As
filed with the Securities and Exchange Commission on February 4, 2011.
Registration No. 333-
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)
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Ohio
(State or other jurisdiction of
incorporation or organization)
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34-0217820
(IRS Employer Identification Number)
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1000 Lakeside Avenue, Cleveland, Ohio
(Address of principal executive offices)
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44114
(Zip Code)
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2010 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Thomas R. Miklich
Vice President and Chief Financial Officer
Ferro Corporation
1000 Lakeside Avenue
Cleveland, Ohio 44114
(Name and address of agent for service)
(216) 641-8580
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
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Mark H. Duesenberg
Vice President, General Counsel and Secretary
Ferro Corporation
1000 Lakeside Avenue
Cleveland, Ohio 44114
(216) 641-8580
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Suzanne K. Hanselman
Baker & Hostetler LLP
PNC Center
1900 East 9th Street
Cleveland, Ohio 44114
(216) 621-0200
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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. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Proposed maximum
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Proposed maximum
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Amount to be
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offering price per
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aggregate offering
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Amount of
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Title of securities to be registered
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registered(1)
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share(2)
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price(2)
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registration fee
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Common Stock, $1.00 par value
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5,000,000 shares
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$15.29
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$76,450,000
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$8,876
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), the amount of securities registered under this Registration Statement shall include an
indeterminate number of additional shares of Common Stock that may become issuable as a result of
stock splits, stock dividends or similar transactions pursuant to the anti-dilution provisions of
the 2010 Long-Term Incentive Plan.
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(2)
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Estimated solely for the purpose of calculating the registration fee in accordance
with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, and based upon the
average of the high and low sale prices of the Common Stock as reported on the New York Stock
Exchange on February 3, 2011.
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TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.
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The information required by Item 1 is included in documents sent or given to participants in
the plan covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act.
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Item 2.
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Registrant Information and Employee Plan Annual Information.
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The written statement required by Item 2 is included in documents sent or given to
participants in the plan covered by this Registration Statement pursuant to Rule 428(b)(1) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents By Reference
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We are subject to the informational and reporting requirements of Sections 13(a), 14, and
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance
therewith file reports, proxy statements and other information with the Securities and Exchange
Commission (the “SEC”). We incorporate by reference into this Registration Statement the documents
listed below:
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(a)
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our Annual Report on Form 10-K for the year ended December 31, 2009;
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(b)
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010, June 30, 2010
and September 30, 2010;
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(c)
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our Current Reports on Form 8-K filed on February 18, 2010, March 3, 2010, April 20,
2010, May 6, 2010, May 10, 2010, June 2, 2010, June 28, 2010, July 1, 2010, July 20, 2010,
July 27, 2010, August 11, 2010, August 24, 2010, September 27, 2010 and December 22, 2010;
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(d)
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the description of the Common Stock contained in our Registration Statement on Form S-8
(Registration No. 33-12397) filed on March 2, 1987; and
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(e)
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all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act prior to the filing of a post-effective amendment that 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 respective dates of filing of such documents.
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We will not, however, incorporate by reference in this Registration Statement any documents or
portions thereof that are not deemed “filed” with the SEC, including any information furnished
pursuant to Item 2.02 or Item 7.01 of our Current Reports on Form 8-K unless, and except to the
extent, specified in such Current Reports.
In addition, any statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a statement contained
herein (or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein) modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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Item 4.
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Description of Securities
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Not Applicable.
2
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Item 5.
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Interests of Named Experts and Counsel
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None.
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Item 6.
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Indemnification of Directors and Officers
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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, including attorneys’ fees, incurred in
defending any action, including derivative actions, brought against the director, provided that the
director agrees to cooperate with the corporation 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 indemnification for expenses of a director, officer, employee or
agent after a finding of negligence or misconduct in a 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 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 our present and former
directors and 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 Ferro Corporation in connection with any threatened, pending or completed action,
suit or proceeding. Each director of Ferro Corporation is, or is expected to become, a party to an
indemnification agreement with Ferro Corporation. The indemnification agreement provides that we
will indemnify, with certain limitations, such director against certain expenses (including,
without limitation, attorneys’ fees, judgments, fines and amounts paid in settlement) in connection
with any claim against such director arising out of such person’s status as a director of Ferro
Corporation.
In addition, Ferro Corporation maintains contracts insuring itself, with certain exclusions,
against any liability to directors and officers that it may incur. We insure our directors and
officers against liability and expenses, with certain exclusions, including attorneys’ fees, which
they may incur because of their position with Ferro Corporation.
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Item 7.
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Exemption from Registration Claimed
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Not Applicable.
See Exhibit Index attached hereto and incorporated herein by reference.
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(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this
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 this Registration
Statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to such information in
this Registration Statement;
provided, however,
that paragraphs (1)(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 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act, 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.
(5) Insofar as indemnification for liabilities arising under the Securities Act 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
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 any 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, 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 Cleveland, Ohio, on February 4, 2011.
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FERRO CORPORATION
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By:
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/s/ James F. Kirsch
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James F. Kirsch
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Chairman of the Board, President and
Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Ferro Corporation, hereby severally constitute
and appoint Mark H. Duesenberg our true and lawful attorney with full power to him to sign for us
and in our names in the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement, and generally to do
all such things in our names and on our behalf in our capacities as officers and directors to
enable Ferro Corporation to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to said registration statement and any and
all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities indicated as
of February 4, 2011.
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Signature
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Title
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/s/ James F. Kirsch
James F. Kirsch
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Chairman of the Board, President and Chief Executive Officer
(Principal
Executive Officer)
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/s/ Thomas R. Miklich
Thomas R. Miklich
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Vice President and Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
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/s/ Richard C. Brown
Richard C. Brown
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Director
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/s/ Sandra Austin Crayton
Sandra Austin Crayton
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Director
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/s/ Richard J. Hipple
Richard J. Hipple
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Director
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/s/ Jennie S. Hwang
Jennie S. Hwang
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Director
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/s/ Gregory E. Hyland
Gregory E. Hyland
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Director
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/s/ William B. Lawrence
William B. Lawrence
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Director
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Director
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5
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Signature
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Title
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/s/ William J. Sharp
William J. Sharp
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Director
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/s/ Ronald P. Vargo
Ronald P. Vargo
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Director
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6
EXHIBIT INDEX
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Exhibit Number
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Exhibit Description
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4.1
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Eleventh Amended Articles of Incorporation of Ferro Corporation. (Reference is made to
Exhibit 4.1 to Ferro Corporation’s Registration Statement on Form S-3, filed March 5, 2008,
which Exhibit is incorporated here by reference.)
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4.2
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Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro
Corporation filed December 29, 1994. (Reference is made to Exhibit 4.2 to Ferro Corporation’s
Registration Statement on Form S-3, filed March 5, 2008, which Exhibit is incorporated here by
reference.)
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4.3
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Certificate of Amendment to the Eleventh Amended Articles of Incorporation of Ferro
Corporation filed June 23, 1998. (Reference is made to Exhibit 4.3 to Ferro Corporation’s
Registration Statement on Form S-3, filed March 5, 2008, which Exhibit is incorporated here by
reference.)
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4.4
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Amended and Restated Code of Regulations. (Reference is made to Exhibit 3.4 to Ferro
Corporation’s Quarterly Report on Form 10-Q for the three months ended September 30, 2010
(File No. 001-00584), which Exhibit is incorporated herein by reference).
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10.1
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Ferro Corporation 2010 Long-Term Incentive Plan (Reference is made to Exhibit 10.1 to Ferro
Corporation’s Current Report on Form 8-K, filed May 6, 2010, which Exhibit is incorporated
here by reference.)
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5
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Opinion of Baker & Hostetler LLP, counsel to Ferro Corporation.
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23.1
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Consent of Baker & Hostetler LLP (included in Exhibit 5)
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23.2
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
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24
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Power of Attorney (included on the signature pages of this Registration Statement)
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7
Exhibit 5
February 4, 2011
Ferro Corporation
1000 Lakeside Avenue
Cleveland, Ohio 44114
Ladies and Gentlemen:
We have acted as counsel to Ferro Corporation, an Ohio corporation (the “Company”), in
connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”)
being filed on the date hereof by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, to register 5,000,000 shares of Common Stock, $1.00 par value,
of the Company (the “Shares”) for issuance under and pursuant to the 2010 Long-Term Incentive Plan
(the “Plan”).
We have examined the Articles of Incorporation and Code of Regulations of the Company, each as
amended and restated to date, the Registration Statement and such other documents and records of
corporate proceedings relating to the Company as we have deemed relevant or necessary for the
purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, photostatic or other copies, the
authenticity of the originals of any such documents and the legal competence of all signatories to
such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares
in accordance with the Plan, to register and qualify the Shares for sale under all applicable state
securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the state
laws of the State of Ohio and the federal laws of the United States of America.
It is understood that this opinion is to be used only in connection with the offer and sale of
the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no
opinion should be inferred as to any other matters.
Chicago Cincinnati Cleveland Columbus Costa Mesa
Denver Houston Los Angeles New York Orlando Washington, DC
February 4, 2011
Page 2
Based on the foregoing, we are of the opinion that the Shares, when issued and delivered in
accordance with the terms and conditions of the Plan, will be legally and validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement.
Sincerely,
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/s/ Baker & Hostetler LLP
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