FORM S-3
As filed with the Securities and Exchange Commission on August 11, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRUSH ENGINEERED MATERIALS INC.
(Exact Name of Registrant as Specified in Its Charter)
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Ohio
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34-1919973 |
(State or Other Jurisdiction of Incorporation or Organization)
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(I.R.S. Employer Identification Number) |
6070 Parkland Blvd.
Mayfield Heights, Ohio 44124
(216) 486-4200
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal
Executive Offices)
Michael C. Hasychak
Vice President, Treasurer and Secretary
6070 Parkland Blvd.
Mayfield Heights, Ohio 44124
(216) 486-4200
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies To:
Michael J. Solecki
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44114
Phone: (216) 586-3939
Fax: (216) 579-0212
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, please check the following
box. þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this form is a post-effective amendment to a registration statement pursuant to General
Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
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 þ |
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Accelerated filero |
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Non-accelerated filer o (Do not check if a smaller reporting company) |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Maximum |
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Proposed Maximum |
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Title of Each Class of |
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Amount to be |
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Offering Price |
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Aggregate Offering |
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Amount of |
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Securities to be Registered |
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Registered (1) |
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Per Unit (1) (2) |
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Price (1) (3) |
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Registration Fee(1) |
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Common Shares, no par value (4)(10) |
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Preferred Shares, no par value (5)(10) |
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Depositary Shares (6)(10) |
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Warrants (7)(10) |
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Subscription Rights (8)(10) |
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Debt Securities (9)(10) |
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Total |
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$ |
150,000,000 |
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100 |
% |
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$ |
150,000,000 |
(11) |
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8,370 |
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(1) |
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Not specified as to each class of securities to be registered pursuant to General Instruction
II.D. to Form S-3. |
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(2) |
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The proposed maximum offering price per unit will be determined from time to time by the
registrant in connection with the issuance by the registrant of the securities registered
hereunder. |
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(3) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). |
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Subject to note (11) below, there is being registered an indeterminate number of common
shares. Each common share includes a right (Right) to purchase one one-hundredth of a share
of Series A Junior Participating Preferred Stock, no par value, on the terms and subject to
the conditions set forth in the Rights Agreement, dated as of May 10, 2000 (the Rights
Agreement), as amended by the First Amendment to Rights Agreement, dated as of December 7,
2004, and the Second Amendment to Rights Agreement, dated as of July 31, 2008, by and between
the registrant and Wells Fargo Bank, N.A., as rights agent. The terms of the Rights are
described in the Rights Agreement, filed as Exhibit 4(a) to the registrants Registration
Statement on Form 8-A filed with the Securities and Exchange Commission (the SEC) on May 16,
2000, as amended by the First Amendment to Rights Agreement, filed as Exhibit 4.1 to the
registrants Registration Statement on Form 8-A /A, filed with the SEC on December 13, 2004,
and the Second Amendment to Right Agreement, filed as Exhibit 4.1 to the registrants
Registration Statement on Form 8-A/A filed with the SEC on July 31, 2008. |
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Subject to note (11) below, there is being registered an indeterminate number of preferred
shares. |
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Subject to note (11) below, there is being registered an indeterminate number of depositary
shares to be evidenced by depositary receipts issued pursuant to a deposit agreement. If the
registrant elects to offer to the public fractional interests in preferred shares, then
depositary receipts will be distributed to those persons purchasing the fractional interests
and the shares will be issued to the depositary under the deposit agreement. |
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Subject to note (11) below, there is being registered hereunder an indeterminate amount and
number of warrants. The warrants may represent the right to purchase common shares, preferred
shares or debt securities. |
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(8) |
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Subject to note (11) below, there is being registered an indeterminate number of subscription
rights that may represent a right to purchase common shares, preferred shares or debt
securities. |
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Subject to note (11) below, there is being registered an indeterminate principal amount of
debt securities. |
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Subject to note (11) below, this registration statement also covers an indeterminate amount
of securities as may be issued in exchange for, or upon conversion or exercise of, as the case
may be, the preferred shares, depositary shares, warrants or subscription rights registered
hereunder. Any securities registered hereunder may be sold separately or as units with other
securities registered hereunder. No separate consideration will be received for any
securities registered hereunder that are issued in exchange for, or upon conversion of, as the
case may be, the preferred shares, depositary shares, warrants or subscription rights. |
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(11) |
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In no event will the aggregate initial offering price of all
securities issued from time to time pursuant to the prospectus contained in this registration statement exceed $150,000,000 or the equivalent thereof in one or more foreign currencies or foreign currency units.
Such amount represents the offering price of any common shares, preferred shares and depositary shares, the principal amount of any
debt securities issued at their stated principal amount, the issue price rather than the principal amount of any debt securities issued at
an original issue discount, the issue price of any warrants, the exercise price of any securities issuable upon the exercise of warrants
and the issue price of any securities issuable upon the exercise of subscription rights. The
aggregate principal amount of debt securities may be increased if any debt securities are issued
at an original issue discount by an amount such that the offering price to
be received by the registrant shall be equal to the above amount to be registered. Any
offering of securities denominated other than
in United States dollars will be treated as the equivalent of United States dollars based on the exchange rate applicable to the purchase
of such securities at the time of initial offering. The securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
The registrant hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. We may not sell
securities under this registration statement until the registration statement filed with the
Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to
sell any securities and it is not soliciting an offer to buy these securities in any state where
the offer or sale is not permitted.
Subject To Completion, Dated August 11, 2009
PROSPECTUS
$150,000,000
Common Shares
Preferred Shares
Depositary Shares
Warrants
Subscription Rights
Debt Securities
We may offer and sell from time to time our common shares, preferred shares, depositary
shares, warrants, subscription rights and debt securities. We may sell any combination of these
securities in one or more offerings with an aggregate initial offering price of $150,000,000 or the
equivalent amount in other currencies or currency units.
We will provide the specific terms of the securities to be offered in one or more supplements
to this prospectus. You should read this prospectus and the applicable prospectus supplement
carefully before you invest in our securities. This prospectus may not be used to offer and sell
our securities unless accompanied by a prospectus supplement describing the method and terms of the
offering of those offered securities.
We may sell the securities directly or to or through underwriters or dealers, and also to
other purchasers or through agents. The names of any underwriters or agents that are included in a
sale of securities to you, and any applicable commissions or discounts, will be stated in an
accompanying prospectus supplement. In addition, the underwriters, if any, may over-allot a
portion of the securities.
Investing in any of our securities involves risk. Please read carefully the section entitled
Risk Factors beginning on page 4 of this prospectus.
Our common shares are listed on the New York Stock Exchange under the symbol BW. The
closing price of our common shares on the New York Stock Exchange on August 10, 2009 was
$22.76. None of the other securities that we may offer under this prospectus are currently
publicly traded.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2009
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC using a shelf
registration process. Under this shelf process, we may from time to time sell any combination of
the securities described in this prospectus in one or more offerings up to a total dollar amount of
$150,000,000 or the equivalent amount in other currencies or currency units.
This prospectus provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. For a more complete understanding of the offering of
the securities, you should refer to the registration statement, including its exhibits. The
prospectus supplement may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with additional information
under the heading Where You Can Find More Information and Information We Incorporate By
Reference.
You should rely only on the information contained or incorporated by reference in this
prospectus and in any prospectus supplement or in any free writing prospectus that we may provide
you. We have not authorized anyone to provide you with different information. You should not
assume that the information contained in this prospectus, any prospectus supplement, any document
incorporated by reference or any free writing prospectus is accurate as of any date, other than the
date mentioned on the cover page of these documents. We are not making offers to sell the
securities in any jurisdiction in which an offer or solicitation is not authorized or in which the
person making such offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make an offer or solicitation.
References in this prospectus to the terms we, us or the Company or other similar terms
mean Brush Engineered Materials Inc. and its consolidated subsidiaries, unless we state otherwise
or the context indicates otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the Securities Exchange Act of
1934. We file reports, proxy statements and other information with the SEC. Our SEC filings are
available over the Internet at the SECs web site at http://www.sec.gov. You may read and copy any
reports, statements and other information filed by us at the SECs Public Reference Room at 100 F
Street, N.E., Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information on the
Public Reference Room. You may also inspect our SEC reports and other information at the New York
Stock Exchange, 20 Broad Street, New York, New York 10005, or at our web site at
http://www.beminc.com. We do not intend for information contained on or accessible through our web
site to be part of this prospectus, other than the documents that we file with the SEC that are
integrated by reference into this prospectus.
INFORMATION WE INCORPORATE BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them, which means:
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incorporated documents are considered part of the prospectus; |
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we can disclose important information to you by referring you to those documents;
and |
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information that we file with the SEC after the date of this prospectus will
automatically update and supersede the information contained in this prospectus and
incorporated filings. |
We incorporate by reference the documents listed below that we filed with the SEC under the
Exchange Act:
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our Annual Report on Form 10-K for the year ended December 31, 2008; |
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our Quarterly Reports on Form 10-Q for the quarters ended April 3, 2009 and July 3,
2009; |
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our Current Reports on Form 8-K filed on
February 3, 2009 and February 6, 2009; |
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the description of our capital stock contained in the registration statement on Form
8-A filed with the SEC on May 16, 2000, and all amendments and reports filed for the
purpose of updating that description; and |
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the description of the Series A Junior Participating Preferred Stock purchase rights
under the Rights Agreement filed as Exhibit 4(a) to the registration statement on Form
8-A filed on May 16, 2000, as amended by the registration statement on Form 8-A/A filed
on December 13, 2004 and the registration statement on Form 8-A/A filed July 31, 2008,
and any subsequently filed amendments and reports updating such description. |
We also incorporate by reference each of the documents that we file with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the initial filing of the
registration statement of which this prospectus forms a part, prior to the effectiveness of the
registration statement, and (2) after the date of this prospectus until the offering of the
securities terminates. We will not, however, incorporate by reference in this prospectus 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 after the date of
this prospectus unless, and except to the extent, specified in such current reports.
We will provide you with a copy of any of these filings (other than an exhibit to these
filings, unless the exhibit is specifically incorporated by reference into the filing requested) at
no cost, if you submit a request to us by writing or telephoning us at the following address and
telephone number:
Brush Engineered Materials Inc.
6070 Parkland Blvd.
Mayfield Heights, Ohio 44124
Telephone Number: (216) 486-4200
Attn: Secretary
Any statement contained or incorporated by reference in this prospectus shall be deemed to be
modified or superseded for purposes of this prospectus to the extent that a statement contained
herein, or in any subsequently filed document which also is incorporated herein by reference,
modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this prospectus. Any statement
made in this prospectus concerning the contents of any contract, agreement or other document is
only a summary of the actual contract, agreement or other document. If we have filed or
incorporated by reference any contract, agreement or other document as an exhibit to the
registration statement, you should read the exhibit for a more complete understanding of the
document or matter involved. Each statement regarding a contract, agreement or other document is
qualified by reference to the actual document.
2
THE COMPANY
Brush Engineered Materials Inc., through its wholly owned subsidiaries, is a manufacturer of
high performance advanced enabling engineered materials serving the global telecommunications and
computer, data storage, aerospace and defense, automotive electronics, industrial components
(including oil and gas, heavy equipment and plastic mold tooling), appliance and medical markets.
Our businesses are organized under four reportable segments: Advanced Material Technologies
and Services (AMTS); Specialty Engineered Alloys (SEA); Beryllium and Beryllium Composites; and
Engineered Material Systems. AMTS consists of Williams Advanced Materials Inc. (WAM) and Zentrix
Technologies, Inc. SEA consists of Alloy Products, which includes bulk and strip form products, and
beryllium hydroxide produced by Brush Resources Inc. (BRI). The Beryllium and Beryllium Composites
segment consists of Beryllium Products and Brush Ceramic Products Inc. while the Engineered
Material Systems segment consists of Technical Materials, Inc. (TMI).
Our parent company, Brush Engineered Materials Inc., and other corporate expenses, as well as
the operating results from BEM Services, Inc., a wholly owned subsidiary, are not part of any
reportable segment and remain in All Other.
Advanced Material Technologies and Services
AMTS manufactures and fabricates precious, non-precious and specialty metal products for the
data storage, medical and the wireless, photonics, semiconductor and hybrid segments of the
microelectronics market. AMTS also has refining capabilities for the reclaim of precious and
non-precious metals from internally or customer-generated scrap. In addition, AMTS provides chamber
services for its customers to reclaim precious metals and refurbish reusable components used in its
customers vapor deposition systems. AMTS major product lines include vapor deposition targets,
clad and precious metals preforms, high temperature braze materials, ultra fine wire, sealing lids,
optics, performance coatings, specialty inorganic materials and microelectronic packages. In
February 2008, AMTS purchased the assets of Techni-Met, Inc. based in Windsor, Connecticut, which
supplies a wide range of high end applications for advanced technology industries, including
supporting downstream customers in developing more accurate diagnostic devices for diabetes
management.
Specialty Engineered Alloys
SEA manufactures beryllium-containing and other high performance-based materials including
copper-nickel-tin alloys that are metallurgically tailored to meet specific customer performance
requirements. These products exhibit high electrical and thermal conductivities, high strength and
hardness, good formability, lubricity, and excellent resistance to corrosion, wear and fatigue.
These alloys, sold in strip and bulk form, are ideal choices for demanding applications in the
telecommunications and computer, aerospace, industrial components (including oil and gas, heavy
equipment and plastic mold tooling), appliance and medical markets. SEA, through BRI, manages our
mine and milling operations. The milling operations produce beryllium hydroxide from mined
bertrandite ore and purchased beryl ore. The beryllium hydroxide is used primarily as a raw
material input by certain businesses within our company.
Beryllium and Beryllium Composites
Beryllium and Beryllium Composites manufactures products that include beryllium and
AlBeMet®. Beryllium is a lightweight metal possessing unique mechanical and thermal
properties. Its specific stiffness is much greater than other engineered structural materials such
as aluminum, titanium and steel. Beryllium products are used in a variety of high performance
applications in the defense, aerospace, industrial, scientific equipment, electronics (including
acoustics), medical and optical scanning markets. Beryllium and Beryllium Composites also
manufactures beryllia ceramics for electronic packaging and electro-optical applications including
lasers. Electronic components utilizing beryllia are used in the telecommunications, medical,
industrial and defense markets.
Engineered Material Systems
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Engineered Material Systems manufactures clad inlay and overlay metals, precious and base
metal electroplated systems, electron beam welded systems, contour profiled systems and
solder-coated metals systems. These products are used in telecommunications and computer systems,
data storage, automotive electronics, semi-conductors, energy, defense and medical applications.
Corporate Information
Brush Engineered Materials Inc. is an Ohio corporation. Our principal executive offices are
located at 6070 Parkland Boulevard, Mayfield Heights, Ohio 44124. Our telephone number is (216)
486-4200. Our website is www.beminc.com. The information contained on or accessible through our
website is not part of this prospectus, other than the documents that we file with the SEC that are
incorporated by reference into this prospectus.
RISK FACTORS
Investing in our securities involves risk. Prior to making a decision about investing in our
securities, you should carefully consider the specific factors discussed under the heading Risk
Factors in our most recent Annual Report on Form 10-K and in our most recent Quarterly Reports on
Form 10-Q, which are incorporated herein by reference and may be amended, supplemented or
superseded from time to time by other reports we file with the SEC in the future. The risks and
uncertainties we have described are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial may also affect our operations. If
any of these risks actually occurs, our business, results of operations and financial condition
could suffer. In that case, the trading price of our securities could decline, and you could lose
all or part of your investment.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes, and any prospectus supplement may include, forward-looking
statements. Our actual future performance may materially differ from that contemplated by the
forward-looking statements as a result of a variety of factors. These factors include, without
limitation:
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the global and domestic economies, including the uncertainties related to the impact of
the current global economic crisis; |
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the condition of the markets in which we serve, whether defined geographically or by
segment, with the major market segments being telecommunications and computer, data
storage, aerospace and defense, automotive electronics, industrial components, appliance
and medical; |
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changes in product mix and the financial condition of customers; |
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our success in developing and introducing new products and new product ramp-up rates,
especially for media applications in the data storage market; |
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our success in passing through the costs of raw materials to customers or otherwise
mitigating fluctuating prices for those materials, including the impact of fluctuating
prices on inventory values; |
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our success in integrating newly acquired businesses; |
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our success in implementing our strategic plans and the timely and successful completion
of any capital projects; |
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the availability of adequate lines of credit and the associated interest rates and/or fees; |
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other financial factors, including cost and availability of raw materials (both base and
precious metals), tax rates, exchange rates, metal financing fees, pension costs and
required cash contributions and other employee benefit costs, energy costs, regulatory
compliance costs, the cost and availability of insurance, and the impact |
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of our stock price on the cost of incentive plans; |
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the uncertainties related to the impact of war and terrorist activities; |
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changes in government regulatory requirements and the enactment of new legislation that
impacts our obligations and operations; |
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the conclusion of pending litigation matters in accordance with our expectation that there
will be no material adverse effects; and |
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the risk factors referred to elsewhere in this prospectus. |
5
USE OF PROCEEDS
Unless we inform you otherwise in the applicable prospectus supplement, we expect to use the
net proceeds from the sale of securities for general corporate purposes. These purposes may
include, but are not limited to:
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reduction or refinancing of outstanding indebtedness or other corporate obligations; |
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additions to working capital; |
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capital expenditures; and |
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acquisitions. |
Pending any specific application, we may initially invest funds in short-term marketable
securities or apply them to the reduction of short-term indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of consolidated earnings to fixed charges for the
periods presented:
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Six months |
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ended |
Year ended December 31, |
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July 3, |
2004 |
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2005 |
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2006 |
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2007 |
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2008 |
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2009 |
1.80x |
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1.81x |
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8.07x |
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27.12x |
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8.49x |
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Fixed charges are equal to interest expense (including amortization of deferred financing
costs), plus the portion of rent expense estimated to represent interest.
Total earnings were insufficient to cover the fixed charges for the six months ended July 3,
2009 by $14.3 million primarily due to operating losses. Accordingly, such ratio is not presented
for such period.
6
DESCRIPTION OF CAPITAL STOCK
The following description is a general summary of the terms of the common shares and preferred
shares that we may issue. The description below and in any prospectus supplement does not include
all of the terms of the common shares and preferred shares and should be read together with our
Amended and Restated Articles of Incorporation and Amended and Restated Code of Regulations, copies of which
have been filed previously with the SEC. For more information on how you can obtain copies of our
Amended and Restated Articles of Incorporation and Amended and Restated Code of Regulations, see Where You Can
Find More Information.
Our authorized capital stock consists of 65,000,000 shares of stock, including:
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60,000,000 common shares, no par value; and |
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5,000,000 preferred shares, no par value. |
Common Shares
Each outstanding common share is entitled to one vote on all matters submitted to a vote of
shareholders. Pursuant to Ohio law, holders of our common shares have the right to cumulative
voting. Our articles of incorporation provide for our board to be divided into three classes of
directors, as nearly equal in number as possible, serving staggered terms. Approximately one-third
of our board will be elected by the shareholders each year.
Subject to any superior rights of any holders of preferred shares, each outstanding common
share will be entitled to such dividends as may be declared from time to time by our board of
directors out of legally available funds. We have no current intention to declare dividends on our
common shares in the near term. Our current policy is to retain all funds and earnings for use in
the operation and expansion of our business. Additionally, the amount of dividends that we may pay
is restricted by the terms of our credit facilities. In the event of our liquidation, dissolution
or winding up, holders of our common shares will be entitled to their proportionate share of any
assets remaining after payment of liabilities and any amounts due to the holders of preferred
shares. Holders of our common shares have no preemptive rights and no right to convert or exchange
their common shares into any other securities. No redemption or sinking fund provisions apply to
our common shares.
Shareholder Rights Plan
Under the terms of our rights agreement, one preferred share purchase right is associated with
each of our outstanding common shares. Until the occurrence of specified events described in the
rights agreement, the preferred share purchase rights are not exercisable, are evidenced by the
certificates for our common shares and may be transferred only with our common shares. The
preferred share purchase rights will expire on May 16, 2010.
Each preferred share purchase right entitles the registered holder to purchase from us one
one-hundredth of a share of Series A Junior Participating Preferred Stock, without par value, at a
price of $110.00 per one one-hundredth of a preferred share, subject to adjustment. The rights
agreement also provides, subject to specified exceptions and limitations, that common shares issued
or delivered from our treasury after the record date will be entitled to and accompanied by
preferred share purchase rights. The preferred share purchase rights are in all respects subject to
and governed by the provisions of the rights agreement.
Preferred Shares
Our board of directors is authorized, without shareholder approval, to issue up to 5,000,000
preferred shares in one or more series and to fix the rights, preferences, privileges and
restrictions granted to or imposed upon the preferred shares, including voting rights, dividend
rights, conversion rights, terms of redemption, liquidation preference, sinking fund terms and the
number of shares constituting any series or the designation of a series. Our board of directors
can, without shareholder approval, issue preferred shares with voting and conversion rights that
could adversely affect the voting power of the holders of common shares. Any preferred shares
issued would also rank senior to our common shares as to rights up on liquidation, winding-up or
dissolution. The issuance of
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convertible preferred shares could have the effect of delaying, deferring or preventing a change in
control of our company. We have no present plan to issue any preferred shares.
Control Share Acquisitions
Section 1701.831 of the Ohio Revised Code provides that certain notice and informational
filings and special shareholder meeting and voting procedures must be followed prior to
consummation of a proposed control share acquisition. The Ohio Revised Code defines a control
share acquisition as any acquisition of an issuers shares which would entitle the acquirer,
immediately after that acquisition, directly or indirectly, to exercise or direct the exercise of
voting power of the issuer in the election of directors within any one of the following ranges of
that voting power:
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one-fifth or more but less than one-third of that voting power; |
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one-third or more but less than a majority of that voting power; or |
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a majority or more of that voting power. |
Assuming compliance with the notice and information filings prescribed by the statute, the
proposed control share acquisition may be made only if, at a special meeting of shareholders, the
acquisition is approved by at least a majority of the voting power of the issuer represented at the
meeting and at least a majority of the voting power remaining after excluding the combined voting
power of the interested shares. Interested shares are the shares held by the intended acquirer
and the employee-directors and officers of the issuer, as well as certain shares that were acquired
after the date of the first public disclosure of the acquisition but before the record date for the
meeting of shareholders and shares that were transferred, together with the voting power thereof,
after the record date for the meeting of shareholders.
Business Combinations with Certain Persons
We are subject to Chapter 1704 of the Ohio Revised Code, which prohibits certain business
combinations and transactions between an issuing public corporation and an Ohio law interested
shareholder for at least three years after the Ohio law interested shareholder attains 10%
ownership, unless the board of directors of the issuing public corporation approves the transaction
before the Ohio law interested shareholder attains 10% ownership. An issuing public corporation
is an Ohio corporation with 50 or more shareholders that has its principal place of business,
principal executive offices, or substantial assets within the State of Ohio, and as to which no
close corporation agreement exists. An Ohio law interested shareholder is a beneficial owner of
10% or more of the shares of a corporation. Examples of transactions regulated by Chapter 1704
include the disposition of assets, mergers and consolidations, voluntary dissolutions and the
transfer of shares.
Subsequent to the three-year period, a transaction subject to Chapter 1704 may take place
provided that certain conditions are satisfied, including:
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prior to the interested shareholders share acquisition date, the board of directors
approved the purchase of shares by the interested shareholder; |
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the transaction is approved by the holders of shares with at least 662/3%
of the voting power of the corporation (or a different proportion set forth in the
articles of incorporation), including at least a majority of the outstanding shares
after excluding shares controlled by the Ohio law interested shareholder; or |
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the business combination results in shareholders, other than the Ohio law interested
shareholder, receiving a fair price plus interest for their shares. |
Chapter 1704 is applicable to all corporations formed under Ohio law.
Transfer Agent and Registrar
Wells Fargo Bank, N.A. serves as the transfer agent and registrar for our common shares. We
will select the transfer agent and registrar for a series of preferred shares, and each one will be
described in the applicable prospectus supplement.
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DESCRIPTION OF DEPOSITARY SHARES
We may offer depositary shares representing fractional shares of our preferred shares of any
series. The following description sets forth certain general terms and provisions of the depositary
shares that we may offer pursuant to this prospectus. The particular terms of the depositary
shares, including the fraction of a preferred share that such depositary share will represent, and
the extent, if any, to which the general terms and provisions may apply to the depositary shares so
offered will be described in the applicable prospectus supplement.
The preferred shares represented by depositary shares will be deposited under a depositary
agreement between us and a bank or trust company that meets certain requirements and is selected by
us, which we refer to as the Bank Depositary. Each owner of a depositary share will be entitled to
all the rights and preferences of the preferred shares represented by the depositary share. The
depositary shares will be evidenced by depositary receipts issued pursuant to the depositary
agreement. Depositary receipts will be distributed to those persons purchasing the fractional
preferred shares in accordance with the terms of the offering. The deposit agreement will also
contain provisions relating to the manner in which any subscription or similar rights we offer to
holders of the preferred shares will be made available to the holders of depositary shares.
The following description is a general summary of some common provisions of a depositary
agreement and the related depositary receipts. The description below and in any prospectus
supplement does not include all of the terms of the depositary agreement and the related depositary
receipts. Copies of the forms of depositary agreement and the depositary receipts relating to any
particular issue of depositary shares will be filed with the SEC each time we issue depositary
shares, and you should read those documents for provisions that may be important to you. For more
information on how you can obtain copies of the forms of the depositary agreement and the related
depositary receipts, see Where You Can Find More Information.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred shares represented by
depositary shares, the Bank Depositary will distribute these dividends to the record holders of
these depositary shares. If the distributions are in property other than cash, the Bank Depositary
will distribute the property to the record holders of the depositary shares. However, if the Bank
Depositary determines that it is not feasible to make the distribution of property, the Bank
Depositary may, with our approval, sell this property and distribute the net proceeds from this
sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred shares represented by depositary shares, the Bank
Depositary will redeem the depositary shares from the proceeds received by the Bank Depositary in
connection with the redemption. The redemption price per depositary share will equal the
applicable fraction of the redemption price per share of the preferred shares. If fewer than all
the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or
pro rata as the Bank Depositary may determine.
Voting the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the preferred shares represented
by depositary shares are entitled to vote, the Bank Depositary will mail the notice to the record
holders of the depositary shares relating to these preferred shares. Each record holder of these
depositary shares on the record date (which will be the same date as the record date for the
preferred shares) may instruct the Bank Depositary as to how to vote the preferred shares
represented by this holders depositary shares. The Bank Depositary will endeavor, insofar as
practicable, to vote the amount of the preferred shares represented by such depositary shares in
accordance with these instructions, and we will take all action which the Bank Depositary deems
necessary in order to enable the Bank Depositary to do so. The Bank Depositary will abstain from
voting shares of the preferred shares to the extent it does not receive specific instructions from
the holders of depositary shares representing these preferred shares.
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Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the
depositary agreement may be amended by agreement between the Bank Depositary and us. However, any
amendment that materially and adversely alters the rights of the holders of depositary shares will
not be effective unless this amendment has been approved by the holders of at least a majority of
the depositary shares then outstanding. The depositary agreement may be terminated by the Bank
Depositary or us only if:
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all outstanding depositary shares have been redeemed; or |
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there has been a final distribution in respect of the preferred shares in connection
with any liquidation, dissolution or winding up of the Company and this distribution
has been distributed to the holders of depositary receipts. |
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. We will pay charges of the Bank Depositary in connection
with the initial deposit of the preferred shares and any redemption of the preferred shares.
Holders of depositary receipts will pay other transfer and other taxes and governmental charges and
any other charges, including a fee for the withdrawal of preferred shares upon surrender of
depositary receipts, as are expressly provided in the depositary agreement to be for their
accounts.
Withdrawal of Preferred Shares
Except as may be provided otherwise in the applicable prospectus supplement, upon surrender of
depositary receipts at the principal office of the Bank Depositary, subject to the terms of the
depositary agreement, the owner of the depositary shares may demand delivery of the number of whole
preferred shares and all money and other property, if any, represented by those depositary shares.
Fractional preferred shares will not be issued. If the depositary receipts delivered by the holder
evidence a number of depositary shares in excess of the number of depositary shares representing
the number of whole preferred shares to be withdrawn, the Bank Depositary will deliver to this
holder at the same time a new depositary receipt evidencing the excess number of depositary shares.
Holders of preferred shares thus withdrawn may not thereafter deposit those shares under the
depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
The Bank Depositary will forward to holders of depositary receipts all reports and
communications from us that are delivered to the Bank Depositary and that we are required to
furnish to the holders of preferred shares.
Neither the Bank Depositary nor we will be liable if we are prevented or delayed by law or any
circumstance beyond our control in performing our obligations under the depositary agreement. The
obligations of the Bank Depositary and us under the depositary agreement will be limited to
performance in good faith of our duties thereunder, and we will not be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred shares unless
satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting preferred shares for deposit, holders of depositary
receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The Bank Depositary may resign at any time by delivering to us notice of its election to do
so, and we may at any time remove the Bank Depositary. Any such resignation or removal will take
effect upon the appointment of a successor Bank Depositary and the successors acceptance of this
appointment. The successor Bank Depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company meeting the requirements of
the depositary agreement.
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common shares, preferred shares, depositary shares
or debt securities. The following description sets forth certain general terms and provisions of
the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants
and the extent, if any, to which the general terms and provisions may apply to the warrants so
offered will be described in the applicable prospectus supplement.
Warrants may be issued independently or together with other securities and may be attached to
or separate from any offered securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The
warrant agent will act solely as our agent in connection with the warrants and will not have any
obligation or relationship of agency or trust for or with any holders or beneficial owners of
warrants.
A copy of the forms of the warrant agreement and the warrant certificate relating to any
particular issue of warrants will be filed with the SEC each time we issue warrants, and you should
read those documents for provisions that may be important to you. For more information on how you
can obtain copies of the forms of the warrant agreement and the related warrant certificate, see
Where You Can Find More Information.
Debt Warrants
The prospectus supplement relating to a particular issue of warrants to issue debt securities
will describe the terms of those warrants, including the following:
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the title of the warrants; |
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the offering price for the warrants, if any; |
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the aggregate number of the warrants; |
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the designation and terms of the debt securities purchasable upon exercise of the
warrants; |
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if applicable, the designation and terms of the debt securities that the warrants
are issued with and the number of warrants issued with each debt security; |
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if applicable, the date from and after which the warrants and any debt securities
issued with them will be separately transferable; |
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the principal amount of debt securities that may be purchased upon exercise of a
warrant and the price at which the debt securities may be purchased upon exercise; |
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the dates on which the right to exercise the warrants will commence and expire; |
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if applicable, the minimum or maximum amount of the warrants that may be exercised
at any one time; |
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whether the warrants represented by the warrant certificates or debt securities that
may be issued upon exercise of the warrants will be issued in registered or bearer
form; |
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information relating to book-entry procedures, if any; |
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the currency or currency units in which the offering price, if any, and the exercise
price are payable; |
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if applicable, a discussion of material United States federal income tax
considerations; |
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anti-dilution provisions of the warrants, if any; |
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redemption or call provisions, if any, applicable to the warrants; |
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any additional terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants; and |
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any other information we think is important about the warrants. |
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Stock Warrants
The prospectus supplement relating to a particular issue of warrants to issue common shares,
preferred shares or depositary shares will describe the terms of the common share warrants and
preferred shares warrants, including the following:
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the title of the warrants; |
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the offering price for the warrants, if any; |
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the aggregate number of the warrants; |
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the designation and terms of the common shares, preferred shares or depositary
shares that may be purchased upon exercise of the warrants; |
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if applicable, the designation and terms of the securities that the warrants are
issued with and the number of warrants issued with each security; |
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if applicable, the date from and after which the warrants and any securities issued
with the warrants will be separately transferable; |
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the number of common shares, preferred shares or depositary shares that may be
purchased upon exercise of a warrant and the price at which the shares may be purchased
upon exercise; |
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the dates on which the right to exercise the warrants commence and expire; |
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if applicable, the minimum or maximum amount of the warrants that may be exercised
at any one time; |
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the currency or currency units in which the offering price, if any, and the exercise
price are payable; |
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if applicable, a discussion of material United States federal income tax
considerations; |
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anti-dilution provisions of the warrants, if any; |
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redemption or call provisions, if any, applicable to the warrants; |
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any additional terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants; and |
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any other information we think is important about the warrants. |
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase at the exercise price set
forth in the applicable prospectus supplement the number of common shares, preferred shares or
depositary shares or the principal amount of debt securities being offered. Holders may exercise
warrants at any time up to the close of business on the expiration date set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants
are void. Holders may exercise warrants as set forth in the prospectus supplement relating to the
warrants being offered.
Until a holder exercises the warrants to purchase our common shares, preferred shares,
depositary shares or debt securities, the holder will not have any rights as a holder of our common
shares, preferred shares, depositary shares or debt securities, as the case may be, by virtue of
ownership of warrants.
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DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue to our shareholders subscription rights to purchase our common shares, preferred
shares, depositary shares or debt securities. The following description sets forth certain general
terms and provisions of the subscription rights that we may offer pursuant to this prospectus. The
particular terms of the subscription rights and the extent, if any, to which the general terms and
provisions may apply to the subscription rights so offered will be described in the applicable
prospectus supplement.
Subscription rights may be issued independently or together with any other security offered by
this prospectus and may or may not be transferable by the shareholder receiving the rights in the
rights offering. In connection with any rights offering, we may enter into a standby underwriting
agreement with one or more underwriters pursuant to which the underwriter will purchase any
securities that remain unsubscribed for upon completion of the rights offering, or offer these
securities to other parties who are not our shareholders. A copy of the form of subscription rights
certificate will be filed with the SEC each time we issue subscription rights, and you should read
that document for provisions that may be important to you. For more information on how you can
obtain a copy of any subscription rights certificate, see Where You Can Find More Information.
The applicable prospectus supplement relating to any subscription rights will describe the
terms of the offered subscription rights, including, where applicable, the following:
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the exercise price for the subscription rights; |
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the number of subscription rights issued to each shareholder; |
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the extent to which the subscription rights are transferable; |
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any other terms of the subscription rights, including terms, procedures and
limitations relating to the exchange and exercise of the subscription rights; |
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the date on which the right to exercise the subscription rights will commence and
the date on which the right will expire; |
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the extent to which the subscription rights include an over-subscription privilege
with respect to unsubscribed securities; and |
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the material terms of any standby underwriting arrangement entered into by us in
connection with the subscription rights offering. |
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth general terms and provisions of the debt securities that
we may issue, which may be issued as convertible or exchangeable debt securities. We will set forth
the particular terms of the debt securities we offer in a prospectus supplement. The extent, if
any, to which the following general provisions apply to particular debt securities will be
described in the applicable prospectus supplement. The following description of general terms
relating to the debt securities and the indenture under which the debt securities will be issued
are summaries only and therefore are not complete. You should read the indenture and the prospectus
supplement regarding any particular issuance of debt securities.
The debt securities will represent our unsecured general obligations, unless otherwise
provided in the prospectus supplement. We currently conduct all of our operations through our
subsidiaries. Our subsidiaries are separate and distinct legal entities and have no obligation,
contingent or otherwise, to pay any amounts due pursuant to the debt securities or to make any
funds available therefor, whether by dividends, loans or other payments. The holders of debt
securities (whether senior or subordinated debt securities) will be effectively subordinated to the
creditors of our subsidiaries. This means that creditors of our subsidiaries will have a claim to
the assets of our subsidiaries that is superior to the claim of our creditors, including holders of
our debt securities.
The debt securities will be issued under an indenture between us and Wells Fargo Bank, N.A.,
as trustee, and may be supplemented or amended from time to time following its execution. The
indenture, and any supplemental indentures thereto, will be subject to, and governed by, the Trust
Indenture Act of 1939, as amended.
The form of indenture gives us broad authority to set the particular terms of each series of
debt securities issued thereunder, including, without limitation, the right to modify certain of
the terms contained in the indenture.
Except to the extent set forth in a prospectus supplement, the indenture does not contain any
covenants or restrictions that afford holders of the debt securities special protection in the
event of a change of control or highly leveraged transaction.
General
The indenture will not limit the aggregate principal amount of debt securities that may be
issued under it and provides that debt securities may be issued in one or more series, in such form
or forms, with such terms and up to the aggregate principal amount, that we may authorize from time
to time. We will establish the terms of each series of debt securities, and such terms will be set
forth or determined in the manner provided in one or more resolutions of the board of directors or
by a supplemental indenture. The particular terms of the debt securities offered pursuant to any
prospectus supplement will be described in the prospectus supplement. All debt securities of one
series need not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of any holder, for issuances of additional debt securities of that
series.
The applicable prospectus supplement will describe the following terms of any series of debt
securities that we may offer (to the extent applicable to the debt securities):
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the title and designation of the debt securities (which shall distinguish
debt securities of one series from debt securities of any other series),
including whether the debt securities shall be issued as senior debt
securities, senior subordinated debt securities or subordinated debt
securities, any subordination provisions particular to such series of debt
securities and whether such debt securities are convertible and/or exchangeable
for other securities; |
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the aggregate principal amount of the debt securities and any limit upon the
aggregate principal amount of the debt securities; |
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the date or dates (whether fixed or extendable) on which the principal of
the debt securities is payable or the method of determination thereof; |
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the rate or rates (which may be fixed, floating or adjustable) at which the
debt securities shall bear interest, if any, the method of calculating the
rates, the date or dates from which interest shall accrue or the manner of
determining those dates, the interest payment dates on which interest shall be
payable, the record dates for the determination of holders to whom interest is
payable, and the basis upon which interest shall be calculated if other than
that of a 360-day year consisting of twelve 30-day months; |
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the place or places where the principal and premium, if any, make-whole
amount, if any, and interest on the debt securities, if any, shall be payable,
where the holders may surrender debt securities for conversion, transfer or
exchange and where notices or demands to or upon us may be served; |
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any provisions relating to the issuance of the debt securities at an
original issue discount; |
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the price or prices at which, the period or periods within which and the
terms and conditions upon which we may redeem the debt securities, in whole or
in part, pursuant to any sinking fund or otherwise (including, without
limitation, the form or method of payment if other than in cash); |
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our obligation, if any, to redeem, purchase or repay the debt securities
pursuant to any mandatory redemption, sinking fund or analogous provisions or
at the option of a holder, the price at which, the period within which and the
terms and conditions upon which the debt securities shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation
(including, without limitation, the form or method of payment thereof if other
than in cash) and any provisions for the remarketing of the debt securities; |
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if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the debt securities of the series shall be issuable; |
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if other than the principal amount thereof, the portion of the principal
amount of the debt securities which shall be payable upon declaration of
acceleration of the maturity or provable in bankruptcy, or, if applicable, the
portion of the principal amount which is convertible or exchangeable in
accordance with the provisions of the debt securities or the resolution of our
board of directors or any supplemental indenture pursuant to which such debt
securities are issued; |
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any events of default with respect to the debt securities, in lieu of or in
addition to those set forth in the indenture and the remedies therefor; |
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our obligation, if any, to permit the conversion or exchange of the debt
securities of such series into shares of common stock or other capital stock or
property, or combination thereof, and the terms and conditions upon which such
conversion shall be effected (including, without limitation, the initial
conversion or exchange price or rate, the conversion or exchange period, the
provisions for conversion or exchange price or rate adjustments and any other
provision relative to such obligation) and any limitations on the ownership or
transferability of the securities or property into which holders may convert or
exchange the debt securities; |
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any trustees, authenticating or paying agents, transfer agents or registrars
or any other agents with respect to the debt securities; |
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the currency or currency units, including composite currencies, in which the
debt securities shall be denominated if other than the currency of the United
States of America; |
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if other than the currency or currency units in which the debt securities
are denominated, the currency or currency units in which payment of the
principal of, premium, if any, make-whole amount, if any or interest on the
debt securities shall be payable (and the manner in which the equivalent of the
principal amount thereof in the currency of the United States of America is to
be determined for any purpose, including for the determination of the principal
amount outstanding); |
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if the principal of, premium, if any, make-whole amount, if any, or interest
on the debt securities is to be payable, at our election or the election of a
holder, in currency or currency units other than that in which the debt
securities are denominated or stated, the period within which, and the terms
and conditions upon which such election may be made and the time and manner of
and identity of the exchange rate agent with responsibility for determining the
exchange rate between the currency or currency units in which the debt
securities are denominated or stated to be payable and the currency or currency
units in which the debt securities will be payable; |
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if the amount of the payments of principal of, premium, if any, make-whole
amount, if any, and interest on the debt securities may be determined with
reference to an index, the manner in which the amount shall be determined from
that index; |
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whether and under what circumstances we will pay additional amounts on the
debt securities held by foreign holders in respect of any tax, assessment or
governmental charge withheld or |
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deducted and, if so, whether we will have the option to redeem the debt
securities rather than pay such additional amounts; |
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if receipt of certain certificates or other documents or satisfaction of
other conditions will be necessary for any purpose, including, without
limitation, as a condition to the issuance of the debt securities in definitive
form (whether upon original issue or upon exchange of a temporary debt
security), the form and terms of such certificates, documents or conditions; |
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any other affirmative or negative covenants with respect to the debt
securities; |
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whether the debt securities shall be issued in whole or in part in the form
of one or more global securities and the depositary for the global securities
or debt securities, the circumstances under which any global security may be
exchanged for debt securities registered in the name of any person other than
the depositary or its nominee and any other provisions regarding the global
securities; |
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whether the debt securities are defeasible; and |
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any other terms of a particular series. |
Unless otherwise indicated in the prospectus supplement relating to the debt securities, the
principal amount of and any premium or make-whole amount or interest on the debt securities will be
payable, and the debt securities will be exchangeable and transfers thereof will be registrable, at
the office of the trustee. However, at our option, payment of interest may be made by check mailed
to the address of the person entitled thereto as it appears in the debt security register. Any
payment of principal and any premium or make-whole amount or interest required to be made on an
interest payment date, redemption date or at maturity that is not a business day need not be made
on such date, but may be made on the next succeeding business day with the same force and effect as
if made on the applicable date, and no interest shall accrue for the period from and after such
date.
Unless otherwise indicated in the prospectus supplement relating to debt securities, the debt
securities will be issued only in fully registered form, without coupons, in denominations of
$1,000 or any integral multiple thereof. No service charge will be made for any transfer or
exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charge required to be paid in connection with a transfer or exchange.
Debt securities may bear interest at fixed or floating rates. We may issue our debt securities
at an original issue discount, bearing no interest or bearing interest at a rate that, at the time
of issuance, is below market rate, to be sold at a substantial discount below their stated
principal amount. Generally speaking, if our debt securities are issued at an original issue
discount and there is an acceleration of their maturity, holders will receive an amount less than
the debt securities principal amount. Tax and other special considerations applicable to any
series of debt securities, including original issue discount debt, will be described in the
prospectus supplement in which we offer those debt securities. In addition, certain United States
federal income tax or other considerations, if any, applicable to any debt securities which are
denominated in a currency or currency unit other than United States dollars may be described in the
applicable prospectus supplement.
Global Securities
The debt securities of a series may be issued in the form of one or more global securities
that will be deposited with a depositary or its nominees identified in the prospectus supplement
relating to the debt securities. In such a case, one or more global securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate principal amount of
outstanding debt securities of the series to be represented by such global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive
registered form, a global security may not be registered for transfer or exchange except as a whole
by the depositary for such global security to a nominee of the depositary and except in the
circumstances described in the prospectus supplement relating to the debt securities. The specific
terms of the depositary arrangement with respect to a series of debt securities will be described
in the prospectus supplement relating to such series.
16
Modification of the Indenture
We and the trustee may modify the indenture with respect to the debt securities of any series,
with or without the consent of the holders of debt securities, under certain circumstances to be
described in a prospectus supplement.
Defeasance; Satisfaction and Discharge
The prospectus supplement will outline the conditions under which we may elect to have certain
of our obligations under the indenture discharged and under which the indenture obligations will be
deemed to be satisfied.
Defaults and Notice
The debt securities of any series will contain events of default to be specified in the
applicable prospectus supplement, including, without limitation:
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failure to pay the principal of, or premium or make-whole amount, if any, on
any debt security of such series when due and payable (whether at maturity, by
call for redemption, through any mandatory sinking fund, by redemption at the
option of the holder, by declaration of acceleration or otherwise); |
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failure to make a payment of any interest on any debt security of such
series when due, which failure shall have continued for a period of 30 days; |
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failure to perform or observe any of our other covenants or agreements in
the indenture with respect to the debt securities of such series; |
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certain events relating to our bankruptcy, insolvency or reorganization; and |
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certain cross defaults. |
If an event of default with respect to debt securities of any series shall occur and be
continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then
outstanding debt securities of such series may declare the principal amount (or, if the debt
securities of such series are issued at an original issue discount, such portion of the principal
amount as may be specified in the terms of the debt securities of such series) of all debt
securities of such series and/or such other amount or amounts as the debt securities or
supplemental indenture with respect to such series may provide, to be immediately due and payable.
The trustee under the indenture shall, within 90 days after the occurrence of a default, give
to the holders of debt securities of any series notice of all uncured defaults with respect to such
series known to it. However, in the case of a default that results from the failure to make any
payment of the principal of, premium or make-whole amount, if any, or interest on the debt
securities of any series, or in the payment of any mandatory sinking fund installment with respect
to the debt securities of such series, the trustee may withhold giving such notice if it in good
faith determines that the withholding of such notice is in the interest of the holders of the debt
securities of such series.
The indenture will contain a provision entitling the trustee to be indemnified by holders of
debt securities before proceeding to exercise any trust or power under the indenture at the request
of such holders. The indenture will provide that the holders of at least a majority in aggregate
principal amount of the then outstanding debt securities of any series may direct the time, method
and place of conducting any proceedings for any remedy available to the trustee, or of exercising
any trust or power conferred upon the trustee, with respect to the debt securities of such series.
However, the trustee may decline to follow any such direction if, among other reasons, the trustee
determines in good faith that the actions or proceedings as directed may not lawfully be taken,
would involve the trustee in personal liability or would be unduly prejudicial to the holders of
the debt securities of such series not joining in such direction.
The right of a holder to institute a proceeding with respect to the indenture is subject to
certain conditions including, that the holders of at least a majority in aggregate principal amount
of the then outstanding debt securities of such series make a written request upon the trustee to
exercise its power under the indenture, indemnify the trustee to its satisfaction and afford the
trustee reasonable opportunity to act. Even so, the holder has an absolute right to receipt of the
principal of, premium or make-whole amount, if any, and interest when due, to require
17
conversion or exchange of debt securities if the indenture provides for convertibility or
exchangeability at the option of the holder and to institute suit for the enforcement of such
rights.
Conversion or Exchange Rights
If debt securities of any series are convertible or exchangeable, the applicable prospectus
supplement will specify:
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the type of securities into which they may be converted or exchanged; |
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the conversion price or exchange ratio, or its method of calculation; |
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whether conversion or exchange is mandatory or at the holders election; |
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how and when the conversion price or exchange ratio may be adjusted; and |
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any other important terms concerning the conversion or exchange rights. |
Concerning the Trustee
Wells Fargo Bank, N.A. will serve as the trustee under the indenture pursuant to which any
debt securities will be issued. The prospectus supplement with respect to particular debt
securities will describe any other relationship that we may have with Wells Fargo Bank, N.A.
Governing Law
The indenture and the debt securities will be governed by the laws of the State of New York.
18
PLAN OF DISTRIBUTION
We may sell the offered securities in and outside the United States:
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through underwriters or dealers; |
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directly to purchasers; |
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in a rights offering; |
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in at the market offerings, within the meaning of Rule 415(a)(4) of the Securities
Act, to or through a market maker or into an existing trading market on an exchange or
otherwise; |
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through agents; or |
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through a combination of any of these methods. |
The prospectus supplement will include the following information:
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the terms of the offering; |
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the names of any underwriters or agents; |
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the name or names of any managing underwriter or underwriters; |
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the purchase price or initial public offering price of the securities; |
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the net proceeds from the sale of the securities; |
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any delayed delivery arrangements; |
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any underwriting discounts, commissions and other items constituting underwriters
compensation; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any commissions paid to agents. |
Sale through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will acquire the securities for their
own account. The underwriters may resell the securities from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. Unless we inform you otherwise in the prospectus supplement,
the obligations of the underwriters to purchase the securities will be subject to certain
conditions, and the underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers.
If we offer securities in a subscription rights offering to our existing security holders, we
may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We
may pay the standby underwriters a commitment fee for the securities they commit to purchase on a
standby basis. If we do not enter into a standby underwriting agreement, we may retain a
dealer-manager to manage a subscription rights offering for us.
During and after an offering through underwriters, the underwriters may purchase and sell the
securities in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the
offering. The underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities sold for their
account may be reclaimed by the syndicate if the offered securities are repurchased by the
syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities, which may be higher than the price
that might otherwise prevail in the open market. If commenced, the underwriters may discontinue
these activities at any time.
Some or all of the securities that we offer though this prospectus may be new issues of
securities with no established trading market. Any underwriters to whom we sell our securities for
public offering and sale may make
19
a market in those securities, but they will not be obligated to do so and they may discontinue
any market making at any time without notice. Accordingly, we cannot assure you of the liquidity
of, or continued trading markets for, any securities that we offer.
If dealers are used in the sale of securities, we will sell the securities to them as
principals. They may then resell those securities to the public at varying prices determined by
the dealers at the time of resale. We will include in the prospectus supplement the names of the
dealers and the terms of the transaction.
Direct Sales and Sales through Agents
We may sell the securities directly. In this case, no underwriters or agents would be
involved. We may also sell the securities through agents designated from time to time. In the
prospectus supplement, we will name any agent involved in the offer or sale of the offered
securities, and we will describe any commissions payable to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to
solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to
be underwriters within the meaning of the Securities Act with respect to any sale of those
securities. We will describe the terms of any sales of these securities in the prospectus
supplement.
Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in the applicable prospectus
supplement, in connection with a remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as
principals for their own accounts or as agents for us. Any remarketing firm will be identified and
the terms of its agreements, if any, with us and its compensation will be described in the
applicable prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters or
dealers to solicit offers from certain types of institutions to purchase securities from us at the
public offering price under delayed delivery contracts. These contracts would provide for payment
and delivery on a specified date in the future. The contracts would be subject only to those
conditions described in the prospectus supplement. The prospectus supplement will describe the
commission payable for solicitation of those contracts.
General Information
We may have agreements with the agents, dealers, underwriters and remarketing firms to
indemnify them against certain civil liabilities, including liabilities under the Securities Act,
or to contribute with respect to payments that the agents, dealers, underwriters or remarketing
firms may be required to make. Agents, dealers, underwriters and remarketing firms may be
customers of, engage in transactions with or perform services for us in the ordinary course of
their businesses.
20
LEGAL MATTERS
Jones Day will pass upon the validity of the securities being offered hereby.
EXPERTS
The consolidated financial statements of Brush Engineered Material Inc. appearing in Brush
Engineered Materials Inc.s Annual Report on Form 10-K for the year ended December 31, 2008
(including the schedule appearing therein), and the effectiveness of Brush Engineered Materials Inc.s
internal control over financial reporting as of December 31, 2008 have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set forth in their reports thereon,
included therein, and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following are the estimated expenses of the issuance and distribution of the securities
being registered, all of which are payable by us. All of the items below, except for the
registration fee, are estimates.
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Securities and Exchange Commission registration fee |
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$ |
8,370 |
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Trustees fees and expenses |
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* |
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Transfer agent and registrar fees |
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* |
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Printing expenses |
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* |
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Accountants fees and expenses |
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* |
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Legal fees and expenses |
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* |
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Miscellaneous |
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* |
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Total |
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$ |
* |
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* |
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Estimated expenses are presently not known and cannot be estimated. |
Item 15. Indemnification of Directors and Officers.
We will indemnify, to the full extent then permitted by law, any director or officer or former
director or officer of our company who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a member of our Board of
Directors or our officer, employee or agent, or is or was serving at our request as a director,
trustee, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise. We will pay, to the full extent then required by law, expenses, including
attorneys fees, incurred by a member of our Board of Directors in defending any such action, suit
or proceeding as they are incurred, in advance of the final disposition thereof.
To the full extent then permitted by law, we may indemnify employees, agents and other persons
and may pay expenses, including attorneys fees, incurred by any employee, agent or other person in
defending any action, suit or proceeding as such expenses are incurred, in advance of the final
disposition thereof.
The indemnification and payment of expenses described above will not be exclusive of, and will
be in addition to, any other rights granted to any person seeking indemnification under any law,
our amended and restated articles of incorporation, any agreement, vote of shareholders or
disinterested members of our Board of Directors, or otherwise, both as to action in official
capacities and as to action in another capacity while he or she is a member of our Board of
Directors or our officer, employee or agent, and shall continue as to a person who has ceased to be
a member of our Board of Directors, trustee, officer, employee or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
We may, to the full extent then permitted by law and authorized by our Board of Directors,
purchase and maintain insurance or furnish similar protection, including but not limited to trust
funds, letters of credit or self-insurance, on behalf of or for any persons described above against
any liability asserted against and incurred by any such person in any such capacity, or arising out
of his status as such, whether or not we would have the power to indemnify such person against such liability. Insurance may be purchased from or maintained with a
person in which we have a financial interest.
We, upon approval by our Board of Directors, may enter into agreements with any persons who we
may indemnify under our amended and restated code of regulations or under law and may undertake
thereby to indemnify such persons and to pay the expenses incurred by them in defending any action,
suit or proceeding against them, whether or not we would have the power under law or our amended
and restated code of regulations to indemnify any such person.
II-1
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 directors act or failure to act
was done with deliberate intent to cause injury to the corporation or with reckless disregard for
the corporations best interests.
Ohio law does not authorize payment of judgments to 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 corporations 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.
Item 16. Exhibits.
The following documents are exhibits to the registration statement:
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Exhibit Number |
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Description |
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1.1*
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Form of Underwriting Agreement |
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1.2*
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Form of Agency Agreement |
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4.1
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Amended and Restated Articles of Incorporation of Brush Engineered Materials
Inc. (filed as Annex B to the Registration Statement on Form S-4 filed by
the registrant on February 1, 2000, Registration No. 333-95917),
incorporated herein by reference |
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4.2
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Amended and Restated Code of Regulations of Brush Engineered Materials Inc.
(filed as Exhibit 3 to the Quarterly Report on Form 10-Q for the period
ended July 3, 2009), incorporated herein by reference |
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4.3
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Rights Agreement, dated as of May 10, 2000, by and between Brush Engineered
Materials Inc. and National City Bank, N.A. as Rights Agent (filed as
Exhibit 4(a) to the Current Report on Form 8-K filed by the registrant on
May 16, 2000), incorporated herein by reference |
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4.4
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First Amendment to Rights Agreement, dated as of December 7, 2004, by and
between Brush Engineered Materials Inc. and LaSalle Bank, N.A. as Rights
Agent (filed as Exhibit 4.1 to the Registration Statement on Form 8-A filed
by the registrant on December 13, 2004), incorporated herein by reference |
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4.5
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Second Amendment to Rights Agreement, dated as of July 31, 2008, by and
between Brush Engineered Materials Inc. and Wells Fargo Bank, N.A., as
Rights Agent (filed as Exhibit 4.1 to the Registration Statement on Form
8-A/A filed on July 31, 2008) incorporated herein by reference |
II-2
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Exhibit Number |
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Description |
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4.6
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Form of Debt Securities Indenture |
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4.7*
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Form of Debt Securities |
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4.8*
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Form of Warrant Agreement |
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4.9*
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Form of Warrant Certificate |
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4.10*
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Form of Depositary Agreement |
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4.11*
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Form of Depositary Receipt |
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4.12*
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Form of Subscription Rights Certificate |
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5.1
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Opinion of Jones Day |
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12.1
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Calculation of Ratio of Earnings to Fixed Charges |
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23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
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23.2
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Consent of Jones Day (included in Exhibit 5.1 to this Registration Statement) |
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24.1
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Power of Attorney |
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25.1
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Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of
Trustee under Debt Securities Indenture |
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To be filed either by amendment or as an exhibit to a report filed under the Securities
Exchange Act of 1934, and incorporated herein by reference. |
Item 17. Undertakings.
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 percent change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration statement; and
(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;
II-3
provided, however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) 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 this registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of 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.
4. That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be a part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be a part of and
included in the registration statement as of the earlier date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is a part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
5.
That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section
13(a) or section 15(d) of the
II-4
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.
The undersigned registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof.
If any public offering by the underwriters is to be made on terms differing from those set forth on
the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms
of such offering.
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 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.
II-5
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-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Mayfield Heights, State of
Ohio, on August 11, 2009.
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BRUSH ENGINEERED MATERIALS INC.
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By |
/s/ John D. Grampa |
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John D. Grampa |
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Senior Vice President Finance and
Chief Financial Officer |
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Pursuant to the requirements of the Securities Act of 1933, this registration statement on
Form S-3 has been signed below by the following persons in the capacities indicated as of August 11, 2009:
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Signatures |
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Title |
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Chairman of the Board, President
and Chief Executive Officer
(Principal Executive Officer) |
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/s/ John D. Grampa
John D. Grampa
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Senior Vice President Finance and
Chief Financial Officer (Principal
Financial Officer and Principal
Accounting Officer) |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
II-6
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* |
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The undersigned by signing his name hereto does sign and execute this registration statement
on Form S-3 pursuant to the Power of Attorney executed by the above-named directors and
officers of the registrant, which is being filed herewith on behalf of such directors and
officers. |
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By:
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/s/ Gregory R. Chemnitz |
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August 11, 2009 |
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Gregory R. Chemnitz |
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Attorney-in-Fact |
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II-7
INDEX TO EXHIBITS
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Exhibit Number |
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Description |
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1.1*
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Form of Underwriting Agreement |
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1.2*
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Form of Agency Agreement |
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4.1
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Amended and Restated Articles of Incorporation of Brush Engineered Materials
Inc. (filed as Annex B to the Registration Statement on Form S-4 filed by
the registrant on February 1, 2000, Registration No. 333-95917),
incorporated herein by reference |
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4.2
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Amended and Restated Code of Regulations of Brush Engineered Materials Inc.
(filed as Exhibit 3 to the Quarterly Report on Form 10-Q for the period
ended July 3, 2009), incorporated herein by reference |
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4.3
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Rights Agreement, dated as of May 10, 2000, by and between Brush Engineered
Materials Inc. and National City Bank, N.A. as Rights Agent (filed as
Exhibit 4(a) to the Current Report on Form 8-K filed by the registrant on
May 16, 2000), incorporated herein by reference |
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4.4
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First Amendment to Rights Agreement, dated as of December 7, 2004, by and
between Brush Engineered Materials Inc. and LaSalle Bank, N.A. as Rights
Agent (filed as Exhibit 4.1 to the Registration Statement on Form 8-A/A
filed by the registrant on December 13, 2004), incorporated herein by
reference |
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4.5
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Second Amendment to Rights Agreement, dated as of July 31, 2008, by and
between Brush Engineered Materials Inc. and Wells Fargo Bank, N.A., as
Rights Agent (filed as Exhibit 4.1 to the Registration Statement on Form
8-A/A filed on July 31, 2008) incorporated herein by reference |
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4.6
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Form of Debt Securities Indenture |
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4.7*
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Form of Debt Securities |
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4.8*
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Form of Warrant Agreement |
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4.9*
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Form of Warrant Certificate |
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4.10*
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Form of Depositary Agreement |
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4.11*
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Form of Depositary Receipt |
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4.12*
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Form of Subscription Rights Certificate |
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5.1
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Opinion of Jones Day |
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12.1
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Calculation of Ratio of Earnings to Fixed Charges |
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23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
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23.2
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Consent of Jones Day (included in Exhibit 5.1 to this Registration Statement) |
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24.1
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Power of Attorney |
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Exhibit Number |
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Description |
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25.1
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Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of
Trustee under Debt Securities Indenture |
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* |
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To be filed either by amendment or as an exhibit to a report filed under the Securities
Exchange Act of 1934, and incorporated herein by reference. |