As filed with the Securities and Exchange Commission on August 1, 2002
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)
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)
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Ferro Corporation Employee Stock Option Plan (the "Plan")
(Full title of the Plan)
Bret W. Wise
Senior Vice President and Chief Financial Officer
Ferro Corporation
1000 Lakeside Avenue, Cleveland, Ohio 44114
(Name and address of agent for service)
(216) 641-8580
(Telephone number, including area code, of agent for service)
With copy to:
Mary Ann Jorgenson, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower, 127 Public Square
Cleveland, Ohio 44114-1304
(1) An undetermined number of additional shares of Common Stock may be issued if the antidilution 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 July 30, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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, 2001, filed with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002; and
(c) The description of the Registrant's Common Stock, contained in the Registrant's Registration Statement on Form S-8 (Registration No. 33-12397) filed March 2, 1987, and any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 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 of such documents.
Not applicable.
Mary Ann Jorgenson, the Secretary of the Registrant, is a partner in the law firm of Squire, Sanders & Dempsey L.L.P., which the Registrant retains as its outside counsel.
The Registrant's Amended Code of Regulations provides that it shall indemnify any of its present or former directors or officers against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement, which are actually and reasonably incurred by the person because of his or her position with Registrant in connection with any threatened, pending or completed action, suit or proceeding.
With the exception of a lawsuit brought by Registrant or in its right, Ohio law permits indemnification of these individuals in these matters provided that they have acted in good faith, in a manner reasonably believed to be in or not opposed to Registrant's best interests and, with respect to any criminal action or proceeding, had no reason to believe their conduct was illegal. In the case of a lawsuit brought by Registrant or in its right, Ohio law, subject to certain exceptions, permits indemnification of these individuals against expenses, including attorneys' fees, actually and reasonably incurred by them in connection with the settlement or defense of the lawsuit provided that they have acted in good faith and in a manner reasonably believed to be in or not opposed to Registrant's best interests. One exception to
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 Registrant.
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(a) Consent of KPMG LLP
23(b) Consent of Squire, Sanders & Dempsey L.L.P (contained in opinion
filed as Exhibit 5).
24 Powers of Attorney
99 Ferro Corporation Employee Stock Option Plan.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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.
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 August 1, 2002.
FERRO CORPORATION
By: /s/ Hector R. Ortino
----------------------------------------
Hector R. Ortino
Chairman and
Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in their indicated capacities as of the 1st day of August, 2002.
/s/ Hector R. Ortino Chairman and Chief Executive Officer and Director
---------------------------------------- (Principal Executive Officer)
Hector R. Ortino
/s/ Bret W. Wise Senior Vice President and Chief Financial Officer
---------------------------------------- (Principal Financial Officer and Principal Accounting Officer)
Bret W. Wise
* /s/ MICHAEL H. BULKIN Director
----------------------------------------
Michael H. Bulkin
* /s/ SANDRA AUSTIN CRAYTON Director
Sandra Austin Crayton
* /s/ JENNIE S. HWANG Director
----------------------------------------
Jennie S. Hwang
* /s/ WILLIAM B. LAWRENCE Director
----------------------------------------
William B. Lawrence
* /s/ MICHAEL F. MEE Director
----------------------------------------
Michael F. Mee
* /s/ WILLIAM J. SHARP Director
----------------------------------------
William J. Sharp
* /s/ DENNIS W. SULLIVAN Director
----------------------------------------
Dennis W. Sullivan
* /s/ PADMASREE WARRIOR Director
----------------------------------------
Padmasree Warrior
* /s/ ALBERTO WEISSER Director
----------------------------------------
Alberto Weisser
* Pursuant to Power of Attorney
By /s/ James C. Bays
-------------------------------------
James C. Bays, Attorney-in Fact
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EXHIBIT INDEX
Number Exhibit
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4.1 Eleventh Amended Articles of Incorporation. (Reference is made
to Exhibit (3)(a) to Ferro Corporation's Quarterly Report on
Form 10-Q for the three months ended June 30, 1998, which
Exhibit is incorporated herein by reference.)
4.2 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed December 28, 1994.
(Reference is made to Exhibit (3)(b) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June
30, 1998, which Exhibit is incorporated herein by reference.)
4.3 Certificate of Amendment to the Eleventh Amended Articles of
Incorporation of Ferro Corporation filed January 19, 1998.
(Reference is made to Exhibit (3)(c) to Ferro Corporation's
Quarterly Report on Form 10-Q for the three months ended June
30, 1998, which Exhibit is incorporated herein by reference.)
4.4 Amended Code of Regulations. (Reference is made to Exhibit
(3)(d) to Ferro Corporation's Quarterly Report on Form 10-Q for
the three months ended June 30, 1998, which Exhibit is
Incorporated herein by reference.)
4.5 Amended and Restated Shareholder Rights Agreement between Ferro
Corporation and National City Bank, Cleveland, Ohio, as Rights
Agent, dated as of December 10, 1999. (Reference is Made to
Exhibit 4(k) to Ferro Corporation's Form 10-K for the year ended
December 31, 1999, which Exhibit is incorporated herein by
reference.)
5 Opinion of Squire, Sanders & Dempsey L.L.P. as to the legality
of the securities registered.
23(a) Consent of KPMG LLP
23(b) Consent of Squire, Sanders & Dempsey L.L.P (contained in opinion
filed as Exhibit 5).
24 Powers of Attorney
99 Ferro Corporation Employee Stock Option Plan.
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EXHIBIT 5
SQUIRE, SANDERS & DEMPSEY L.L.P.
127 Public Square
4900 Key Tower
Cleveland, Ohio 44114-1304
August 1, 2002
Ferro Corporation
1000 Lakeside Avenue
Cleveland, Ohio 44114
Ladies and Gentlemen:
We have acted as counsel for Ferro Corporation (the "Company") in connection with the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, with respect to 3,550,000 shares of common stock of the Company, par value $1.00 per share (the "Shares"), issuable upon the exercise of options granted and to be granted pursuant to the Company's Employee Stock Option Plan (the "Plan").
We have reviewed the Registration Statement and the Plan and have examined such other documents, and considered such matters of law, as we have deemed necessary or appropriate for purposes of this opinion. We also have reviewed certificates of public officials and officers of the Company and have relied upon such certificates as to the various factual matters contained in the certificates. We have assumed the genuineness of all signatures on all documents reviewed by us, the authenticity of all documents submitted to us as originals, and the conformity to authentic originals of all documents submitted to us as copies. We also have assumed there will be a sufficient number of authorized Shares available at the time of issuance of Shares upon the exercise of options granted under the Plan.
Based upon the foregoing, we are of the opinion that, when issued in accordance with the Plan, the Shares will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations under such Act.
Respectfully submitted,
/s/ Squire, Sanders & Dempsey L.L.P. |
EXHIBIT 23(a)
The Shareholders and Board of Directors
Ferro Corporation:
We consent to the use of our report dated February 13, 2002, with respect to the consolidated balance sheets of Ferro Corporation and subsidiaries as of December 31, 2001 and 2000, and the related consolidated statements of income, shareholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2001, incorporated herein by reference.
/s/ KPMG LLP ---------------------------- KPMG, LLP Cleveland, Ohio August 1, 2002 |
EXHIBIT 24
FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ Michael H. Bulkin
-----------------------------------
Michael H. Bulkin
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ Sandra Austin Crayton
-----------------------------------
Sandra Austin Crayton
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ Jennie S.Hwang
-----------------------------------
Jennie S. Hwang
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ William B. Lawrence
-----------------------------------
William B. Lawrence
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ Michael F. Mee
-----------------------------------
Michael F. Mee
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ William J. Sharp
-----------------------------------
William J. Sharp
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26 day of April, 2002.
/s/ Dennis W. Sullivan
-----------------------------------
Dennis W. Sullivan
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26 day of April, 2002.
/s/ Padmasree Warrior
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Padmasree Warrior
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FERRO CORPORATION
The undersigned director and/or officer of Ferro Corporation, an Ohio corporation (the "Company"), which anticipates filing with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, one or more registration statement(s) on Form S-8 for the purpose of registering shares of the Company's Common Stock issuable under the Company's stock option, employee benefit, corporate incentive plans or other similar plans, as well as an indeterminable amount of interests which may arise from such plan(s), hereby constitutes and appoints Hector R. Ortino, James C. Bays and Mary Ann Jorgenson, and each of them, with full power of substitution and resubstitution, as attorneys-in-fact to execute and file on behalf of the undersigned and in the undersigned's name, place and stead, as a director and/or an officer of the Company, such registration statement(s) and any and all amendments (including post-effective amendments), supplements and exhibits thereto, and any and all applications and documents to be filed with the Securities and Exchange Commission pertaining to such registration statement(s) and any and all documents requested to be filed with any state securities regulating board or commission pertaining to such securities, with full power and authority to do and perform any and all acts and things whatsoever necessary or advisable to be done in the premises, as fully and for all intents and purposes as the undersigned could do in person, hereby ratifying and approving the acts of said attorneys-in-fact and any such substitute.
Executed this 26th day of April, 2002.
/s/ Alberto Weisser
-----------------------------------
Alberto Weisser
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EXHIBIT 99
FERRO CORPORATION
EMPLOYEE STOCK OPTION PLAN
1. Purpose of Plan. The purpose of this Plan is to advance the interests of Ferro Corporation (hereinafter called the "Corporation") and its shareholders by providing a means whereby officers, non-employee directors and key employees of the Corporation and its subsidiaries may be given an opportunity to purchase Common Stock, $1.00 par value (hereinafter called "shares") of the Corporation under options and stock appreciation rights granted under the Plan, to the end that the Corporation may retain present personnel upon whose judgment, initiative and efforts the successful conduct of the business of the Corporation largely depends, and may attract new personnel. Some of the options granted under this Plan may be options which are intended to qualify as "incentive stock options" under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision and are hereinafter sometimes called "incentive stock options."
2. Shares Subject to the Plan. The aggregate number of shares of the Corporation for which options may be granted under this Plan shall be that number of shares remaining available for grant under the Plan on the close of business on the date immediately prior to the 2000 Annual Meeting of Shareholders plus 1,500,000; provided, however, that whatever number of said shares shall remain reserved for issuance pursuant to this Plan at the time of any stock split, stock dividend or other change in the Corporation's capitalization shall be appropriately adjusted to reflect such stock dividend, stock split or other change in capitalization. Shares issued pursuant to the exercise of options granted hereunder shall be made available from authorized but unissued shares of the Corporation or shares held by the Corporation as treasury shares. Any shares for which an option is granted hereunder that are released from such option for any reason other than the exercise of stock appreciation rights granted hereunder shall become available for other options to be granted under this Plan.
3. Administration of the Plan. Except to the extent the Board of Directors reserves to itself the authority with respect thereto, this Plan shall be administered under the supervision of a committee (hereinafter called the "Committee") composed of not less than three directors of the Corporation appointed by the Board of Directors. The members of the Committee shall not, pursuant to the exercise of discretion, be eligible, and shall not have been so eligible for a period of at least one year prior to their appointment, to participate in this Plan or to have been selected to participate in any other plan of the Corporation or any affiliate (as defined under the Securities Exchange Act of 1934) of the Corporation entitling the participants herein to acquire stock, stock options or stock appreciation rights of the Corporation or any affiliate of the Corporation. Members of the Committee shall serve at the pleasure of the Board of Directors, and may resign by written notice filed with the Chairman of the Board or the Secretary of the Corporation. A vacancy in the membership of the Committee shall be filled by the appointment of a successor member by the Board of Directors. Until such vacancy is filled, the remaining members shall constitute a quorum and the action at any meeting of a majority of the entire Committee, or an action unanimously approved in writing, shall constitute action of the Committee. Subject to the express provisions of this Plan, the Committee shall have conclusive authority to construe and interpret the Plan, any stock option agreement entered into hereunder, and any stock appreciation right granted hereunder, to adopt and amend forms of Option Agreements and Grants of Stock Appreciation Rights and to establish, amend, and rescind rules and regulations for the administration of this Plan and shall have such additional authority as the Board of Directors may from time to time determine to be necessary or desirable.
In addition, with respect to Key Employees who are foreign nationals or employed outside the United States, or both, there may be adopted in the manner provided herein such rules and regulations, policies, subplans or the like as are necessary or advisable in order to effectuate the purposes of the Plan.
4. Granting of Options. The Committee from time to time shall designate from among the full-time employees of the Corporation and its subsidiaries and any corporation at least 20% of the voting securities of which is owned by the Corporation or a subsidiary of the Corporation to whom options to purchase shares shall be granted under this Plan, the type of option to be granted and the number of shares which shall be subject to each option so granted; provided however, that incentive stock options may only be granted to full-time employees of the Corporation and its subsidiaries, as such term is defined in this Plan. Except to the extent the Board of Directors reserves to itself the authority with respect thereto, all actions of the Committee under this Paragraph shall be conclusive; provided, however, that the aggregate fair market value (determined as of the date the option is granted) of shares for which incentive stock options are exercisable for the first time by any individual during any calendar year (under this Plan or any other plan of the Corporation which provides for the granting of incentive stock options) may not exceed $100,000. Any incentive stock option that is granted to any employee who is, at the time the option is granted, deemed for purposes of Section 422 of the Code, or any successor provision, to own shares of the Corporation possessing more than ten percent (10%) of the total combined voting power of all classes of shares of the Corporation or of a parent or subsidiary of the Corporation, shall have an option price that is at least 110 percent (110%) of the fair market value of the shares and shall not be exercisable after the expiration of 5 years from the date it is granted. The maximum number of options granted to any single executive during any period of eleven consecutive months shall not exceed options for 100,000 shares, subject to adjustment in accordance with Section 2 of the Plan.
5. Granting of Stock Appreciation Rights. Except to the extent the Board of Directors reserves to itself the authority with respect thereto, the Committee shall have the discretion to grant to optionees stock appreciation rights in connection with options to purchase shares on such terms and conditions as it deems appropriate. A stock appreciation right will allow an optionee to surrender an option or portion thereof and to receive payment from the Corporation in an amount equal to the excess of the aggregate fair market value of the shares with respect to which options are surrendered over the aggregate option price of such shares. A stock appreciation right shall be exercisable no sooner than six months after it is granted and thereafter at any time prior to its stated expiration date, but only to the extent the related stock option right may be exercised. Payment shall be made in shares, cash or a combination of shares and cash, as provided in the Grant of Stock Appreciation Rights. Shares as to which any option is so surrendered shall not be available for future option grants hereunder. The Committee may grant stock appreciation rights concurrently with the grant of an option or, in the case of an option which is not an incentive stock option, with respect to an outstanding option.
6. Option Period. No option granted under this Plan may be exercised later than ten years from the date of grant.
7. Option Price. The option price shall be set forth in the Option Agreement, which price in no case shall be less than the per share fair market value of the outstanding shares of the Corporation on the date that the option is granted. The option price may be fixed in terms of a formula and one or more officers of the Corporation may be authorized to compute the price in accordance with that formula. Payment of the option price may be made in cash, shares, or a combination of cash and shares, as provided in the Option Agreement in effect from time to time. The date on which the granting of an option is approved shall be deemed the date on which the option is granted.
8. Option Agreement. The Option Agreement pursuant to which option rights are granted to an employee shall be in the applicable form (consistent with this Plan) from time to tzime approved in the manner provided herein and shall be signed on behalf of the Corporation by the Chief Executive Officer or any Vice President of the Corporation, other than the employee who is a party thereto. The Option Agreement shall set forth the number of shares which are subject to the option to purchase, the type of option granted, the option price to be paid upon exercise, the manner in which the option is to be exercised and the option price is to be paid, and the option period, and may include such other terms not inconsistent with this Plan as are from time to time approved in the manner provided herein.
9. Grant of Stock Appreciation Rights. The Grant of Stock Appreciation Rights pursuant to which stock appreciation rights are granted shall be in the applicable form (consistent with this Plan) from time to time approved in the manner provided herein and shall be signed on behalf of the Corporation by the Chief Executive Officer or any Vice President of the Corporation, other than the employee to whom the grant is made. The Grant of Stock Appreciation Rights shall set forth the option or options to which the grant relates, the manner in which the stock appreciation rights are exercisable, and may include such other terms not inconsistent with this Plan as are from time to time approved in the manner provided herein.
10. Transferability. No option or stock appreciation right shall be transferable by the optionee except by will or the laws of descent and distribution, and options and stock appreciation rights may be exercised during the employee's lifetime only by him or his guardian or legal representative. Notwithstanding the foregoing, the Committee may, in its discretion, authorize the transfer of all or a portion of options granted to an optionee (a) to the optionee's spouse, children, grandchildren, parents, siblings and to other family members approved by the Committee ("Family Members"); (b) to trust(s) for the exclusive benefit of such Family Members; or (c) to partnerships in which such Family Members are at all times the only partners. Any transfer to or for the benefit of Family Members permitted hereunder may be made subject to such conditions or limitations as the Committee may establish to ensure compliance under the federal securities laws, or for other purposes. Options transferred to or for the benefit of Family Members may be exercised by the transferee during or after the employee's lifetime.
11. Extraordinary Distributions and Pro-Rata Repurchases. In the event the Corporation shall at any time when a stock option is outstanding make an Extraordinary Distribution (as hereinafter defined) in respect of Common Stock or effect a Pro-Rata Repurchase of Common Stock (as hereinafter defined), the Committee shall consider the economic impact of the Extraordinary Distribution or Pro-Rata Repurchase on Participants and make such adjustments as it deems equitable under the circumstances. The determination of the Committee shall, subject to revision by the Board of Directors, be final and binding upon all Participants.
As used herein, the term "Extraordinary Distribution" means any dividend or other distribution of:
(a) cash, where the aggregate amount of such cash dividend or distribution together with the amount of all cash dividends and distributions made during the preceding twelve months, when combined with the aggregate amount of all Pro-Rata Repurchases (for this purpose, including only that portion of the aggregate purchase price of such Pro Rata Repurchases which is in excess of the Fair Market Value of the Common Stock repurchased during such twelve month period), exceeds ten percent (10%) of the aggregate Fair Market Value of all
shares of Common Stock outstanding on the record date for determining the shareholders entitled to receive such Extraordinary Distribution, or
(b) any shares of capital stock of the Corporation (other than shares of Common Stock), other securities of the Corporation, evidences of indebtedness of the Corporation or any other person or any other property (including shares of any subsidiary of the Corporation), or any combination thereof.
As used herein "Pro Rata Repurchase" means any purchase of shares of Common Stock by the Corporation or any subsidiary thereof, pursuant to any tender offer or exchange offer subject to Section 13(e) of the Exchange Act or any successor provision of law, or pursuant to any other offer available to substantially all holders of Common Stock; provided, however, that no purchase of shares of the Corporation or a subsidiary thereof made in open market transactions shall be deemed a Pro Rata Repurchase.
12. Amendment and Termination of the Plan. The Corporation, by action of its Board of Directors, reserves the right to amend, modify or terminate at any time this Plan, or, by action of the Committee with the consent of the optionee, to amend, modify or terminate any outstanding Option Agreement or Grant of Stock Appreciation Rights, except that the Corporation may not, without further shareholder approval, increase the total number of shares as to which options may be granted under this Plan (except increases attributable to the adjustments authorized in Paragraph 2 hereof), change the employees or class of employees eligible to receive options, adjust or amend the exercise price of options or stock appreciation rights previously granted to any optionee, whether through amendment, cancellation, replacement grants or any other means, or materially increase the benefits accruing to participants under this Plan. Notwithstanding the foregoing, the provisions of Section 17 shall not be amended more than once every six months other than to comport with changes in the Code or the Employee Retirement Income Security Act or the rules and regulations thereunder. Moreover, no action shall be taken by the Corporation which will impair the validity of any option or stock appreciation right then outstanding, or which will prevent the options issued and stock appreciation rights granted pursuant to this Plan from meeting the requirements for exemption from Section 16(b) of the Securities Exchange Act of 1934, or subsequent comparable statute, as set forth in Rule 16b-3 under said Act or subsequent comparable rule, or which will prevent any incentive stock option issued or to be issued under this Plan from being an "incentive stock option" under Section 422 of the Code, or any successor provision.
13. Subsidiary. The term "subsidiary" as used herein shall mean any corporation in an unbroken chain of corporations beginning with the Corporation and ending with the employer corporation if, at the time of the granting of the option, each of the corporations other than the employer corporation owns stock possessing 50 percent or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
Settlement of stock options or stock appreciation rights exercised by employees of subsidiaries shall be made by and at the expense of such subsidiary. Except as prohibited by law, the Corporation shall sell and transfer to the subsidiary, and the subsidiary shall purchase, the number of shares necessary to settle any stock option that is exercised.
14. Noncompetition Provision. Unless the Option Agreement specifies otherwise, an optionee shall forfeit all unexercised stock options and stock appreciation rights if, (i) in the opinion of the Committee, such optionee, without the written consent of the Corporation, engages directly or indirectly in any manner or capacity as principal, agent, partner, officer, director, employee, or otherwise, in any business or activity competitive with the
business conducted by the Corporation or any subsidiary; or (ii) the optionee performs any act or engages in any activity which in the opinion of the Committee is inimical to the best interests of the Corporation.
15. Effective Date of Plan. The Amended and Restated Plan shall be effective upon approval by the shareholders at the 1991 annual meeting.
16. Expiration of Plan. Options may be granted under this Plan at any time prior to April 26, 2010, on which date the Plan shall expire but without affecting any options then outstanding.
17. Directors' Stock Options.
(a) Grants. Stock options may be granted to non-employee Directors only in accordance with the requirements of this Section 17. During each year of service on the Board of Directors, there shall automatically be granted to each non-employee Director an option to purchase 2,500 shares of Common Stock on such date as the Committee or the Board shall determine; provided, however that in the case of a newly appointed or elected director such director shall be granted his or her initial option on the date of appointment or election if such date is at least six months prior to the annual grant date determined by the Committee or the Board. Notwithstanding the foregoing, no stock options shall be granted to a director whose normal retirement under a plan or policy of the Corporation would occur prior to six months from the date of granting such option.
(b) Option Price. The option exercise price shall be the per share fair market value of the outstanding shares of the Common Stock on the date such options are granted. The Committee shall be authorized to determine such price per share. Payment of the option price may be made in cash or in shares of Common Stock or any combination of cash and Common Stock.
(c) Administration. Subject to the express provisions of this
Section 17, the Committee shall have conclusive authority to construe and
interpret any stock option granted under this Section 17 and to adopt
administrative policies with respect thereto; provided, however, that no action
shall be taken which would prevent the options granted under this Section 17
from meeting the requirements for exemption from Section 16(b) of the Exchange
Act, or subsequent comparable statute, as set forth in Rule 16(b)-3 of the
Exchange Act or any subsequent comparable rule.
(d) Option Agreement. The options granted hereunder shall be evidenced by an option agreement, dated as of the date of the grant, which agreement shall be in such form, consistent with the terms and requirements of this Section 17, as shall be approved by the Committee from time to time and executed on behalf of the Corporation by the Chief Executive Officer.
(e) Option Period. Options granted under this Section 17 shall not be exercisable later than 10 years from the date of grant.
(f) Transferability. No option shall be transferable by the non-employee Director except by will or the laws of descent and distribution and, during the Director's lifetime, options may be exercised only by such director or his or her guardian or legal representative.
(g) Limitations on Exercise. Directors' stock options shall become exercisable to the extent of 25% of the optioned shares after the first anniversary of the date of grant, 50%
after the second anniversary, 75% after the third anniversary and 100% after the fourth anniversary of the date of grant. To the extent an option is not otherwise exercisable at the date of the Director's retirement under a retirement plan or policy of the Corporation, it shall become fully exercisable upon such retirement; provided, however, that Director stock options shall not become exercisable under this sentence prior to the expiration of six months from the date of grant. Options not otherwise exercisable at the time of the death of a Director during continued service with the Corporation shall become fully exercisable upon his death. Upon the death of a Director, such options shall remain exercisable for a period of one year after the date of death. To the extent an option is exercisable on the date a Director ceases to be a Director (other than by reason of death or retirement as described above), the option shall continue to be exercisable (subject to the original term of the option) for a period of ninety (90) days thereafter.