As filed
with the Securities and Exchange Commission on August 12, 2008
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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Form
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
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AZZ
incorporated
(Exact
name of registrant as specified in its charter)
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Texas
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75-0948250
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer Identification No.)
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University
Centre, I, Suite 200
1300
South University Drive
Fort
Worth, Texas
(Address
of Principal Executive Offices)
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76107
(Zip
Code)
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––––––––––––––––––––––
AZZ
incorporated Employee Stock Purchase Plan
(Full
title of the plan)
––––––––––––––––––––––
David
H. Dingus
President
and Chief Executive Officer
University
Centre I, Suite 200, 1300 South University Drive
Fort
Worth, Texas 76107
(Name and
address of agent for service)
(817)
810-0095
(Telephone
number, including area code, of agent for service)
with
copies of communications to:
F.
Richard Bernasek, Esq.
Kelly
Hart & Hallman LLP
201
Main Street, Suite 2500
Fort
Worth, Texas 76102-3126
(817)
332-2500
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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 ý
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Non-accelerated
filer ¨(Do not check if
smaller reporting company)
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Smaller
reporting company ¨
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be
registered
(1)
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Proposed
maximum offering price
per
share (2)
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Proposed
maximum aggregate offering price (2)
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Amount
of registration fee (2)
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||||||||||||
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Common
Stock, par value $1.00 per share
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500,000 | $ | 42.10 | $ | 21,050,000 | $ | 827.27 | |||||||||
(1)
Represents shares issuable under the AZZ incorporated Employee Stock Purchase
Plan (the "Plan"). Pursuant to Rule 416, there are also registered hereunder
such indeterminate number of additional shares as may become subject to awards
under the Plan as a result of the antidilution provisions contained
therein.
(2) The
registration fee with respect to these shares has been computed in accordance
with paragraphs (c) and (h) of Rule 457, based upon the average of the reported
high and low sale prices of shares of the Common Stock on the New York Stock
Exchange on August 8, 2008.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan
Information.*
Item
2. Registrant
Information and Employee Plan Annual Information.*
*The
documents containing the information specified in Part I of Form S-8 will be
sent or given to participants in the Plan as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the “Securities Act”). Such documents need
not be filed with the Securities and Exchange Commission (the “Commission”)
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8 and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
AZZ incorporated (the “Company”) hereby
incorporates by reference the following documents filed with the
Commission:
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·
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Annual
Report on Form 10-K for the fiscal year ended February 29, 2008, filed
with the Commission on May 12,
2008;
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·
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Quarterly
Report on Form 10-Q for the fiscal quarter ended May 31, 2008, filed with
the Commission on June 27, 2008;
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·
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Current
Reports on Form 8-K filed with the Commission on June 12, 2008, June 17,
2008, June 27, 2008, and July 2, 2008;
and
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·
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The
description of the Company’s Common Stock contained in the Company’s Form
8-A Registration Statement filed with the Commission under the Exchange
Act on February 24, 1997 (File No. 001-12777) and
all amendments or reports filed for the purpose of updating such
description.
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All
documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof, and prior to the filing of a
post-effective amendment which indicates that the securities offered hereby have
been sold or which deregisters the securities offered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
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
hereof 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 statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
hereof.
Item
4. Description of Securities
Not
applicable.
Item
5. Interests of Named Experts and Counsel
Not
applicable.
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 Amended and Restated 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
shareholders 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 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 Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
The foregoing summaries are necessarily
subject to the complete text of the statutes and the registrant’s Restated
Articles of Incorporation and registrant’s Amended and Restated Bylaws, as
amended, referred to above and are qualified in their entirety by reference
thereto.
Item
7. Exemption from Registration Claimed
Not
applicable.
Item
8. Exhibits
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Exhibit
No.
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Description
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4.1
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Amended
and Restated Certificate of Incorporation of the registrant (incorporated
herein by reference to Exhibit 3.1 of the registrant’s Form 8-K dated July
3, 1995, filed with the Commission on July 18, 1995)
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4.2*
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AZZ
incorporated Employee Stock Purchase Plan
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5.1*
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Opinion
of Kelly Hart & Hallman LLP regarding legality of Common Stock being
offered
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23.1*
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Consent
of BDO Seidman, LLP
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23.2*
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Consent
of Ernst & Young LLP
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23.3*
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Consent
of Kelly Hart & Hallman LLP (included in its legal opinion filed as
Exhibit 5.1 hereto)
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24.1*
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Power
of Attorney (incorporated in the signature page of this Registration
Statement)
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____________________
* Each
document marked with an asterisk is filed herewith.
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 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 percent 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 (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 with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in 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.
(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 the 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 Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in 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 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.
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 Fort Worth, State of
Texas, on the 11th day of
August, 2008.
AZZ incorporated
By: /s/ Dana L.
Perry
Dana L. Perry
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Senior
Vice President of Finance, Chief Financial
Officer
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POWER
OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that
the undersigned officers and directors of AZZ incorporated, a Texas corporation,
do hereby constitute and appoint David H. Dingus and Dana L. Perry, and each of
them, their true and lawful attorneys-in-fact and agents or attorney-in-fact and
agent, with power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules and
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the full power of
substitution and resubstitution, for them and in their name, place and stead, in
any and all capacities, the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments (including any post-effective
amendments) and supplements thereto, and to any and all instruments or documents
filed as part or in connection with this Registration Statement, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents, or
any of them, shall do or cause to be done by virtue hereof. The Power
of Attorney may be signed in several counterparts.
Pursuant to the requirements of the
Securities Act of 1933, this registration statement has been signed below by the
following persons and in the following capacities on the date
indicated.
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Signature
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Title
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Date
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/s/
David H. Dingus
David
H. Dingus
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President,
Chief Executive Officer and Director
(Principal
Executive Officer)
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August
11, 2008
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/s/
Dana L.
Perry
Dana
L. Perry
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Senior
Vice President of Finance, Chief Financial Officer and
Director
(Principal
Financial and Accounting Officer)
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August
11, 2008
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/s/ Martin C.
Bowen
Martin
C. Bowen
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Director
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August
11, 2008
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/s/ Sam
Rosen
Sam
Rosen
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Director
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August
11, 2008
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/s/
Kevern R. Joyce
Kevern
R. Joyce
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Director
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August
11, 2008
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/s/ Peter A.
Hegedus
Peter
A. Hegedus
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Director
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August
11, 2008
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/s/ Dr. H. Kirk
Downey
Dr.
H. Kirk Downey
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Director
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August
11, 2008
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/s/ Daniel R.
Feehan
Daniel
R. Feehan
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Director
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August
11, 2008
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/s/ Daniel E.
Berce
Daniel
E. Berce
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Director
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August
11, 2008
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EXHIBIT
INDEX
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Exhibit
No.
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Description
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4.1
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Amended
and Restated Certificate of Incorporation of the registrant (incorporated
herein by reference to Exhibit 3.1 of the registrant’s Form 8-K dated July
3, 1995, filed with the Commission on July 18, 1995)
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4.2*
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AZZ
incorporated Employee Stock Purchase Plan
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5.1*
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Opinion
of Kelly Hart & Hallman LLP regarding legality of Common Stock being
offered
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23.1*
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Consent
of BDO Seidman, LLP
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23.2*
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Consent
of Ernst & Young LLP
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23.3*
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Consent
of Kelly Hart & Hallman LLP (included in its legal opinion filed as
Exhibit 5.1 hereto)
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24.1*
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Power
of Attorney (incorporated in the signature page of this Registration
Statement)
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____________________
* Each
document marked with an asterisk is filed herewith.