<PAGE> 1
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
SHILOH INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 51-0347683
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
402 Ninth Avenue, P.O. Box 2037, Mansfield, Ohio 44905
(Address of Principal Executive Offices Including Zip Code)
1993 KEY EMPLOYEE STOCK INCENTIVE PLAN
(Full Title of the Plan)
Robert L. Grissinger
President, Chief Executive Officer and Chairman of the Board
Shiloh Industries, Inc.
402 Ninth Avenue
P.O. Box 2037
Mansfield, Ohio 44905
(Name and Address of Agent For Service)
(419) 525-2315
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Proposed Maxi- Proposed Maxi- Amount of
Securities to Amount to be mum Offering mum Aggregate Registration
be Registered Registered (1) Price Per Share (2) Offering Price (2) Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 450,000 $17.9375 $8,071,875 $2,446
par value per share
=========================================================================================================================
<FN>
(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also covers such additional Common
Stock, $0.01 par value per share (the "Common Stock") as may become
issuable pursuant to the anti-dilution provisions of the 1993 Key
Employee Stock Incentive Plan (the "Plan").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and
Regulations under the Securities Act, on the basis of the average of
the high and low sale prices of such securities on the Nasdaq National
Market on January 31, 1997, within five business days prior to filing.
</TABLE>
Exhibit Index Appears on Page II-5
<PAGE> 2
PROSPECTUS
27,100 Shares
SHILOH INDUSTRIES, INC.
COMMON STOCK
$0.01 PAR VALUE PER SHARE
This Prospectus relates to up to 27,100 shares of the common stock,
$.01 par value per share ("Common Stock"), of Shiloh Industries, Inc. (the
"Company"), that have been awarded to the selling stockholder referred to herein
(the "Selling Stockholder") pursuant to the Company's 1993 Key Employee Stock
Incentive Plan (the "Plan"). The Company will not receive any proceedings from
any sale of shares of Common Stock offered hereby.
The shares of Common Stock may be sold through any of several methods,
including transactions on the Nasdaq National Market, in the over-the-counter
market at prevailing market prices at the time of sale or in privately
negotiated transactions at prices agreed upon by the parties. See "Plan of
Distribution."
The Selling Stockholder and any brokers effecting sales on their behalf
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933 (the "Securities Act"), and commissions or discounts given by such brokers
may be deemed to be underwriting commissions or discounts under the Securities
Act.
The Common Stock is listed on the Nasdaq National Market under the
symbol "SHLO."
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
Neither delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that there has been no change in
the affair of the Company since the date hereof or the dates as of which
information is set forth herein.
The date of this Prospectus is February 5, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"), and accordingly, files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). Such reports, proxy statements and other information may
be inspected and copied at the public reference facilities of the SEC, located
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the SEC's New York regional office located at 7 World Trade Center, 13th
Floor, New York, New York 10048, and at its Chicago regional office, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
materials may also be obtained from the Public Reference Section of the SEC at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The SEC
maintains a Web site, located at http://www.sec.gov., that contains reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the SEC.
Additional information regarding the Company and the securities offered
hereby is contained in the Registration Statement and the exhibits relating
thereto, filed by the Company with the SEC under the Securities Act. For further
information pertaining to the Company and the securities offered hereby,
reference is made to the Registration Statement and the exhibits thereto, which
may be inspected without charge at the office of the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549, and copies may be obtained from the SEC at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the SEC and
are hereby incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended October 31,
1996; and
(b) The description of the Common Stock which is contained in the
Registration Statement filed under the Exchange Act for the
purpose of registering such class of securities thereunder.
All other reports subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THE COMPANY
This Prospectus incorporates documents of the Company by reference
which are not presented herein or delivered herewith. The Company's documents
(other than certain exhibits to any such documents) are available to any person
to whom a copy of this Prospectus has been delivered, upon written or oral
request to Shiloh Industries, Inc., 402 Ninth Avenue, P.O. Box 2037,
Mansfield, Ohio 44905, Attention: Craig A. Stacy, Chief Financial Officer and
Treasurer, telephone number (419) 525-2315, and will be furnished without
charge.
The Company is a vertically integrated steel processor that supplies
high quality blanks, stampings and processed steel to the automotive and other
industries. The Company's products include steel blanks used principally by
domestic and foreign automotive manufacturers for automobile fenders and hoods
and heavy truck wheels and brake parts, as well as steel stampings used
principally by automobile component manufacturers. The Company also designs,
engineers and produces precision tools and dies for use in its own blanking and
stamping operations as well as for sale to other industrial customers. In
addition, the Company performs a variety of value-added intermediate steel
processing services, such as pickling hot rolled steel and slitting, edge
trimming, roller leveling and cutting to length hot and cold rolled steel.
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<PAGE> 4
The Company's origins date back to 1950 when its predecessor, Shiloh
Tool & Die Mfg. Company, began to design and manufacture precision tools and
dies. The Company was organized as a Delaware corporation in April 1993 to serve
as a holding company for seven operating subsidiaries. In June 1993, the Company
effected a reorganization whereby these seven operating subsidiaries became
direct or indirect subsidiaries of the Company. In July 1993, the Company
completed an initial public offering of 3,782,500 shares of its Common Stock.
The Company's principal executive offices are located at Suite 350, 1013 Centre
Road, Wilmington, Delaware 19805 and its telephone number is (302) 998-0592.
Unless otherwise indicated, all references to the "Company" refer to Shiloh
Industries, Inc. and its direct and indirect subsidiaries.
For more detailed information about the Company, reference is made to
the Annual Report on Form 10-K for the year ended October 31, 1996, which is
incorporated herein by reference. See "Available Information" and "Incorporation
of Certain Documents by Reference."
USE OF PROCEEDS
All shares of Common Stock sold pursuant to this Prospectus will be
sold by the Selling Stockholder for his own account, and the Company will not
receive any proceeds from such sales.
SELLING STOCKHOLDER
The shares of Common Stock covered by this Prospectus were issued by
the Company to the Selling Stockholder pursuant to the exercise of stock
options, which were granted under the Plan.
All of the shares of Common Stock offered hereby were acquired by the
Selling Stockholder prior to the date hereof in a transaction exempt from the
registration requirements of the Securities Act. The Selling Stockholder may
sell from time to time any of the shares of Common Stock covered by this
Prospectus. Therefore, no estimate can be given as to the number of shares of
Common Stock that may be reoffered for sale under this Prospectus at any given
time.
The table below sets forth the following information: (i) the name of
the Selling Stockholder and positions held by such stockholder with the Company
within the past three years; (ii) the number of shares of Common Stock of the
Company beneficially owned by the Selling Stockholder as of the date hereof
prior to the offering by this Prospectus; and (iii) the number of shares of
Common Stock offered by the Prospectus for the account of the Selling
Stockholder.
<TABLE>
<CAPTION>
Name and Former Position Shares to be
of Selling Stockholder Owned Shares Offered Shares Owned After Sale
---------------------- ------------ -------------- ----------------
<S> <C> <C> <C>
Robert Sutter 293,049 27,100 265,949
Vice President - Operations
Shiloh Corporation
</TABLE>
PLAN OF DISTRIBUTION
The Common Stock offered hereby may be sold from time to time in one or
more transactions through any of several methods, including in transactions on
the Nasdaq National Market, in ordinary brokerage transactions or block
transactions, in distributions pursuant to and in accordance with the rules of
the over-the-counter market on which the shares may trade, in negotiated
transactions, through underwriters or a combination of such methods of sale, at
market prices prevailing at the time of sale, at prices related to such
prevailing market price or at negotiated prices. The Selling Stockholder may
effect such transactions by selling shares to or through a broker or brokers or
underwriters, who may act as agent or principal or as both agent and principal,
and such brokers or underwriters may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Stockholder,
not to exceed that which is customary for the particular transactions. The
Selling Stockholder and any brokers participating in such sales may be deemed to
be "underwriters" within the meaning of the Securities Act,
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<PAGE> 5
in which event commissions received by such brokers may be deemed to be
underwriting commissions under the Securities Act.
Any shares of Common Stock covered by this Prospectus that qualify for
sale pursuant to Rule 144 under the Securities Act may be sold under that rule
rather than pursuant to this Prospectus.
Transfer Agent and Registrar
- ----------------------------
KeyCorp is the Transfer Agent and Registrar of the Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") provides
that a corporation shall have the power, and in some cases is required, to
indemnify an officer or director who was or is a party or is threatened to be
made a party to a threatened, pending or completed action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement.
Article VIII, Section 2 of the Company's Restated Certificate of
Incorporation allows indemnification of officers and directors to the fullest
extent permitted for a corporation organized under the laws of the State of
Delaware. In addition, the Company has purchased liability insurance covering
certain liabilities which may be incurred by the directors and officers of the
Company and its subsidiaries in connection with the performance of their duties.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
LEGAL MATTERS
The validity of the Common Stock offered under this Prospectus will be
passed upon for the Company by Jones, Day, Reavis & Pogue, Cleveland, Ohio.
EXPERTS
The consolidated financial statements and schedules of the Company
contained in the Company's Annual Report on Form 10-K for the year ended October
31, 1996, incorporated by reference herein, have been audited by Price
Waterhouse, LLP, independent public auditors, as stated in their report included
therein, and have been so incorporated in reliance upon such report and upon the
authority of said firm as experts in accounting and auditing. To the extent that
Price Waterhouse LLP audits and reports on future financial statements of the
Company, and consents to the use of their report thereon, such future financial
statements also will be incorporated by reference herein in reliance upon their
report and said authority.
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=======================================================================
TABLE OF CONTENTS
Available Information...............................................2
Incorporation of Certain Documents by Reference.....................2
The Company.........................................................2
Selling Stockholder.................................................3
Use of Proceeds.....................................................3
Plan of Distribution................................................3
Indemnification of Directors and Officers...........................4
Legal Opinion.......................................................4
Experts.............................................................4
No person is authorized to give any information or make any
representations, other than those contained in this
Prospectus, in connection with the offering made hereby. If
given or made, no such information or representations may
be relied upon as having been authorized by the Company
or the Selling Stockholder. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy,
and there shall not be any sale of, these securities by any
person in any jurisdiction in which it is unlawful for that
person to make such an offer, solicitation or sale. Neither
the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create an implication that the
information contained herein is correct as of any time
subsequent to the date hereof.
SHILOH
INDUSTRIES, INC.
27,100 Shares
Common Stock $.01 Par
Value Per Share
---------------------
PROSPECTUS
---------------------
February 5, 1997
<PAGE> 7
Part II
Information required in the Registration
Statement.
This Registration Statement relates to 450,000 shares of Common Stock,
par value $.01 per share (the "Common Stock") of Shiloh Industries, Inc. (the
"Company"), being registered for use under the Company's 1993 Key Employee Stock
Incentive Plan (the "Plan").
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents previously filed by Company with the Securities
and Exchange Commission (the "SEC") are incorporated herein by reference and
made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1996;
(b) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the SEC on June
17, 1993 pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") for purposes of registering such securities
thereunder, as such Registration Statement may have been
amended from time to time; and
(c) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which
de-registers all securities then remaining unsold shall be
deemed to be incorporated herein by reference and to be part
hereof from the date of filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable. (Class of securities to be offered is registered under
Section 12 of the Exchange Act.)
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Article Eight Section 2 of the Company's Restated Certificate of
Incorporation allows indemnification of officers and directors to the fullest
extent permitted for a corporation organized under the laws of the State of
Delaware. In addition, the Company has purchased liability insurance covering
certain liabilities which may be incurred by the directors and officers of the
Company in connection with the performance of their duties.
The Company has entered into Indemnification Agreements with its
directors and certain officers. Item 14 in Part II of Company's Registration
Statement on Form S-1 (Reg. No. 33-62730), as amended is incorporated herein by
reference.
Item 7. Exemption from Registration Claims
----------------------------------
The shares of Common Stock to be resold by the Selling Stockholder were
issued to such stockholder pursuant to the exemption from registration under the
Securities Act provided in Section 4(2) thereof. The Selling Stockholder was a
senior executive of the Company at the time that such shares were issued to such
stockholder
II-1
<PAGE> 8
pursuant to the Plan, and through such position had adequate access to
information about the Company to make an informed investment decision.
Item 8. Exhibits
--------
4 1993 Key Employee Stock Incentive Plan.
5 Opinion of Jones, Day, Reavis & Pogue.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Jones, Day, Reavis & Pogue -- See Exhibit 5.
24 Power of Attorney.
Item 9. Undertakings
------------
(a) The undersigned Company 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 (the
"Securities Act");
(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 offering range may be
reflected in the form of prospectus filed with the
SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more
than 20% 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
periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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.
II-2
<PAGE> 9
(b) The undersigned Company hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 in 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 Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the SEC such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company 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
Company 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 of whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mansfield, State of Ohio, on this 4th day of February
1997.
SHILOH INDUSTRIES, INC.
By: /s/ Robert L. Grissinger
--------------------------------
Robert L. Grissinger, President,
Chief Executive Officer
and Chairman of the Board
II-3
<PAGE> 10
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert L. Grissinger President, Chief Executive Officer, February 4, 1997
- ------------------------------------------ (Principal Executive Officer) and
Robert L. Grissinger Chairman of the Board
* February 4, 1997
- ------------------------------------------ Chief Financial Officer and
Craig A. Stacy Treasurer (Principal Financial and
Accounting Officer)
* Director February 4, 1997
- ------------------------------------------
Dominick C. Fanello
* Director February 4, 1997
- ------------------------------------------
James C. Fanello
* Director February 4, 1997
- ------------------------------------------
Richard S. Gray
* Director February 4, 1997
- ------------------------------------------
David J. Hessler
* Director February 4, 1997
- ------------------------------------------
James A. Karman
* Director February 4, 1997
- ------------------------------------------
Dieter Kaesgen
* Director February 4, 1997
- ------------------------------------------
Curtis E. Moll
* Director February 4, 1997
- ------------------------------------------
Theodore K. Zampetis
</TABLE>
* Robert L. Grissinger, the undersigned attorney-in-fact, by signing
his name hereto, does hereby sign and execute this Registration Statement on
behalf of the above indicated officers and directors thereof (constituting a
majority of the directors) pursuant to a power of attorney filed with the
Securities and Exchange Commission.
February 4, 1997 By: /s/ Robert L. Grissinger
------------------------
Robert L. Grissinger, President,
Chief Executive Officer
and Chairman of the Board
II-4
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
Pagination by
sequential
Exhibit Exhibit numbering
Number Description system
------ ----------- ------
<S> <C>
4 1993 Key Employee Stock Incentive Plan.
5 Opinion of Jones, Day, Reavis & Pogue.
23.1 Consent of Price Waterhouse LLP.
23.2 Opinion and Consent of Jones, Day, Reavis & Pogue -- See Exhibit 5.
24 Power of Attorney.
</TABLE>
II-5
<PAGE> 1
EXHIBIT 4
SHILOH INDUSTRIES, INC.
1993 KEY EMPLOYEE STOCK INCENTIVE PLAN
1. PURPOSE. The purpose of this Plan is to attract and retain
officers and other key employees of Shiloh Industries, Inc., a Delaware
corporation (the "Corporation"), and its Subsidiaries and to provide such
persons with incentives and rewards for superior performance.
2. DEFINITIONS. As used in this Plan,
"BOARD" means the Board of Directors of the Corporation.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITTEE" means the committee described in Section 13(a) of
this Plan.
"COMMON SHARES" means (i) shares of the common stock, par
value $.01 per share, of the Corporation and (ii) any security into which Common
Shares may be converted by reason of any transaction or event of the type
referred to in Section 7 of this Plan.
"DATE OF GRANT" means the date specified by the Board on which
a grant of Option Rights shall become effective, which shall not be earlier than
the date on which the Board takes action with respect thereto.
"INCENTIVE STOCK OPTION" means an Option Right that is
intended to qualify as an "incentive stock option" under Section 422 of the Code
or any successor provision.
"IPO" means the initial public offering of Common Shares
pursuant to a registration statement that shall have become effective under the
Securities Act of 1933.
"LESS-THAN-8O-PERCENT SUBSIDIARY" means a Subsidiary with
respect to which the Corporation directly or indirectly owns or controls less
than 80 percent of the total combined voting or other decision-making power.
"MANAGEMENT OBJECTIVES" means the achievement or performance
objectives that may be established by the Board pursuant to this Plan for
Participants who have received grants of Restricted Shares.
"MARKET VALUE PER SHARE" means the fair market value of the
Common Shares as determined by the Board from time to time.
"NONQUALIFIED OPTION" means an Option Right that is not
intended to qualify as a Tax-Qualified Option.
"OPTIONEE" means the person so designated in an agreement
evidencing an outstanding Option Right.
"OPTION PRICE" means the purchase price payable upon the
exercise of an Option Right.
"OPTION RIGHT" means the right to purchase Common Shares from
the Corporation upon the exercise of a Nonqualified Option or a Tax-Qualified
Option granted pursuant to Section 4 of this Plan.
"PARTICIPANT" means a person who is selected by the Board to
receive benefits under this Plan and (i) is at that time an officer, including
without limitation, an officer who may also be a member of the Board, or other
key employee or consultant of the Corporation or any Subsidiary or (ii) has
agreed to commence Serving in any such capacity.
<PAGE> 2
"RESTRICTED SHARES" means Common Shares granted or sold
pursuant to Section 5 of this Plan as to which neither the substantial risk of
forfeiture nor the restrictions on transfer referred to in Section 5 hereof have
expired.
"RULE 16B-3" means Rule 16b-3 under the Securities Exchange
Act of 1934 or any successor rule to the same effect.
"SUBSIDIARY" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Corporation has a direct
or indirect ownership or other equity interest; PROVIDED, HOWEVER, for purposes
of determining whether any person may be a Participant for purposes of any grant
of Incentive Stock Options, "Subsidiary" means any corporation in which the
Corporation owns or controls directly or indirectly more than 50 percent of the
total combined voting power represented by all classes of stock issued by such
corporation at the time of the grant.
"TAX-QUALIFIED OPTION" means an Option Right that is intended
to qualify under particular provisions of the Code, including without limitation
an Incentive Stock Option.
3. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as
provided in Section 7 of this Plan, the number of Common Shares issued or
transferred upon the exercise of Option Rights, as Restricted Shares, or in
payment of dividend equivalents paid with respect to awards made under this
Plan, shall not in the aggregate exceed 450,000 Common Shares, which may be
Common Shares of original issuance or Common Shares held in treasury or a
combination thereof. For purposes of this Section 3, Restricted Shares shall be
deemed to have been issued or transferred at the earlier of the time when they
cease to be subject to a substantial risk of forfeiture or the time when
dividends are paid thereon.
4. OPTION RIGHTS. The Board may from time to time authorize
grants to Participants of options to purchase Common Shares upon such terms and
conditions as the Board may determine in accordance with the following
provisions:
(a) Each grant shall specify the number of Common Shares to
which it pertains.
(b) Each grant shall specify an Option Price per Common Share,
which may be less than, equal to or greater than the Market Value per
Share on the Date of Grant, except that the Option Price per Common
Share of an Incentive Stock Option shall be equal to or greater than
the Market Value per Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to be
paid in satisfaction of the Option Price and the manner of payment of
such consideration, which may include (i) cash in the form of currency
or check or other cash equivalent acceptable to the Corporation, (ii)
nonforfeitable, unrestricted Common Shares, which are already owned by
the Optionee and have a value at the time of exercise that is equal to
the Option Price, (iii) any other legal consideration that the Board
may deem appropriate, including without limitation any form of
consideration authorized under Section 4(d) below, on such basis as the
Board may determine in accordance with this Plan and (iv) any
combination of the foregoing.
(d) On or after the Date of Grant of any Nonqualified Option,
the Board may determine that payment of the Option Price may also be
made in whole or in part in the form of Restricted Shares or other
Common Shares that are subject to risk of forfeiture or restrictions on
transfer. Unless otherwise determined by the Board on or after the Date
of Grant, whenever any Option Price is paid in whole or in part by
means of any of the forms of consideration specified in this Section
4(d), the Common Shares received by the Optionee upon the exercise of
the Nonqualified Option shall be subject to the same risks of
forfeiture or restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; PROVIDED, HOWEVER, that such
risks of forfeiture and restrictions on transfer shall apply only to
the same number of Common Shares received by the Optionee as applied to
the forfeitable or restricted Common Shares surrendered by the
Optionee.
(e) Any grant may provide for deferred payment of the Option
Price from the proceeds of sale through a bank or broker on the date of
exercise of some or all of the Common Shares to which the exercise
relates.
<PAGE> 3
(f) Successive grants may be made to the same Participant
regardless of whether any Option Rights previously granted to the
Participant remain unexercised.
(g) Each grant shall specify the period or periods of
continuous employment of the Optionee by the Corporation or any
Subsidiary that are necessary before the Option Rights or installments
thereof shall become exercisable, and any grant may provide for the
earlier exercise of the Option Rights in the event of a change in
control of the Corporation or other similar transaction or event.
(h) Option Rights granted pursuant to this Section 4 may be
Nonqualified Options or Tax-Qualified Options or combinations thereof.
(i) On or after the Date of Grant of any Nonqualified Option,
the Board may provide for the payment to the Optionee of dividend
equivalents thereon in cash or Common Shares on a current, deferred or
contingent basis, or the Board may provide that any dividend
equivalents shall be credited against the Option Price.
(j) No Option Right granted pursuant to this Section 4 may be
exercised more than 10 years from the Date of Grant.
(k) Each grant shall be evidenced by an agreement, which shall
be executed on behalf of the Corporation by any officer thereof and
delivered to and accepted by the Optionee and shall contain such terms
and provisions as the Board may determine consistent with this Plan.
5. RESTRICTED SHARES. The Board may also authorize grants or
sales to Participants of Restricted Shares upon such terms and conditions as the
Board may determine in accordance with the following provisions:
(a) Each grant or sale shall constitute an immediate transfer
of the ownership of Common Shares to the Participant in consideration
of the performance of services, entitling such Participant to dividend,
voting and other ownership rights, subject to the substantial risk of
forfeiture and restrictions on transfer hereinafter referred to.
(b) Each grant or sale may be made without additional
consideration from the Participant or in consideration of a payment by
the Participant that is less than the Market Value per Share on the
Date of Grant.
(c) Each grant or sale shall provide that the Restricted
Shares covered thereby shall be subject to a "substantial risk of
forfeiture" within the meaning of Section 83 of the Code for a period
to be determined by the Board on the Date of Grant, and any grant or
sale may provide for the earlier termination of such period in the
event of a change in control of the Corporation or other similar
transaction or event.
(d) Each grant or sale shall provide that, during the period
for which such substantial risk of forfeiture is to continue, the
transferability of the Restricted Shares shall be prohibited or
restricted in the manner and to the extent prescribed by the Board on
the Date of Grant. Such restrictions may include without limitation
rights of repurchase or first refusal in the Corporation or provisions
subjecting the Restricted Shares to a continuing substantial risk of
forfeiture in the hands of any transferee.
(e) Any grant or sale may require that any or all dividends or
other distributions paid on the Restricted Shares during the period of
such restrictions be automatically Sequestered and reinvested on an
immediate or deferred basis in additional Common Shares, which may be
subject to the same restrictions as the underlying award or such other
restrictions as the Board may determine.
(f) Each grant or sale shall be evidenced by an agreement,
which shall be executed on behalf of the Corporation by any officer
thereof and delivered to and accepted by the Participant and shall
contain such terms and provisions as the Board may determine consistent
with this Plan. Unless otherwise directed by the Board, all
certificates representing Restricted Shares, together with a stock
power that shall be endorsed in blank by the Participant with respect
to the Restricted Shares, shall be held in custody by the Corporation
until all restrictions thereon lapse.
<PAGE> 4
6. TRANSFERABILITY. (a) No Option Right or other "derivative
security" (as that term is used in Rule 16b-2) granted under this Plan may be
transferred by a Participant except by will or the laws of descent and
distribution. Option Rights may not be exercised during a Participant's lifetime
except by the Participant or, in she event of the Participant's legal
incapacity, by his guardian or legal representative acting in a fiduciary
capacity on behalf of the Participant under state law and court supervision.
(b) Any award made under this Plan may provide that all or any
part of the Common Shares that are to be issued or transferred by the
Corporation upon the exercise of Option Rights, or are no longer subject to the
substantial risk of forfeiture and restrictions on transfer referred to in
Section 5 of this Plan, shall be subject to further restrictions upon transfer.
7. ADJUSTMENTS. The Board may make or provide for such
adjustments in the number of Common Shares covered by outstanding Option Rights,
the Option Prices per Common Share applicable to any such Option Rights, and the
kind of shares (including shares of another issuer) covered thereby, as the
Board may in good faith determine to be equitably required in order to prevent
dilution or expansion of the rights of Participants that otherwise would result
from (i) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Corporation or
(ii) any merger, consolidation, spin-off, spin-out, split-off, split-up,
reorganization, partial or complete liquidation or other distribution of assets,
issuance of warrants or other rights to purchase securities or (iii) any other
corporate transaction or event having an effect similar to any of the foregoing.
In the event of any such transaction or event, the Board may provide in
substitution for any or all outstanding awards under this Plan such alternative
consideration as it may in good faith determine to be equitable under the
circumstances and may require in connection therewith the surrender of all
awards so replaced. Moreover, the Board may on or after the Date of Grant
provide in the agreement evidencing any award under this Plan that the holder of
the award may elect to receive an equivalent award in respect of securities of
the surviving entity of any merger, consolidation or other transaction or event
having a similar effect, or the Board may provide that the holder will
automatically be entitled to receive such an equivalent award. The Board may
also make or provide for such adjustments in the number of Common Shares
Specified in Section 3 of this Plan as the Board may in good faith determine to
be appropriate in order to reflect any transaction or event described in this
Section 7.
8. FRACTIONAL SHARES. The Corporation shall not be required to
issue any fractional Common Shares pursuant to this Plan. The Board may provide
for the elimination of fractions or for the settlement thereof in cash.
9. WITHHOLDING TAXES. To the extent that the Corporation is
required to withhold federal, state, local or foreign taxes in connection with
any payment made or benefit realized by a Participant or other person under this
Plan, and the amounts available to the Corporation for the withholding are
insufficient, it shall be a condition to the receipt of any such payment or the
realization of any such benefit that the Participant or such other person make
arrangements satisfactory to the Corporation for payment of the balance of any
taxes required to be withheld. At the discretion of the Board, any such
arrangements may include relinquishment of a portion of any such payment or
benefit. The Corporation and any Participant or such other person may also make
similar arrangements with respect to the payment of any taxes with respect to
which withholding is not required.
10. PARTICIPATION BY EMPLOYEES OF A LESS-THAN-80-PERCENT
SUBSIDIARY. As a condition to the effectiveness of any grant or award to be made
hereunder to a Participant who is an employee of a Less-Than-80-Percent
Subsidiary, regardless whether the Participant is also employed by the
Corporation or another Subsidiary, the Board may require the
Less-Than-80-Percent Subsidiary to agree to transfer to the Participant (as, if
and when provided for under this Plan and any applicable agreement entered into
between the Participant and the Less-Than-80-Percent Subsidiary pursuant to
this Plan) the Common Shares that would otherwise be delivered by the
Corporation upon receipt by the Less-Than-80-Percent Subsidiary of any
consideration then otherwise payable by the Participant to the Corporation. Any
such award may be evidenced by an agreement between the Participant and the
Less-Than-80-Percent Subsidiary, in lieu of the Corporation, on terms consistent
with this Plan and approved by the Board and the Less-Than-80-Percent
Subsidiary. All Common Shares so delivered by or to a Less-Than-80-Percent
Subsidiary will be treated as if they had been delivered by or to the
Corporation for purposes of Section 3 of this Plan, and all references to the
Corporation in this Plan shall be deemed to refer to the Less-Than-80-Percent
Subsidiary except with respect to the definitions of the Board and the Committee
and in other cases where the context otherwise requires.
<PAGE> 5
11. CERTAIN TERMINATIONS OF EMPLOYMENT, HARDSHIP AND APPROVED
LEAVES OF ABSENCE. Notwithstanding any other provision of this Plan to the
contrary, in the event of termination of employment by reason of death,
disability, normal retirement, early retirement with the consent of the
Corporation, termination of employment to enter public service with the consent
of the Corporation or leave of absence approved by the Corporation, or in the
event of hardship or other special circumstances, of a Participant who holds an
Option Right that is not immediately and fully exercisable, any Restricted
Shares as to which the substantial risk of forfeiture or the prohibition or
restriction on transfer has not lapsed, or any Common Shares that are subject to
any transfer restriction pursuant to Section 6(b) of this Plan, the Board may
take any action that it deems to be equitable under the circumstances or in the
best interests of the Corporation, including without limitation waiving or
modifying any limitation or requirement with respect to any award under this
Plan.
12. FOREIGN EMPLOYEES. In order to facilitate the making of
any award or combination of awards under this Plan, the Board may provide for
such special terms for awards to Participants who are foreign nationals, or who
are employed by the Corporation or any Subsidiary outside of the United States
of America, as the Board may consider necessary or appropriate to accommodate
differences in local law, tax policy or custom. Moreover, the Board may approve
such supplements to, or amendments, restatements or alternative versions of,
this Plan as it may consider necessary or appropriate for such purposes without
thereby affecting the terms of this Plan as in effect for any other purpose;
provided, however, that no such supplements, amendments, restatements or
alternative versions shall include any provisions that are inconsistent with the
terms of this Plan, as then in effect, unless this Plan could have been amended
to eliminate the inconsistency without further approval by the stockholders of
the Corporation.
13. ADMINISTRATION OF THE PLAN. (a) This Plan shall be
administered by the Board until the consummation of the IPO. Upon the
consummation of the IPO, the authority of the Board under this Plan shall be
delegated to the Compensation Committee of the Board provided that it is a
committee of not less than three members of the Board, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3, and the Plan shall
thereafter be administered by the Committee. A majority of the members of the
Board or the Committee, as the case may be, shall constitute a quorum, and the
acts of the members of the Board or the Committee who are present at any meeting
thereof at which a quorum is present, or acts unanimously approved in writing by
the members of the Board or the Committee, shall be the acts of the Board or the
Committee.
(b) The interpretation and construction by the Board or the
Committee, as the case may be, of any provision of this Plan or any agreement,
notification or document evidencing a grant of Option Rights or Restricted
Shares, and any determination by the board or the Committee pursuant to any
provision of this Plan or any such agreement, notification or document, shall be
final and conclusive. No member of the Board or the Committee shall be liable
far any such action taken or determination made in good faith.
14. AMENDMENTS AND OTHER MATTERS. (a) This Plan may be amended
from time to time by the Board; provided, however, except as expressly
authorized by this Plan, no such amendment shall increase the number of Common
Shares specified in Section 3 of this Plan, or otherwise cause this Plan to
cease to satisfy any applicable condition of Rule 16b-3 following the
consummation of the IPO, without the further approval of the stockholders of the
Corporation.
(b) With the concurrence of the affected Participant, the
Board may cancel any agreement evidencing Option Rights or any other award
granted under this Plan. In the event of any such cancellation, the Board may
authorize the granting of new Option Rights or other awards hereunder, which may
or may not cover the same number of Common Shares as had been covered by the
cancel led Option Rights or other award, at such Option Price, in such manner
and subject to such other terms, conditions and discretion as would have been
permitted under this Plan had the cancel led Option Rights or other award not
been granted.
(c) This Plan shall not confer upon any Participant any right
with respect to continuance of employment or other service with the Corporation
or any Subsidiary and shall not interfere in any way with any right that the
Corporation or any Subsidiary would otherwise have to terminate any
Participant's employment or other service at any time.
(d) (i) To the extent that any provision of this Plan would
prevent any Option Right that was intended to qualify as a Tax-Qualified Option
from so qualifying, any such provision shall be null and void
<PAGE> 6
with respect to any such Option Right; PROVIDED, HOWEVER, that any such
provision shall remain in effect with respect to other Option Rights,
and there shall be no further effect on any provision of this Plan.
(ii) Any award that may be made pursuant to an
amendment to this Plan that shall have been adopted without the
approval of the stockholders of the Corporation shall be null and void
if it is subsequently determined that such approval was required in
order for this Plan to continue to satisfy the applicable conditions of
Rule 16b-3 following the consummation of the IPO.
<PAGE> 1
Exhibit 5
February 5, 1997
Shiloh Industries, Inc.
402 Ninth Avenue
P.O. Box 2037
Mansfield, Ohio 44905
Re: 1993 Key Employee Stock Incentive Plan of Shiloh Industries, Inc.
-----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Shiloh Industries, Inc., a Delaware
corporation (the "Registrant"), in connection with the 1993 Key Employee Stock
Incentive Plan (the "Plan"). We have examined such documents, records and
matters of law as we have deemed necessary for purposes of this opinion, and
based thereupon, we are of the opinion that:
(1) The shares of Common Stock, $0.01 par value per share (the "Common
Stock"), that may be issued or transferred and sold pursuant to the
Plan and the authorized form of Stock Option Agreements thereunder (the
"Agreements") will be, when issued or transferred and sold in
accordance with the Plan and the Agreements, and assuming receipt of
consideration at least equal to the par value of the Common Stock, duly
authorized, validly issued, fully paid and nonassessable: and
(2) The 27,100 shares of Common Stock that have been issued prior to the
date hereof have been duly authorized, validly issued, fully paid and
are nonassessable.
The opinions expressed in paragraph two above are based on the following
assumptions:
(a) That the offer and sale of the 27,100 shares of Common Stock have been
made in the manner and subject to the terms and conditions set forth in
the Option Agreement and in accordance with the Plan; and
(b) The accuracy and completeness of the information provided by the
Company as set forth in the Certificate of the Officer.
We have not conducted any independent inquiry or investigation with regard
to the validity of any such assumptions.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 filed by the Registrant to effect
registration of the shares of Common Stock to be issued or transferred and sold
pursuant to the Plan under the Securities Act and to the reference to us under
the caption "Legal Matters" in the Prospectus comprising a part of such
Registration Statement.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 10, 1996, which appears on
page 23 of the 1996 Annual Report to Shareholders of Shiloh Industries, Inc.,
which is incorporated by reference in Shiloh Industries, Inc. Annual Report on
Form 10-K for the year ended October 31, 1996. We also consent to the
incorporation by reference of our report on the financial statement schedules,
which appears in the Annual Report on Form 10-K/A.
/s/ Price Waterhouse LLP
Cleveland, Ohio
February 4, 1997
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Shiloh Industries, Inc., a Delaware corporation, hereby
constitutes and appoints Robert L. Grissinger, Craig A. Stacy and Thomas C.
Daniels, and each of them, the true and lawful attorney or attorneys-in-fact,
with full power of substitution and revocation, for each of the undersigned and
in the name, place and stead of each of the undersigned, to sign on behalf of
each of the undersigned a Registration Statement on Form S-8 with respect to the
1993 Key Employee Stock Incentive Plan, pursuant to the Securities Act of 1933
and to sign any and all amendments or supplements to such Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
to said attorney or attorneys-in-fact, and each of them, full power and
authority to do so 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 the undersigned might or could do in person, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of them or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each
of which shall be deemed an original with respect to the person executing it.
Executed as of this 31st day of January 1997.
/s/Robert L. Grissinger /s/James C. Fanello
- ----------------------- ----------------------------
Robert L. Grissinger James C. Fanello
President, Chief Executive Officer Director
(Principal Executive Officer),
Chairman of the Board and Director
/s/Dominick C. Fanello /s/Richard S. Gray
- ----------------------- ----------------------------
Dominick C. Fanello Richard S. Gray
Director Director
/s/James A. Karman /s/Curtis E. Moll
- ----------------------- ----------------------------
James A. Karman Curtis E. Moll
Director Director
/s/David J. Hessler /s/Theodore K. Zampetis
- ----------------------- ----------------------------
David J. Hessler Theodore K. Zampetis
Director Director
/s/Dieter Kaesgen /s/Craig A. Stacy
- ----------------------- ----------------------------
Dieter Kaesgen Craig A. Stacy
Director Treasurer and Chief Financial Officer
(Principal Financial and Accounting
Officer)
