<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON February 9, 1999
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ALLIED HOLDINGS, INC.
(Exact name of issuer as specified in its charter)
GEORGIA 58-0360550
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
160 CLAIREMONT AVENUE, SUITE 200 30030
DECATUR, GEORGIA (Zip Code)
(Address of principal executive offices)
ALLIED HOLDINGS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
THOMAS M. DUFFY, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
160 CLAIREMONT AVENUE, SUITE 200
DECATUR, GEORGIA 30030
(404) 370-1100
(Name, address and telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered (1) registered (2) per share (3) offering price (3) registration
fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 350,000
shares $13.69 $4,791,500 $1,333
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate amount of interests to be offered pursuant to
the employee benefit plan described herein.
(2) Pursuant to Rule 416(a) under the Securities Act, includes an
indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(3) Pursuant to Rule 457(h)(1) under the Securities Act, the offering
price is estimated solely for the purpose of calculating the
registration fee on the basis of the average of the high and low
prices of the Registrant's Common Stock on the New York Stock Exchange
on as reported by the Wall Street Journal.
==============================================================================
<PAGE> 2
PART I -- INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUs
Item 1. Plan Information.+
Item 2. Registrant Information and Employee Plan Annual Information.+
+ Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
the Note to Part I of Form S-8.
PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENt
Item 3. Incorporation of Documents by Reference.
The following documents shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
date of filing of such document.
(a) the Registrant's annual report on Form 10-K for the fiscal
year ended December 31, 1997;
(b) the Registrant's quarterly reports on Form 10-Q for the
fiscal quarters ended September 30, 1998, June 30, 1998 and
March 31, 1998;
(c) the description of the Registrant's Common Stock contained in
the Company's Registration Statement on Form 8-A filed on
February 11, 1998 pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), including
any amendments or reports filed for the purpose of updating
such descriptions.
All documents filed subsequent to the date of this registration
statement by the undersigned Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act prior to the filing of a post-effective amendment
hereto which indicates that all shares of Common Stock offered hereby have been
sold or which deregisters any shares of such Common Stock then remaining
unsold, shall also be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from their respective dates of
filing. 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 other subsequently filed document that also is or
is deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement contained in this Registration Statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document which is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Articles of Incorporation (the
"Restated Charter") eliminate, to the fullest extent permitted by applicable
law, the personal liability of directors to the Company or its shareholders for
monetary damages for breaches of such directors' duty of care or other duties
as a director. This provision of the Restated Charter will limit the remedies
available to a shareholder in the event of breaches of any director's duties to
such shareholder or the Company. Under current Georgia law, the Restated
Charter does not provide for the elimination of or any limitation on the
personal liability of a director for (i) any appropriation, in violation of the
director's duties, of any business opportunity of the Company, (ii) acts or
omissions which involve intentional misconduct or a knowing violation of law,
(iii) unlawful corporate distributions or (iv) any transactions from which the
director received an improper personal benefit.
Under the Company's Bylaws, the Company shall indemnify to the fullest
extent permitted under the GBCC any person made a party to a proceeding because
he or she is or was a director or officer of the Company, if he or she acted in
a manner he or she believed in good faith to be in or not opposed to the best
interests of the Company and, in the case of any criminal proceeding, if he or
she had no reasonable cause to believe his or her conduct was unlawful. The
Company shall have the power to indemnify to the fullest extent permitted under
the GBCC any person made a party to a proceeding because he or she is or was an
employee or agent of the Company, if he or she acted in a manner he or she
believed in good faith to be in or not opposed to the best interests of the
Company and, in the case of any criminal proceeding, if he or she had no
reasonable cause to believe his or her conduct was unlawful.
Under the GBCC, a Georgia corporation may indemnify an individual who
is a party to a proceeding because he or she is or was a director, against
liability incurred in such proceeding, provided that such individual acted in
good faith and reasonably believed (a) in the case of conduct in his or her
official capacity, that such conduct was in the best interests of the
corporation, (b) in all other cases other than a criminal proceeding, that such
conduct was at least not opposed to the best interests of the corporation, and
(c) in the case of a criminal proceeding, that such individual had no
reasonable cause to believe that such conduct was unlawful. A Georgia
corporation may not indemnify a director under the GBCC (i) in connection with
a proceeding by or in the right of the corporation, except for reasonable
expenses incurred by such director in connection with the proceeding, provided
it is determined that such director met the relevant standard of conduct set
forth above, or (ii) in connection with any proceeding with respect to conduct
for which such director was adjudged liable on the basis that he or she
received an improper personal benefit. Additionally, a Georgia corporation may,
before final disposition of a proceeding, advance funds to pay for or reimburse
the reasonable expenses incurred by a director who is a party to a proceeding
because he or she is a director, provided that such director delivers to the
corporation a written affirmation of his or her good faith belief that he or
she met the relevant standard of conduct or that the proceeding involves
conduct for which such director's liability has been properly eliminated by
action of the corporation, and a written
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undertaking by the director to repay any funds advanced if it is ultimately
determined that such director was not entitled to such indemnification. The
GBCC also allows a Georgia corporation to indemnify directors made a party to a
proceeding without regard to the above-referenced limitations, if authorized by
the articles of incorporation or a bylaw, contract, or resolution duly adopted
by a vote of the shareholders of the corporation by a majority of votes
entitled to be cast, excluding shares owned or voted under the control of the
director or directors who are not disinterested.
The Company's directors and executive officers are insured against
damages from actions and claims incurred in the course of performing duties,
and the Company is insured against expenses incurred in defending lawsuits
arising from certain alleged acts against directors and executive officers.
The foregoing summaries are necessarily subject to the complete text
of the statutes, Restated Charter and agreements referred to above and are
qualified in their entirety by reference thereto.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
Exhibits:
- --------
<S> <C>
4.1 Allied Holdings, Inc. 1999 Employee Stock Purchase Plan.
5.1 Opinion of Troutman Sanders LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Troutman Sanders LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature pages of this
Registration Statement).
</TABLE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(b) 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
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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) 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.
(d) 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 each 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.
(e) That, 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 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 Act 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, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and it has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Decatur, State of Georgia, on February 1, 1999.
ALLIED HOLDINGS, INC.
By: /s/ A. Mitchell Poole, Jr.
----------------------------------------
A. Mitchell Poole, Jr.
President, Chief Operating Officer
and Assistant Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Rutland and A. Mitchell Poole,
Jr., and each of them, his or her true and lawful attorneys-in-fact and agents,
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 (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 such and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or his or her substitute or
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, or amendment thereto, has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S>/s/ Robert J. Rutland <C> <C>
- ------------------------------------ Chairman of the Board of Directors and Chief February 1, 1999
Robert J. Rutland Executive Officer (Principal Executive Officer)
/s/ A. Mitchell Poole, Jr.
- ------------------------------------ President, Chief Operating Officer, Assistant February 1, 1999
A. Mitchell Poole, Jr. Secretary and Director
/s/ Daniel H. Popky
- ------------------------------------ Senior Vice President and Chief Financial Officer February 1, 1999
Daniel H. Popky (Principal Financial and Accounting Officer)
- ------------------------------------ Chairman Emeritus and Director
Guy W. Rutland, III
</TABLE>
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<TABLE>
<S> <C> <C>
- ------------------------------------ Vice Chairman, Executive Vice President and Director
Bernard O. De Wulf
/s/ Berner F. Wilson, Jr.
- ------------------------------------ Vice Chairman and Director February 1, 1999
Berner F. Wilson, Jr.
/s/ Guy W. Rutland, IV
- ------------------------------------ Vice President and Director February 1, 1999
Guy W. Rutland, IV
/s/ Joseph W. Collier
- ------------------------------------ Director February 1, 1999
Joseph W. Collier
/s/ Randall E. West
- ------------------------------------ Director February 1, 1999
Randall E. West
/s/ David G. Bannister
- ------------------------------------ Director February 1, 1999
David G. Bannister
/s/ Robert R. Woodson
- ------------------------------------ Director February 1, 1999
Robert R. Woodson
/s/ William P. Benton
- ------------------------------------ Director February 1, 1999
William P. Benton
</TABLE>
Pursuant to the requirements of the Securities of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Decatur, State of Georgia, on
February 1, 1999.
ALLIED HOLDINGS, INC. 1999 EMPLOYEE STOCK
PURCHASE PLAN
By: /s/ A. Mitchell Poole, Jr.
-----------------------------------------------
Title: President, Chief Operating Officer
and Assistant Secretary for
the Registrant
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits
<S> <C>
4.1 Allied Holdings, Inc. 1999 Employee Stock Purchase Plan
5.1 Opinion of Troutman Sanders LLP
23.1 Consent of Arthur Andersen LLP, independent auditors.
23.2 Consent of Troutman Sanders LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
ALLIED HOLDINGS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE AND APPROVAL
1.1 PURPOSE OF THE PLAN. The purpose of the Allied Holdings, Inc. 1999
Employee Stock Purchase Plan is to provide a method whereby Employees of the
Company may acquire a proprietary interest in the Company through the purchase
of Shares of common stock of Allied Holdings, Inc. The Plan is intended to
qualify as an "Employee Stock Purchase Plan" as defined in Section 423 of the
Code. The provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of the Code.
1.2 APPROVAL OF THE PLAN. The Plan was adopted by the Board on December
16, 1998, subject to approval by the Company's shareholders, as required by the
Code.
ARTICLE II
DEFINITIONS
2.1 "ACCOUNT" means the account maintained by the Company for a
Participant pursuant to Section 3.3.
2.2 "ACT" means the Securities Exchange Act of 1934, as amended.
2.3 "BOARD" means the Board of Directors of Allied Holdings, Inc.
2.4 "CODE" means the Internal Revenue Code of 1986, as amended.
2.5 "COMMITTEE" means the Compensation Committee of the Board, or such
other Committee as the Board may designate to administer the Plan pursuant to
Article VI.
2.6 "COMPANY" means Allied Holdings, Inc. and its Subsidiaries.
2.7 "COMPENSATION" means all base straight time gross earnings,
commissions, overtime and other compensation, but shall not include income
recognized pursuant to stock options or Shares purchased hereunder or to
imputed fringe benefit income.
2.8 "ELIGIBLE EMPLOYEE" means an Employee described in Section 3.2.
2.9 "EMPLOYEE" means any person who is an employee of the Company for tax
purposes, subject to the exclusion of such persons or classes of persons as the
Committee may determine to be consistent with Code Section 423 and other
applicable law.
2.10 "EXERCISE PRICE" means the purchase price for Shares purchased
pursuant to the exercise of an Option identified in Section 4.1.
<PAGE> 2
2.11 "FAIR MARKET VALUE" means,
(a) If the Shares are listed on any established stock exchange or
a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair
Market Value shall be the closing sales price for such Shares (or the closing
bid, if no sales were reported) as quoted on such exchange or system on the
date of such determination, as reported in "The Wall Street Journal" or such
other source as the Committee deems reliable, or;
(b) If the Shares are regularly quoted by a recognized securities
dealer but selling prices are not reported, Fair Market Value shall be the mean
of the closing bid and asked prices for Shares on the date of such
determination, as reported in "The Wall Street Journal" or such other source as
the Committee deems reliable, or;
(c) In the absence of an established market for the Shares, the
Fair Market Value thereof shall be determined in good faith by the Committee.
2.12 "HOLDING PERIOD" means that period beginning on an Offering
Termination Date on which Shares purchased by Participants and ending twelve
(12) calendar months later.
2.13 "OFFERING" means an offering to Participants of Options to purchase
Shares under Section 4.1.
2.14 "OFFERING COMMENCEMENT DATE" means the first business day of the
calendar quarter applicable to the Offering.
2.15 "OFFERING TERMINATION DATE" means the last business day of the
calendar quarter applicable to the Offering.
2.16 "OPTION" means an option to purchase Shares granted pursuant to the
Plan.
2.17 "PARTICIPANT" means an Eligible Employee who has elected to
participate in the Plan pursuant to Section 3.3, and who has not become an
ineligible Employee or withdrawn from participation in the Plan pursuant to
Article III.
2.18 "PLAN" means the Allied Holdings, Inc. 1999 Employee Stock Purchase
Plan.
2.19 "PLAN ADMINISTRATOR" means the Vice President, Human Resources of
Allied Industries Incorporated or such other individual as the Committee may
designate to administer the Plan pursuant to Article VI.
2.20 "SHARE" means one share of common stock no par value of Allied
Holdings, Inc.
2.21 "SUBSIDIARY" means a corporation (or other form of entity which the
Committee has determined shall be treated as a corporation for purposes of Code
Section 423), domestic or
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foreign, of which not less than fifty percent (50%) of the voting shares are
held by the Company or a Subsidiary, whether or not such corporation now exists
or is hereafter organized or acquired by the Company or Subsidiary.
2.22 "TRANSFER AGENT" means the officially designated transfer agent of the
Company.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 GRANTING OF OPTIONS TO EMPLOYEES
A. GRANTING OF OPTIONS TO COMPANY EMPLOYEES ONLY. To the extent
permitted by the Plan, Options to purchase Shares hereunder, shall
only be granted to Employees of the Company.
B. EMPLOYEE RIGHTS AND PRIVILEGES. All Employees granted Options
under the Plan shall have the same rights and privileges, except that
the Committee may from time to time provide for differences in the
rights and privileges of Employees granted Options hereunder, so long
as such differences do not jeopardize the qualification of the Plan
under Code Section 423 or violate other applicable law.
3.2 ELIGIBILITY OF EMPLOYEES. Employees who qualify as Eligible Employees
pursuant to this Section shall be eligible to elect to participate in the Plan
in accordance with Section 3.3.
A. ELIGIBLE EMPLOYEE DEFINED. Except as otherwise required by
Code Section 423 or other applicable law, including, without
limitation, securities laws of a foreign jurisdiction applicable to
such Employee an Employee shall be considered an Eligible Employee for
purposes of participation in the Plan as of the first Offering
Commencement Date after Employee attains the age of twenty-one (21),
provided, that, such Employee's customary employment with the Company
is at least twenty (20) hours per week and more than five (5) months
per calendar year. For purposes of the Plan, the employment
relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the
Company. Where the period of leave exceeds ninety (90) days and the
individual's right to reemployment is not guaranteed either by statute
or by contract, the employment relationship shall be deemed to have
terminated on the ninety-first (91)st day of such leave.
B. REHIRED EMPLOYEES. If an Eligible Employee who has ceased to
be an Employee becomes an Employee again on a date thereafter, such
Employee automatically shall become an Eligible Employee effective as
of the Offering Commencement Date following such date.
C. EMPLOYEES DEEMED INELIGIBLE FOR PARTICIPATION
(i) 5% OWNERS. No Option shall be granted hereunder to
any Employee who, immediately after the Option is granted, would own,
within the meaning of Code
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Section 424(d), Shares possessing 5% or more of the total combined
voting power or value of all classes of stock of the Company. For
purposes of this Section, Shares that an Employee would be entitled to
purchase on the Offering Termination Date applicable to an Option that
has been granted pursuant to Section 4.1 shall be treated as owned by
the Employee.
(ii) EMPLOYEES WITH EXERCISE RIGHTS IN EXCESS OF $25,000
PER YEAR. No Option shall be granted hereunder to any Employee if,
within the calendar year in which such Option first becomes
exercisable, such Option (together with any other options that first
become exercisable in such year that have been granted to the Employee
under the Plan or any other qualified employee stock purchase plan
maintained by the Company) would provide the Employee with the right
in such year to purchase Shares having a Fair Market Value (determined
on the Offering Commencement Date applicable to each such Option) in
excess of $25,000.
(iii) OTHER EMPLOYEES. The Committee may from time to time
deem ineligible for participation hereunder any class or group of
Employees, so long as the exclusion of such class or group from
participation does not jeopardize the qualification of the Plan under
Code Section 423 or violate other applicable law.
3.3 ELECTION TO PARTICIPATE
A. PAYROLL DEDUCTION AUTHORIZATION FORM. An Eligible Employee
may elect to participate in the Plan by filing a properly completed
authorization form, or such other authorization as the Plan
Administrator shall require, with the party designated by the Plan
Administrator no later than ten (10) business days before the Offering
Commencement Date. Such form shall authorize automatic payroll
deductions from a Participant's Compensation for each pay period
commencing on the Offering Commencement Date next succeeding receipt
of the timely filed authorization form by the designated party (or
such other date as may be designated by the Plan Administrator), and
continuing until (i) the Participant changes the amount of such
payroll deductions pursuant to Section 3.3(C), (ii) the Participant
becomes an ineligible Employee or withdraws from participation in the
Plan pursuant to Article III, (iii) the Plan is suspended or
terminated pursuant to Section 7.11, or (iv) the Committee otherwise
determines.
B. AMOUNT OF PAYROLL DEDUCTIONS; CALENDAR YEAR LIMIT. The
payroll deductions authorized by the Participant shall be in whole
percentages, not less than 1% and not more than 10% of Compensation,
for each pay period, in effect on the date the payroll deductions to
which the authorization form relates are made. Purchases under the
Plan will be limited to the lesser of (i) $10,000 of the Fair Market
Value of Shares (determined as of the Offering Commencement Date), or
(ii) six hundred (600) Shares for each calendar year (or at such other
limit as determined by the Committee).
C. CHANGES IN PAYROLL DEDUCTIONS. Subject to Section 3.3(B), a
Participant may increase or decrease the amount of payroll deductions
previously
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authorized by filing a properly completed change form, or such other
authorization as the Plan Administrator shall require, with the party
and by the date designated by the Plan Administrator. Such change
shall be made in whole percentages of Compensation, and shall be
effective beginning on the Offering Commencement Date next succeeding
the receipt of the timely filed change form by the designated party
(or such other date as may be designated by the Plan Administrator).
D. PARTICIPANT'S ACCOUNT. The Company shall cause to be
maintained payroll deduction Accounts for all Participants. Payroll
deductions made from a Participant's Compensation shall be credited to
the Participant's Account, and shall be applied for the purchase of
Shares pursuant to Article IV. No interest shall be paid or allowed on
any payroll deductions credited to a Participant's Account.
3.4 WITHDRAWAL FROM PARTICIPATION
A. IN GENERAL. A Participant may withdraw from participation in
the Plan at any time up to ten (10) business days prior to the
Offering Termination Date by filing a properly completed withdrawal
form, or such other authorization as the Plan Administrator shall
require, with the party and by the date designated by the Plan
Administrator. As soon as practicable after receipt of the timely
filed withdrawal form by the designated party, (i) all payroll
deductions then credited to the Participant's Account which have not
already been applied for the purchase of Shares hereunder shall be
paid to the Participant, and (ii) no further payroll deductions shall
be made from the Participant's Compensation and no Options shall be
granted to the Participant during any Offering commencing thereafter,
unless the Participant elects again to participate in the Plan
pursuant to Section 3.3. Partial withdrawals from participation shall
not be permitted.
B. TERMINATION OF EMPLOYMENT.
(i) If a Participant ceases to be an Employee for any
reason other than death or retirement, on or before the last working
day preceding the 10th day prior to any Offering Termination Date, the
Participant shall be deemed to have filed a withdrawal form in
accordance with Section 3.4(A) on the date such Participant ceases to
be an Employee. If the Participant ceases to be an Employee after such
last working day, the Participant shall be deemed to have (x)
exercised any outstanding Options in accordance with Article IV, and
(y) immediately thereafter filed a withdrawal form in accordance with
Section 3.4(A). The deemed filing of a withdrawal form pursuant to
this Section shall have the same consequences as would the actual
filing of a withdrawal form pursuant to Section 3.4(A). Shares in the
Account of a Participant who experiences a termination of employment
under the circumstances described in this Section 3.4(B) (i) will
continue to be subject to the twelve (12)-month restriction period as
discussed in Section 4.2(B) (iv).
(ii) In the event of the retirement or death of a
Participant, prior to an Offering Termination Date, the Participant or
his personal representative shall receive
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<PAGE> 6
the Shares to which the Participant would have been entitled to
receive as a result of such Participant's payroll deductions, for the
current Offering up to the time of retirement or death. Shares in the
Account of a Participant who experiences a termination of employment
described in this Section 3.4(B) (ii) will not be subject to the
twelve-month restriction period described in Section 4.2(B) (iv).
ARTICLE IV
GRANTING AND EXERCISE OF OPTIONS
4.1 GRANTING OF OPTIONS
A. QUARTERLY OFFERINGS. The Plan shall be implemented by
Offerings to Participants of Options to purchase Shares. Offerings
shall be made each calendar quarter. Each Offering shall commence on
the Offering Commencement Date and shall terminate on the Offering
Termination Date. The first Offering Commencement Date shall be the
Effective Date of the Plan as provided in Section 7.8. Offerings shall
continue to be made under the Plan until the later of (i) the date the
maximum number of Shares identified in Article V has been purchased
pursuant to Options granted hereunder, or (ii) the Plan is terminated
or suspended pursuant to Section 7.11. The Committee shall have the
power to change the duration of Offerings (including the commencement
dates thereof) with respect to future Offerings, without shareholder
approval, if such change is announced at least two (2) days prior to
the scheduled beginning of the first Offering to be affected
thereafter.
B. GRANTING OF OPTIONS. On the Offering Commencement Date for
each Offering period, a Participant automatically shall be granted a
separate Option to purchase for the applicable Exercise Price a
maximum number of Shares equal to the accumulated payroll deductions
credited to the Participant's Account as of the Offering Termination
Date for such period, divided by 85% of the lesser of (i) the Fair
Market Value of the Shares on the Offering Commencement Date, or (ii)
the Fair Market Value of the Shares on the Offering Termination Date.
C. EXERCISE PRICE. The Exercise Price for Options granted
hereunder shall be set by the Committee, provided, however, that the
Exercise price shall not be less than 85% of the lesser of (i) the
Fair Market Value of the Shares on the Offering Commencement Date, or
(ii) the Fair Market Value of the Shares on the Offering Termination
Date. Unless otherwise provided by the Committee prior to the
commencement of an Offering, the Exercise Price for that Offering
shall be 85% of the lesser of (i) the Fair Market Value of the Shares
on the Offering Commencement Date, or (ii) the Fair Market Value of
the Shares on the Offering Termination Date.
4.2 EXERCISE OF OPTIONS
A. AUTOMATIC EXERCISE. Except as otherwise provided in the Plan
or determined by the Committee, an Option granted to a Participant
hereunder shall be deemed to have been exercised automatically on the
Offering Termination Date
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applicable to such Option. Such exercise shall be for the purchase, on
or as soon as practicable after the Offering Termination Date, of the
number of full and/or fractional Shares that the accumulated payroll
deductions credited to the Participant's Account as of the Offering
Termination Date will purchase at the applicable Exercise Price (but
not in excess of the number of Shares for which an Option has been
granted to the Participant pursuant to Section 4.1). The Participant's
Account shall be charged for the amount of the purchase, and the
Participant's ownership of the Shares purchased shall be appropriately
evidenced on the books of the Company.
B. RESTRICTIONS ON EXERCISE OF OPTIONS
(i) EXERCISE OF OPTIONS. As required by Code Section
423, any Option granted hereunder shall in no event be exercisable
after the expiration of twenty-seven (27) months following the
Offering Commencement Date applicable thereto.
(ii) EXERCISE BY THE PARTICIPANT ONLY. During the
Participant's lifetime, any Option granted to the Participant shall be
exercisable only by such Participant.
(iii) OTHER RESTRICTIONS. Under no circumstances shall any
Option be exercised, nor shall any Shares be issued hereunder, until
such time as the Company shall have complied with all applicable
requirements of (a) the Act, (b) all applicable listing requirements
of any securities exchange on which the Shares are listed, and (c) all
other applicable requirements of law or regulation.
(iv) HOLDING PERIOD. Shares purchased pursuant to this
Plan may not be sold, assigned, transferred, pledged, exchanged,
encumbered or otherwise disposed of in any way (other than by will or
the laws of descent or distribution) during the applicable Holding
Period, except in the event of Death or Disability as discussed in
Section 3.4(B); provided, however, that the Committee, in its
discretion, may shorten the Holding Period or otherwise provide for
the lapse of any restrictions outstanding on any Shares. All
certificates issued to Participants following each Offering
Termination Date shall bear a legend in substantially the following
form:
The shares represented by this certificate may not be sold,
assigned, transferred, pledged, exchanged, encumbered or otherwise
disposed of in any way (other than by will or the laws of descent and
distribution) for a period commencing on [insert applicable Purchase
Date] and ending one (1) year thereafter (the "Holding Period");
provided, however, that the committee administering the Allied
Holdings, Inc. 1999 Employee Stock Purchase Plan, in its discretion,
may shorten the Holding Period or otherwise provide for the lapse of
any restrictions outstanding on any such shares.
C. ISSUANCE OF CERTIFICATES. Certificates with respect to Shares
purchased hereunder shall be issued to the Participant upon request by
the Participant to the Transfer Agent. The Transfer Agent shall issue
and deliver such certificates as soon as practicable after receipt of
such a request. The Participant shall pay any fees charged by
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the Transfer Agent for its services. The Company shall not be required
to issue any certificates for fractional Shares. If a Participant
requests certificates for Shares for the purpose of disposing of all
of the Participant's Shares, the Company shall pay to the Participant
cash in lieu of any fractional Shares, based on the Fair Market Value
of such fractional Shares as of the date of the issuance of such
certificates.
D. REGISTRATION OF CERTIFICATES. Certificates shall be
registered only in the name of the Participant or the Participant and
his or her spouse.
E. RIGHTS AS A SHAREHOLDER. The Participant shall have no rights
or privileges of a shareholder of the Company with respect to Options
granted or Shares purchased hereunder, unless and until such Shares
shall have been appropriately evidenced on the books of the Company.
ARTICLE V
STOCK
5.1 MAXIMUM SHARES. The maximum aggregate number of Shares which may be
purchased under the Plan shall be 350,000, subject to adjustment upon certain
corporate changes as provided in Section 5.2. If the total number of Shares for
which Options are exercised on any Offering Termination Date exceeds such
maximum number, the Committee shall make a pro rata allocation of the Shares
available for purchase in as nearly a uniform manner as shall be practicable
and as it shall determine to be equitable, and the balance of payroll
deductions credited to the Account of each Participant shall, to the extent not
applied for the purchase of Shares, be refunded to the Participants as soon as
practicable thereafter.
5.2 ADJUSTMENT UPON CORPORATE CHANGES. In the event of any stock dividend,
stock split, recapitalization (including, without limitation, the payment of an
extraordinary dividend), merger, consolidation, combination, spin-off,
distribution of assets to shareholders (other than ordinary cash dividends),
exchange of Shares, or other similar corporate change with respect to the
Company, the Committee (i) shall determine the kind of Shares that may be
purchased under the Plan after such event, and (ii) may, in its discretion,
adjust the aggregate number of Shares available for purchase under the Plan or
subject to outstanding Options and the respective Exercise Prices applicable to
outstanding Options. Any adjustment made by the Committee pursuant to the
preceding sentence shall be conclusive and binding on the Company and all
Employees.
ARTICLE VI
ADMINISTRATION
6.1 APPOINTMENT OF COMMITTEE. Except as otherwise delegated by the
Committee pursuant to this Article VI, (i) the Plan shall be administered by
the Committee, (ii) the Committee shall have full authority to administer and
interpret the Plan in any manner it deems appropriate in its sole discretion,
and (iii) the determinations of the Committee shall be binding on and
conclusive as to all parties.
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6.2 DELEGATION OF CERTAIN AUTHORITY TO PLAN ADMINISTRATOR. Except as
otherwise provided in the Plan, required by applicable law, or determined by
the Committee, (i) the Plan Administrator shall be responsible for the
performance of such administrative duties under the Plan not otherwise reserved
to the Committee, (ii) the Plan Administrator shall have full authority to
administer and interpret the Plan in any manner it deems appropriate in its
sole discretion, and (iii) the determinations of the Plan Administrator shall
be binding on and conclusive as to all parties.
6.3 COMPLIANCE WITH APPLICABLE LAW. The Plan shall not be interpreted or
administered in any way that would cause the Plan to be in violation of Code
Section 423 or other applicable law.
6.4 EXPENSES. The Company shall pay all expenses related to the
administration of the Plan, except charges imposed by the Transfer Agent for
issuing certificates for Shares, sales charges and commissions applicable to
Shares, charges for back records and research performed at the request of the
Participant, and such other expenses as may be designated by the Committee. The
Participant shall pay all expenses related to administration of the Plan that
are not paid for by the Company.
ARTICLE VII
MISCELLANEOUS
7.1 NO EMPLOYMENT RIGHTS. The Plan shall not, directly or indirectly,
create in any Employee or class of Employees any right with respect to
continuation of employment with the Company. The Plan shall not interfere in
any way with the Company's right to terminate, or otherwise modify, an
Employee's employment at any time.
7.2 RIGHTS NOT TRANSFERABLE. Any rights of the Participant under the Plan
shall not be transferred other than (i) by will, (ii) by the laws of descent or
distribution, or (iii) pursuant to a qualified domestic relations order, as
defined in the Code.
7.3 WITHHOLDING. The Committee shall have the right to make such
provisions as it deems appropriate to satisfy any obligation of the Company to
withhold federal, state or local income or other taxes incurred by reason of
the operation of the Plan.
7.4 DELIVERY OF SHARES TO ESTATE UPON DEATH. In the event of the death of
a Participant, any Shares purchased by the Participant hereunder, other than
Shares as to which the Participant previously received certificates, shall be
issued and delivered to the estate of the Participant as soon as practical
thereafter.
7.5 EFFECT OF PLAN. The provisions of the Plan shall be binding upon, and
inure to the benefit of, all successors of each Participant, including without
limitation the Participant's estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy
or representative of creditors of such Participant.
7.6 USE OF FUNDS. All funds received or held by the Company pursuant to
the Plan may
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be used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such funds from its general assets.
7.7 PLAN SHARE PURCHASES. Shares subject to purchase by Participants under
the Plan shall, in the discretion of the Committee, be made available from
treasury Shares, authorized but unissued Shares, reacquired Shares, and/or
Shares purchased on the open market.
7.8 EFFECTIVE DATE. The Plan shall be effective on the first business day
of the calendar quarter occurring on or after the later of (i) February 1,
1999, (ii) the effective date of the Form S-8 Registration Statement covering
Shares authorized for purchase under the Plan, or (iii) such other date as may
be designated by the Committee. The Plan shall remain in effect for a term of
ten (10) years thereafter, unless sooner terminated pursuant to Section 7.10.
7.9 AMENDMENTS TO THE PLAN. The Committee may from time to time make
amendments to the Plan that it deems advisable and consistent with the purposes
of the Plan and applicable law. Notwithstanding the foregoing, no amendment
that would (i) effect an increase in the number of Shares which may be
purchased under the Plan, which increase is of a type that would require
shareholder approval under Code Section 423, or (ii) effect a change in the
designation of the corporations whose Employees may be offered Options under
the Plan, which change is of a type that would require shareholder approval
under Code Section 423, shall become effective unless the shareholder approval
required by Code Section 423 is obtained.
7.10 TERMINATION OR SUSPENSION OF THE PLAN. The Committee shall have the
power at any time to terminate or suspend the Plan and all rights of Employees
under the Plan.
7.11 GOVERNING LAW. The laws of the State of Georgia shall govern all
matters relating to the Plan, except to the extent such laws are superseded by
the laws of the United States.
7.12 MERGER CLAUSE. The terms of the Plan are wholly set forth in this
document, including certain standards of certain other plans which are to be
applied to an Employee for purposes of the Plan to the extent provided herein,
regardless of whether such Employee is covered under such plans. This Section
shall in no way limit the authority of the Committee and the Plan Administrator
to administer the Plan as provided herein.
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February 9, 1999
Allied Holdings, Inc.
160 Clairemont Avenue, Suite 200
Decatur, Georgia 30030
Ladies and Gentlemen:
We have examined a copy of the registration statement on Form S-8 proposed to
be filed by Allied Holdings, Inc., a Georgia corporation (the "Company"), with
the Securities and Exchange Commission (the "Commission"), relating to the
registration pursuant to the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), of 350,000 shares (the "Shares") of the
Company's Common Stock, no par value per share (the "Common Stock"), reserved
for issuance in connection with the Allied Holdings, Inc. 1999 Employee Stock
Purchase Plan (the "Plan"). In rendering this opinion, we have reviewed such
documents and made such investigations as we deemed appropriate.
We are of the opinion that, subject to compliance with the pertinent provisions
of the Securities Act and to compliance with such securities or "Blue Sky" laws
of any jurisdiction as may be applicable, when certificates evidencing the
Shares have been duly executed, countersigned, registered, issued and delivered
in accordance with the terms of the Plan, the Shares will be duly and validly
issued and outstanding, fully paid and non-assessable shares of Common Stock of
the Company.
We are members of the Bar of the State of Georgia. In expressing the opinions
set forth above, we are not passing on the laws of any jurisdiction other than
the laws of the State of Georgia and the Federal law of the United States of
America.
We hereby consent to the filing of this opinion or copies thereof as an exhibit
to the registration statement referred to above.
Very truly yours,
/s/ Troutman Sanders LLP
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our reports, dated
February 9, 1998, included in Allied Holdings, Inc.'s Form 10-K for the year
ended December 31, 1997 and to all reference to our firm included in this
registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
February 9, 1999
