As filed with the Securities and Exchange Commission on July 11, 2005
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
ACUITY BRANDS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2632672
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ACUITY BRANDS, INC.
1170 PEACHTREE STREET, N.E.
SUITE 2400
ATLANTA, GEORGIA 30309
(404) 853-1400
(Address, including zip code, of registrant's principal executive offices)
ACUITY BRANDS, INC. LONG-TERM INCENTIVE PLAN
--------------------------------------------
(AS AMENDED AND RESTATED)
-----------------------
(Full title of plans)
KENYON W. MURPHY
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
ACUITY BRANDS, INC.
1170 PEACHTREE STREET, N.E.
SUITE 2400
ATLANTA, GEORGIA 30309
(404) 853-1400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Amount to Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered be Registered Share(1) Price(1) Registration Fee
------------------------------------ ------------------- ------------------ ------------------ ----------------
Common Stock,
par value $0.01 per share................... 8,980,619 shares(2) $25.04 $224,874,700 $ 26,468(3)
Preferred Stock Purchase Rights............. (4) N/A N/A N/A
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
sales prices per share ($25.04 per share) of Common Stock of Acuity
Brands, Inc. as reported on the New York Stock Exchange on July 7,
2005.
(2) This Registration Statement registers (i) an aggregate of 3,000,000
shares of common stock issuable under the Registrant's Long-Term
Incentive Plan, as amended and restated (the "Incentive Plan"), and (ii)
an aggregate of 5,980,619 shares (such shares the "Carry Forward Shares")
of common stock which may be issuable under the Incentive Plan, including
shares issuable in the event of forfeitures of stock options and
restricted stock currently outstanding which were granted under the
Incentive Plan and the underlying shares of which were registered for
issuance on the Registrant's Registration Statement on Form S-8 (File No.
333-74246) (the "Prior Registration Statement"). The Prior Registration
Statement was effective with the Commission on November 30, 2001.
(3) In accordance with Rule 457, the registration fees associated with the
Carry Forward Shares previously paid by the registrant in connection with
the Prior Registration Statement are being carried forward to this
registration statement. Specifically, registration fees of $6,745 were
previously paid with respect to the Carry Forward Shares. As permitted by
Instruction E to the General Instructions of Form S-8, the Registrant has
carried forward such registration fees. As a result of the carry forward,
the registration fee of $26,468 has been reduced by $6,745, and the
registration fee paid with this filing reflects the reduction of the fee
carry forward.
The registrant will also file a post-effective amendment to the Prior
Registration Statement to de-register the Carry Forward Shares.
(4) This Registration Statement also covers the associated Preferred Stock
Purchase Rights (the "Rights") issued pursuant to the Stockholder
Protection Rights Agreement, dated as of November 12, 2001, between
Acuity Brands, Inc. and Wells Fargo Bank Minnesota, N.A. (as modified
from time to time). Until the occurrence of certain events, the Rights
will not be exercisable for or evidenced separately from shares of common
stock, par value $0.01 per share, of Acuity Brands, Inc.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement is being filed by Acuity Brands, Inc.
("Acuity," the "Registrant" or the "Company") to register an aggregate of
8,980,619 shares of the Company's common stock, par value $0.01 per share (the
"Common Stock"), issuable pursuant to the Acuity Brands, Inc. Long-Term
Incentive Plan, as amended and restated (the "Incentive Plan"). These 8,980,619
shares include an aggregate of 5,980,619 shares of Common Stock (the "Carryover
Shares") which were previously registered in connection with the Incentive Plan
on the Company's Registration Statement on Form S-8 (File No. 333-74246), which
was filed by the Company and effective on November 30, 2001 (the "Prior
Registration Statement").
The documents containing the information specified in Part I of Form S-8
will be sent or given to employees of the Registrant as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with the instructions of Part I of Form S-8, such documents will not
be filed with the Securities Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by the Registrant with
the Commission and are hereby incorporated by reference into this Registration
Statement as of their respective dates:
(a) Annual Report on Form 10-K for the year ended August 31, 2004;
(b) Quarterly Reports on Form 10-Q for the quarters ended November
30, 2004, February 28, 2005 and May 31, 2005;
(c) Current Reports on Form 8-K, filed with the Commission on
September 2, 2004, October 5, 2004, January 12, 2005, February
22, 2005, April 1, 2005, April 27, 2005 and July 6, 2005; and
(d) the description of the Common Stock contained in the
Registrant's Registration Statement on Form 10, as originally
filed with the Securities and Exchange Commission on July 3,
2001, as amended, including any amendment or report filed for
the purpose of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered hereunder have been sold or that
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of the filing of such documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into this Registration Statement shall be deemed to be
modified or superseded for purposes thereof to the extent that a statement
contained therein or in any other subsequently filed document that is also
incorporated or deemed to be
incorporated therein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed to constitute a
part of this Registration Statement.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interest of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Acuity's By-laws and Section 145 of the Delaware General Corporation Law,
which allows, and in some cases requires, the indemnification of directors and
officers under certain circumstances, grant Acuity's directors and officers a
right to indemnification to the fullest extent permitted by law for all expenses
relating to civil, criminal, administrative or investigative procedures to which
they are a party (i) by reason of the fact that they are or were directors or
officers of Acuity or (ii) by reason of the fact that, while they are or were
directors or officers of Acuity, they are or were serving at the request of
Acuity as a director, officer or employee of another enterprise. Acuity's
By-laws further provide that an advancement for any such expenses shall only be
made upon delivery to Acuity by the indemnitee of an undertaking to repay all
amounts so advanced if it is ultimately determined that such indemnitee is not
entitled to be indemnified by Acuity.
Acuity has also entered into indemnification agreements with certain of
its directors and officers. These agreements require Acuity to indemnify these
directors and officers with respect to their activities as directors or officers
of Acuity or when serving at Acuity's request as a director, officer or trustee
of another corporation, trust or other enterprise against expenses (including
attorneys' fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred by them in any threatened, pending or completed suit or
proceeding (civil, criminal, administrative or investigative) to which they are,
or are threatened to be made, parties as a result of their service to Acuity.
Acuity has agreed to indemnify each indemnitee for any one or a combination of
the following, whichever is most advantageous to the indemnitee, as determined
by the indemnitee (i) the benefits provided by Acuity's certificate of
incorporation and By-laws in effect on the date of the indemnification
agreement; (ii) the benefits provided by Acuity's certificate of incorporation
and By-laws at the time expenses are incurred by the indemnitee; (iii) the
benefits allowable under Delaware law in effect on the date of the
indemnification agreement; (iv) the benefits allowable under the law of the
jurisdiction under which Acuity exists at the time expenses are incurred by the
indemnitee; (v) the benefits available under liability insurance obtained by
Acuity; and (vi) such other benefits as may be otherwise available to indemnitee
under Acuity's existing practices. Under the indemnification agreements, each
indemnitee will continue to be indemnified even after ceasing to occupy a
position as an officer, director, employee or agent of Acuity with respect to
suits or proceedings arising out of acts or omissions during his service to
Acuity. Each indemnitee has agreed to notify Acuity promptly of any proceeding
brought or threatened and not to make any admission or settlement without
Acuity's consent, unless the indemnitee determines to undertake his own defense
and waives the benefits of the indemnification agreement.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
Exhibit Description
4.1 Restated Certificate of Incorporation of the Registrant, filed
as Exhibit 3.1 to the Registrant's Current Report on Form 8-K as
filed with the Commission on December 14, 2001 and incorporated
herein by reference.
4.2 Amended and Restated Bylaws of the Registrant, filed as
Exhibit 3(b) to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended May 31, 2004 and incorporated herein by
reference.
4.3 Form of Common Stock certificate, filed as Exhibit 4.1 to
Amendment No. 5 to the Registrant's Registration Statement on Form
10, filed with the Commission on November 9, 2004 and incorporated
herein by reference.
4.4 Stockholder Protection Rights Agreement, dated as of November
12, 2001, between the Registrant and Wells Fargo Bank Minnesota,
N.A., filed as Exhibit 4.2 to the Registrant's Current Report on
Form 8-K as filed with the Commission on December 14, 2001 and
incorporated herein by reference.
4.5 Letter Agreement appointing Successor Rights Agent, dated June
5, 2003, filed as Exhibit 4(c) to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended May 31, 2003 and
incorporated herein by reference.
5.1 * Opinion of Kenyon W. Murphy, Esq. regarding legality of
shares being registered.
10.1 Long-Term Incentive Plan, as amended and restated, filed as
Exhibit A to the Registrant's Proxy Statement for the Annual
Meeting of Stockholders filed with the Commission on November 7,
2003 and incorporated herein by reference.
23.1 * Consent of Ernst & Young LLP, independent registered public
accounting firm.
23.2 * Consent of Kenyon W. Murphy, Esq. (included in Exhibit 5.1)
24.1 * Powers of Attorney
-------------------------
* Filed herewith
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for 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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
EXPERTS
The consolidated financial statements of Acuity Brands, Inc. appearing in
Acuity Brands, Inc.'s Annual Report on Form 10-K for the fiscal year ended
August 31, 2004 (including the schedule appearing therein) have been audited by
Ernst & Young LLP, independent registered public accounting firm, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Acuity Brands,
Inc. has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on this 11th day of July, 2005.
ACUITY BRANDS, INC.
By: /s/ Vernon J. Nagel
------------------------------------
Vernon J. Nagel
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities indicated on July 11, 2005.
Signature Title
/s/ Vernon J. Nagel
____________________________ Chairman and Chief Executive Officer
Vernon J. Nagel
/s/ Edward H. Bastian
____________________________ Senior Vice President and
Edward H. Bastian Chief Financial Officer
/s/ Karen J. Holcom
____________________________ Vice President and Controller
Karen J. Holcom (Principal Accounting Officer)
*
____________________________ Director
Peter C. Browning
*
____________________________ Director
John L. Clendenin
*
____________________________ Director
Jay M. Davis
*
____________________________ Director
Earnest W. Deavenport, Jr.
*
____________________________ Director
Robert F. McCullough
*
____________________________ Director
Julia B. North
*
____________________________ Director
Ray M. Robinson
*
____________________________ Director
Neil Williams
* By: /s/ Kenyon W. Murphy
---------------------------------
Kenyon W. Murphy
Attorney-in-Fact