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As filed with the Securities and Exchange Commission on August 29, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CMI CORPORATION
(Exact name of registrant as specified in its charter)
Oklahoma 73-0519810
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
I-40 and Morgan Road
Oklahoma City, Oklahoma 73101C
(Address of principal executive offices)
CMI Corporation Stock Option Plan
(Full title of plan)
Jim D. Holland Copy to:
CMI Corporation John D. Robertson, Esq.
I-40 and Morgan Road Hartzog Conger & Cason
Oklahoma City, Oklahoma 73101 201 Robert S. Kerr, Suite 1600
(405) 787-6020 Oklahoma City, Oklahoma 73102
(405) 235-7000
(Name, address, and telephone number of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
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Proposed Proposed
maximum maximum
Title of securities to Amount to be offering price per aggregate Amount of
be registered registered(1) share(2) offering registration fee
price
<S> <C> <C> <C> <C>
Voting Class A Common Stock,
par value $.10 per share 1,100,000 $2.41 $2,651,000 $700
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</TABLE>
(1) Pursuant to Rule 416, this Registration Statement shall cover, in
addition to the number of shares of Voting Class A Common Stock stated
above, such indeterminate number of additional shares of Voting Class
A Common Stock as may be issued under such plan as a result of
adjustment provisions thereunder.
(2) Pursuant to Rule 457(h) and Rule 457(c), this price is estimated
solely for the purpose of calculating the registration fee and is
based upon the average of the high and low price per share of the
Registrant's Voting Class A Common Stock as reported on the New York
Stock Exchange on August 24, 2000.
________________________
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INTRODUCTION
This Registration Statement on Form S-8 is filed by CMI Corporation ("the
Company") relating to an additional 1,100,000 shares of the Company's Voting
Class A Common Stock, par value $.10 per share ("the Voting Class A Common
Stock"), issuable to employees of the Company under the CMI Corporation Stock
Option Plan f/k/a the CMI Corporation 1992 Incentive Stock Option Plan ("the
Plan"). The Company previously registered 1,000,000 shares of Voting Class A
Common Stock for issuance under the Plan under Registration Statement No. 33-
66274.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
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The Company shall deliver or cause to be delivered to each participant, to
the extent material (and prior to the making of any investment decision), one or
more documents containing the information specified in Item 1. The document or
documents themselves are not required to be filed with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 428 and the Note to Part
I.
Item 2. Registrant Information and Employee Plan Annual Information
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The Company shall provide to each participant, prior to the making of any
investment decision, a written statement advising the participant of the
availability without charge, upon written or oral request, of the documents
incorporated by reference in Item 3 of Part II and stating that these documents
are incorporated by reference into the Section 10(a) prospectus. The statement
shall also indicate the availability without charge, upon written or oral
request, of other documents required to be delivered to employees pursuant to
Rule 428(b) and include the address (giving title or department) and telephone
number to which the request is to be directed. The written statement itself is
not required to be filed with the Commission pursuant to Rule 428 and the Note
to Part I.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The documents listed below are incorporated by reference in this
Registration Statement; and all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange 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 by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents:
. the Company's Annual Report on Form 10-K for the year ended
December 31, 1999;
. the Company's Quarterly Report on Form 10-Q for the three
month period ended March 31, 2000, as amended on August 17,
2000;
. the Company's Quarterly Report on Form 10-Q for the three
month period ended June 30, 2000;
. the Company's Current Report on Form 8-K filed with the
Commission on May 8, 2000; and
. the description of the Voting Class A Common Stock, $.10 par
value per share, of the Company set forth under the caption
"AMENDMENT AND RESTATEMENT OF CERTIFICATE OF INCORPORATION"
contained in the definitive proxy statement filed by the
Company with the Commission on or about January 7, 1992,
which description is also incorporated by reference into the
Registration Statement on Form 8-A filed by the Company with
the Commission on or about January 14, 1992 pursuant to
Section 12(b) of the Exchange Act.
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Item 4. Description of Securities
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Not Applicable.
Item 5. Interest of Named Experts and Counsel
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The validity of the issuance of the shares offered by the Company will be
passed on by Hartzog Conger & Cason, Oklahoma City, Oklahoma. Larry Hartzog, a
director of the Company, is a director and shareholder of Hartzog Conger &
Cason. Mr. Hartzog is the beneficial owner of 172,700 shares of Voting Class A
Common Stock.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Company's Certificate of Incorporation, as amended, contains a
provision which limits, to the fullest extent permitted by Oklahoma law, the
liability of a director to the Company or its stockholders for monetary damages
for a breach of such director's fiduciary duty as a director. Oklahoma law
presently permits such limitation of a director's liability except where a
director (i) breaches his or her duty of loyalty to the Company or its
stockholders, (ii) fails to act in good faith or engages in intentional
misconduct or a knowing violation of law, (iii) authorizes payment of an
unlawful dividend or stock repurchase, or (iv) obtains an improper personal
benefit.
The Company's Certificate of Incorporation, as amended, further provides
that the Company shall indemnify to the full extent authorized by law any person
made or threatened to be made a party to any proceeding because that person is
or was an officer or director of the Company or any of its subsidiaries. The
Bylaws of the Company also provide that the Company shall indemnify any person
who is named or threatened to be named as a party to any proceeding because that
person is or was an officer or director of the Company or any of its
subsidiaries. In order be indemnified, the person must have acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
Company's best interests and, in the case of any criminal proceeding, he or she
must have had no reasonable cause to believe his or her conduct was unlawful. In
addition, in the case of an action or proceeding by or in the right of the
Company, no indemnification shall be made with respect to any claim, issue, or
matter as to which the person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duties to the Company
unless a court of competent jurisdiction shall determine on application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity.
The Company must determine whether an officer or director is entitled to be
indemnified in a specific case. The determination must be made (i) by a majority
vote of directors who are not parties to the proceeding, even though less than a
quorum, (ii) by a committee of directors designated by a majority vote of
directors, even though less than a quorum, (iii) if there are no such directors,
or if such directors so direct, by independent legal counsel in a written
opinion, or (iv) by the stockholders.
The Company has obtained directors' and officers' liability insurance to
limit its exposure under these provisions.
Item 7. Exemption from Registration
---------------------------
Not Applicable.
Item 8. Exhibits
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4.1 Amended and Restated Certificate of Incorporation of the Company
(Exhibit 3.2 of the Form 8-K filed February 18, 1992 and Exhibit
3(i) of the Form 10-Q filed August 14, 1995 are hereby
incorporated by reference).
4.2 Amended and Restated Bylaws of the Company (Exhibit 3(ii) of the
Form 10-Q filed August 13, 1999 is hereby incorporated by
reference).
+4.3 CMI Corporation Stock Option Plan, as amended.
+5 Opinion of Hartzog Conger & Cason.
+23.1 Consent of KPMG LLP.
+23.2 Consent of Hartzog Conger & Cason (contained in its opinion
filed as Exhibit 5 hereto).
+24.1 Powers of Attorney (set forth on page 5).
_________________________
+ Filed herewith.
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Item 9. Undertakings
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(a) The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed 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 Section 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Oklahoma City, State of Oklahoma, on the 25th day of
August, 2000.
CMI CORPORATION
By: /s/ Bill Swisher
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Bill Swisher,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jim D. Holland and Thane Swisher, or either of
them, his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact, agent or their substitutes may lawfully do or cause to be
done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
INDICATED CAPACITIES ON AUGUST 25, 2000.
SIGNATURE TITLE
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By: /s/ Bill Swisher Chief Executive Officer and Director
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Bill Swisher
By: /s/ Jim D. Holland Senior Vice President, Treasurer and
---------------------------------
Jim D. Holland Chief Financial Officer
By: /s/ Jeffrey A. Lipkin Director
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Jeffrey A. Lipkin
By: /s/ Joseph J. Finn-Egan Director
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Joseph J. Finn-Egan
By: /s/ J. Larry Nichols Director
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J. Larry Nichols
By: /s/ Thomas P. Stafford Director
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Thomas P. Stafford
By: /s/ Ronald Kahn Director
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Ronald Kahn
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By: /s/ Larry D. Hartzog Director
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Larry D. Hartzog
By: /s/ Kenneth J. Barker Director
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Kenneth J. Barker
6
