Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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A. O. SMITH CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 39-0619790
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11270 West Park Place
Milwaukee, Wisconsin 53224-9508
(Address of principal executive offices) (Zip Code)
A. O. Smith Corporation Combined Executive Incentive Compensation Plan
(Full title of the plan)
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W. David Romoser, Esq. Copy to:
Vice President, General Counsel
and Secretary Patrick G. Quick, Esq.
A. O. Smith Corporation Foley & Lardner
11270 West Park Place 777 East Wisconsin Avenue
Milwaukee, Wisconsin 53224-9508 Milwaukee, Wisconsin 53202
(414) 359-4000 (414) 271-2400
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
- ------------- -------------- ---------------- ---------------- ------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Aggregate Registration
be Registered Registered(1) Price Per Share Offering Price Fee
- ------------- -------------- ---------------- ---------------- ------------
Common Stock, 1,500,000 $27.825(2) $41,737,500(2) $3,839.85
$1 par value shares
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate number of additional shares of
Common Stock that may become issuable as a result of stock splits, stock
dividends, or similar transactions pursuant to the anti-dilution provisions
of the Combined Executive Incentive Compensation Plan.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee based on the average of
the high and low prices for A. O. Smith Corporation Common Stock on the New
York Stock Exchange on July 11, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Commission by A. O. Smith
Corporation (the "Company") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 2002.
3. The Company's Current Report on Form 8-K, dated April 12, 2002, and the
Company's Current Report on Form 8-K, dated December 28, 2001, as amended.
4. The description of the Company's Common Stock contained in Item 4 of the
Company's Registration Statement on Form 8-A, filed December 9, 1994, including
any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the
date of filing of this Registration Statement and prior to such time as the
Company files a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
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None.
Item 6. Indemnification of Directors and Officers.
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Under the provisions of Section 145 of the Delaware General Corporation
Law, the Company is required to indemnify any present or former officer or
director against expenses arising out of legal proceedings in which the director
or officer becomes involved by reason of being a director or officer if the
director or officer is successful in the defense of such proceedings. Section
145 also provides that the Company may indemnify a director or officer in
connection with a proceeding in which he is not successful in defending if it is
determined that he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Company or, in the case of a
criminal action, if it is determined that he had no reasonable cause to believe
his conduct was unlawful. Liabilities for which a director or officer may be
indemnified include amounts paid in satisfaction of settlements, judgments,
fines and other expenses (including attorneys' fees incurred in connection with
such proceedings). In a stockholder derivative action, no indemnification may be
paid in respect of any claim, issue or matter as to which the director or
officer has been adjudged to be liable to the Company (except for expenses
allowed by a court).
Under the provisions of Article VII of the Company's By-Laws and individual
indemnity agreements between the Company and its directors and certain of its
officers, the Company is required to indemnify officers or directors to a
greater extent than under the current provisions of Section 145 of the Delaware
General Corporation Law. Except with respect to stockholder derivative actions,
the By-Law provisions and the indemnity agreements generally state that the
director or officer will be indemnified against expenses, amounts paid in
settlement and judgments, fines, penalties and/or other amounts incurred with
respect to any threatened, pending or completed proceeding (including, without
limitation, proceedings brought under and/or predicated upon the Securities Act
of 1933 and/or the Securities Exchange Act of 1934); provided that (i) such
individual did not engage in criminal, fraudulent or intentional misconduct in
the performance of his duties to the Company; (ii) with respect to criminal
actions, such individual had no reasonable cause to believe his conduct was
unlawful; and (iii) with respect to securities law actions, such individual
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and its stockholders.
The foregoing standards also apply with respect to the indemnification of
expenses incurred in a stockholder derivative suit. However, in order for a
director or officer to be indemnified for settlement amounts or judgments
incurred in a derivative suit, it also must be determined that (i) such
individual has not breached his duty of loyalty to the Company or its
stockholders; (ii) has not committed acts or omissions in bad faith or which
involve intentional misconduct or a knowing violation of the law; (iii) has not
engaged in any
3
willful or negligent conduct in paying dividends or repurchasing stock of the
Company out of other than lawfully available funds; and (iv) has not derived an
improper personal benefit from the subject transaction.
The Company maintains insurance policies that provide coverage to its
directors and officers against certain liabilities.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The exhibits filed herewith or incorporated herein by reference are set
forth in the attached Exhibit Index.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration
4
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milwaukee, State of Wisconsin, on this 16th day of
July, 2002.
A. O. SMITH CORPORATION
By: /s/ Robert J. O'Toole
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Robert J. O'Toole
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints Robert J. O'Toole, Kenneth W. Krueger and W. David
Romoser, and each of them individually, his or her attorneys-in-fact and agents,
with full power of substitution and resubstitution for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
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/s/ Robert J. O' Toole Chairman of the Board, President, July 16, 2002
- ----------------------- Chief Executive Officer and Director
Robert J. O'Toole (Principal Executive Officer)
/s/ Kenneth W. Krueger Senior Vice President and Chief July 16, 2002
- ----------------------- Financial Officer (Principal
Kenneth W. Krueger Financial Officer)
/s/ John J. Kita Vice President, Treasurer and July 16, 2002
- ----------------------- Controller (Principal Accounting
John J. Kita Officer)
S-1
Signature Title Date
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/s/ Glen R. Bomberger Director July 16, 2002
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Glen R. Bomberger
/s/ Ronald D. Brown Director July 16, 2002
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Ronald D. Brown
/s/ William F. Buehler Director July 16, 2002
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William F. Buehler
/s/ Kathleen J. Hempel Director July 16, 2002
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Kathleen J. Hempel
/s/ Agnar Pytte Director July 16, 2002
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Agnar Pytte
/s/ Bruce M. Smith Director July 16, 2002
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Bruce M. Smith
/s/ Mark D. Smith Director July 16, 2002
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Mark D. Smith
S-2
EXHIBIT INDEX
Exhibit
Number Exhibit Description
(4.1) A. O. Smith Corporation Combined Executive Incentive Compensation
Plan (incorporated by reference to Exhibit A to the Company's
Definitive Proxy Statement on Schedule 14A for the Company's 2002
Annual Meeting of Shareholders, filed on March 4, 2002 (File No.
1-475)).
(4.2) Restated Certificate of Incorporation of A. O. Smith Corporation
(incorporated by reference to Exhibit 3(i) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995
(File No. 1-475)).
(4.3) Credit Agreement, dated as of August 2, 1999, among A. O. Smith
Corporation, various financial institutions, The First National
Bank of Chicago, as Syndication Agent, and Bank of America, N.A.,
as Agent (incorporated by reference to Exhibit 4(b) to the
Company's Annual Report on Form 10-K for the year ended December
31, 2000 (File No. 1-475)).
(4.4) First Amendment, dated as of July 28, 2000, to Credit Agreement,
among A. O. Smith Corporation, various financial institutions,
Bank One, N.A. (formerly The First National Bank of Chicago), as
Syndication Agent, and Bank of America, N.A., as Agent
(incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-3, filed on April 12, 2002 (Reg.
No. 333-86074)).
(4.5) Second Amendment, dated as of July 27, 2001, to Credit Agreement,
among A. O. Smith Corporation, various financial institutions,
Bank One, N.A. (formerly The First National Bank of Chicago), as
Syndication Agent, and Bank of America, N.A., as Agent
(incorporated by reference to Exhibit 4.4 to the Company's
Registration Statement on Form S-3, filed on April 12, 2002 (Reg.
No. 333-86074)).
(4.6) The Registrant has instruments that define the rights of holders
of long-term debt that are not being filed with this Registration
Statement in reliance upon Item 601(b)(4)(iii) of Regulation S-K.
The Registrant agrees to furnish to the Securities and Exchange
Commission, upon request, copies of these instruments.
(5) Opinion of W. David Romoser.
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of W. David Romoser (contained in Exhibit (5)).
(24) Power of Attorney (contained on the signature page hereto).
E-1
[A. O. Smith Corporation Logo]
WORLD HEADQUARTERS
LAW DEPARTMENT
MAILING ADDRESS: P.O. BOX 245009, MILWAUKEE, WI 53224-9509
STREET ADDRESS: 11270 WEST PARK PLACE, MILWAUKEE, WI 53224
Writer's Direct Dial Number: (414) 359-4137
Facsimile Number: (414) 359-4143
E-Mail Address: dromoser@aosmith.com
July 16, 2002
A. O. Smith Corporation
11270 West Park Place
Milwaukee, WI 53244
Ladies and Gentlemen:
I have acted as counsel for A. O. Smith Corporation, a Delaware corporation
(the "Company"), in connection with the preparation of a Registration Statement
on Form S-8 (the "Registration Statement"), to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), relating to 1,500,000 shares of the Company's common
stock, $1 par value (the "Common Stock"), which may be issued pursuant to the A.
O. Smith Corporation Combined Executive Incentive Compensation Plan (the
"Plan").
In this connection, I have examined: (i) the Registration Statement; (ii)
the Company's Restated Certificate of Incorporation and Bylaws, as amended to
date; (iii) resolutions of the Company's Board of Directors and stockholders
relating to the Plan; (iv) the Plan; and (v) such other proceedings, documents
and records as I have deemed necessary to enable me to render this opinion. In
addition, I have made such investigations and have reviewed such other documents
as I have deemed necessary or appropriate under the circumstances. With respect
to all of the foregoing documents, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals and
the conformity to originals of all documents submitted to me as certified or
reproduced copies.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation validly existing under the laws of the
State of Delaware.
2. The shares of Common Stock covered by the Registration Statement have
been duly authorized and, when issued by the Company pursuant to the terms and
conditions of the Plan and as contemplated in the Registration Statement, will
be validly issued, fully paid and nonassessable. Under the laws of Delaware,
stockholders of the Company have no personal liability for the debts or
obligations of the Company as a result of their status as stockholders of the
Company except that under a decision of the Wisconsin Supreme Court that applies
such statute to corporations such as the Company, which are licensed to do
business in Wisconsin,
A.O. Smith Corporation
July 16, 2002
Page 2
the holders of Common Stock are personally liable for the unpaid wage claims of
the Company's employees, not to exceed six months' service in any one case, as
provided in Section 180.0622(2)(b) of the Wisconsin Statutes as such action may
be interpreted by a court of law.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, I do not admit that I am an
"expert" within the meaning of Section 11 of the Securities Act or within the
category of persons whose consent is required by Section 7 of the Securities
Act.
Very truly yours,
A. O. SMITH CORPORATION
/s/ W. David Romoser
W. David Romoser
Vice President, General Counsel
and Secretary
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the A. O. Smith Corporation Combined Executive Incentive
Compensation Plan and in the related prospectus of our report dated January 16,
2002, with respect to the consolidated financial statements and schedule of A.
O. Smith Corporation incorporated by reference in its Annual Report (Form 10-K)
for the year ended December 31, 2001, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Milwaukee, Wisconsin
July 11, 2002