As filed with the Commission on September 25, 1996
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------------
Johnstown America Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 25-1672791
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
980 North Michigan Avenue
Chicago, Illinois 60611
-----------------------
(Address of principal executive offices) (zip code)
Savings Plan for Salaried Employees of
Johnstown America Corporation
-----------------------------
(Full title of the plan)
Kenneth M. Tallering
Vice President, General Counsel and Secretary
Johnstown America Industries, Inc.
980 North Michigan Avenue
Chicago, Illinois 60611
-----------------------
(Name and address of agent for service)
(312) 280-8844
--------------
(Telephone number, including area code, of agent for service)
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
to participants in the 401(k) plans listed above will be effected pursuant to
purchases in the open market.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered (1) registered (1) offering price per share (aggregate offering price registration fee
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 300,000 shares $3.25 $975,000 $336
- ------------------------------ -------------- ------------------------ ------------------------- ------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the amount of the registration fee
based upon the average of the high and low sales prices reported for
shares of the Common Stock on the Nasdaq Stock Market on September 20,
1996.
<PAGE>
PART I.
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference into 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 THIS REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Johnstown America Industries, Inc. (the "Company") and the Savings Plan for
Salaried Employees of Johnstown America Corporation (the "Plan") hereby
incorporate the following documents herein by reference:
(a) The Company's Annual Report on Form 10-K for year ended December 31,
1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1996;
(d) All other reports filed by the Company and the Plans pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or after December 31, 1995; and
(e) The description of the Company's Common Stock, $.01 par value,
contained in the Company's registration statement on Form 8-A filed pursuant to
Section 12(g) of the Exchange Act, dated May 27, 1993, as amended by the
Company's amendment on Form 8 dated July 13, 1993, including any subsequent
amendment or any report or other filing with the Securities and Exchange
Commission (the "SEC") updating such description.
In addition, all documents subsequently filed by the Company and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of 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 Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which 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 Registration
Statement.
Item 4. Description of Securities
Not Applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Company is a Delaware corporation. Reference is made to Section
102(b)(7) of the Delaware General Corporation Law (the "GCL"), which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to section 174 of the GCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit. Item EIGHTH of the Company's Restated Certificate of
Incorporation eliminates the liability of directors to the extent permitted by
Section 102(b)(7) of the GCL.
Section 145 of the GCL provides that a corporation may indemnify any person
who, by reason of the fact that such person is or was a director or officer of
such corporation, is made (or threatened to be made) a party to an action other
than one brought by or on behalf of the corporation, against reasonable expenses
(including attorneys' fees), judgments, fines and settlement payments, if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of such corporation and, in criminal actions,
in addition, had no reasonable cause to believe his conduct was unlawful. In the
case of actions on behalf of the corporation, indemnification may extend only to
reasonable expenses (including attorneys' fees) and only if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, provided that no such indemnification is
permitted in respect of any claim as to which such person is adjudged liable to
such corporation except to the extent that a court otherwise provides. To the
extent that such person has been successful in defending any action (even one on
behalf of the corporation), he is entitled to indemnification for reasonable
expenses (including attorneys' fees).
Article VIII of the By-Laws of the Company provides, in general terms, that
officers, directors, employees, agents and other persons shall be indemnified
against all losses that may be incurred by them in connection with any claim or
legal action in which they become involved by reasons of their service as an
officer, director, employee, or agent of the Company, if they meet certain
specified conditions.
The Savings Plan for Salaried Employees of Johnstown America Corporation
(the "Plan") provides that, except as otherwise provided by law, the members of
the committee appointed by the board of directors of Johnstown America
Corporation to administer the Plan (the "Committee") shall be free from all
liability for their acts and ommissions (except willful misconduct or
negligence) in the administration of the Plan, and all members of the Committee
shall be fully indemnified by Johnstown America Corporation with respect to any
such adminstration.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Form of certificate for the Company's Common Stock, par value
$.01 per share (filed as Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (No. 33-63132) and
incorporated herein by reference)
5.1 Opinion of Winston & Strawn as to the legality of the securities
offered under the Savings Plan for Salaried Employees of
Johnstown America Corporation.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5.1 hereto)
24.1 Powers of Attorney (included on the signature page hereof)
The undersigned Company hereby undertakes that it will submit or has
submitted the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the Plan under Section 401 of the Internal Revenue Code
of 1986, as amended.
<PAGE>
Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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) of this
section do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and 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 Company
pursuant to Section 13 or Section 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 Company hereby further 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 the annual report of the employee benefit
plans pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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
Company pursuant to the foregoing provisions, or otherwise, the Company 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 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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Chicago, Illinois on the 19th day of September, 1996.
Johnstown America Industries, Inc.
By: /s/ Thomas M. Begel
-------------------
Thomas M. Begel
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas M. Begel, Andrew M. Weller and Kenneth M.
Tallering and each of them (with full power to each of them to act alone), his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective 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 attorneys-in-fact and agents, and each of them,
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 might or could do in person, hereby ratifying and
confirming all said attorneys-in-fact and agents, or any of them, 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
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Thomas M. Begel Chairman of the Board, September 19, 1996
- ------------------------ President and Chief Executive
Thomas M. Begel Officer
(Principal Executive Officer)
/s/ Andrew M. Weller Director, Executive Vice September 19, 1996
- ------------------------ President and Chief Financial
Andrew M. Weller Officer (Principal Financial and
Principal Accounting Officer)
/s/ Camillo Santomero Director September 19, 1996
- ------------------------
Camillo Santomero
/s/ R. Philip Silver Director September 19, 1996
- ------------------------
R. Philip Silver
/s/ Francis A. Stroble Director September 19, 1996
- ------------------------
Francis A. Stroble
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended, the
undersigned (or other persons who administer the Plans) have duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized in the City of Chicago, Illinois on September 19,
1996.
SAVINGS PLAN FOR SALARIED
EMPLOYEES OF
JOHNSTOWN AMERICA CORPORATION
By: Administrative Committee for the Savings
Plan for Salaried Employees of
Johnstown America Corporation,
as Plan Administrator
By: \s\ David W. Riesmeyer
----------------------
Name: David W. Riesmeyer
Title: Assistant Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Form of certificate for the Company's Common Stock, par value
$.01 per share (filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (No. 33-63132) and incorporated herein by
reference)
5.1 Opinion of Winston & Strawn as to the legality of the securities
offered under the Savings Plan for Salaried Employees of
Johnstown America Corporation.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5.1 hereto)
24.1 Powers of Attorney (included on the signature page hereof)
EXHIBIT 5.1
[Letterhead of Winston & Strawn]
September 20, 1996
Johnstown America Industries, Inc.
980 North Michigan Avenue
Suite 1100
Chicago, Illinois 60611
Re: Registration Statement on Form S-8 of Johnstown America
Industries, Inc. (the "Registration Statement")
Ladies and Gentlemen:
We have acted as special counsel for Johnstown America Industries, Inc.,
a Delaware corporation (the "Company"), in connection with the registration on
Form S-8 of the offer and sale of up to 300,000 shares (the "Shares") of the
Company's Common Stock, par value $.01 per share, that may be issued pursuant to
the Savings Plan for Salaired Employees of Johnstown America Corporation (the
"Plan").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the Registration Statement, as filed with the Securities and Exchange
Commission (the "Commission") under the Act; (ii) the Certificate of
Incorporation of the Company, as currently in effect; (iii) the Amended and
Restated By-Laws of the Company, as currently in effect; and (iv) resolutions of
the Board of Directors of the Company relating to, among other things, the
issuance of the Shares and the filing of the Registration Statement. We have
also examined such other documents as we have deemed necessary or appropriate as
a basis for the opinion set forth below.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as certified or photostatic of all documents submitted to us as
certified or photostatic copies, and the authenticity of the originals of such
latter documents. As to any facts material to this opinion which we did not
independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that all
Shares issued pursuant to the Plan will be, upon payment therefor, legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. In giving such consent, we do not
concede that we are experts within the meaning of the Act or the rules and
regulations thereunder or that this consent is required by Section 7 of the Act.
Very truly yours,
/s/ Winston & Strawn
Winston & Strawn
Exhibit 23.1
[Arthur Andersen LLP Letterhead]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 31, 1996
incorporated by reference in Johnstown America Industries, Inc.'s Form 10-K for
the year ended December 31, 1995 and to all references to our firm included in
or made a part of this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Chicago, Illinois
September 20, 1996
