0000930661-01-501337.txt : 20011018 0000930661-01-501337.hdr.sgml : 20011018 ACCESSION NUMBER: 0000930661-01-501337 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20010730 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AZZ INC CENTRAL INDEX KEY: 0000008947 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC LIGHTING & WIRING EQUIPMENT [3640] IRS NUMBER: 750948250 STATE OF INCORPORATION: TX FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-66294 FILM NUMBER: 1693150 BUSINESS ADDRESS: STREET 1: 400 N TARRANT RD CITY: CROWLEY STATE: TX ZIP: 76036 BUSINESS PHONE: 8172974361 MAIL ADDRESS: STREET 1: P O BOX 668 STREET 2: P O BOX 668 CITY: CROWLEY STATE: TX ZIP: 76036 FORMER COMPANY: FORMER CONFORMED NAME: AZTEC MANUFACTURING CO DATE OF NAME CHANGE: 20000911 S-3 1 ds3.txt FORM S-3 As Filed with the Securities and Exchange Commission on July 30, 2001 Registration No. 33-__________________ -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- AZZ incorporated (Exact Name of Registrant as specified in its Charter) Texas 75-0948250 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification Number) 400 North Tarrant Road Crowley, Texas 76036 (817) 297-4361 (Address, including Zip Code, and Telephone Number, including Area Code, of Registrant's Principal Executive Offices) David H. Dingus 400 North Tarrant Street Crowley, Texas 76036 (817) 297-4361 (Address, including Zip Code, and Telephone Number, including Area Code, of Agent for service) ---------- Copies of all communications to: Richard A. Lowe, Esquire Shannon, Gracey, Ratliff & Miller, L.L.P. 777 Main Street, Suite 3800 Fort Worth, Texas 76102 Telephone: (817) 882-7653 Facsimile: (817) 336-3735 ---------- APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable 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. [_] 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, check the following box: [X] 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. [_] 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. [_] If the delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------ Title of Each Proposed Proposed Maximum Amount of Class of Securities Amount to be Maximum Offering Aggregate Offering Registration To be Registered Registered(1) price per Unit(2) price Fee ------------------------------------------------------------------------------------------ Common Stock, $1.00 par value 70,000 shares $ 24.65 $ 1,725,500 $ 431.38 ============= =========== ============= ===========
_________________________________________ (1) Includes shares of common stock of AZZ issuable upon rights to purchase under an option agreement with RCG Capital Markets Group, Inc. (2) These shares are to be offered at a price not presently determinable. Pursuant to Rule 457(c), the offering price is based on the average of the high and low prices on July 25, 2001 on the consolidated reporting system. ---------- 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 SEC acting pursuant to said Section 8(a), may determine. INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. PROSPECTUS AZZ incorporated 70,000 SHARES COMMON STOCK, $1.00 PAR VALUE This Prospectus relates to the offer for sale from time to time of up to 70,000 shares of Common Stock, par value $1.00 per share, of AZZ incorporated, a Texas corporation, by RCG Capital Markets Group, Inc. We will not receive any of the proceeds from the resale of these shares by the selling stockholder. For more information on the selling stockholder, please see "Selling Security Holders" beginning on Page 10. AZZ's Common Stock is traded on the New York Stock Exchange under the symbol "AZZ." The closing sale price of our Common Stock as reported by the New York Stock Exchange on July 25, 2001 was $25.10 per share. PLEASE SEE "RISK FACTORS" BEGINNING ON PAGE 7 FOR A DISCUSSION OF CERTAIN FACTORS YOU SHOULD CONSIDER IN CONNECTION WITH ANY DECISION TO PURCHASE SHARES IN THIS OFFERING. The selling stockholders may sell the shares of Common Stock described in this prospectus in public or private transactions, on or off the New York Stock Exchange, at prevailing market prices, or at privately negotiated prices. The selling stockholders may sell shares directly to purchasers or through brokers or dealers. Brokers or dealers may receive compensation in the form of discounts, concessions or commissions from the selling stockholders. For more information on how the shares may be distributed, please see "Plan of Distribution" beginning on Page 11. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is July 30, 2001. Throughout this prospectus, "AZZ incorporated," "AZZ," "we," "us," and "our," and other possessive and other derivations thereof, refer to AZZ incorporated and its consolidated subsidiaries, unless the context otherwise requires. All trademarks and trade names appearing in this prospectus are the property of AZZ, unless otherwise indicated. This prospectus is part of a registration statement we filed with the SEC. AZZ may amend or supplement this prospectus from time to time by filing amendments or supplements as required. Please read this entire prospectus and any amendments or supplements carefully before making your investment decision to purchase shares in this offering. You should rely only on the information provided in, and incorporated by reference into, this prospectus. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of the document. We have authorized no one to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any such documents that we have filed. You may do so at the Commission's public reference room, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. These documents are also available at the following Regional Office: 7 World Trade Center, Suite 1300, New York, New York 10048. Please call the Commission at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public on the Commission's web site at http://www.sec.gov. Our web site can be found at http://www.AZZincorporated.com. INCORPORATION OF DOCUMENTS BY REFERENCE The SEC allows us to "incorporate by reference" into this registration statement some of the information we have already filed with the SEC. As a result, we can disclose important information to you by referring you to those documents. These incorporated documents contain important business and financial information about us that is not contained in or delivered with this prospectus. The information incorporated by reference is considered to be part of this prospectus. Moreover, later information filed with the SEC by us in the future will update and supersede this information and similarly be considered to be a part of this prospectus. We incorporate by reference the documents listed below, all filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of the initial registration statement, as amended, and prior to effectiveness of the registration statement, and any future filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934: * Our Annual Report on Form 10-K for the fiscal year ended February 28, 2001. * Our Quarterly Report on Form 10-Q for the quarter ended May 31, 2001. * "Item 1. Description of Registrant's Securities to be Registered" in our Registration Statement on Form 8-A filed on February 24, 1997. We will provide, without charge, to each person to whom a prospectus is delivered, a copy of these documents that are incorporated by reference into, but not delivered with, this prospectus. You may request a copy of these filings by writing or telephoning us at the following address: AZZ incorporated 400 North Tarrant Street Crowley, Texas 76036 Attention: Investor Relations Telephone number: 817-297-4361 2 TABLE OF CONTENTS FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS............................. 4 AN OVERVIEW OF OUR BUSINESS................................................. 5 RISK FACTORS................................................................ 7 USE OF PROCEEDS............................................................. 10 SELLING SECURITY HOLDERS.................................................... 10 PLAN OF DISTRIBUTION........................................................ 11 DISCLOSURE OF THE SEC'S POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES.................................................. 12 LEGAL MATTERS............................................................... 13 EXPERTS..................................................................... 13 3 FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS This prospectus contains, and from time to time we or certain of our representatives may make, "forward-looking statements" within the meaning of the federal securities laws. These statements are generally identified by the use of words such as "anticipate," "expect," "estimate," "intend," "should," "may," "believe," and terms with similar meanings. Although the Company believes that the current views and expectations reflected in these forward-looking statements are reasonable, our views, expectations, and the related statements, are inherently subject to risks, uncertainties, and other factors, many of which are not under our control. Those risks, uncertainties, and other factors could cause the actual results to differ materially from these in the forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, many of the matters described in or incorporated into this prospectus: change in demand, prices and raw material cost, including zinc which is used in the hot dip galvanizing process; changes in the economic conditions of the various markets we serve, foreign and domestic, including the market price for oil and natural gas; acquisition opportunities, adequacy of financing, and availability of experienced management employees to implement our growth strategy; and customer demand and response to our products and services. We caution you not to place undue reliance on these forward-looking statements, which reflect our management's view only as of the date of this prospectus. We do not have any obligation to inform you if forward-looking statements or the circumstances on which they are based change. 4 AN OVERVIEW OF OUR BUSINESS AZZ incorporated was established in 1956 and incorporated under the laws of the State of Texas. We are an electrical equipment and components manufacturer serving the global growth markets of power generation, transmission and distribution, and industrial markets as well as a leading provider of hot dip galvanizing services to the steel fabrication market nationwide. We offer products through two distinct business segments, Electrical and Industrial Products Segment, previously known as the Manufactured Products Segment, and the Galvanizing Services Segment, previously known as the Services Segment. We changed our name from Aztec Manufacturing Co. to AZZ incorporated on July 10, 2000. Management believes the new name will more effectively represent the scope of our business beyond manufacturing, reflect the changes in AZZ over the past 10 years and better enable us to cross-leverage marketing opportunities through the use of a common name and new image. Electrical and Industrial Products Segment The Electrical and Industrial Products Segment produces highly engineered specialty electrical products as well as lighting and tubular products. We market and sell products throughout the global market place. The electrical portion of this segment designs, manufactures, and configures products that distribute electrical power to a generator, transformer, switching device or other electrical configurations. These electrical systems are supplied to the power generation, transmission and distribution markets. Also provided by this segment are industrial lighting and tubular products used for petrochemical and industrial applications. Lighting products are provided to the petroleum, food processing, and power generation industries, to consumer retail outlets and to industries with unique lighting challenges. The principal markets for tubular products are the petroleum and automotive industries. The markets for the Electrical and Industrial Products Segment are highly competitive and consist of a few large national companies, as well as numerous small independents. Competition is based primarily on product quality, range of product line, price and service. While some of these companies are much larger and better financed than us, we believe AZZ can compete favorably with them. Copper, aluminum and steel are the primary raw materials used in the segment and are readily available. This segment's products are sold through manufacturers' representatives and its internal sales force. This segment is not dependent on any single customer or limited number of customers for as much as 10% of sales, and the loss of any single customer would not have a material adverse effect on our consolidated revenues. Galvanizing Services Segment The Galvanizing Services Segment provides hot dip galvanizing to the steel fabrication industry through facilities located throughout the South and Southwest United States. The eleven galvanizing plants are located in Texas, Louisiana, Alabama, Mississippi, Arkansas, and Arizona. Hot dip galvanizing is a metallurgical process by which molten zinc is applied to a customer's material. The zinc bonding provides corrosion protection of fabricated steel for an extended period of up to 50 years. Galvanizing is a highly competitive business and we compete with other independent galvanizing companies, captive galvanizing facilities operated by manufacturers, and alternate forms of corrosion protection such as paint. AZZ is limited, to some extent, in its galvanizing market to areas within a close proximity of its existing locations due to freight cost. Zinc, the principal raw material used in the galvanizing process, is readily available, but has volatile pricing. We manage exposure to commodity pricing of zinc by utilizing contracts with zinc suppliers and include protective caps to guard against rising commodity prices. This segment typically serves fabricators and/or manufacturers involved in the highway construction, electrical utility, transportation, water treatment, agriculture, petrochemical and chemical, pulp and paper industries and numerous OEM's. The market in general is broken into two major categories, being large structural 5 steel projects and custom fabrication. This segment is not dependent on any single customer or limited number of customers for as much as 10% of sales, and the loss of any customer would not have a material adverse effect on our consolidated revenues. 6 RISK FACTORS Before making an investment, you should be aware of the following risk factors and should review carefully the financial and other information about us provided or incorporated into this prospectus. OUR REVENUES ARE SUBSTANTIALLY DEPENDENT ON OUR OPERATING SUBSIDIARIES Our consolidated financial statements include our accounts and the accounts of our wholly owned subsidiaries. Consequently, our financial performance is dependent upon the ability of our subsidiary companies to sustain their respective businesses and be profitable. Each subsidiary had different customers and in many circumstances, changes in customers or supply sources could impact business at a subsidiary level and ultimately our financial performance. We currently do not rely upon any customers to provide more than 10% of our business and we obtain materials from a variety of sources. OUR SUCCESS DEPENDS UPON OUR SENIOR MANAGEMENT AND KEY PERSONNEL Our success depends upon the continued employment of and performance by our senior management, and key personnel of our subsidiary companies. It could have a material adverse effect on us if our senior management team do not continue their relationships with us, or if our subsidiary companies are unable to hire and retain a sufficient number of qualified management, professional, technical and marketing personnel. THE MARKET PRICE FOR OUR STOCK IS AND WILL LIKELY CONTINUE TO BE VOLATILE The market price for our stock has been volatile and has fluctuated significantly to date. The trading price of our stock is likely to continue to be highly volatile. In addition, the stock market in general and the market for manufacturing companies in particular, have experienced extreme price and volume fluctuations. These broad market and industry factors may materially and adversely affect the market price of our common stock, regardless of our actual operating performance. In the past, following periods of volatility in the market price of a company's securities, securities class-action litigation has often been instituted against such companies. Such litigation, if instituted, could result in substantial costs and a diversion of management's attention and resources, which would have a material adverse effect on our business, financial condition and results of operations. 7 FLUCTUATIONS IN OUR QUARTERLY RESULTS WILL LIKELY CAUSE FLUCTUATIONS IN OUR STOCK PRICE We expect that our quarterly results will fluctuate significantly due to many factors, including: * the operating results of our operating subsidiaries; * the pace of development or a decline in growth of the markets in which our companies operate and competition with respect to the technologies, products and services offered by our companies; * intense competition from other potential acquirers of prospective companies, which could increase our cost of acquiring interests in additional companies; and * our ability to effectively manage our growth and the growth of our companies. If our operating results in one or more quarters do not meet securities analysts' or your expectations, the price of our stock could decrease. In addition, we expect that the price of our Common Stock will fluctuate in response to announcements by us or our competitors with respect to acquisitions, divestitures and other corporate developments. WE MAY BE UNABLE TO OBTAIN MAXIMUM VALUE FOR OUR COMPANY INTERESTS We own 100% interests in all of our subsidiary companies. While we do not anticipate selling significant portions of our investments in our companies in the foreseeable future, if we were to divest all or part of an investment in a company, we may not receive maximum value for this position. 8 UNANTICIPATED ENVIRONMENTAL LIABILITIES COULD RAISE COSTS OF OPERATIONS We are involved in the manufacturing business and as such utilize materials and perform operations which involve regulations and oversight by state and federal authorities. On occasion we are subject to proceedings and regulatory orders involving noise, air emissions and water discharges into the environment. Historically, we have complied with these proceedings and orders without material impact to our operations, but some unforseen event could increase our cost of operations or prevent compliance. SOME ANTITAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS AND PLANS MAY DELAY OR PREVENT TAKEOVER A number of provisions of our articles of incorporation and bylaws deal with matters of corporate governance and the rights of shareholders. Certain of these provisions may be deemed to have an anti-takeover effect and may delay or prevent takeover attempts not first approved by the Board of Directors (including takeovers that certain shareholders may deem to be in their best interests). These provisions also could delay or frustrate the removal of incumbent directors or the assumption of control by shareholders. We believe that these provisions are appropriate to protect AZZ's interests and all of our shareholders. Effective January 7, 1999, we adopted a stock rights plan which authorized and declared a dividend and distribution of one right for each share of common stock outstanding at the close of business on February 4, 1999. The rights are exercisable at an initial price of $60, subject to certain adjustments. The plan is designed to enable all of our shareholders to realize the full value of their investment and to provide for fair and equal treatment for all shareholders in the event that an unsolicited attempt is made to acquire us. The adoption of the stock rights plan was intended as a means to guard against abusive takeover tactics and was not in response to any particular proposal. The rights will be exercisable only if a person or group acquires 15% or more of our common stock or announces a tender offer for 15% or more of the common stock. The effect will be to discourage acquisitions of more than 15% of our common stock without negotiations with the Board of Directors. The rights will trade with our common stock, unless and until they are separated upon the occurrence of certain future events. Our Board of Directors may redeem the rights prior to the acquisition of more than 15% of our common stock. WE ARE UNDER REVIEW BY THE NEW YORK STOCK EXCHANGE TO MAINTAIN OUR LISTING ON THAT EXCHANGE We have been under review by the New York Stock Exchange for compliance with changes to its listing requirements. We have submitted a plan to the SEC which describes how we believe we comply with these new rules and we expect to receive confirmation of compliance. A delisting of our stock from the New York Stock Exchange would mean that we would have to list our shares on NASDAQ or seek other markets for the sale of our shares. Although we do not expect our stock to be delisted, if this were to happen, our stock price may be adversely effected. WE FACE GENERAL RISKS RELATED TO DOING BUSINESS THAT ARE BEYOND OUR CONTROL Our success will depend in part on certain factors that are beyond our control and that cannot clearly be predicted at this time. These factors include, but are not limited to, general economic conditions, both nationally and internationally, changes in tax laws, fluctuating operating expenses, availability of materials and labor, changes in governmental regulations, changes in technology and trade laws. 9 USE OF PROCEEDS We will not receive any proceeds from the sale of the Common Stock offered pursuant to this prospectus by the selling stockholder. All proceeds will go to the selling stockholder. SELLING SECURITY HOLDERS The following table sets forth for RCG Capital Markets Group, Inc., the selling stockholder (a) the name of the selling stockholder, (b) the number of shares of our Common Stock owned by the selling stockholder before the offering as noted in the footnotes to the table (some or all shares underlie an option to purchase Common Stock), (c) the number of shares of our Common Stock offered by the selling stockholder under this prospectus, (d) the number of shares of our Common Stock that will be owned by the selling stockholder assuming that all shares of our Common Stock registered hereby on that stockholder's behalf are sold, and (e) the percentage of our outstanding shares of Common Stock that those remaining shares will represent. The selling stockholder is a party to an agreement by which we agreed to register its shares of our Common Stock. Registration of these shares enables the selling stockholder to sell the shares from time to time in any manner described in "Plan of Distribution" below, but does not necessarily mean that the selling stockholder will sell all or any of the shares.
% OF OUT- STANDING COMMON STOCK NUMBER OF SHARES NUMBER OF SHARES NUMBER OF SHARES BENEFICIALLY NAME OF SELLING BENEFICIALLY OWNED TO BE SOLD IN BENEFICIALLY OWNED OWNED AFTER STOCKHOLDER BEFORE OFFERING OFFERING AFTER OFFERING OFFERING (2) --------------- ------------------ ---------------- ------------------ ------------- RCG Capital Markets Group, Inc. 70,000 (2)(3) 70,000 (2)(3) 0 (2)(3) *%(1)
--------------------------- * Less than 1% (1) Percentages are based on 5,036,135 shares of Common Stock outstanding as of May 31, 2001. (2) The shares of Common Stock being registered are issuable upon exercise of an option to purchase up to 70,000 shares of Common Stock. (3) 43,750 shares are currently vested and the remaining 26,250 shares become vested upon the occurrence of certain events specified in the option agreement. 10 PLAN OF DISTRIBUTION The selling stockholders and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of its shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed or negotiated prices. The selling stockholders may use any one or more of the following methods when selling shares: * ordinary brokerage transactions and transactions in which the broker- dealer solicits purchasers; * block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; * purchases by a broker-dealer as principal and resale by the broker- dealer for its account; * an exchange distribution in accordance with the rules of the applicable exchange; * privately negotiated transactions; * broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; * a combination of any such methods of sale; and * any other method permitted pursuant to applicable law. The selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus. Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholder or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser, in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. The selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be "underwriters" within the meaning of the Securities Act of 1933 in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act of 1933. The selling stockholder agreed to pay 50% up to $5,000 in costs associated with registration of the shares. We are required to pay all other fees and expenses incident to the registration of the shares. 11 DISCLOSURE OF THE SEC'S POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES Our bylaws provide that we will indemnify our directors, officers, employees and agents to the fullest extent permitted by Texas law. In addition, our certificate of incorporation provides that, to the fullest extent permitted by Texas law, our directors will not be liable for monetary damages for breach of the directors' fiduciary duty to us and our stockholders. This provision of the certificate of incorporation does not eliminate the duty of care. In appropriate circumstances, equitable remedies such as an injunction or other forms of non-monetary relief are available under Texas law. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws. Each director will continue to be subject to liability for: * breach of the director's duty of loyalty to us; * acts or omissions not in good faith or involving intentional misconduct; * knowing violations of law; * any transaction from which the director derived an improper personal benefit; * improper transactions between the director and us; and * improper distributions to stockholders and improper loans to directors and officers. In addition to the protections provided by our bylaws and certificate of incorporation, we have entered into employment agreements with certain of our executive officers that provide them with indemnity against expenses and losses incurred in connection with certain claims brought against them. We maintain approximately $15,000,000 of coverage under a directors' and officers' liability insurance policy. There is no pending litigation or proceeding involving a director or officer as to which indemnification is being sought. We are not aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and control persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933, and is, therefore, unenforceable. 12 LEGAL MATTERS The validity of the shares being offered pursuant to this prospectus will be passed upon for us by Shannon, Gracey, Ratliff & Miller, L.L.P., Fort Worth, Texas. At the time we filed the registration statement with the SEC Mr. Sam Rosen, a partner in Shannon, Gracey, Ratliff & Miller, L.L.P., was a director and the secretary of AZZ and was the beneficial owner of 24,471 shares of Common Stock including an option to purchase 10,000 shares of Common Stock pursuant to the applicable vesting schedule. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule included in our Annual report on Form 10-K for the year ended February 28, 2001, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our consolidated financial statements and schedule are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. ------------------- No dealer, salesman or other person has been authorized to give any information or to make any representations other than those contained in this prospectus and, if given or made, such information or representations must not be relied upon as having been authorized by us or the selling shareholders. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy to any person in any jurisdiction in which such offer or solicitation would be unlawful or to any person to whom it is unlawful. Neither the delivery of this prospectus nor any offer or sale made hereunder shall, under any circumstances, create any implication that there has been no change in our affairs or that information contained herein is correct as of any time subsequent to the date hereof. 13 PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The expenses of the offering, which are to be borne by us and 50% (up to $5,000) by the Selling Security Holder, are estimated as follows: SEC registration fee $ 431.38 Legal services and expenses $15,000.00 Accounting services $ 4,500.00 Miscellaneous $ 2,500.00 ---------- Total $22,431.38 ========== ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under the Texas Business Corporation Act, we have broad powers to indemnify our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. Our Certificate of Incorporation provides for the elimination of liability for monetary damages for breach of the directors' fiduciary duty to us and our stockholders. These provisions do not eliminate the directors' duty of care and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Texas law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to us, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for any transaction from which the director derived an improper personal benefit, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Texas law. The provision does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. In addition to the protections provided by our bylaws and certificate of incorporation, we have entered into employment agreements with certain of our executive officers that provide them with indemnity against expenses and losses incurred in connection with certain claims brought against them. We maintain approximately $15,000,000 of coverage under a directors' and officers' liability insurance policy. II-1 ITEM 16. EXHIBITS Exhibit No. Description ----------- ----------- 4.1* Engagement Agreement between the Company and RCG Capital Markets Group, Inc. dated February 7, 2000 4.2* Letter Agreement between the Company and RCG Capital Markets Group, Inc. dated July 12, 2000, amending the Engagement Agreement of February 7, 2000 4.3* Letter Agreement between the Company and RCG Capital Markets Group, Inc. dated October 6, 2000, amending the Engagement Agreement of February 7, 2000 4.4* Stock Option Agreement between the Company and RCG Capital Markets Group, Inc. dated as of February 22, 2000 5.1* Legal Opinion and Consent of Shannon, Gracey, Ratliff & Miller, L.L.P. 23.1* Consent of Ernst & Young LLP 24.0* Power of Attorney ----------------- * Filed herwith. 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; (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 clauses (1)(i) and (1)(ii) above do not apply if the information required to be included in the post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 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 post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of those 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 that remain unsold at the end of the offering. (4) 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas on July 30, 2001. AZZ incorporated Date: July 30, 2001 By: /s/ David H. Dingus --------------------------------------- President and CEO Date: July 30, 2001 By: /s/ Dana L. Perry --------------------------------------- Dana L. Perry, Vice President of Finance, CFO and Assistant Secretary 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. Date: Signature and Title July 30, 2001 /s/ L.C. Martin ------------------------------------------- L.C. Martin, Chairman of the Board July 30, 2001 /s/ David H. Dingus ------------------------------------------- David H. Dingus, President, Chief Executive Officer and Director July 30, 2001 /s/ Dana L. Perry ------------------------------------------- Dana L.Perry, Vice President of Finance, CFO, and Assistant Secretary and Director July 30, 2001 /s/ Martin C. Bowen ------------------------------------------- Martin C. Bowen, Director July 30, 2001 /s/ Daniel E. Berce ------------------------------------------- Daniel E. Berce, Director July 30, 2001 /s/ Daniel R. Feehan ------------------------------------------- Daniel R. Feehan, Director July 30, 2001 /s/ R.J. Schumacher ------------------------------------------- R.J. Schumacher, Director July 30, 2001 /s/ Sam Rosen ------------------------------------------- Sam Rosen, Director and Secretary July 30, 2001 /s/ Dr. H. Kirk Downey ------------------------------------------- Dr. H. Kirk Downey, Director July 30, 2001 /s/ Kevern R. Joyce ------------------------------------------- Kevern R. Joyce, Director II-3 EX-4.1 3 dex41.txt ENGAGEMENT AGREEMENT EXHIBIT 4.1 ENGAGEMENT AGREEMENT February 7, 2000 Mr. David H. Dingus President & COO Aztec Manufacturing Co. P.O. Box 688 400 North Tarrant Crowley, TX 76036 1. This letter agreement will confirm the understanding between Aztec Manufacturing Co. and/or its affiliates and successors (the "Company" or "AZZ") and RCG Capital Markets Group, Inc. and/or its affiliates and successors ("RCG") with respect to the matters set forth herein. RCG will provide consulting and other services, as more particularly described herein and in the attachment hereto entitled Financial Relations Services Attachment (the "Financial Relations Services"), to the Company and will represent the Company during the engagement as exclusive Financial Relations Consultants with respect to the Financial Relations Services, on the terms and conditions set forth herein and in the attachments hereto, all of which are incorporated herein by reference and form a part hereof. The period during which RCG will perform the Financial Relations Services for the Company will commence on February 7, 2000 (the "Commencement Date") and, unless otherwise terminated as provided in this paragraph or in paragraph nine of this letter agreement, will terminate on the date which is Eighteen (18) months following the commencement date (the "Termination Date"). The period beginning on the Commencement Date and ending on the Termination Date is hereafter referred to as the "Engagement Term". As more particularly described in paragraph 9 below, either party may terminate this agreement at any time after the initial Six (6) month anniversary of the Commencement Date upon thirty (30) days prior written notice to the other party. (the "Early Termination Date") 2. During the Engagement Term, the Company agrees to furnish or cause to be furnished to RCG all information concerning the Company as RCG reasonably requests and deems appropriate for purposes of providing the Financial Relations Services. The Company represents that all information, with respect to the Company, provided to RCG will be complete and correct in all material respects and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances under which such statements are made. Aztec understands that in rendering the Financial Relations Services required hereunder, RCG will be using and relying on publicly available information and the information furnished to RCG by Aztec without independent verification thereof. RCG will treat as confidential any non-public information provided to it hereunder and will not disclose the same to third parties at any time unless required by applicable law. In the event disclosure has been or will be made by RCG, RCG will use its reasonable best efforts to cooperate as requested by the Company in minimizing any potential loss or injury to the Company as a consequence of any such necessary disclosure. In addition, RCG will use its reasonable best efforts to comply with all applicable state and Federal securities laws in the performance of this agreement. 3. During the Engagement Term, RCG and its employees, consultants and contractors will be generally available to Aztec Manufacturing Co., in connection with its rendering of the Financial Relations Services. Specifically, RCG (a) will outline, develop and implement a financial relations program to assist the Company in creating and/or enhancing a positive and more visible public image, (b) may contact existing and future shareholders, broker/dealers, potential investors, registered representatives, institutions, mutual fund managers, investment banking sources, securities analysts, independent portfolio managers, and other professional investment community February 7, 2000 Page 2 contacts including certain financial media sources for the purpose of enhancing the Company's public image and perceived value, (c) will assist the Company in the creation, production and distribution of certain financial markets and investor/shareholder corporate image materials, including corporate profiles, due diligence materials and investor packages, as well as all financial press releases; (d) assist the Company in its endeavor to secure research analyst coverage through a targeted securities professionals campaign and (e) otherwise perform the services described in the Financial Relations Services Attachment. 4. During the Engagement Term, the Company will afford RCG the opportunity and reasonable time period to review and/or comment on any disclosure, prior to its release, which the Company plans to make to any of the sources described in paragraph (3) and which relates to the Financial Relations Services to be provided hereunder. In addition, RCG will be responsible for assisting the Company in writing and/or editing, producing, coordinating and disseminating all financial industry press releases. RCG agrees that it will not release or distribute any press release without the Company's prior consent. 5. In consideration of RCG's services hereunder, the Company agrees to pay RCG, promptly when due, the Compensation as described by and in strict accordance with the attachment hereto entitled Financial Relations Compensation Attachment. Should RCG and the Company determine to extend the Engagement Term or change the scope of the engagement, then a mutually acceptable amendment or supplement to that attachment shall be promptly executed by RCG and Company. Absent any such amendment, all terms and conditions of this letter agreement shall be binding to the parties. 6. RCG shall be entitled to such additional fees as may be mutually agreed upon by separate agreement between the parties hereto, for additional consulting services not anticipated in this agreement rendered during the engagement term. 7. As more particularly set forth in the Financial Relations Compensation Attachment, the Company agrees to pay all of RCG's direct and certain indirect out-of-pocket expenses reasonably incurred, in connection with this engagement. As set forth in the Financial Relations Compensation Attachment, an expense retainer shall be utilized for this purpose. 8. The Company and RCG agree to indemnify each other (the indemnifying party hereafter being referred to as the "Indemnitor", and the party entitled to indemnification hereafter being referred to as the "Indemnitee") as follows: Indemnitor agrees to defend, indemnify and hold harmless Indemnitee, and its officers, directors, and employees against any and all losses, claims, demands, suits, actions, judgments, awards, damages, liabilities, costs, reasonable attorneys' fees, and expenses incurred in investigating, preparing or defending any such action or claim, directly or indirectly caused by, related to, or asserted by a third party, based upon or arising out of (a) the indemnitor's breach of or the incorrectness of any of its representations, warranties, or covenants contained in this agreement; and/or (b) any Services rendered by RCG as defined in or contemplated by this agreement, as it may be amended from time to time (the "Agreement"). Notwithstanding the foregoing, the Indemnitor shall have no obligation to indemnify or hold the Indemnitee harmless with regard to Indemnitee's gross negligence, willful misconduct, or the material breach of or the incorrectness of any representation, warranty or covenant of Indemnitee contained in this Agreement. 9. Either party hereto may terminate this engagement as follows: (a) Either party hereto may terminate this agreement at the conclusion of Initial Six (6) months from the execution date of the agreement by providing the other party a 30-day advance written notification of "Intent to Terminate Agreement". Not withstanding the above, the February 7, 2000 Page 3 Company may also terminate this Agreement after the Initial Six (6) months at any time "without cause", upon providing RCG Thirty (30) days advance written notice. In the event of a termination by the Company, "without cause" after the initial Six (6) months, RCG shall be entitled to receive Fifty (50%) percent of the remaining engagement term period cash compensation to the extent it is unpaid, pro-rated from the notice date of termination, along with reimbursement of any non paid, out-of-pocket expenses up to the effective date of termination. Additionally, RCG will be entitled to receive all unexercised vested, and 1/12 of the remaining non-vested warrants or stock options granted hereunder for each month past the initial Six (6) month period, up to and including the date of termination. Such payment is due and payable on the effective date of termination. (c) WITH CAUSE: In addition, the Company may terminate this Agreement at any time upon written notice to RCG: (i) If RCG fails to cure any material breach of any provision of this Agreement within Sixty (60) days from written notice from the Company (unless such breach cannot be reasonably cured within the Sixty (60) days and RCG is actively pursuing to cure said breach). (ii) For RCG's substantial negligence, willful misconduct, fraud, misappropriation, embezzlement, or other dishonesty; (iii) Upon a final and conclusive judicial ruling of RCG's failure to have materially complied with applicable law or regulation relating to the Services it will perform; (iv) Upon the filing by or against RCG of a petition to have RCG adjudged as bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, and where any such involuntary petition is not dismissed within 90 days. Upon termination under subparagraph (b) of this paragraph 9, the Company shall have no liability to RCG for Compensation accruing after such termination, and RCG shall have no further entitlement thereto. Upon such termination, RCG shall be entitled to receive and retain only accrued Compensation and vested Options to the date of such termination, to the extent it is unpaid, together with expenses not yet reimbursed. (c) RCG may terminate this agreement at any time upon written notice to the Company. (i) If the Company fails to cure any material breach of any provision of this Agreement with Sixty (60) days from written notice from the Company (unless such breach cannot be reasonably cured within the Sixty (60) days and the Company is actively pursuing to cure said breach); (ii) For the Company's substantial negligence, willful misconduct, fraud or misrepresentation; Such termination under 9(c)(i or ii) shall be deemed to be a termination by the Company "without cause" as provided in paragraph 9 (a) above. (iii) Upon a final and conclusive judicial ruling of Company's failure to have materially complied with any applicable law or regulation relating to the Services being provided; (iv) Upon the filing by or against the Company of a petition to have the Company adjudged as bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, and where any such involuntary petition is not dismissed within 90 days. February 7, 2000 Page 4 (d) RENEWAL. The Company agrees to notify RCG in writing Thirty (30) days prior to the end of the Eighteen (18) month period of its intent to not renew. Should the Company fail to notify RCG, the contract will revert to a month-to-month agreement until specifically renewed in writing or terminated with the advance Thirty (30) day notice. Such renewal or month-to-month engagement shall be on the same terms and conditions contained herein, unless modified and agreed in writing by both parties. 10. RCG hereby fully discloses that certain associates, affiliates, officers and employees of RCG are: (a) Licensed as Registered Securities Principals issued by the National Association of Securities Dealers ("NASD"); and/or (b) Licensed as Registered Representatives issued by the NASD. All NASD registrations are carried by SWS Financial Services, Inc., which is a non-RCG affiliated NASD-registered broker/dealer. RCG further discloses and the Company specifically acknowledges that RCG is NOT a broker/dealer registered with the NASD or any other regulatory agency. Furthermore, in the performance of Services under the terms and conditions of this agreement, such services shall not be considered to be acting in any broker/dealer or underwriting capacity and therefore RCG is not receiving any compensation from the Company as such. 11. The Company understands and acknowledges that RCG provides other and similar consulting services to companies, which may or may not conduct business and activities similar to those of the Company. RCG is not required to devote its full time and attention to the performance of its duties detailed in this agreement, and may devote only so much of its time and attention as it deems reasonable or necessary. 12. As the services are being provided by an Arizona domiciled corporation, the validity and interpretation of this letter agreement shall be governed by the laws of the State of Arizona applicable to agreements made and to be fully performed therein. 13. In the event of any controversy or dispute arising out of, or relating to this Agreement or breach thereof, RCG and AZZ agree to settle such controversy by arbitration pursuant to Arizona Revised Statutes, 12-1501 et seq. and in accordance with the rules, of the American Arbitration Association governing commercial transactions then existing, to the extent that such Rules are not inconsistent with said Statutes and this Agreement. Judgment upon the award rendered under arbitration may be entered in any court having jurisdiction. The cost of the arbitration procedure shall be borne by the losing party, or, if the decision is not clearly in favor of one party or the other, the costs shall be borne as determined by the arbitrator. The parties agree that the arbitration procedure provided herein shall be the sole and exclusive remedy to resolve any controversy or dispute arising hereunder, and that the proper venue for such arbitration proceeding shall be Maricopa County, Arizona. 14. For the convenience of the parties, any number of counterparts of this letter agreement may be executed by the parties hereto. Each such counterpart shall be deemed to be an original instrument, but all such counterparts taken together shall constitute one and the same letter agreement. 15. Miscellaneous: February 7, 2000 Page 5 (a) Modification: This Agreement sets forth the entire understanding of the ------------ parties with respect to the subject matter hereof. This Agreement may be amended only in writing signed by both parties. (b) Notices: Any notices hereunder shall be sent to the Company and RCG at ------- their respective addresses set forth. Any notice shall be given by registered or certified mail, postage prepaid, and shall be deemed to have been given when received by the non-sending party. Either party may designate any other address to which notice shall be given, by giving written notice to the other of such change in address in the manner herein provided. (c) Waiver: Any waiver by either party of a breach of any provision of this ------ Agreement shall not operate as or be construed to be a waiver of any other breach of that provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive that party of the right thereafter to insist upon adherence to that term of any other term of this Agreement. (d) Relationship of the Parties: Nothing in this Agreement shall create any --------------------------- partnership or joint venture between the parties hereto, it being understood and agreed that the parties are independent contractors and neither has the authority to bind the other in any way. (e) Entire agreement: This Agreement contains the entire agreement between the ---------------- parties and may not be altered or modified, except in writing and signed by the party to be charged thereby, and supersedes any and all previous agreements between the parties. If the foregoing correctly sets forth our agreement, please sign the enclosed copy of the letter in the space provided and return it to us, whereupon all parties will be bound to the terms of this engagement. Confirmed and agreed to February 7, 2000 RCG Capital Markets Group, Inc. Aztec Manufacturing Co. By: /s/ ILLEGIBLE By: /s/ ILLEGIBLE ------------------------------ ------------------------------ Title: President Title: President --------------------------- --------------------------- February 7, 2000 Page 6 FINANCIAL RELATIONS SERVICES ATTACHMENT As of February 7, 2000 and by the of execution of this agreement, RCG Capital Markets Group, Inc. and/or affiliates, (collectively "RCG") will serve as the exclusive Financial Relations Counsel for Aztec Manufacturing Co. ("AZZ" or "Company"). RCG anticipates the following services will be attempted and/or implemented within the scope of this engagement: . Outline, define, establish and implement a well-coordinated "Financial Relations" campaign. . Create, produce, enhance existing and distribute high-quality, due diligence and marketing materials, which specifically include, but are not limited to a "Corporate Profile" document and the Company's "Investor Package". . Specifically develop, proactively execute and maintain a targeted securities professionals telecommunications and information campaign specifically directed toward retail brokers, institutional investors, third-party portfolio managers and small/mid-cap mutual funds, buy and sell side analysts and the financial media as circumstances dictate, including, but not limited to, preparation, clearing with the Company and dissemination of quarterly press releases and other news releases deemed appropriate by the Company. RCG will allocate and utilize its proprietary securities industry, small/mid cap company oriented, databases and fax-line communications programs. (This will include responding to all incoming investment community inquiries and fulfillment of information and data requests.) . RCG will attempt to secure investment recommendations and on-going corporate research coverage from national or regional investment banking or research firms and/or an endorsement by an investment newsletter publication. . When appropriate, plan, arrange and coordinate specific follow-on road-show presentations to strategically targeted primary metropolitan financial markets. . RCG will be responsible for the origination and release of financial industry data and financial media information on behalf of Aztec Manufacturing Co. RCG will also be responsible for editing (or writing) all press releases and coordinating information disseminated to all media sources relating to the securities industry and capital markets. . RCG will organize, monitor and follow-up all conference calls between the Company and RCG's targeted segment of the investment community, in conjunction with material press releases, through a teleconferencing service. (RCG will be responsible for faxing and/or emailing the invitations and will follow up with calls to the recipients in an effort to expand the conference call participation.) . Plan, arrange and coordinate periodic registered representative, institutional and/or other securities professionals meetings, luncheons, dinners or special gatherings. . Implement periodic direct mailings which may include the most recent statistical information reports, and any appropriate articles or press releases that have been released during the last reported quarter. February 7, 2000 Page 7 . Update all due diligence and marketing materials. RCG anticipates updating Company information on a regular basis as required when there are material changes or events that should be disseminated to the investment community. . Implement an AZZ Internet Site on RCG's Internet Home Page, RCG Online. RCG Online will also create an Internet link to the Company's home page. The purpose of these inclusions will be to provide the investment community 24- hour access site to obtain up-to-date information about the Company. There will be an additional cost of $350 per month for this service RCG intends to perform the services and accomplish the specified goals within the scope of this engagement. However, due to the nature and type of services being performed, RCG cannot guarantee, nor can it be assumed that certain specific results will be realized with reference to increased market valuation of AZZ securities. February 7, 2000 Page 8 F1NANCIAL RELATIONS COMPENSATION ATTACHMENT In consideration of the Financial Relations Services to be rendered pursuant hereto Aztec Manufacturing Co. agrees to promptly pay RCG the following compensation (the "Compensation"): (a) Cash Compensation. During the term of this Agreement, the Company shall pay ----------------- RCG a monthly fee of $6,500 payable monthly in advance of services rendered and beginning upon the commencement date of this Agreement (the "Retainer Fees"). (b) Expense reimbursement. In addition, RCG shall be reimbursed for all direct --------------------- and certain indirect prorated out-of-pocket incurred in connection with the performance of the Financial Relations Services pursuant hereto. Aztec Manufacturing Co., will remit $5,000 to RCG, which RCG will utilize as an escrow deposit for the express purpose of indemnifying RCG in the event of late payment of monthly expenses by the Company. RCG will provide the Company with a detailed breakdown of all reimbursable expenses incurred in the previous month by approximately the Twentieth (20th) day of the following month of service. Aztec Manufacturing Co. agrees to reimburse RCG within 15 days of receipt of detailed invoice each month. If Aztec is delinquent in timely reimbursement of expenses as defined above, RCG will have the right to withdraw from the escrow account the applicable dollar amount to fully reimburse RCG. If reimbursement is not received by RCG by the 25th day after the date of the invoice, Aztec will then be immediately required to remit to RCG an amount equal to the expenses in question. RCG will then replenish the escrow account for the amount withdrawn to cover the delinquency. RCG can at its discretion discontinue all representation activities on behalf Aztec Manufacturing Co. if RCG deems Aztec to be routinely delinquent in the timely payment of expenses and/or the monthly fees as stated above. Such discontinuance does not extinguish the Company's obligation for reimbursement and payment of retainer fees. RCG will obtain prior approval from the Company for all specific expense items and any single miscellaneous expense item in excess of $750. RCG acknowledges and understands that the Company will have specific amounts budgeted for these expenditures and will use it's best efforts to ensure those budget amounts are not exceeded. (c) Stock Warrants/Options. Upon execution of this and subject to Board of ---------------------- Directors approval, the Company will grant RCG a non-forfeitable, non- cancelable warrant/option (the "Warrants/Options") to acquire 70,000 shares of Aztec common stock of which 30% shall vest immediately and the balance will be subject to the performance based vesting provisions outlined below. The Options issued will possess a Five year expiration term and will provide RCG the right, until February 7, 2005, to purchase common shares of the Company at a price equal to the closing price of AZZ common stock as of the engagement agreement execution date. The Company agrees to issue an options/warrants document which conforms to and delineates the terms and conditions contained herein, within sixty (60) days of this Agreement's execution date. The Warrants/options will have the following vesting provisions: 25% - Upon confirmation of a 30% increase (10,400 shares) in the average daily trading volume of the Company's stock over any 10 consecutive trading day period. (Baseline will be 8,000 shares.) l5% - Upon confirmation of corporate research coverage from Two (2) buy- or sell-side analysts or an endorsement by an appropriate investment newsletter publication with a subscriber base in excess of 3,000. (Vesting to be prorated at 7.5% for each research or recommendation event). February 7, 2000 Page 9 20% - Upon confirmation of securing at least a 12.5 P/E ratio for a period of at least 45 calendar days. 10% - Upon confirmation of two (2) positive financial (non-trade oriented) media events, such as articles in newspapers or financial magazines of recognized standing such as the Barrons, Wall Street Journal, Fortune, Forbes, Business Week Magazine, Individual Investor magazine, Investors Business Daily or such as source as may be mutually agreed upon in the financial and investment community or television or radio media coverage on well recognized financial, investment or business programs. (Vesting to be prorated at 5% for each media event). The shares underlying the non-forfeitable, non-cancelable warrant/option issued will be eligible for registration by demand registration rights via a form S-3 registration statement or by non-proratable piggy-back registration rights should the Company file an applicable registration. RCG agrees to pay 50% up to $5,000 in costs associated with such registration. Such payment by RCG is due upon the effective date of the registration statement. In the event that RCG provides a written request to exercise any portion or all of its option position the Company hereby agrees to immediately effectuate such exercise and to file such registration statement within 15 days of the request. In the event that AZZ is merged into or a controlling interest is acquired by any entity, which results in a material change in AZZ management, RCG will be immediately vested in all remaining options, including those, which to that point have not yet been vested. EX-4.2 4 dex42.txt LETTER AGREEMENT DATED JULY 12, 2000 [RCG LETTERHEAD] EXHIBIT 4.2 5635 E. Thomas Road. Phoenix, Az. 85018 (602) 675-0400 (602) 675-0480 mramras@regonline.com July 12, 2000 Mr. David H. Dingus President & COO AZZ incorporated. P.O. Box 668 400 North Tarrant Crowley, TX 76036 In line with our recent discussion and verbal agreement, the original engagement agreement between Aztec Manufacturing Co. ("AZZ") and RCG Capital Markets Group, Inc., ("RCG") dated February 7, 2000 shall be amended to reflect the following changes: Referencing paragraph (c) of the Financial Relations Compensation Attachment, the option exercise price shall be adjusted from $10.13 to $16.25 for those particular vesting elements and related percentages which occur by securing research and/or media events as described in that attachment. Furthermore, the option exercise price for the vesting event which occurs upon obtaining a 12.5 P/E ratio, shall be adjusted to become the closing stock price of AZZ common stock on the 45th day when achievement has been obtained for that vesting element. All other option elements vested to date shall remain as per the terms and conditions of the original attachment. In addition, by execution of this amendment, both parties acknowledge and agree that the July 7, 2000 termination letter tendered by AZZ is hereby withdrawn by the Company. All other terms, provisions and conditions of the original engagement agreement shall remain in effect and shall continue to govern the on-going consulting relationship between RCG and AZZ. Sincerely, /s/ A. Max Ramras A. Max Ramras President and CEO Accepted: AZZ incorporated Dated: ------------------ EX-4.3 5 dex43.txt LETTER AGREEMENT DATED OCTOBER 6, 2000 EXHIBIT 4.3 October 6, 2000 Mr. A. Max Ramras President and CEO RCG Capital Markets Group, Inc. 5635 E. Thomas Road Phoenix, Arizona 85018 Re: Engagement Agreement between RCG Capital Markets Group, Inc. ("Optionee") and AZZ incorporated ("Company"), formerly Aztec Manufacturing Co., dated February 7, 2000 (the "Engagement Agreement") and Amendment No. 1 to the Engagement Agreement dated July 12, 2000 Dear Mr. Ramras: This letter will serve as the second amendment to the captioned Engagement Agreement. As previously agreed, the exercise price of $10.13, which is applicable to a portion of the Shares covered by the Option, was derived from the market price on February 22, 2000, the date of approval of the Engagement Agreement by the Board of Directors of AZZ incorporated. The Company and Optionee agreed to pricing on that date since the Option was not effective until that date and it was necessary to price the Option on the date it became effective. This letter will confirm that options to purchase 17,500 Shares, which were contingent upon an increase in the average trading volume of AZZ stock, have vested with an exercise price of $10.13 per Share. This will also confirm the agreement of Company and Optionee that the registration of the Shares underlying the Option may be made on an appropriate SEC registration form and that RCG has requested that such a filing be made. All terms in this letter which are capitalized shall have the definition for such terms contained in the Stock Option Agreement dated as of February 22, 2000 between the Company and Optionee. Mr. A. Max Ramras October 6, 2000 Page 2 -------------------- Please confirm the agreement of Optionee to the matters set forth in this letter. Yours very truly, /s/ Dana L. Perry Dana L. Perry, Vice President and CFO Accepted: RCG CAPITAL MARKETS GROUP, INC. By: /s/ A. Max Ramras -------------------------------- A. Max Ramras, President and CEO [LOGO] 5635 E. Thomas Road. Phoenix, Az. 85018 (602) 675-0400 (602) 675-0480 mramras@rcgonline.com July 12, 2000 Mr. David H. Dingus President & COO AZZ incorporated. P.O. Box 668 400 North Tarrant Crowley, TX 76036 In line with our recent discussion and verbal agreement, the original engagement agreement between Aztec Manufacturing Co. ("AZZ") and RCG Capital Markets Group, Inc., ("RCG") dated February 7, 2000 shall be amended to reflect the following changes: Referencing paragraph (c) of the Financial Relations Compensation Attachment, the option exercise price shall be adjusted from $10.13 to $16.25 for those particular vesting elements and related percentages which occur by securing research and the second media events as described in that attachment. Notwithstanding the above, it is agreed that the option exercise price shall remain at the $10.13 upon securing the first media vesting event. Furthermore, the option exercise price for the vesting event which occurs upon obtaining a 12.5 P/E ratio, shall be adjusted to become the closing stock price of AZZ common stock on the 45th consecutive calendar day when achievement has been obtained for that vesting element. All other option elements vested to date shall remain as per the terms and conditions of the original attachment. In addition, by execution of this amendment, both parties acknowledge and agree that the July 7, 2000 termination letter tendered by AZZ is hereby withdrawn by the Company. All other terms, provisions and conditions of the original engagement agreement shall remain in effect and shall continue to govern the on-going consulting relationship between RCG and AZZ. Sincerely, /s/ A. Max Ramras A. Max Ramras President and CEO Accepted: /s/ Dana L. Perry AZZ incorporated Dated: 8-1-00 ---------------- EX-4.4 6 dex44.txt STOCK OPTION AGREEMENT EXHIBIT 4.4 AZZ incorporated STOCK OPTION AGREEMENT WITH RCG CAPITAL MARKETS GROUP, INC. This Stock Option Agreement (the "Agreement") is entered into between AZZ incorporated, a Texas corporation (the "Company") and RCG Capital Markets Group, Inc. (the "Optionee") as of February 22, 2000, pursuant to part (c) of the Financial Relations Compensation Attachment to the Engagement Agreement between the Company and Optionee dated February 7, 2000 and the amendments of July 12, 2000 and October 6, 2000 to the Engagement Agreement. In consideration of the mutual promises and covenants made herein the parties hereby agree as follows: 1. GRANT OF OPTION. The Company grants to the Optionee an option (the --------------- "Option") to purchase from the Company all or any part of a total of 70,000 shares of the Company's $1.00 par value common stock (the "Shares"). 2. CHARACTER OF OPTION. The Option is not an "incentive stock option" ------------------- within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 3. TERM. The unexercised part of the Option will expire at 11:59 P.M. ---- (CST) on February 21, 2005. 4. VESTING AND EXERCISE PRICE. The Option shall vest, thereby giving -------------------------- Optionee the right to purchase shares at the following prices, in the following numbers, upon the occurrence of the following events: Event No. of Shares Exercise Price ----- ------------- -------------- (a) Execution of this Agreement. 21,000 $10.13 (b) Upon confirmation of a 30% 17,500 $10.13 increase, to 10,400 shares in average daily trading volume, of the Company's stock over any 10 consecutive trading day period, over a stipulated baseline of 8,000 shares. (c) Confirmation of corporate 10,500 $16.25 research coverage from two(2) buy or sell side analysts or an endorsement by an appropriate investment newsletter publication with a subscriber base in excess of 3,000, vesting of one-half of this portion of the Option (the right to purchase 5,250 Shares) to occur upon the first research or recommendation event, and -1- vesting of the other one-half of this portion of the Option (the right to purchase 5,250 additional Shares) to occur upon the second research or recommendation event. (d) Confirmation of maintenance of at 14,000 [closing price least a 12.5 P/E ratio for a period on the NYSE on of at least 45 consecutive calendar the last days. trading day within the 45 consecutive calendar days] (e) Confirmation of two (2) positive 3,500 $10.13 financial (non-trade oriented) (1st media event) media events, such as articles in newspapers or financial magazines of recognized standings such as Barron's, Wall Street Journal, Fortune, Forbes, Business Week Magazine, Individual Investor Magazine, Investor's Business Daily or such other source as may be mutually 3,500 $16.25 agreed upon, in the financial and (2nd media event) investment community or television or radio media coverage on well recognized financial, investment or business programs, vesting of the first one-half of this portion of the Option (the right to purchase 3,500 Shares) to occur upon the first media event and vesting of the second one-half of this portion of the Option (the right to purchase 3,500 additional Shares) to occur upon the second media event. 5. PROCEDURE FOR EXERCISE. Exercise of the Option or a portion thereof ---------------------- shall be effected by the Optionee's giving written notice of exercise to the Company at its principal place of business and the Optionee's payment of the purchase price prescribed in Section 4 above for the Shares to be acquired pursuant to the exercise. 6. PAYMENT OF PURCHASE PRICE. Payment of the purchase price for any ------------------------- Shares purchased pursuant to the Option shall be made in cash. -2- 7. TRANSFER OF OPTION. Neither the Option nor any interest therein may be ------------------ assigned, pledged, hypothecated or otherwise transferred and may be exercised only by the Optionee. 8. TERMINATION. The Option shall terminate on the expiration date set ----------- forth in Section 3 above. 9. RESERVATION OF SHARES. The Company shall at all times during the term --------------------- of the Option reserve and keep available a sufficient number of shares of its Common Stock to satisfy the Company's obligation to transfer to shares to the Optionee upon exercise of the Option. 10. COMPLIANCE WITH SECURITIES LAWS. The Shares shall be issued pursuant ------------------------------- to the exercise of the Option only after registration of the securities on an appropriate form of registration under the Securities Act of 1933. Optionee consents to the imposition of a legend upon the certificate representing such shares restricting their transfer until the filing with the SEC is made. The Company agrees to file such registration form covering the Option and the Shares underlying the Option upon receipt from Optionee of a request that such a filing be made. 11. ANTI-DILUTION. If the outstanding common stock of the Company is ------------- increased, decreased, changed into, or exchanged for a different number or kind of shares or securities through merger, consolidation, combination, exchange of shares, other reorganization or recapitalization, reclassification, stock dividend, stock split or reverse stock split, an appropriate and proportionate adjustment shall be made to the number and type of shares subject to the Option. Any adjustment in the Option shall be made without changing the aggregate purchase price applicable to the unexercised portion of the Option, but with a corresponding adjustment in the price of each share covered by the Option. 12. AMENDMENT. This Agreement may be amended only by an instrument in --------- writing, signed by both the Company and the Optionee. 13. MISCELLANEOUS. This Agreement will be construed and enforced in ------------- accordance with the laws of the State of Texas and will be binding upon and inure to the benefit of any successor or assign of the Company and to any successor of the Optionee. EXECUTED as of the day first above shown. AZZ incorporated By: /s/ Dana L. Perry --------------------------------------------- By: Dana L. Perry, Vice President and CFO RCG CAPITAL MARKETS GROUP INC. By: /s/ A. Max Ramras --------------------------------------------- A. Max Ramras, President and CEO -3- EX-5.1 7 dex51.txt LEGAL OPINION AND CONSENT EXHIBIT 5.1 SHANNON, GRACEY, RATLIFF & MILLER, L.L.P. 777 MAIN STREET SUITE 3800 FORT WORTH, TEXAS 76102 July 25, 2001 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: AZZ incorporated REGISTRATION STATEMENT ON FORM S-3 Gentlemen: The opinion set forth below is given pursuant to Item 501(b) (5) of Regulation S-K for inclusion as Exhibit 5.1 to the Registration Statement on Form S-3 (the "Registration Statement"), of AZZ incorporated, a Texas corporation (the "Company"), which covers 70,000 shares of the Company's $1.00 par value common stock (the "Shares") underlying options to purchase such shares by RCG Capital Markets Group, Inc. In connection with this opinion, we have made the following assumptions: (i) all documents submitted to or reviewed by us, including all amendments and supplements thereto, are accurate and complete and if not originals are true and correct copies of the originals; (ii) the signatures on each of such documents by the parties thereto are genuine; (iii) each individual who signed such documents had the legal capacity to do so; (iv) all persons who signed such documents on behalf of the corporation were duly authorized to do so; and (v) the company has sufficient surplus at the time of issuance and will transfer from surplus to the capital stock account one dollar for each Share issued. We have assumed that there are no amendments, modifications or supplements to such documents other than those amendments, modifications and supplements that are known to us. Based on the foregoing, and subject to the limitations and qualifications set forth herein, we are of the opinion that the Shares have been duly authorized and will, when issued after payment in full of the exercise price for such Shares, be validly issued, fully paid and nonassessable. This opinion is further limited and qualified in all respects as follows: This opinion is specifically limited to matters of the laws of the State of Texas and the federal laws of the United States of America. We express no opinion as to the applicability of the laws of any other particular jurisdiction to the transactions described in this opinion. This opinion is limited to the specific opinions expressly stated herein, and no other opinion is implied or may be inferred beyond the specific opinions expressly stated herein. This opinion is intended solely for your benefit. It is not to be quoted in whole or in part, disclosed, made available to or relied upon by any other person, firm or entity without our express prior written consent. This opinion is based upon our knowledge of the law and facts as of the date hereof. We assume no duty to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or to reflect any changes in any law that may hereafter occur or become effective. We hereby consent to the filing of this opinion as an exhibit to the registration statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Respectfully submitted, Shannon, Gracey, Ratliff & Miller, L.L.P. EX-23.1 8 dex231.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3, No. 33-____) and related Prospectus of AZZ incorporated for the registration of 70,000 shares of its common stock and to the incorporation by reference therein of our report dated March 30, 2001, with respect to the consolidated financial statements and schedule of AZZ incorporated included in its Annual Report (Form 10-K) for the year ended February 28, 2001, filed with the Securities and Exchange Commission. Fort Worth, Texas July 25, 2001 EX-24.0 9 dex240.txt POWER OF ATTORNEY EXHIBIT 24.0 SPECIAL POWER OF ATTORNEY THE STATE OF TEXAS (S) (S) KNOW ALL MEN BY THESE PRESENTS: COUNT OF TARRANT (S) THAT WE, the undersigned, have made, constituted, and appointed, and by these presents to make, constitute, and appointed L. C. MARTIN, and/or DAVID H. DINGUS and/or DANA L. PERRY, and each of them severally with full power to act alone, our true and lawful attorneys and agents to execute in our name, placed, and stead, in our capacity as an officer or director of AZZ incorporated ("AZZ"), and file with the Securities and Exchange Commission under the Securities Act of 1933, one or more Form S-3 Registration Statements covering stock options to RCG Capital Markets Group, Inc., including any and all amendments (including pre-effective and post-effective amendments to filings theretofore or hereafter made) and exhibits to said filings and any and all applications, instruments and other documents to be filed with the SEC or any state regulatory agency pertaining to the registration of securities of AZZ, with full power and authority to do and perform any and all acts and things whatever that they or he may deem requisite or desirable in their or his sole discretion in the premises as fully and to all intents and purposes as the undersigned might or could do in person, and to file copies of this power of attorney with the SEC or any such agency or body. The power and authority hereby granted shall continue until revoked by a written instrument of revocation delivered to the President of AZZ. WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- L.C. MARTIN WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- DAVID H. DINGUS WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- DANA L. PERRY WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- MARTIN C. BOWEN WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- DR. H. KIRK DOWNEY WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- DANIEL R. FEEHAN WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- SAM ROSEN WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- KEVERN R. JOYCE WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- R. J. SCHUMACHER WITNESS MY HAND this 23/rd/ day of July, 2001. -------------------------------------------------- DANIEL E. BERCE