products:
| • | Inorganic specialty products — High-quality glazes, frits, enamels, pigments, dinnerware decoration colors and other performance materials; | ||
| • | Organic specialty products — Polymer specialty materials, engineered plastic compounds, pigment dispersions, and high-potency pharmaceutical active ingredients; and | ||
| • | Electronic materials — High-performance dielectrics, conductive pastes, metal powders and polishing materials. |
We refer to our products as performance materials and chemicals because we formulate them to perform specific functions in the manufacturing processes and end products of our customers. The products we develop often are delivered to our customers in combination with customized technical service. The value of our products stems from the benefits they deliver in actual use.
Corporate Information
Our principal executive offices are located 1000 Lakeside Avenue, Cleveland, Ohio 44114. Our telephone number is (216) 641-8580. Our website is www.ferro.com. The information contained on or accessible through our website is not part of this prospectus, orother than the applicable prospectus supplement or any documentdocuments that we file with the SEC that are incorporated by reference into this prospectus orprospectus.
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RISK FACTORS
Investing in our securities involves risk. Prior to making a decision about investing in our securities, you should carefully consider 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 informationspecific factors discussed under the heading “Risk Factors” in our most recent Annual Report on Form 10-K and in our most recent Quarterly Reports on Form 10-Q, which are incorporated herein by reference in this
prospectus) contains forward-looking statements withinand may be amended, supplemented or superseded from time to time by other reports we file with 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 describedSEC in the documents incorporated by reference in this
prospectus and include the following:
- The outcome of our efforts to integrate the dmc(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;
- 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.future. The risks and uncertainties identified abovewe have described are not the only risksones we face. Additional risks and uncertainties not presently known to us or that we currently believedeem immaterial may also affect our operations. If any of these risks actually occurs, our business, results of operations and financial condition could suffer. In that case, the trading price of our securities could decline, and you could lose all or a part of your investment.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference, contains, and any prospectus supplement may contain, statements that constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements may be identified by the use of predictive, future-tense or forward-looking terminology, such as “believes,” “anticipates,” “expects,” “estimates,” “intends,” “may,” “will” or similar terms. These statements speak only as of the date of this prospectus, the date of the prospectus supplement or the date of the document incorporated by reference, as applicable, and we undertake no ongoing obligation, other than that imposed by law, to be immaterial also may adversely affect us. Shouldupdate these statements. These statements appear in a number of places in this prospectus, including the documents incorporated by reference, and relate to, among other things, our intent, belief or current expectations with respect to: our future financial condition, results of operations or prospects; our business and growth strategies; and our financing plans and forecasts. You are cautioned that any known or unknownsuch forward-looking statements are not guarantees of future performance and involve significant risks and uncertainties, develop intoand that actual events,results may differ materially from those contained in or implied by the forward-looking statements as a result of various factors, some of which are unknown, including, without limitation:
| • | Our products are sold into industries where demand is unpredictable, cyclical or heavily influenced by consumer spending, and such demand may be impacted by macro-economic circumstances and uncertainties in credit markets; | ||
| • | We are subject to a number of restrictive covenants in our credit facilities, and those covenants could affect our flexibility to fund strategic initiatives and lead to challenges in meeting our liquidity requirements, particularly if weak economic conditions continue for a prolonged period; | ||
| • | We depend on external financial resources, and the economic environment and the state of the credit markets could interrupt our access to capital markets, borrowings, or financial transactions to hedge certain risks, which could adversely affect our financial condition; | ||
| • | Interest rates on some of our borrowings are variable, and our borrowing costs could be affected adversely by interest rate increases; | ||
| • | Many of our assets are encumbered by liens that have been granted to lenders, and those liens affect our flexibility to dispose of property and businesses; | ||
| • | We have significant deferred tax assets, and our ability to utilize these assets will depend on our future performance; | ||
| • | We are subject to certain continued listing requirements with the New York Stock Exchange, including share price, shareholders’ equity and market capitalization, and noncompliance with these New York Stock Exchange rules could result in the delisting of our common stock from the New York Stock Exchange; | ||
| • | We depend on reliable sources of energy and raw materials, including petroleum-based materials and other supplies, at a reasonable cost, but availability of such materials and supplies could be interrupted and/or the prices charged for them could escalate; | ||
| • | The markets in which we participate are highly competitive and subject to intense price competition; |
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| • | We strive to improve operating margins through sales growth, price increases, productivity gains, improved purchasing techniques, and restructuring activities, but we may not be successful in achieving the desired improvements; | ||
| • | The global scope of our operations exposes us to risks related to currency conversion rates and changing economic, social and political conditions around the world; | ||
| • | We have a growing presence in the Asia-Pacific region where it can be difficult for a U.S.-based company to compete lawfully with local competitors; | ||
| • | Regulatory authorities in the United States, European Union and elsewhere are taking a much more aggressive approach to regulating hazardous materials, and those regulations could affect our sales; | ||
| • | Our operations are subject to operating hazards and, as a result, to stringent environmental, health and safety regulations and compliance with those regulations could require us to make significant investments; | ||
| • | We are a defendant in several lawsuits that could have an adverse effect on our financial condition and/or financial performance unless they are successfully resolved; | ||
| • | Our businesses depend on a continuous stream of new products, and failure to introduce new products could affect our sales and profitability; | ||
| • | We are subject to stringent labor and employment laws in certain jurisdictions in which we operate, we are party to various collective bargaining arrangements, and our relationship with our employees could deteriorate, which could adversely impact our operations; | ||
| • | Employee benefit costs, especially post-retirement costs, constitute a significant element of our annual expenses, and funding these costs could adversely affect our financial condition; | ||
| • | Our restructuring initiatives may not provide sufficient cost savings to justify their expense; | ||
| • | We are exposed to intangible asset risk; | ||
| • | We have in the past identified material weaknesses in our internal controls, and the identification of any material weaknesses in the future could affect our ability to ensure timely and reliable financial reports; and | ||
| • | We are exposed to risks associated with acts of God, terrorists and others, as well as fires, explosions, wars, riots, accidents, embargoes, natural disasters, strikes and other work stoppages, quarantines and other governmental actions, and other events or circumstances that are beyond our control. |
These factors and the other risk factors described in this prospectus and any accompanying prospectus supplement, including the documents incorporated by reference, are not necessarily all of the important factors that could cause actual results to differ materially from those expressed in any of our forward-looking statements. Other unknown or unpredictable factors also could harm our results. Consequently, there can be no assurance that the actual results or developments couldanticipated by us will be realized or, even if substantially realized, that they will have material adversethe expected consequences to or effects on our business, financial
condition and results of operations.
iii
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.
us.
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USE OF PROCEEDS
Except as
Unless we inform you otherwise described in the applicable prospectus supplement, we intendexpect to use the net proceeds from the sale of securities offered by this
prospectus for general corporate purposes. These purposes which may include, capital
expenditures, acquisitions and reductions of our indebtedness. Webut are not limited to:
| • | reduction or refinancing of outstanding indebtedness or other corporate obligations; | ||
| • | additions to working capital; | ||
| • | capital expenditures; and | ||
| • | acquisitions. |
Pending any specific application, we may temporarilyinitially invest funds not immediately required for such purposes in short-term marketable securities.
securities or apply them to the reduction of short-term indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
- ---------------
(1)
The following table sets forth our ratio of consolidated earnings to fixed charges has been calculated by dividing (i)
income before income taxes plus fixed charges by (ii) fixed charges.for the periods presented:
| Year ended December 31, | Six months ended June 30, | ||||||||||||||||||||||||
| 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | ||||||||||||||||||||
| Ratio of earnings to fixed charges | 1.79 | 1.46 | 1.27 | — | — | — | |||||||||||||||||||
| Ratio of earnings to | 1.71 | 1.40 | 1.25 | — | — | — | |||||||||||||||||||
| combined fixed charges and preferred stock dividends | |||||||||||||||||||||||||
Fixed charges are equal to interest expense (including amortization of deferred financing costs)costs and costs associated with the Company’s asset securitization program), plus the portion of rent expense estimated to represent interest. PreferredCombined fixed charges are equal to fixed charges plus preferred stock dividends consist of the amount of pre-taxdividends. Total earnings to pay dividends on the outstanding preferred stock. Earnings were insufficient to cover the fixed charges by $49 million for the yearyears 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 applicable debt
securities. We may issue the senior debt securities2007 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.
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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;
- 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 within 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.
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.
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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.
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.
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 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 indebtedness2008 and for the payment of
which we are responsible or liable,six months ended June 30, 2009 by guarantees or otherwise;
- money borrowed$118.2 million, $58.2 million and $43.7 million, respectively, and were insufficient to cover the combined fixed charges for the years ended December 31, 2008 and 2007 and for the six months ended June 30, 2009 by others, which we have assumed or guaranteed;
- capitalized lease obligations;$119.4 million, $59.1 million 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$44.2 million, respectively. The insufficient earnings were primarily due to the subordinated debt securities.
In the event we distribute our assets following dissolution, winding up,
liquidation or reorganization, the holdersnon-cash impairment charges of senior indebtedness will be
entitled to be paid in full in respect of principal, premium, if any,$128.7 million 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$80.2 million in the applicable
prospectus supplement. The trustee may perform services for usyears ended December 31, 2007 and 2008, respectively, and operating losses 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.
six months ended June 30, 2009. Accordingly, such ratios are not presented.
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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. GENERALFor more information on how you can obtain copies of our Amended Articles of Incorporation and Amended Code of Regulations, see “Where You Can Find More Information.”
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
29, 2002, 34,840,055 shares of common stock (excluding treasury stock) were
issued and outstanding. In addition, as of that date, 4,376,560 shares were
issuable under outstanding stock options granted under our stock option plans.
7
Our outstanding common stock is, and the
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“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 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
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
Anti-takeover 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 DIRECTORS
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Classified 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.
8
NUMBER OF DIRECTORS; FILLING VACANCIES
Number of Directors; Filling of 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'sdirector’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.
SPECIAL MEETINGS
Special 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 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 ACQUISITIONS
Control Share Acquisitions
Section 1701.831 of the Ohio Revised Code provides that specifiedcertain notice and informational filings and special shareholder meeting and voting procedures must be followed prior to consummation of a proposed "control“control share acquisition."” The Ohio Revised Code defines a "control“control share acquisition"acquisition” as any acquisition of an issuer'sissuer’s shares thatwhich would entitle the acquirer, immediately after thethat acquisition, directly or indirectly, to
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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-thirdranges 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.
power:
| • | 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“interested shares." "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 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 thereof, after the record date for the meeting of shareholders.
BUSINESS COMBINATIONS
Business Combinations
We are subject to Chapter 1704 of the Ohio Revised Code, which prohibits certain business combinations and transactions between an "issuing“issuing public corporation"corporation” and an "interested shareholder"“Ohio law interested shareholder” for at least three years after the Ohio law interested shareholder attains 10% ownership, of the issuing public corporation, unless the board of directors of the issuing public corporation approves the transaction prior tobefore the Ohio law interested shareholder attaining suchattains 10% ownership. An "issuing“issuing public corporation"corporation” is an Ohio corporation with 50 or more shareholders that has its principal place of
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business, principal executive offices, or substantial assets within the State of Ohio, and as to which no close corporation agreement exists. An "interested shareholder"“Ohio law 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 specifiedprovided that certain conditions are satisfied, including:
-
| • | prior to the interested shareholder’s share acquisition date, the board of directors approved the purchase of shares by the interested shareholder; | ||
| • | the transaction is approved by the holders of shares with at least 662/3% 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 Ohio law interested shareholder; or | ||
| • | the business combination results in shareholders, other than the Ohio law interested shareholder, receiving a fair price plus interest for their shares. |
Chapter 1704 is applicable 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.
all corporations formed under Ohio law.
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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. GENERALFor more information on how you can obtain copies of our Amended Articles of Incorporation and Amended Code of Regulations, see “Where You Can Find More Information.”
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, without par value, and authorized the issuance of up to 1,762,500 shares of such stock to National City Bank, asthe trustee for our Employee Stock Ownership Plan.
As of March 29, 2002, 825,816 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
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 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.
| • | 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 shall be cumulative; | ||
| • | the redemption price or prices for the particular series, if applicable; | ||
| • | 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.
Voting Rights
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
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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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| • | 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; | ||
| • | 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. |
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
- 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
| • | 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 | ||
| • | 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
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
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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
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 | ||
| • | provisions affecting conversion in the event of the redemption of the series of preferred stock. |
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DESCRIPTION OF DEPOSITARY SHARES
General
We may offer depositary shares representing fractional shares of our preferred stock of any series. The following description sets forth certain general terms and provisions of the depositary shares that we may offer pursuant to this prospectus. The particular terms of the depositary shares, including the fraction of a preferred share that such depositary share will represent, and the extent, if any, to which the general terms and provisions may apply to the depositary shares so offered will be described in the applicable prospectus supplement.
The shares of preferred stock represented by depositary shares will be deposited under a depositary agreement between us and a bank or trust company that meets certain requirements and is selected by us, which we refer to as the Bank Depositary. Each owner of a depositary share will be entitled to all the rights and preferences of the shares of preferred stock are convertible;
-represented by the conversion price ordepositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering. The deposit agreement will also contain provisions relating to the manner of calculating the conversion price;
- the conversion date(s)in which any subscription or period(s);
- provisions assimilar rights we offer to whether conversion will be at the option of the holders of the preferred stock or at our option;
-will be made available to the events requiring an adjustmentholders of the conversion price; and
- provisions affecting conversion in the event of the redemption of the
series of preferred stock.
DESCRIPTION OF DEPOSITARY SHARESdepositary shares.
The following description is a general summary of some common provisions of a depositary agreement and the terms of therelated depositary shares that we may issue.receipts. 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 the related depositary receipts. Copies of the form of depositary agreement and the depositary receipts which are filed as an exhibitrelating to the registration statementany particular issue 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,filed with the "depositary" named inSEC each time we issue depositary shares, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the depositary agreement and the holders from
time to time of therelated depositary shares. Subject to the terms of the deposit
agreement, each holder ofreceipts, see “Where You Can Find More Information.”
Dividends and Other Distributions
If we pay a depositary share will be entitled, in proportion to
the fractional interest ofcash distribution or dividend on 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 sharesBank Depositary will be
evidenced by depositary receipts issued pursuantdistribute these dividends to the applicable deposit
agreement. Immediately followingrecord holders of these depositary shares. If the issuance and delivery of our preferred
stockdistributions are in property other than cash, the Bank Depositary will distribute the property to the depositary, we will cause the depositary to issue, on our behalf,
the depositary receipts.
The depositary will forward torecord 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.shares. However, if the depositaryBank Depositary determines that it is not feasible to make a noncashthe distribution of property, the depositaryBank Depositary may, with our approval, sell thethis property and distribute the net proceeds from thethis sale to the holders.
No distribution will be made in respectrecord holders of anythe depositary share to the
extent that it represents any preferred stock converted into other securities.
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WITHDRAWAL OF PREFERRED STOCK
Holdersshares.
Redemption 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 sharesDepositary Shares
If we redeem a series 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. HoldersBank Depositary 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. Ifredeem the depositary shares surrendered tofrom 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.
REDEMPTION OF DEPOSITARY SHARES
Whenever we redeem shares of preferred stock heldproceeds received by the depositary, we
will payBank Depositary in full toconnection with 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 proportionapplicable fraction of the redemption price and any other
amounts per share payable with respect toof the preferred stock. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as nearly asthe Bank Depositary may be practicable without creating
fractional depositary shares, or by another equitable method.
All dividends in respect ofdetermine.
Voting 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 STOCKPreferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the depositaryBank Depositary will mail the information contained
innotice to the notice of meeting to therecord holders of the depositary shares which represent
suchrelating to the preferred stock. Each record holder of these depositary shares on the record date which(which will be the same date as the record date for the preferred stock, will be
entitled tostock) may instruct the depositaryBank Depositary as to the exercise of the voting rights
pertaininghow to vote the amount of preferred stock represented by the holder'sthis holder’s depositary shares. The depositaryBank Depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by thesuch depositary shares in accordance with thethese instructions, and we will agree to take all reasonable action which may be deemedthe Bank Depositary deems necessary by the
depositary in order to enable the depositaryBank Depositary to do so. The depositaryBank Depositary will abstain from voting shares of 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 faithshares representing this preferred stock.
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Amendment and does not result
from negligence or willful misconductTermination 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
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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.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENTDepositary Agreement
The form of depositary receipt evidencing the depositary shares that
represent the preferred stock and any provision of the depositdepositary agreement may at
any time be amended by agreement between the depositaryBank 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 thethis amendment has been approved by the holders of at least a majority of the outstanding depositary shares. Subject to certain exceptionsshares then outstanding. The depositary agreement may be terminated by the Bank Depositary or us only if:
| • | all outstanding depositary shares have been redeemed; or | ||
| • | there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of the Company and this distribution has been distributed to the holders of depositary receipts. |
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the Bank Depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and any other charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositdepositary agreement no amendmentto be for their accounts.
Withdrawal of Preferred Stock
Except as may impairbe provided otherwise in the right of any holderapplicable prospectus supplement, upon surrender of depositary sharesreceipts at the principal office of the Bank Depositary, subject to surrender anythe terms of the depositary agreement, the owner of the depositary shares with instructions to
deliver tomay demand delivery of the holder the relatednumber of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Fractional shares of preferred stock will not be issued. If 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 boundreceipts delivered 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 ifholder evidence a majority of each classnumber of depositary shares affected byin excess of the termination consents. In that case, the depositary will deliver or make
available to each holdernumber of depositary shares upon surrender of the depositary
shares held by the holder,representing the number of whole or fractional shares of preferred stock as are represented byto be withdrawn, the Bank Depositary will deliver to this holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares together with any other
property held by thetherefor.
Miscellaneous
The Bank Depositary will forward to holders of depositary with respectreceipts all reports and communications from us that are delivered 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 upBank Depositary and that distribution has been distributedwe are required to furnish to the holders of preferred stock.
Neither the Bank Depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the depositary agreement. The obligations of the Bank Depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and we will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares representingor shares of preferred stock unless satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or upon information provided by persons presenting shares of preferred stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The Bank Depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the Bank Depositary. Any such preferred stock;resignation or - each shareremoval will take effect upon the appointment of a successor Bank Depositary and the successor’s acceptance of this appointment. The successor Bank Depositary must be appointed within 60 days after delivery of the related preferred stock has been converted into our
securities not represented bynotice of resignation or removal and must be a bank or trust company meeting the requirements of the depositary shares.
agreement.
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DESCRIPTION OF WARRANTS
General Description of Warrants
We may issue warrants for the purchase of common stock, preferred stock, depositary shares or debt securities. The following description is asets forth certain general summary of the terms and provisions of the warrants that we may issue.offer pursuant to this prospectus. The description below and in any prospectus supplement does
not include all of theparticular terms of the warrants and shouldthe extent, if any, to which the general terms and provisions may apply to the warrants so offered will be read together withdescribed in the applicable warrant agreement, which is filed as an exhibit to the
registration statement of which this prospectus is a part.
GENERAL
Wesupplement.
Warrants may issue,be issued independently or together with other securities and may be attached to or separately,separate from any offered securities. Each series of warrants to
purchase our common stock, preferred stock or debt securities. We will issue the
warrantsbe issued under a separate warrant agreementsagreement 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.agent. The warrant agent will act solely as our agent in connection with the warrants of the series being offered and will not assumehave any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
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A copy of the forms of the warrant agreement and the warrant certificate relating to any particular issue of warrants will be filed with the SEC each time we issue warrants, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the warrant agreement and the related warrant certificate, see “Where You Can Find More Information.”
Debt Warrants
The applicable prospectus supplement relating to a particular issue of warrants to issue debt securities will describe the following terms where applicable, of anythose warrants, offered by thisincluding the following:
| • | the title of the warrants; | ||
| • | the offering price for the warrants, if any; | ||
| • | the aggregate number of the warrants; | ||
| • | the designation and terms of the debt securities purchasable upon exercise of the warrants; | ||
| • | if applicable, the designation and terms of the debt securities that the warrants are issued with and the number of warrants issued with each debt security; | ||
| • | if applicable, the date from and after which the warrants and any debt securities issued with them will be separately transferable; | ||
| • | the principal amount of debt securities that may be purchased upon exercise of a warrant and the price at which the debt securities may be purchased upon exercise; | ||
| • | the dates on which the right to exercise the warrants will commence and expire; | ||
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; | ||
| • | whether the warrants represented by the warrant certificates or debt securities that may be issued upon exercise of the warrants will be issued in registered or bearer form; | ||
| • | information relating to book-entry procedures, if any; | ||
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; | ||
| • | if applicable, a discussion of material United States federal income tax considerations; | ||
| • | anti-dilution provisions of the warrants, if any; | ||
| • | redemption or call provisions, if any, applicable to the warrants; |
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| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and | ||
| • | any other information we think is important about the warrants. |
Stock Warrants
The prospectus andsupplement relating to a particular issue of warrants to issue common stock, preferred stock or depositary shares will describe 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;
- 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 thecommon stock 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 thepreferred stock warrants, including terms, procedures and
limitations relating to the following:
| • | the title of the warrants; | ||
| • | the offering price for the warrants, if any; | ||
| • | the aggregate number of the warrants; | ||
| • | the designation and terms of the common stock, preferred stock or depositary shares that may be purchased upon exercise of the warrants; | ||
| • | if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; | ||
| • | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; | ||
| • | the number of shares of common stock or preferred stock or depositary shares that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise; | ||
| • | the dates on which the right to exercise the warrants commence and expire; | ||
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; | ||
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; | ||
| • | if applicable, a discussion of material United States federal income tax considerations; | ||
| • | anti-dilution provisions of the warrants, if any; | ||
| • | redemption or call provisions, if any, applicable to the warrants; | ||
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and | ||
| • | any other information we think is important about the warrants. |
Exercise of the warrants.
EXERCISE OF WARRANTSWarrants
Each warrant will entitle the holder of the warrant 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 exercisablesupplement the shares of common stock, shares of preferred stock, depositary shares or the principal amount of debt securities being offered. Holders may exercise warrants 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 becomeare void. Warrants will be exercisableHolders may exercise warrants as set forth in the applicable prospectus supplement. Upon receiptsupplement relating to the warrants being offered.
Until a holder exercises the warrants to purchase our common stock, preferred stock, depositary shares or debt securities, the holder will not have any rights as a holder of paymentour common stock, preferred stock, depositary shares or debt securities, as the case may be, by virtue of ownership of warrants.
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DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue to our shareholders subscription rights to purchase our common stock, preferred stock, depositary shares or debt securities. The following description sets forth certain general terms and provisions of the subscription rights that we may offer pursuant to this prospectus. The particular terms of the subscription rights and the properly completed warrant
certificate atextent, if any, to which the corporate trust office ofgeneral terms and provisions may apply to the warrant agent or any other
office indicatedsubscription rights so offered will be described 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 contractssupplement.
Subscription rights may be issued separatelyindependently or as a part of units (referred to intogether with any other security offered by this prospectus as stockand may or may not be transferable by the shareholder receiving the rights in the rights offering. In connection with any rights offering, we may enter into a standby underwriting agreement with one or more underwriters pursuant to which the underwriter will purchase units), each consisting of a stock purchase contract and debt
obligationsany securities that remain unsubscribed for upon completion of the United States of Americarights offering, or its agencies or instrumentalities
securing the holders' obligationsoffer these securities to purchase the securities under the stock
purchase contracts. The stock purchase contracts may require us to make periodic
payments to the holdersother parties who are not our shareholders. A copy of the 16
stock purchase units or vice versa,form of subscription rights certificate will filed with the SEC each time we issue subscription rights, and such paymentsyou should read that document for provisions that may be unsecured or
prefundedimportant to you. For more information on how you can obtain a specified basis. The stock purchase contracts may require holders
to secure their obligations in a specified manner.copy of any subscription rights certificate, see “Where You Can Find More Information.”
The applicable prospectus supplement relating to any subscription rights will describe the terms of any stock
purchase contractsthe offered subscription rights, including, where applicable, the following:
| • | the exercise price for the subscription rights; | ||
| • | the number of subscription rights issued to each shareholder; | ||
| • | the extent to which the subscription rights are transferable; | ||
| • | any other terms of the subscription rights, including terms, procedures and limitations relating to the exchange and exercise of the subscription rights; | ||
| • | the date on which the right to exercise the subscription rights will commence and the date on which the right will expire; | ||
| • | the extent to which the subscription rights include an over-subscription privilege with respect to unsubscribed securities; and | ||
| • | the material terms of any standby underwriting arrangement entered into by us in connection with the subscription rights offering. |
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of the debt securities that we may issue, which may be issued as convertible or stock purchase units. The description inexchangeable debt securities. We will set forth the applicable
prospectus supplement will be a general summary of theparticular terms of the stock
purchase contracts or stock purchase unitsdebt securities we offer in a prospectus supplement and the extent, if any, to which the following general terms and provisions will not include allapply to particular debt securities.
The debt securities will be issued under an indenture to be entered into between us and Wilmington Trust FSB, as trustee. The indenture, and any supplemental indentures thereto, will be subject to, and governed by, the Trust Indenture Act of the1939, as amended. The following description of general 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 arrangementsprovisions relating to the stock
purchase contracts or stock purchase units.debt securities and the indenture under which the debt securities will be issued is a summary only and therefore is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of the indenture. The form of the purchase contract
agreement isindenture has been filed with the SEC as an exhibit to the registration statement, of which this prospectus isforms a part.
BOOK-ENTRY SECURITIESpart, and you should read the indenture for provisions that may be important to you. For more information on how you can obtain a copy of the form of the indenture, see “Where You Can Find More Information.”
Capitalized terms used in this section and not defined herein have the meanings specified in the indenture. When we refer to “Ferro Corporation,” “we,” “our” and “us” in this section, we mean Ferro Corporation excluding, unless the context otherwise requires or as otherwise expressly stated, our subsidiaries.
Unless otherwise specified in a prospectus supplement, the debt securities will be our direct, unsecured obligations and will rank equally with all of our other unsecured indebtedness.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth or determined in the manner provided in a resolution of our Board of Directors, supplemental indenture or officers’ certificate. The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series. Debt securities may differ between series in respect to any matter, but all series of debt securities will be equally and ratably entitled to the benefits of the indenture. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
| • | the title of the series of debt securities; | ||
| • | the price or prices (expressed as a percentage of the principal amount) at which the series of debt securities will be issued; | ||
| • | any limit on the aggregate principal amount of the series of debt securities; | ||
| • | the date or dates on which the principal on the series of debt securities is payable; | ||
| • | the rate or rates (which may be fixed or variable) per annum, if applicable, or the method used to determine such rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the series of debt securities will bear interest, if any, the date or dates from which such interest, if any, will accrue, the date or dates on which such interest, if any, will commence and be payable and any regular record date for the interest payable on any interest payment date; | ||
| • | the place or places where the principal of, premium and interest, if any, on the series of debt securities will be payable; | ||
| • | if applicable, the period within which, the price at which and the terms and conditions upon which the series of debt securities may be redeemed; |
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| • | any obligation we may have to redeem or purchase the series of debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of the series of debt securities; | ||
| • | the dates, if any, on which and the price or prices at which we will repurchase the series of debt securities at the option of the holders of that series of debt securities and other detailed terms and provisions of such repurchase obligations; | ||
| • | the denominations in which the series of debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; | ||
| • | the form of the series of debt securities and whether the series of debt securities will be issuable as global debt securities; | ||
| • | the portion of principal amount of the series of debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; | ||
| • | the currency of denomination of the series of debt securities and, if other than U.S. Dollars or the ECU, the agency responsible for overseeing such currency; | ||
| • | the designation of the currency, currencies or currency units in which payment of principal of, premium and interest, if any, on the series of debt securities will be made; | ||
| • | if payments of principal of, premium or interest, if any, on the series of debt securities will be made in one or more currencies or currency units other than that or those in which the series of debt securities are denominated, the manner in which the exchange rate with respect to such payments will be determined; | ||
| • | the manner in which the amounts of payment of principal of, premium or interest on the series of debt securities will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index; | ||
| • | any provisions relating to any security provided for the series of debt securities; | ||
| • | any addition to or change in the Events of Default described in this prospectus or in the indenture which applies to the series of debt securities and any change in the right of the trustee or the holders of the series of debt securities to declare the principal amount thereof due and payable; | ||
| • | any addition to or change in the covenants described in this prospectus or in the indenture with respect to the series of debt securities; | ||
| • | any other terms of the series of debt securities (which may supplement, modify or delete any provision of the indenture as it applies to such series); | ||
| • | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the series of debt securities, if other than appointed in the indenture; | ||
| • | any provisions relating to conversion of the series of debt securities; and | ||
| • | whether the series of debt securities will be senior or subordinated debt securities and a description of the subordination thereof. |
In addition, the indenture does not limit our ability to issue convertible or subordinated debt securities. Any conversion or subordination provisions of a particular series of debt securities will be set forth in the resolution
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of our Board of Directors, the officers’ certificate or supplemental indenture related to that series of debt securities and will be described in the relevant prospectus supplement. Such terms may include provisions for conversion, either mandatory, at the option of the holder or at our option, in which case the number of shares of common stock or other securities to be received by the holders of debt securities would be calculated as of a time and in the manner stated in the prospectus supplement.
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the 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 formsupplement.
Transfer and Exchange
Each debt security will be evidencedrepresented by either one or more global securities that will be deposited with,
or on behalf of, a depositary identifiedregistered in the applicable prospectus supplement
relating to the securities.name of The Depository Trust Company, is expectedas Depositary (the “Depositary”), or a nominee (we will refer to serve as
depository. Aany debt security represented by a global debt security may not be transferred except as a whole between
the depository and one or more of its nominees“book-entry debt security”), or a successor. Global securities
may becertificate issued in eitherdefinitive registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect(we will refer to any debt security represented by a class or series of securities that differ from the terms described in this
prospectus will be describedcertificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Unless otherwise indicatedExcept as set forth under the heading “—Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities.You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System.Each global debt security representing book-entry debt securities will be issued to the Depositary or a nominee of the Depositary and registered in the applicable prospectus supplement, we
anticipate thatname of the Depositary or a nominee of the Depositary.
The Depositary has indicated it intends to follow the following provisionsprocedures with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will applybe limited to depository arrangements.persons that have accounts with the Depositary for the related global debt security (“participants”) or persons that may hold interests through participants. Upon the issuance of a global debt security, the depository for the global
security or its nomineeDepositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the individualbook-entry debt securities represented by thesuch global debt security to the respective accounts of the beneficial owners of
the individual securities, who are called "participants."beneficially owned by such participants. The accounts to be credited will be designated by theany dealers, underwriters dealers or agents with respect toparticipating in the securities
or by us if we directly offer and selldistribution of the book-entry debt securities. Ownership of a beneficial
interest in a global security will be limited to the depository's participants
andbook-entry debt securities will be shown on, and the records maintained by the depository or its nominee.
Transferstransfer of thatsuch ownership interestinterests 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.Depositary for the related global debt security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants). The laws of some states may require that certain purchasers of securities take
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physical delivery of thesuch securities in definitive form. These laws may impair the ability to own, pledgetransfer or transferpledge beneficial interests in a
global security.book-entry debt securities.
So long as the depositoryDepositary for a global debt security, or its nominee, is the registered owner of thethat global debt security, the depositoryDepositary or its nominee, as the case may be, will be considered the sole owner or holder of the book-entry debt securities represented by thesuch global debt security for all purposes under the applicable instrument defining the
rights of a holder of the underlying securities.indenture. Except as described below, or in
the applicable prospectus supplement, participants, or anyone holding through a
participant,beneficial owners of book-entry debt securities 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 securitiesa certificate in definitive form representing securities and will not be considered the owners or holders of the underlyingthose securities under the applicable
instrument definingindenture. Accordingly, each person beneficially owning book-entry debt securities must rely on the procedures of the Depositary for the related global debt security and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under the indenture.
We understand, however, that under existing industry practice, the Depositary will authorize the persons on whose behalf it holds a global debt security to exercise certain rights of holders of debt securities, and the indenture provides that we, the trustee and our respective agents will treat as the holder of a debt security the persons specified in a written statement of the Depositary with respect to such global debt security for purposes of obtaining any consents, declarations, waivers or directions required to be given by holders of the underlying securities.
Amounts payable with respectdebt securities pursuant to the underlyingindenture.
We will make payments of principal of, and premium and interest, if any, on book-entry debt securities will be paid to the depositoryDepositary or its nominee, as the case may be, as the registered ownerholder of the related global debt security. Neither we, norFerro Corporation, the trustee and any other agent of our officersours or directors, nor any
paying agent or security registrar for an individual series of securitiesthe trustee will not 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 debt security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
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We expect that the depository for a series of securities issued in
book-entry form,Depositary, upon receipt of any payment of a dividendprincipal of, premium or interest, if any, other amount
in respect ofon a global debt security, will immediately credit its participants'participants’ accounts with payments in amounts proportionate to theirthe respective interests in
the global securityamounts of book-entry debt securities held by each participant as shown on the records of the depository or its nominee.such Depositary. We also expect that payments by participants to owners of beneficial interests in the global securitybook-entry debt securities held through thethose participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accountaccounts of customers in bearer form or registered in "street name." Such
payments“street name,” and will be the responsibility of those participants.
We will issue certificated debt securities in exchange for each global debt security only if (i) the participants.
If a depositoryDepositary notifies us that it is unwilling or unable to continue as Depositary for a series of securities issuch global debt security or if at any time unwilling, unable
or ineligiblesuch Depositary ceases to continue as depositorybe a clearing agency registered under the Exchange Act, and, in either case, we fail to appoint a successor depository is not
appointed by usDepositary registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) we execute and deliver to the trustee an officers’ certificate to the effect that such global debt security shall be so exchangeable. Any certificated debt securities issued in exchange for a global debt security will be registered in such name or names as the Depositary shall instruct the trustee. We expect that such instructions will be based upon directions received by the Depositary from participants with respect to ownership of book-entry debt securities relating to such global debt security.
We have obtained the foregoing information concerning the Depositary and the Depositary’s book-entry system from sources we believe to be reliable, but we take no responsibility for the accuracy of this information.
No Protection In the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
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Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue individualof debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to, any person (a “successor person”) unless:
| • | we are the surviving corporation or the successor person (if other than Ferro Corporation) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; | ||
| • | 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 under the indenture; and | ||
| • | certain other conditions are met. |
Notwithstanding the above, any subsidiary of Ferro Corporation may consolidate with, merge into or transfer all or part of its properties to Ferro Corporation.
Events of Default
“Event of Default”means with respect to any series of debt securities, any of the following events, unless in the board resolution, supplemental indenture or officers’ certificate, it is provided that such series of debt securities shall not have the benefit of a particular Event of Default:
| • | default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of that default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the such period of 30 days); | ||
| • | default in the payment of principal of or premium on any debt security of that series at maturity or which such principal otherwise becomes due and payable; | ||
| • | default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after written notice thereof has been given, by registered or certified mail, to us by the trustee or to us and the trustee by the holders of at least 25% in principal amount of the outstanding debt securities of that series, as provided in the indenture; | ||
| • | certain events of bankruptcy, insolvency or reorganization of Ferro Corporation; and | ||
| • | any other Event of Default provided with respect to debt securities of that series that is described in the applicable board resolution, supplemental indenture or officers’ certificate establishing such series of debt securities. |
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding from time to time.
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If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in exchangewriting to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, and before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We will describe in the prospectus supplement relating to any series of debt securities that are discount securities the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee will be under no obligation to exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any loss, liability or expense. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the globalappointment of a receiver or trustee, or for any remedy under the indenture, unless:
| • | that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and | ||
| • | the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding any other provision of the indenture, the holder of any debt security representingwill have an absolute and unconditional right to receive payment of the principal of, premium and interest, if any, on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee an officers’ certificate as to compliance with the indenture. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any event which, after notice or lapse of time, or both, would become an Event of Default or any Event of Default (except in payment of principal of, premium or interest on any debt securities of that series) with respect to debt securities of that series if it in good faith determines that withholding notice is in the interest of the holders of those debt securities. In addition,
Modification and Waiver
We may modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment will:
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| • | reduce the principal amount of debt securities whose holders must consent to an amendment, supplement or waiver; | ||
| • | reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; | ||
| • | reduce the principal of or premium on or change the stated maturity date of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; | ||
| • | reduce the principal amount of discount securities payable upon acceleration of maturity; | ||
| • | waive a default in the payment of the principal of, premium or interest, if any, on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); | ||
| • | make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; | ||
| • | make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or | ||
| • | waive a redemption payment, made at the option of Ferro Corporation, with respect to any debt security. |
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or interest, if any, on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance.The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may atbe discharged from any timeand all obligations in respect of the debt securities of any series (except for certain obligations to register the transfer or exchange of debt securities of such series, to replace stolen, lost or mutilated debt securities of such series, and to maintain paying agencies and certain provisions relating to the treatment of funds held by paying agents). We will be so discharged upon the deposit with the trustee, in trust, of money and/or U.S. Government Obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, Foreign Government Obligations, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm
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that, the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants.The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
| • | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be described in the applicable prospectus supplement; and | ||
| • | any omission to comply with those covenants will not constitute an event which, after notice or lapse of time, or both, would become an Event of Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”). |
The conditions include:
| • | depositing with the trustee money and/or U.S. Government Obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, Foreign Government Obligations, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and | ||
| • | delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. |
Covenant Defeasance and Events of Default.In the event we exercise our sole discretion, subjectoption to effect covenant defeasance with respect to any limitationsseries of debt securities and the debt securities of that series are declared due and payable because of the occurrence of any Event of Default, the amount of money and/or U.S. Government Obligations or Foreign Government Obligations on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from the Event of Default. However, we shall remain liable for those payments.
Certain Defined Terms
“Foreign Government Obligations”means, with respect to debt securities of any series that are denominated in a currency other than U.S. dollars:
| • | direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged which are not callable or redeemable at the option of the issuer thereof; or | ||
| • | obligations of a person controlled or supervised by or acting as an agency or instrumentality of that government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by that government, |
which, in either case are not callable or redeemable at the option of the issuer thereof.
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“U.S. Government Obligations”means debt securities that are:
| • | direct obligations of The United States of America for the payment of which its full faith an credit is pledged; or | ||
| • | obligations of a person controlled or supervised by and acting as an agency or instrumentality of The United States of America the payment of which is unconditionally guaranteed as full faith and credit obligation by The United States of America, |
which, in either case, are not callable or redeemable at the option of the issuer itself and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt. Except as required by law, such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
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DESCRIPTION OF UNITS
We may issue units comprising one or more securities described in this prospectus in any combination. The following description sets forth certain general terms and provisions of the units that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a holder of each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date. A copy of the forms of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the unit agreement and the related unit certificate, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular issuance of units will describe the securities, determine notterms of those units, including, 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 forextent applicable, the global security or securities
representing that series of securities.
following:
| • | the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; | ||
| • | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and | ||
| • | whether the units will be issued in fully registered or global form. | ||
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PLAN OF DISTRIBUTION
We may sell the offered securities to onein and outside the United States:
| • | through underwriters or dealers; | ||
| • | directly to purchasers; | ||
| • | in a rights offering; | ||
| • | in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise; | ||
| • | through agents; or | ||
| • | through a combination of any of these methods. |
The prospectus supplement will include the following information:
| • | the terms of the offering; | ||
| • | the names of any underwriters or agents; | ||
| • | the name or names of any managing underwriter or underwriters; | ||
| • | the purchase price or initial public offering price of the securities; | ||
| • | the net proceeds from the sale of the securities; | ||
| • | any delayed delivery arrangements; | ||
| • | any underwriting discounts, commissions and other items constituting underwriters’ compensation; | ||
| • | any discounts or concessions allowed or reallowed or paid to dealers; and | ||
| • | any commissions paid to agents. |
Sale through Underwriters or moreDealers
If underwriters for public offering
and sale by them or we may sell the securities to investors directly or through
agents. Any underwriter or agent involvedare used 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.account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices which may be changed, at prices related
to the prevailing market pricesdetermined at the time of sale,sale. Underwriters may offer securities to the public either through underwriting syndicates represented by one or at negotiated prices. We
alsomore managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time authorize underwritersany initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as our agentsstandby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to offerpurchase on a standby basis. If we do not enter into a standby underwriting agreement, we may retain a dealer-manager to manage a subscription rights offering for us.
During and after an offering through underwriters, the underwriters may purchase and sell the securities upon the terms and conditions as will be set forth
in the applicable prospectus supplement. Inopen market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the saleoffering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
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Some or all of the securities underwritersthat we offer though this prospectus may be deemednew issues of securities with no established trading market. Any underwriters to have received compensation from uswhom we sell our securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used in the formsale of underwriting discounts or commissions and alsosecurities, we will sell the securities to them as principals. They may receive
commissions from purchasersthen resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the securities. Underwritersdealers and the terms of the transaction.
Direct Sales and Sales through Agents
We 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 todirectly. In this case, no underwriters or agents would be involved. We may also sell the securities through agents designated from time to time. In the prospectus supplement, we will name any agent involved in connection with any offeringthe offer or sale of the offered securities, and we will describe any discounts, concessions or
commissions allowed by underwriterspayable to participating dealers will be set forththe agent. Unless we inform you otherwise in the applicable prospectus supplement. Underwriters, dealers and agents
participating insupplement, any agent will agree to use its reasonable best efforts to solicit purchases for the distributionperiod of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters and any discounts and commissions received by them and any profit
realized by them on resalewithin the meaning 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 agentsany sale of those securities. We will describe the terms of any sales of these securities in the prospectus supplement.
Remarketing Arrangements
Offered securities may also be required to make.
Ifoffered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreements, if any, with us and its compensation will be described in the applicable prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters dealers or agentsdealers 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 tounder delayed delivery contracts. These contracts providingwould provide for payment and delivery on a future date. Institutions with
which delayed deliveryspecified date in the future. The contracts maywould be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions.subject only to those conditions described in the prospectus supplement. The applicable prospectus supplement will set forthdescribe the commission payable for solicitation of such
offers.
Any underwriterthose contracts.
General Information
We may engage in overallotment, stabilizing transactions,
short-covering transactionshave agreements with the agents, dealers, underwriters and penalty bids in accordance with Regulation Mremarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Exchange Act, of 1934. Overallotment involves sales in
excess ofor to contribute with respect to payments that the offering size, which create a short position. Stabilizing
transactions permit bidsagents, dealers, underwriters or remarketing firms may be required to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short-covering transactions
involve purchasesmake. Agents, dealers, underwriters and remarketing firms may be customers 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
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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.
their businesses.
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LEGAL MATTERS
Certain legal matters in connection with
Jones Day will pass upon the validity of the securities to bebeing 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.
hereby.
EXPERTS
The consolidated financial statements of Ferro Corporation and subsidiariesthe related financial statement schedule (Schedule II – Valuation and Qualifying Accounts) as of December 31, 20012008 and 2000,2007, and for each of the three years in the three-year period ended December 31, 2001,2008, incorporated in this prospectus by reference from Ferro Corporation’s Current Report on Form 8-K filed on August 6, 2009, and the effectiveness of Ferro Corporation’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports (which, as to the report related to the consolidated financial statements expresses an unqualified opinion, and includes an explanatory paragraph relating to the adoption of new accounting standards and, as to the report on the effectiveness of the Company’s internal control over financial reporting expresses an unqualified opinion), which are incorporated herein by reference in this
prospectusreference. Such financial statements and financial statement schedule have been so incorporated in reliance upon the reports of KPMG LLP, independent accountants,
incorporated by reference in this prospectus, andsuch firm given upon thetheir authority of said
firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
We estimateOther Expenses of Issuance and Distribution.
The following are the estimated expenses of the issuance and distribution of the securities being registered, all of which are payable by us. All of the items below, except for the registration fee, are estimates.
| Securities and Exchange Commission registration fee | $ | 16,740 | ||
| Trustee’s fees and expenses | * | |||
| Transfer agent and registrar fees | * | |||
| Printing expenses | * | |||
| Accountant’s fees and expenses | * | |||
| Legal fees and expenses | * | |||
| Miscellaneous | * | |||
| Total | $ | * |
| * | Estimated expenses are presently not known and cannot be estimated. |
Item 15. Indemnification of Directors and Officers.
Under Section 1701.13 of the Ohio Revised Code, Ohio corporations are authorized to indemnify directors, officers, employees and agents within prescribed limits and must indemnify them under certain circumstances. Ohio law does not provide statutory authorization for a corporation to indemnify directors, officers, employees and agents for settlements, fines or judgments in the context of derivative suits. However, it provides that directors (but not officers, employees or agents) are entitled to mandatory advancement of expenses, other than underwriting compensation,including attorneys’ fees, incurred in connectiondefending any action, including derivative actions, brought against the director, provided that the director agrees to cooperate with the offeringcorporation concerning the matter and to repay the amount advanced if it is proved by clear and convincing evidence that the director’s act or failure to act was done with deliberate intent to cause injury to the corporation or with reckless disregard for the corporation’s best interests.
Ohio law does not authorize payment of securities describedjudgments to a director, officer, employee or agent after a finding of negligence or misconduct in this Registration
Statement willa derivative suit absent a court order. Indemnification is permitted, however, to the extent such person succeeds on the merits. In all other cases, if a director, officer, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to be the best interests of the corporation, indemnification is discretionary except as follows:
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.otherwise provided by a corporation’s articles, code of regulations or by contract except with respect to the advancement of expenses of directors.
Under Ohio law, a director is not liable for monetary damages unless it is proved by clear and convincing evidence that his action or failure to act was undertaken with deliberate intent to cause injury to the corporation or with reckless disregard for the best interests of the corporation. There is, however, no comparable provision limiting the liability of officers, employees or agents of a corporation. The statutory right to indemnification is not exclusive in Ohio, and Ohio corporations may, among other things, procure insurance for such persons.
Section 1701.13 of the Ohio Revised Code authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, member, manager or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 1701.13.
Our Amended Code of Regulations provides that we shall indemnify any of our present orand former directors orand officers against expenses, including attorneys'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 usFerro Corporation in connection with any threatened, pending or completed action, suit or proceeding. With the exceptionEach director and executive officer of Ferro
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Corporation is a lawsuit brought by usparty to an indemnification agreement with Ferro Corporation. The agreement provides that we will indemnify, with certain limitations, such director or executive officer against certain expenses (including, without limitation, attorneys’ fees, judgments, fines and amounts paid 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 themsettlement) in connection with the
settlementany claim against such director or defenseexecutive officer arising out of the lawsuit provided that they have acted in good faith
and in manner reasonably believed to be insuch person’s status as a director 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 performanceexecutive officer of their
duty to us.Ferro Corporation.
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 maintainaddition, Ferro Corporation maintains contracts insuring us,itself, with certain exclusions, against any liability to directors and officers that weit may incur. We insure our directors and officers against liability and expenses, (withwith certain exclusions),exclusions, including legalattorneys’ fees, which they may incur because of their position with us.
ITEMFerro Corporation.
Item 16. EXHIBITS.
Exhibits.
The following documents are exhibits to the registration statement:
| Exhibit Number | Description | |
| 1.1* | Form of Underwriting | |
| 4.1 | Eleventh Amended and Restated Articles of Incorporation of Ferro Corporation (filed as Exhibit 4.1 to our Registration Statement for |
| 4.2 | Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro Corporation filed December | |
| 4.3 | Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro Corporation filed | |
| 4.4 | Amended Code of | |
| 4.5* | Preferred Stock Certificate of Designations. | |
| 4.6† | Form of Debt Securities Indenture. | |
| 4.7* | Form of Debt Securities. | |
| 4.8* | Form of Warrant Agreement. | |
| 4.9* | Form of Warrant Certificate. | |
| 4.10* | Form of Depositary Agreement. | |
| 4.11* | Form of Depositary Receipt. | |
| 4.12* | Form of Subscription Rights | |
| 4.13* | Form of | |
| 4.14* | Form | |
| 5.1 | Opinion of | |
| 12.1† | Calculation of Ratio of Earnings to Fixed | |
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| 23.1 | Consent of | |
| 23.2 | Consent of | |
| 24.1† | Power of | |
| 25.1† | Form T-1 Statement of Eligibility | |
| * | To be filed either by amendment or as an exhibit to a report filed under the | |
| † | Previously filed. | |
Item 17. UNDERTAKINGS.
(a)Undertakings.
The Registrantundersigned registrant hereby undertakes:
(1)
1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) toTo include any prospectus required by Sectionsection 10(a)(3) of the Securities Act of 1933;
(ii) toTo 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 ruleRule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20%20 percent change in the maximum aggregate offering price set forth in the "Calculation“Calculation of Registration Fee"Fee” table in the effective registration statement; and
(iii) toTo include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided,however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(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 initialbona fideoffering thereof.
(3)
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)
4. That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be a part of and included in the registration statement as of the earlier date such
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form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is a part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
5. That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant'sregistrant’s annual report pursuant to Section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in thethis 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 initialbona fideoffering thereof.
(5) That, for purposes
The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of determining any liability under the Securities Actsubscription period, to set forth the results of 1933, the information omitted fromsubscription offer, the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filedtransactions by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) underunderwriters during the Securities Actsubscription period, the amount of 1933 shall be deemedunsubscribed securities to be partpurchased by the underwriters, and the terms of this registration statement asany subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the time it was declared
effective.
(6) To file an application forprospectus, a post-effective amendment will be filed to set forth the purposeterms 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.such offering.
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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ferro
Corporationthe registrant 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 Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio, on this 10th day of April, 2002.
FERRO CORPORATION
By: /s/ HECTOR R. ORTINO
------------------------------------
Hector R. Ortino,
Chairman and Chief September 14, 2009.
| FERRO CORPORATION | ||||
| By | /s/ James F. Kirsch | |||
| James F. Kirsch | ||||
| Chairman of the Board, President and Chief Executive Officer | ||||
Pursuant to the requirements of the Securities Act of 1933, this amendment
to Registration Statementregistration statement on Form S-3 has been signed below by the following persons in theirthe capacities indicated capacities as of the 10th day of April, 2002.
September 14, 2009:
| Signatures | Title | |
| /s/ James F. Kirsch | Chairman of the Board, President and Chief Executive Officer | |
James F. Kirsch | (Principal Executive Officer) | |
| /s/ Sallie B. Bailey | Vice President and Chief Financial | |
Sallie B. Bailey | (Principal Financial Officer) | |
| /s/ Nicholas Katzakis | Chief Accounting Officer | |
Nicholas Katzakis | (Principal Accounting Officer) | |
| * | Director | |
Michael H. Bulkin | ||
| * | Director | |
Sandra Austin Crayton | ||
| * | Director | |
Richard J. Hipple | ||
| * | Director | |
Jennie S. Hwang | ||
| * | Director | |
William B. Lawrence | ||
| * | Director | |
Michael F. Mee | ||
| * | Director | |
Perry W. Premdas | ||
| * | Director | |
William J. Sharp | ||
| * | Director | |
Dennis W. Sullivan |
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| * | The undersigned by signing his name hereto does sign and execute this registration statement on Form S-3 pursuant to the Power of Attorney executed by the above-named directors and officers of the registrant, which has been filed as an exhibit to this registration statement on behalf of such directors and officers. | |
| By: | /s/ Mark H. Duesenberg | September 14, 2009 | |||||
| Mark H. Duesenberg | |||||||
| Attorney-in-Fact | |||||||
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INDEX TO EXHIBITS
| Exhibit Number | Description | |
| 1.1* | Form of Underwriting | |
| 4.1 | Eleventh Amended and Restated Articles of Incorporation of Ferro Corporation (filed as Exhibit 4.1 to our Registration Statement for | |
| 4.2 | Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro Corporation filed December | |
| 4.3 | Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro Corporation filed | |
| 4.4 | Amended Code of | |
| 4.5* | Preferred Stock Certificate of Designations. | |
| 4.6† | Form of Debt Securities Indenture. | |
| 4.7* | Form of Debt Securities. | |
| 4.8* | Form of Warrant Agreement. | |
| 4.9* | Form of Warrant Certificate. | |
| 4.10* | Form of Depositary Agreement. | |
| 4.11* | Form of Depositary Receipt. | |
| 4.12* | Form of Subscription Rights | |
| 4.13* | Form of | |
| 4.14* | Form |
| 5.1 | Opinion of | |
| 12.1† | Calculation of Ratio of Earnings to Fixed | |
| 23.1 | Consent of | |
| 23.2 | Consent of | |
| 24.1† | Power of | |
| 25.1† | Form T-1 Statement of Eligibility | |
| * | To be filed either by amendment or as an exhibit to a report filed under the | |
| † | Previously filed. | |