As filed with the Securities and Exchange Commission on August 22, 2003
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FERRO CORPORATION
(Exact name of Registrant as specified in its charter)
Ohio 34-0217820
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 Lakeside Avenue,
Cleveland, Ohio 44114
(Address of Principal Executive Offices) (Zip Code)
2003 Long-Term Incentive Compensation Plan
(Full title of the plan)
James C. Bays
Vice President and General Counsel
Ferro Corporation
1000 Lakeside Avenue, Cleveland, Ohio 44114
(Name and address of agent for service)
(216) 641-8580
(Telephone number, including area code, of agent for service)
With copy to:
Mary Ann Jorgenson, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower, 127 Public Square
Cleveland, Ohio 44114-1304
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered Registered (1) Share (2) Price (2) Registration Fee
=================================================================================================================
Common Stock, par value 3,250,000 shares $ 22.09 $ 71,792,500 $ 5,808.02
$1.00 per share
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(1) An undetermined number of additional shares of Common Stock may be issued
if the anti-dilution provision of the Plan becomes operative.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. Pursuant to Rule 457(h), the proposed maximum offering
price per share is based upon the average of the high and low prices for
the Common Stock as reported on the New York Stock Exchange on August 19,
2003.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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Ferro Corporation (the "Registrant") incorporates by reference and
makes part of this Registration Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2002, filed with the Securities and
Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarter ended March 31, 2003 and June 30, 2003;
(c) The description of the Registrant's Common Stock, contained
in the Registrant's Registration Statement on Form S-8
(Registration No. 33-12397) filed March 2, 1987, and any
amendments or reports filed for the purpose of updating such
description; and
(d) The description of our common stock rights contained in our
registration statement filed on Form 8-A filed May 15, 1996.
All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Mary Ann Jorgenson, the Secretary of the Registrant, is a partner
in the law firm of Squire, Sanders & Dempsey L.L.P., which the Registrant
retains as outside counsel.
Item 6. Indemnification of Directors and Officers.
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The Registrant's Amended Code of Regulations provides that it
shall indemnify its present and former directors or officers against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement,
which are actually and reasonably incurred by the person because of his or her
position with Registrant in connection with any threatened, pending or completed
action, suit or proceeding.
With the exception of a lawsuit brought by Registrant or in its
right, Ohio law permits indemnification of these individuals provided that they
have acted in good faith, in a manner reasonably believed to be in or not
opposed to Registrant's best interests and, with respect to any criminal action
or proceeding, had no reason to believe their conduct
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was illegal. In the case of a lawsuit brought by Registrant or in its right,
Ohio law, subject to certain exceptions, permits indemnification of these
individuals against expenses, including attorneys' fees, actually and reasonably
incurred by them in connection with the settlement or defense of the lawsuit
provided that they have acted in good faith and in a manner reasonably believed
to be in or not opposed to Registrant's best interests. One exception to this
principal applies when the directors or officers are determined to be liable for
negligence or misconduct in the performance of their duty to Registrant. In this
case, Registrant is not permitted to indemnify the directors and officers,
unless a court determines that the person is fairly and reasonably entitled to
indemnity for such expenses and believes the expenses are appropriate.
The Registrant maintains contracts insuring it, with certain
exclusions, against any liability to directors and officers that it may incur.
The Registrant insures its directors and officers against liability and expenses
(with certain exclusions), including legal fees, which they may incur because of
their position with Registrant.
Each director and executive officer of the Registrant is a party
to an indemnification agreement with the Registrant. The agreement provides that
the Registrant will indemnify, with certain limitations, such director or
executive officer against certain expenses (including, without limitation,
attorneys' fees, judgments, fines and amounts paid in settlement) in connection
with any claim against such director or executive officer arising out of such
person's being a director or executive officer of the Registrant.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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4.1 Eleventh Amended Articles of Incorporation. (Reference is made to
Exhibit (3)(a) to Ferro Corporation's Quarterly Report on Form
10-Q for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.2 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed December 28, 1994.
(Reference is made to Exhibit (3)(b) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30,
1998, which Exhibit is incorporated herein by reference.)
4.3 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed January 19, 1998.
(Reference is made to Exhibit (3)(c) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30,
1998, which Exhibit is incorporated herein by reference.)
4.4 Amended Code of Regulations. (Reference is made to Exhibit (3)(d)
to Ferro Corporation's Quarterly Report on Form 10-Q for the three
months ended June 30, 1998, which Exhibit is incorporated herein
by reference.)
4.5 Amended and Restated Shareholder Rights Agreement between Ferro
Corporation and National City Bank, Cleveland, Ohio, as Rights
Agent, dated as of December 10, 1999. (Reference is made to
Exhibit 4(k) to Ferro Corporation's Form 10-K for the year ended
December 31, 1999, which Exhibit is incorporated herein by
reference.)
5 Opinion of Squire, Sanders & Dempsey L.L.P. as to the legality of
the securities registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (contained in opinion
filed as Exhibit 5).
99 2003 Long-Term Incentive Compensation Plan.
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Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933
(the "Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act of
1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, and the State of Ohio, on June 27, 2003.
FERRO CORPORATION
By: /s/ Hector R. Ortino
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Hector R. Ortino
Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
indicated capacities as of the 27th day of June, 2003.
/s/ Hector R. Ortino Chairman and Chief Executive Officer and Director
----------------------------------------------------- (Principal Executive Officer)
Hector R. Ortino
/s/ Thomas M. Gannon Corporate Vice President and Chief Financial Officer
----------------------------------------------------- (Principal Financial Officer and Principal Accounting
Thomas M. Gannon Officer)
/s/ Michael H. Bulkin Director
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Michael H. Bulkin
/s/ Sandra Austin Crayton Director
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Sandra Austin Crayton
/s/ Jennie S. Hwang Director
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Jennie S. Hwang
/s/ William B. Lawrence Director
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William B. Lawrence
/s/ Michael F. Mee Director
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Michael F. Mee
Director
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William J. Sharp
Director
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Dennis W. Sullivan
/s/ Padmasree Warrior Director
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Padmasree Warrior
Director
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Alberto Weisser
EXHIBIT INDEX
Number Exhibit
4.1 Eleventh Amended Articles of Incorporation. (Reference is made
to Exhibit (3)(a) to Ferro Corporation's Quarterly Report on Form
10-Q for the three months ended June 30, 1998, which Exhibit is
incorporated herein by reference.)
4.2 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed December 28, 1994.
(Reference is made to Exhibit (3)(b) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30,
1998, which Exhibit is incorporated herein by reference.)
4.3 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed January 19, 1998.
(Reference is made to Exhibit (3)(c) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June 30,
1998, which Exhibit is incorporated herein by reference.)
4.4 Amended Code of Regulations. (Reference is made to Exhibit (3)(d)
to Ferro Corporation's Quarterly Report on Form 10-Q for the three
months ended June 30, 1998, which Exhibit is incorporated herein
by reference.)
4.5 Amended and Restated Shareholder Rights Agreement between Ferro
Corporation and National City Bank, Cleveland, Ohio, as Rights
Agent, dated as of December 10, 1999. (Reference is made to
Exhibit 4(k) to Ferro Corporation's Form 10-K for the year ended
December 31, 1999, which Exhibit is incorporated herein by
reference.)
5 Opinion of Squire, Sanders & Dempsey L.L.P. as to the legality of
the securities registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (contained in opinion
filed as Exhibit 5).
99 2003 Long-Term Incentive Compensation Plan.