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As filed with the Securities and Exchange Commission on December 1, 2000
Registration No. 333- _____
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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 Registrant 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
DECATUR, GEORGIA 30030
(Address of principal executive offices) (Zip Code)
ALLIED HOLDINGS, INC. AMENDED AND RESTATED LONG-TERM INCENTIVE PLAN
(Full title of the plan)
THOMAS M. DUFFY
VICE PRESIDENT - CORPORATE AFFAIRS, GENERAL COUNSEL AND SECRETARY
ALLIED HOLDINGS, INC.
160 CLAIREMONT AVENUE, SUITE 200
DECATUR, GEORGIA 30030
(404) 373-4285
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Title of each class of Amount to be Proposed maximum maximum aggregate Amount of
securities to be registered registered(1) offering price per offering price registration fee
share
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<S> <C> <C> <C> <C>
Allied Holdings, Inc., Common 127,477 shares $7.185(2) $ 915,931.31(2) $ 241.81
Stock, no par value 993,277 shares $5.031(3) $4,997,176.59(3) $ 1,319.25
--------- --------------- ----------
1,120,754 shares $5,913,107.90 $ 1,561.06
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</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act, includes an
indeterminate number of additional shares that may be offered and
issued to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(2) In accordance with Rule 457(h)(l) under the Securities Act, the
offering price of shares subject to options whose exercise price is
known is estimated solely for the purpose of calculating the
registration fee on the basis of the price at which the options may be
exercised.
(3) Estimated solely for the purpose of calculating the registration fee,
in accordance with Rule 457 (h)(1) under the Securities Act, on the
basis average of the high and low sales prices of $5.0625 and $5.00 per
share for the Common Stock on the NYSE on November 27, 2000.
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PART I -- INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting part I of this Registration Statement have
been or will be sent or given to participants in the Allied Holdings, Inc.
Amended and Restated Long-Term Incentive Plan (the "Plan") as specified by Rule
428(b)(1) under the Securities Act.
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PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) the Annual Report on Form 10-K of Allied Holdings, Inc., (the
"Corporation") for the fiscal year ended December 31, 1999 and
Amendment to the Annual Report on Form 10-K filed June 30,
2000;
(b) the Corporation's Reports on Form 10-Q for the quarters ended
March 31, 2000, June 30, 2000, and September 30, 2000;
(c) the Corporation's Current Report on Form 8-K dated June 14,
2000;
(d) the Corporation's Registration Statement on Form 8-A dated
February 11, 1998 with respect to the description of the
Common Stock described therein; and
(e) all other documents filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") prior to the
filing of a post-effective amendment to this Registration
Statement that indicates that all securities offered have been
sold or that deregisters securities that remain unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference 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 that also is, or is
deemed to be, incorporated herein by reference 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. 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 modified 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.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of the Corporation's Common Stock is being
passed upon by Thomas M. Duffy, Esq., Vice President, Secretary and General
Counsel for the Corporation. Thomas M. Duffy is an officer of, and receives
compensation from, the Corporation and is the beneficial holder of 5,630 shares
of the Corporation's Common Stock.
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Item 6. Indemnification of Directors and Officers.
Subsection (a) of Section 14-2-851 of the Georgia Business
Corporation Code provides that a 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 the proceeding if (1) such individual conducted himself or herself
in good faith; and (2) such individual 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, that such conduct was at
least not opposed to the best interests of the corporation; and (C) in the case
of any criminal proceeding, that the individual had no reasonable cause to
believe such conduct was unlawful. Subsection (d) of Section 14-2-851 of the
Georgia Business Corporation Code provides that a corporation may not indemnify
a director in connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant standard
of conduct, or in connection with any proceeding with respect to conduct for
which he or she was adjudged liable on the basis that personal benefit was
improperly received by him or her, whether or not involving action in his or her
official capacity. Notwithstanding the foregoing, pursuant to Section 14-2-854,
a court may order a corporation to indemnify a director if such court
determines, in view of all the relevant circumstances, that it is fair and
reasonable to indemnify the director even if the director has not met the
relevant standard of conduct set forth in subsections (a) and (b) of Section
14-2-851 of the Georgia Business Corporation Code, failed to comply with Section
14-2-853 of the Georgia Business Corporation Code, or was adjudged liable in a
proceeding referred to in paragraph (1) or (2) of subsection (d) of Section
14-2-851 of the Georgia Business Corporation Code, but if the director was
adjudged so liable, the indemnification shall be limited to reasonable expenses
incurred in connection with the proceeding.
Section 14-2-852 of the Georgia Business Corporation Code provides that
a corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
Section 14-2-857 of the Georgia Business Corporation Code provides that
a corporation may indemnify and advance expenses to an officer of the
corporation who is a party to a proceeding because he or she is an officer of
the corporation to the same extent as a director. If the officer is not a
director, (or if the officer is a director but the sole basis on which he or she
is made a party to the proceeding is an act or omission solely as an officer) to
such further extent as may be provided by the articles of incorporation, the
bylaws, a resolution of the board of directors, or contract except for liability
arising out of conduct that constitutes (1) appropriation, in violation of their
duties, of any business opportunity of the corporation, (2) acts or omissions
that involve intentional misconduct or a knowing violation of law, (3) the types
of liability set forth in Section 14-2-832 of the Georgia Business Corporation
Code or (4) receipt of an improper personal benefit. An officer of a corporation
who is not a director is entitled to mandatory indemnification under Section
14-2-852 of the Georgia Business Corporation Code and may apply to a court under
Section 14-2-854 of the Georgia Business Corporation Code for indemnification,
in each case to the same extent to which a director may be entitled to
indemnification under those provisions. Finally, a corporation may also
indemnify an employee
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or agent who is not a director to the extent, consistent with public policy,
that may be provided by its articles of incorporation, bylaws, general or
specific action by its board of directors or contract.
The Corporation'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 Corporation 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 Corporation. 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 Corporation, (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 Corporation's Bylaws, the Corporation 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 Corporation, 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 Corporation 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 Corporation 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 Corporation, 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 Corporation 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 Corporation's directors and executive officers are insured against
damages from actions and claims incurred in the course of performing duties, and
the Corporation 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.
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Amended and Restated Articles of Incorporation (incorporated by reference from
Registration Statement (File Number
</TABLE>
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<TABLE>
<S> <C>
33-66620) as filed with the Securities and Exchange Commission on July 28, 1993
and amended on September 2, 1993 and September 17, 1993 and deemed effective
on September 29, 1993).
4.2 Amended and Restated Bylaws, as amended to date (filed as Exhibit 3.3 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1999, and
incorporated herein by this reference).
4.3 Allied Holdings, Inc. Amended and Restated Long-Term Incentive Plan
5 Opinion of Thomas M. Duffy, Esq.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Thomas M. Duffy, Esq. (included in Exhibit 5)
24 Powers of Attorney (included on Signature Page).
</TABLE>
Item 9. Undertakings.
The undersigned Registrant 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;
(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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
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(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 that remain unsold at the
termination of any offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant'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 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all 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 Atlanta, State of
Georgia, on this 29th day of November, 2000.
ALLIED HOLDINGS, INC.
By: /s/ Daniel H. Popky
---------------------------------------------
Daniel H. Popky
Senior Vice President and Chief Financial
Officer
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
either of them (with full power in each to act alone), as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any 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,
hereby ratifying and confirming all that said attorneys-in-fact, or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on this 29th day of November, 2000.
Signature Title
--------- -----
/s/ Robert J. Rutland Chairman
-------------------------------
Robert J. Rutland
/s/ Guy W. Rutland, III Chairman Emeritus and Director
-------------------------------
Guy W. Rutland, III
/s/ A. Mitchell Poole, Jr. Vice-Chairman, Chief Executive Officer and
------------------------------- Director (Principal Executive Officer)
A. Mitchell Poole, Jr.
/s/ Randall E. West President, Chief Operating Officer and
------------------------------- Director
Randall E. West
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/s/ Daniel H. Popky Senior Vice-President and Chief Financial
------------------------------- Officer (Principal Financial and Accounting
Daniel H. Popky Officer)
/s/ Bernard O. DeWulf Vice Chairman, Executive Vice-President and
------------------------------- Director
Bernard O. DeWulf
/s/ David G. Bannister Director
-------------------------------
David G. Bannister
/s/ Robert R. Woodson Director
-------------------------------
Robert R. Woodson
/s/ William P. Benton Director
-------------------------------
William P. Benton
/s/ Guy W. Rutland, IV Director
-------------------------------
Guy W. Rutland, IV
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Sequentially Numbered Description
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<S> <C>
4.3 Allied Holdings, Inc. Amended and Restated Long-Term
Incentive Plan(1)
5 Opinion of Thomas M. Duffy, Esq.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Thomas M. Duffy, Esq. (included in Exhibit 5)
24 Powers of Attorney (included on Signature Page).
</TABLE>
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(1) Incorporated by reference from Registration Statement file 3366620 dated
July 28, 1993, amended September 2, 1993 and September 17, 1993, and deemed
effective September 29, 1993.
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