SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement under the Securities Act of 1933
AZZ incorporated
(Exact name of issuer as specified in its charter)
Texas
(State or other jurisdiction of 75-0948250
incorporation or organization) (I.R.S. Employer Identification Number)
University Centre I, Suite 200, 76107
1300 South University Dr. (ZIP Code)
Fort Worth, Texas
(Address of Principal Executive Offices)
AZZ incorporated
2001 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
DAVID H. DINGUS
President and CEO
University Centre I, Suite 200, 1300 South University Dr.
Fort Worth, Texas 76107
(Name and address of agent for service)
(817) 810-0095
(Telephone number, including area code, of agent for service)
Copy to:
Sam Rosen
Shannon, Gracey, Ratliff & Miller, L.L.P.
777 Main Street, Suite 3800
Fort Worth, Texas 76102
(817) 877-8108
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLAN:
From time to time after this Registration Statement becomes effective.
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered(3) Per Share Offering Price Registration Fee
Common Stock 385,691 shares(1) $16.73 to $24.25 $ 7,371,061 $ 678
$1.00 par value 364,309 shares(2) $15.53 $ 5,657,719 $ 521
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750,000 shares $13,028,780 $1,199
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(1) Shares, valued at the exercise price pursuant to Rule 457(h), underlying
incentive stock options outstanding under the Plan named above.
(2) Shares available for issuance pursuant to stock option grants or restricted
stock awards, valued at the average of the high and low price on the New York
Stock Exchange on June 20, 2002. Pursuant to Rule 457(c) and 457(h), the
offering price and registration fee are based on a price of $15.53 per share,
which price is an average of the high and low prices of the Common Stock on the
New York Stock Exchange on June 20, 2002.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also registers an indeterminate number of shares of
Common Stock to cover any adjustments in the number of shares issuable pursuant
to the plan named above, or options or other awards granted thereunder, as a
result of anti-dilution provisions contained therein.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Note: The document(s) containing the information specified in Item 1 of
Part I of Form S-8 will be sent or given to employees as specified by Rule
428(b)(1). As specified in Form S-8, such documents are not filed with the
Commission either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Note: The Registrant will provide a written statement to participants
advising them of the availability without charge, upon written or oral request,
of the documents incorporated by reference in Item 3 of Part II of this
registration statement, and stating that these documents are incorporated by
reference in the Section 10(a) prospectus. The statement also will indicate the
availability without charge, upon written or oral request, of other documents
required to be delivered to employees pursuant to Rule 428(b). The statement
will include the address (giving title or department) and telephone number to
which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by the Registrant, are incorporated
herein by reference and made a part hereof: (i) Annual Report on Form 10-K for
the year ended February 28, 2002; and (ii) the description of the Registrant's
Common Stock contained in the Registrant's Registration Statement on Form 8-A
(No. 001-12777) filed February 24, 1997.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment that indicates that all securities
offered have been sold or that deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document 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 that 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. DESCRIPTION OF SECURITIES
The class of Common Stock, par value $1.00 per share, to be offered is
registered under Section 12(b) of the Exchange Act.
Plan interests are not being registered in this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters relating to the Plan have been passed upon for
the Registrant by Shannon, Gracey, Ratliff & Miller, L.L.P., 777 Main Street,
Suite 3800, Fort Worth, Texas 76102. At the time such legal matters were
undertaken, Mr. Sam Rosen, a partner in Shannon, Gracey, Ratliff & Miller,
L.L.P., was a director and the secretary of the Registrant and was the
beneficial owner of 22,471 shares of Registrant common stock including
exercisable options to purchase 10,000 shares of Registrant common stock. It is
expected that this amount may change from time to time.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2.02-1 of the Texas Business Corporation Act (the "TBCA")
empowers a corporation to indemnify its directors and officers and to purchase
and maintain liability insurance for directors and officers. Section 2.02-1 of
the TBCA permits indemnification of directors and officers of corporations under
certain conditions and subject to certain limitations and, under certain
circumstances, requires such indemnification. The TBCA provides further that a
provision for indemnification of a director, whether contained in the articles
of incorporation, the bylaws, a resolution of shareholders or directors, an
agreement, or otherwise, is valid only to the extent it is consistent with
Article 2.02-1 of the TBCA, as limited by the articles of incorporation, if such
limitation exists. Article 12 of the Registrant's Restated Articles of
Incorporation contains a provision providing for indemnification of directors
and officers to the full extent permitted by law. Section 8.01 of the
Registrant's Bylaws, as amended, contains a provision providing for
indemnification to the full extent permitted by law.
Additionally, Article 11 of the Registrant's Restated Articles of
Incorporation limits the personal liability of directors of the Registrant to
the Registrant or its shareholder for monetary damages for an act or omission in
such director's capacity as a director, except that such Article 11 does not
eliminate or limit the liability of a director for (i) a breach of the
director's duty of loyalty to the Registrant or its shareholders; (ii) an act or
omission not in good faith or that involves intentional misconduct or a knowing
violation of law, (iii) a transaction from which such director received an
improper benefit, whether or not the benefit resulted from an action taken
within the scope of such director's office, (iv) an act or omission for which
the liability of such director is expressly provided for by statute, or (v) an
act related to an unlawful stock purchase or payment of a dividend.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the
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Commission, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
4 Form of Stock Certificate for the Registrant's $1.00 par value Common
Stock (incorporated by reference to Exhibit 4 of the Quarterly Report
on Form 10-Q filed by Registrant for the quarter ended August 31,
2000).
4.1 AZZ incorporated 2001 Long-Term Incentive Plan (incorporated by
reference to Exhibit A of the Proxy Statement for the Registrants
annual shareholders meeting held on July 10, 2001).
5* Opinion of Shannon, Gracey, Ratliff & Miller, L.L.P. regarding legality
of registered securities.
23* Consent of Ernst & Young LLP.
* Filed herewith (see Exhibit Index).
ITEM 9. UNDERTAKINGS
(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;
(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 amendments 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 the 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
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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 (a)(1)(i) and (a)(1)(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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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; and
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 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, 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 Fort Worth, State of Texas, on the 19th day of June,
2002.
AZZ incorporated
By: /s/ David H. Dingus
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David H. Dingus, President
and Chief Executive Officer
By: /s/ Dana L. Perry
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Dana L. Perry, Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
/s/ David H. Dingus President, Chief Executive June 19, 2002
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David H. Dingus Officer and Director
/s/ Dana L. Perry Vice President, CFO June 19, 2002
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Dana L. Perry and Director
/s/ L. C. Martin Chairman of the Board June 19, 2002
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L. C. Martin
/s/ Daniel E. Berce Director June 19, 2002
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Daniel E. Berce
/s/ Martin C. Bowen Director June 19, 2002
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Martin C. Bowen
/s/ Daniel R. Feehan Director June 19, 2002
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Daniel R. Feehan
/s/ R. J. Schumacher Director June 19, 2002
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R. J. Schumacher
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/s/ Sam Rosen Director June 19, 2002
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Sam Rosen
/s/ Dr. H. Kirk Downey Director June 19, 2002
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Dr. H. Kirk Downey
/s/ Kevern R. Joyce Director June 19, 2002
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Kevern R. Joyce
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