As
filed with the Securities and Exchange Commission on December 15,
2009
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
EMERSON ELECTRIC CO.
(Exact
name of registrant as specified in its charter)
MISSOURI
|
|
43−0259330
|
(State
or other jurisdiction of
incorporation
or organization)
|
|
(I.R.S.
Employer
Identification
No.)
|
|
8000 WEST FLORISSANT
AVE.
St. Louis, Missouri 63136
|
|
(Address,
including zip code, of registrant’s principal executive
offices)
|
|
|
AVOCENT
CORPORATION
2008
INDUCEMENT EQUITY
INCENTIVE
PLAN
(as
amended and restated effective
as
of December 11, 2009)
|
|
|
|
|
|
AVOCENT
CORPORATION
2005
EQUITY INCENTIVE PLAN
(as
amended and restated effective
as
of December 11, 2009)
|
|
|
(Full
title of the Plans)
|
|
|
|
|
|
Timothy
G. Westman
Vice
President, Associate General
Counsel
and Assistant Secretary
Emerson
Electric Co.
8000
West Florissant Avenue
St.
Louis, Missouri 63136
(314)
553-2000
|
|
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
|
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company.
Large
accelerated filer x
|
Accelerated
filer o
|
Non-accelerated
filer o
|
Smaller
reporting company o
|
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class
of
Securities to be
Registered
|
Amount
to
be
Registered
|
Proposed
Maximum
Offering
Price
Per
Unit(1)
|
Proposed
Maximum
Aggregate
Offering
Price(1)
|
Amount
of
Registration
Fee
|
Common
Stock(2)
|
1,050,000
shares(2)
|
$ 42.315
|
$44,430,750
|
$ 2,479.24
|
(1)
|
Estimated
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the amount of the
registration fee on the basis of the average of the high and the low
reported sales prices of a share of Registrant’s Common Stock, par value
$.50 (“Common Stock”), on December 14, 2009, as reported by The New York
Stock Exchange.
|
(2)
|
This
Registration Statement also covers such additional shares as may be issued
pursuant to anti-dilution
provisions.
|
EXPLANATORY
NOTE
Pursuant
to the consummation of the transactions contemplated by the Agreement and Plan
of Merger dated October 5, 2009, among Avocent Corporation (“Avocent”), Emerson
Electric Co. (the “Company,” Emerson or the “Registrant”), and Globe Acquisition
Corporation (the “Merger Agreement”), on December 11, 2009, Avocent became a
wholly-owned subsidiary of Emerson Electric Co. In connection with the
consummation of such transactions, certain Restricted Stock Units outstanding
under the Avocent Corporation 2008 Inducement Equity Incentive Plan and the
Avocent Corporation 2005 Equity Incentive Plan (each, a “Plan”) were converted
into Restricted Stock Units relating to shares of Emerson Common
Stock. This registration statement is filed to register 1,050,000
shares of Emerson Common Stock for issuance upon the vesting of such converted
Restricted Stock Units outstanding under each Plan following such
consummation.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents that Emerson has filed with the Securities and Exchange
Commission (the “Commission”) under Securities Exchange Act of 1934 (“1934 Act”)
File No. 001-00278 are incorporated in this Registration Statement by reference
and made a part hereof:
|
1.
|
The
Registrant’s Annual Report on Form 10-K for the fiscal year ended
September 30, 2009.
|
|
2.
|
The
Registrant’s Current Reports on Form 8-K filed with the Securities and
Exchange Commission on October 9, 2009, November 3, 2009, November 6,
2009, November 12, 2009 and November 24,
2009.
|
|
3.
|
The
description of Registrant’s Common Stock, which is contained in the 1934
Act Registration Statement on Form 10 as amended under cover of Form 8
filed on January 19, 1981, and amendments to the Restated Articles of
Incorporation described and set forth in the Proxy Statement dated
December 19, 1985, including any amendments or reports filed for purposes
of updating such descriptions.
|
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and are a part hereof from the date of filing
of such documents, except for the documents, or portions thereof, that are
“furnished” (e.g., the portions of those documents set forth under Items 2.02 or
7.01 of Form 8-K or other information “furnished” to the Commission) rather than
filed with the Commission. Any statement contained herein or in a document
incorporated or deemed to be incorporated herein by reference shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated herein by reference
modifies or supersedes such statement.
Item
4. Description of Securities.
All
Securities to be offered are registered under Section 12 of the 1934
Act.
Item
5. Interests of Named Experts and Counsel.
Timothy
G. Westman, Vice President, Associate General Counsel and Assistant Secretary of
the Company, has rendered an opinion as to the legality of the shares of Common
Stock (and the related Preferred Stock Purchase Rights) being registered hereby.
Mr. Westman receives compensation as an employee of the Company, participates in
certain of the Company’s employee benefit plans, including this Plan, and owns
shares of Company Common Stock and options to purchase shares of Company Common
Stock.
Item
6. Indemnification of Directors and Officers.
The
following summary is qualified in its entirety by reference to the complete text
of Sections 351.355 of the Revised Statutes of Missouri and the articles of
incorporation and by-laws of the Registrant.
The
Registrant is a Missouri corporation. Section 351.355(1) of the Revised Statutes
of Missouri provides that a corporation may indemnify a director, officer,
employee or agent of the corporation in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the corporation,
against expenses, including attorneys’ fees, judgments, fines and settlement
amounts actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Section 351.355(2) provides that the
corporation may indemnify any such person in any threatened, pending or
completed action or suit by or in the right of the corporation against expenses,
including attorneys’ fees and settlement amounts actually and reasonably
incurred by him in connection with the defense or settlement of the action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, except that he may not
be indemnified in respect of any claim, issue or matter in which he has been
adjudged liable for negligence or misconduct in the performance of his duty to
the corporation, unless, and only to the extent, authorized by the
court.
Section
351.355(3) provides that a corporation shall indemnify any such person against
expenses, including attorneys’ fees, actually and reasonably incurred by him in
connection with the action, suit or proceeding if he has been successful in
defense of such action, suit or proceeding and if such action, suit or
proceeding is one for which the corporation may indemnify him under Section
351.355(1) or (2). Section 351.355(7) provides that a corporation shall have the
power to give any further indemnity to any such person, in addition to the
indemnity otherwise authorized under Section 351.355, provided such further
indemnity is either (i) authorized, directed or provided for in the articles of
incorporation of the corporation or any duly adopted amendment thereof or (ii)
is authorized, directed or provided for in any bylaw or agreement of the
corporation which has been adopted by a vote of the shareholders of the
corporation, provided that no such indemnity shall indemnify any person from or
on account of such person’s conduct which was finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct.
The
Registrant has entered into indemnification agreements with the directors of the
Registrant and adopted amendments to the bylaws of the Registrant which
incorporate indemnity provisions permitted by Section 351.355(7) described
above. The agreements and amended bylaws provide that the Registrant will
indemnify its directors and officers against all expenses (including attorneys’
fees), judgments, fines and settlement amounts, paid or incurred in any action
or proceeding, including any action on behalf of the Registrant, on account of
their service as a director or officer of the Registrant, any subsidiary of the
Registrant or any other company or enterprise when they are serving in such
capacities at the request of the Registrant, excepting only cases where (i) the
conduct of such person is adjudged to be knowingly fraudulent, deliberately
dishonest or willful misconduct, (ii) a final court adjudication shall determine
that such indemnification is not lawful, (iii) judgment is rendered against such
person for an accounting of profits made from a purchase or sale of securities
of the Registrant in violation of Section 16(b) of the Securities Exchange Act
of 1934 or of any similar statutory law, (iv) any remuneration paid to such
person is adjudicated to have been paid in violation of law or (v) the action is
brought by the Registrant, except where it is brought in the right of the
Registrant or in connection with an acquisition of the Registrant in a
transaction not approved by the Board of Directors by a majority of its
continuing directors, which for this purpose means those directors holding
office prior to the time of such acquisition or any successors who were approved
as successors by the directors holding office prior to the time of such
acquisition. Such person shall be indemnified only to the extent that the
aggregate of losses to be indemnified exceeds the amount of such losses for
which the director or officer is insured pursuant to any directors’ or officers’
liability insurance policy maintained by the Registrant. The bylaws also provide
that the Registrant may advance expenses to an employee or agent and shall
advance expenses to a director or officer in advance of the final disposition of
any action, suit or proceeding upon receipt of an undertaking by or on behalf of
any such person to repay such amount unless it is ultimately determined that any
such person is entitled to be indemnified by the Registrant.
Article
10 of the Registrant’s Articles of Incorporation provides that the liability of
the Registrant’s directors to the Registrant or any of its shareholders for
monetary damages for breach of fiduciary duty as a director shall be eliminated
to the fullest extent permitted under the Missouri General and Business
Corporation Law. Any repeal or modification of Article 10 by the Registrant’s
shareholders shall not adversely affect any right or protection of a director of
the Registrant existing at the time of such repeal or modification with respect
to acts or omissions occurring prior to such repeal or
modification.
The
Registrant maintains directors’ and officers’ liability insurance.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
Exhibits to this Registration Statement are listed in the Exhibit Index to this
Registration Statement, which Index is incorporated herein by
reference.
Item
9. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post−effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post–effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(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 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.
(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 Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the County of
St. Louis, State of Missouri, on this 14th day of December,
2009.
EMERSON
ELECTRIC CO.
|
|
|
|
|
|
|
|
By: |
/s/
Timothy
G. Westman |
|
|
Name:
|
Timothy
G. Westman
|
|
|
Title:
|
Vice
President, Associate General Counsel 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.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
/s/
D. N. Farr *
|
|
Chairman
of the Board, Chief Executive Officer, President and
Director
|
|
December
14, 2009
|
D.
N. Farr
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
W. J. Galvin *
|
|
Vice
Chairman, Chief Financial Officer and Director
|
|
December
14, 2009
|
W.
J. Galvin
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
F. J. Dellaquila *
|
|
Senior
Vice President – Finance and
Controller
|
|
December
14, 2009
|
F.
J. Dellaquila
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
R. J. Schlueter *
|
|
Vice
President and Chief Accounting Officer
|
|
December
14, 2009
|
R.
J. Schlueter
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
C. A. H. Boersig *
|
|
Director
|
|
December
14, 2009
|
C.
A. H. Boersig
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
A. A. Busch III *
|
|
Director
|
|
December
14, 2009
|
A.
A. Busch III
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
C. Fernandez G. *
|
|
Director
|
|
December
14, 2009
|
C.
Fernandez G.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
A. F. Golden *
|
|
Director
|
|
December
14, 2009
|
A.
F. Golden
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
H. Green *
|
|
Director
|
|
December
14, 2009
|
H.
Green
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
/s/
R. B. Horton *
|
|
Director
|
|
December
14, 2009
|
R.
B. Horton
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
W. R. Johnson *
|
|
Director
|
|
December
14, 2009
|
W.
R. Johnson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
V. R. Loucks, Jr. *
|
|
Director
|
|
December
14, 2009
|
V.
R. Loucks, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
J. B. Menzer *
|
|
Director
|
|
December
14, 2009
|
J.
B. Menzer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
C. A. Peters *
|
|
Director
|
|
December
14, 2009
|
C.
A. Peters
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
J. W. Prueher *
|
|
Director
|
|
December
14, 2009
|
J.
W. Prueher
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
R. L. Ridgway *
|
|
Director
|
|
December
14, 2009
|
R.
L. Ridgway
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
R. L. Stephenson *
|
|
Director
|
|
December
14, 2009
|
R.
L. Stephenson
|
|
|
|
|
*By: |
/s/ Timothy
G. Westman |
|
December
14, 2009
|
|
Timothy
G. Westman
|
|
|
|
Attorney-in-Fact
|
|
|
EXHIBIT
INDEX
|
|
|
|
|
|
4.1
|
|
Restated
Articles of Incorporation of Emerson Electric Co. (incorporated by
reference to Registrant’s Form 10-Q for the quarter ended March 31, 2001
(Exhibit 3(a)).
|
|
|
|
4.2
|
|
Bylaws
of Emerson Electric Co., as amended through November 3, 2009 (incorporated
by reference to Registrant’s Form 8-K filed with the Commission on
November 11, 2009 (Exhibit 3.2)).
|
|
|
|
5
|
|
Opinion
of Timothy G. Westman.
|
|
|
|
23.1
|
|
Consent
of Independent Registered Public Accounting Firm.
|
|
|
|
23.2
|
|
Consent
of Counsel to the Registrant (contained in Exhibit 5).
|
|
|
|
24
|
|
Power
of Attorney.
|
|
|
|
99.1
|
|
Avocent
Corporation 2008 Inducement Equity Incentive Plan (as amended and restated
as of December 11, 2009).
|
|
|
|
99.2
|
|
Avocent
Corporation 2005 Equity Incentive Plan (as amended and restated as of
December 11, 2009).
|