AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 2000.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-3
Registration Statement
Under
The Securities Act of 1933
__________________________
ABC-NACO INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3498749
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2001 BUTTERFIELD ROAD, MARK F. BAGGIO, VICE PRESIDENT,
SUITE 502 GENERAL COUNSEL AND SECRETARY
DOWNERS GROVE, IL 60515 2001 BUTTERFIELD ROAD, SUITE 502
(630) 852-1300 DOWNERS GROVE, IL 60515
(630) 852-1300
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number, including
of registrant's principal executive offices) area code, of agent for service)
__________________________
Please send copies of all communications to:
ROBERT J. REGAN
SCHIFF HARDIN & WAITE
6600 SEARS TOWER
CHICAGO, ILLINOIS 60606
(312) 258-5500
__________________________
Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
___________________________
<PAGE>
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. /__/
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /__/
If this Form is a post effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /__/
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following
box. /__/
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class of Amount Maximum Maximum
Securities to be to be Offering Aggregate Amount of
Registered Registered Price per Share(1) Offering Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common stock, par value $0.01. . 311,110 $6.375 $1,983,326.25 $523.60
per share, and related preferred
stock purchase rights
</TABLE>
----------------
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 based on $6.375, the
average of the high and low prices of the registrant's common stock on May 31,
2000, as reported in the consolidated reporting system. The value attributable
to the preferred stock purchase rights is reflected in the value attributable to
the common stock.
__________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION RELATING TO THESE
SECURITIES IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE
SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 2, 2000
PROSPECTUS
----------
ABC-NACO INC.
311,110 SHARES OF COMMON STOCK
(INCLUDING RELATED PREFERRED STOCK PURCHASE RIGHTS)
_____________________
The Selling Stockholders (as defined below) may sell up to 311,110 shares
of common stock, par value $0.01 per share (together with the related preferred
stock purchase rights, the "Shares") of ABC-NACO Inc. a Delaware corporation
("ABC-NACO," "we," "us" and "our"), as further described in this prospectus. We
will not receive any part of the proceeds from the sale of the Shares.
Our common stock is listed on the Nasdaq National Market System under the
symbol ABCR. On June 1, 2000, the closing sale price for our common stock (as
reported in The Wall Street Journal) was $6.4375 per share.
You should read the "Risk Factors" section beginning on page 3 for certain
factors relevant to an investment in our common stock.
_____________________
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAVE THESE ORGANIZATIONS
DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
_____________________
We have been advised that sales of the Shares may be made from time to time
by or for the account of the Selling Stockholders on the Nasdaq National Market
System, in the over-the-counter market, in private transactions, through
broker-dealers or otherwise. Any such sales will be made either at fixed
prices, at market prices prevailing at the time of sale, at varying prices
determined at the time of sale or at negotiated prices. Any broker-dealer may
either act as agent for the Selling Stockholders or may purchase any of the
Shares as principal and, afterwards, may sell those Shares from time to time in
transactions on the Nasdaq National Market System or in the over-the-counter
market at prices prevailing at the time of sale or at negotiated prices.
_____________________
The date of this prospectus is June 2, 2000.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission ("SEC"). You may read
and copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at (800)
SEC-0330 for further information on the public reference rooms. Our SEC filings
are also available to the public at the SEC's web site at http://www.sec.gov.
Our common stock is quoted on the Nasdaq National Market System under the
symbol ABCR, and our SEC filings can also be read at the following Nasdaq
address:
Nasdaq Operations
1735 K Street, N.W.
Washington, D.C. 20006
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below:
(1) Our Transition Report on Form 10-K for the five months ended December
31, 1999;
(2) Our Annual Report on Form 10-K for the fiscal year ended July 31, 1999;
(3) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000;
(4) The description of the common stock contained in our registration
statement on Form 8-A filed with the SEC on November 19, 1993, including any
amendments or reports filed for the purpose of updating that description; and
(5) The description of the related preferred stock purchase rights
contained in our registration statement on Form 8-A filed with the SEC on
October 2, 1995, including any amendments or reports filed for the purpose of
updating that description.
In addition to the documents listed above, we also incorporate by reference
any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 (a) after the date of the filing of this
registration statement and before its effectiveness and (b) until the Selling
Stockholders have sold all of the securities to which this prospectus relates or
the offering is otherwise terminated. Our subsequent filings with the SEC will
automatically update and supersede information in this prospectus.
You may request a copy of these filings at no cost, by writing to or
telephoning us at the following address and telephone number:
ABC-NACO Inc.
Shareholder Relations
2001 Butterfield Road, Suite 502
Downers Grove, Illinois 60515
Telephone: (630) 852-1300
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. No offer of these
securities is being made in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate as of any
date other than the date on the front of this document.
FORWARD-LOOKING STATEMENTS
Certain of the matters discussed in this prospectus and in the documents
that we have incorporated by reference into this prospectus may constitute
forward-looking statements as defined by the Private Securities Litigation
Reform Act of 1995. These forward-looking statements may relate to, but are not
limited to, such matters as sales, income, earnings per share, return on equity,
capital expenditures, dividends, capital structure, free cash flow, debt to
capitalization ratios, internal growth rates, future economic performance,
management's plans, goals and objectives for future operations and growth or the
assumptions relating to any of the forward-looking information. These
statements generally are accompanied by words such as "intend," "anticipate,"
"believe," "estimate," "project," "expect," "should" or similar statements. We
caution that forward-looking statements are not guarantees since there are
inherent difficulties in predicting future results, and that actual results
could differ materially from those expressed or implied in the forward-looking
statements. Factors that could cause actual results to differ include, but are
not limited to, the matters set forth in this prospectus and the documents
incorporated by reference in this prospectus. This section is included pursuant
to the Private Securities Litigation Reform Act of 1995 and with the intention
of obtaining the benefits of the so-called "safe harbor" provisions of that Act.
RISK FACTORS
In addition to the other information included and incorporated by reference
in this prospectus, you should carefully consider the following factors before
deciding to invest in shares of our common stock.
HIGH LEVERAGE; COMPLIANCE WITH FINANCIAL COVENANTS IN DEBT FACILITIES
We are highly leveraged. As of March 31, 2000, our total capitalization
consisted of approximately 69% of debt and approximately 31% of equity. Our
management has developed and has been implementing specific plans (such as the
sale of $30 million of Series B cumulative convertible preferred stock on March
8, 2000) to reduce our indebtedness, but we cannot give you any assurance that
we will be successful in reducing our highly leveraged condition.
On March 8, 2000, we amended our $200 million revolving credit agreement,
effective as of December 30, 1999, with our bank syndicate group, to increase
our maximum allowable leverage ratio and our maximum allowable senior leverage
ratio and to modify our minimum interest coverage ratio, in each case through
January 1, 2003. Without these amendments, the Company would not have been in
compliance with the terms of the credit agreement as of December 31, 1999 or
March 31, 2000. The credit agreement also was amended to add a minimum
pro-forma EBITDA covenant and scheduled commitment reductions which will reduce
the revolving credit commitment to $155 million as of January 1, 2003.
We must also comply with certain financial covenants under the Note
agreements relating to our $50 million of 9-1/8% Senior Subordinated Notes and
$25 million of 8 % Senior Subordinated Notes. Our interest coverage ratio at
March 31, 2000 was 2.44 compared to the minimum requirement under the Note
agreements of 2.40, and our funded debt to capitalization ratio at that date was
69.5% compared to the maximum allowable under the Note agreements of 75.0%.
Failure to comply with these covenants would give the Noteholders the unilateral
right to accelerate the maturity of the Notes after a requisite cure period. A
default under the Note agreements would, in turn, trigger a default under the
cross-default provisions of the above-described revolving credit agreement.
If we do not have adequate cash or are unable to remain in compliance with
the financial covenants in our debt facilities, we may be required to refinance
existing indebtedness, seek additional financing, or issue common stock or other
securities to raise cash to assist in financing our operations. We have no
current commitments for such financing alternatives, and there can be no
assurance that such financing alternatives will be available, when and if
needed, on acceptable terms or at all. Our inability to make any payments when
due or to comply with the financial covenants in our debt facilities could have
a material adverse effect on us. In addition, the degree to which we are
leveraged and the restrictions in our debt facilities (which, among other
things, limit our incurrence of additional debt) may adversely affect our
ability to finance our future operations, to compete effectively against better
capitalized competitors and to withstand downturns in our business or the
economy generally.
CUSTOMER CONCENTRATION
Our two largest customers are TTX Company ("TTX") and Union Pacific
Railroad Company, which accounted for approximately 11% and 10% respectively, of
our net sales from August 1, 1999 to December 31, 1999. In the fiscal years
ended July 31, 1999, 1998 and 1997 TTX accounted for approximately 16%, 13% and
9% of our net sales, respectively, and Union Pacific Railroad Company accounted
for approximately 7%, 10% and 12% of our net sales, respectively. Our five
largest customers accounted for approximately 43% of our net sales in the fiscal
year ended July 31, 1999. The loss of, or a continued significant decrease in,
business from any of our larger customers could have a material adverse effect
on our business or results of operations.
POSSIBLE FLUCTUATING OPERATING RESULTS
Several factors may cause significant fluctuations in our quarterly
operating results. The peak season for installation of specialty trackwork
extends from March through October, when weather conditions are generally
favorable for installation, and, as a result, net sales of specialty trackwork
have historically been more concentrated in the period from January to June. In
addition, a number of our facilities close for regularly scheduled maintenance
in late summer and late December, which tends to reduce operating results during
those periods. Consequently, the majority of our net sales of specialty
trackwork have historically occurred from January through July. In addition,
transit industry practice with respect to specialty trackwork generally involves
the periodic shipment of large quantities, which may be unevenly distributed
throughout the year.
Demand for railroad products generally fluctuates in response to overall
economic conditions, change in freight traffic and other factors. In economic
downturns, railroads and other customers may defer expenditures. Reductions in
freight traffic may reduce demand for our replacement products by reducing wear.
Railroads, particularly Class I railroads, can experience operational problems
as a result of heavier traffic demands, which have an unpredictable impact on
railroad expenditures for new and replacement products, including those we sell.
Partly as a result of the above factors we suspended construction of a
plant in central Illinois to process used rail into reusable heat treated and
heat-hardened rail. We have invested approximately $11.6 million to date on
this project, mostly for related machinery and equipment pending completion of
a revised business plan.
The flow control industry also fluctuates particularly in response to
economic conditions and changes in oil prices. Our flow control business or
results of operations could be materially adversely affected during economic
downturns or periods of depressed oil prices.
POSSIBLE WORK STOPPAGES OR LABOR UNREST
We cannot be certain that work stoppages will not occur in the future or
that we will reach new agreements upon expiration of our union contracts. If we
suffer work stoppages or fail to reach new agreements with our unions, our
business or results of operations could be materially adversely affected. As of
December 31, 1999, labor unions represent approximately 78% of our employees.
POSSIBLE INABILITY TO SATISFY REGULATORY REQUIREMENTS
If we fail to maintain the Association of American Railroads certifications
of our railroad products facilities in North America or fail to obtain
Association of American Railroads certifications of new facilities or railroad
products, our business or results of operations could be materially adversely
affected. The Association of American Railroads promulgates a wide variety of
rules and regulations governing safety, including, among other things, the
design, performance and manufacture of equipment used on freight cars in
interchange service throughout the North American railroad system.
Countries outside of North America also have regulatory authorities that
regulate railroad safety, freight car design, and the design, performance and
manufacture of components parts for railcars used on their railroad systems. In
addition, certain European countries founded an organization known as the Union
Internationale des Chemins de Fer, whose function is to promulgate regulations
for safety matters, including the design and manufacture of freight car
equipment which is used in interchange service on European railroad systems. If
we fail to obtain and maintain certifications of our product offerings within
the various countries in which we market outside of North America or as required
by the Union Internationale des Chemins de Fer, our ability to market and sell
railroad products in those countries could be materially adversely affected.
ABC-NACO
We are one of the world's leading suppliers of technologically advanced
products and services to the freight railroad and flow control industries. We
operate in three business segments: Rail Products, Rail Services and Systems,
and Flow and Specialty Products, and have four technology centers around the
world supporting our three business segments. We hold pre-eminent market
positions in the design, engineering and manufacture of high performance freight
railcar, locomotive and passenger rail suspension and coupler systems, wheels
and mounted wheel sets, and specialty track products. We also supply freight,
railroad and transit signaling systems and services, as well as highly
engineered valve bodies and components for industrial flow control systems
worldwide.
We were incorporated in Delaware in 1987. On February 19, 1999, we merged
with NACO, Inc. ("NACO"), a privately held Delaware corporation that designed,
manufactured and supplied cast steel and related products for the railroad
supply and flow control supply markets, to create ABC-NACO Inc. Our principal
executive offices are located at 2001 Butterfield Road, Suite 502, Downers
Grove, Illinois 60515, and our telephone number is (630) 852-1300. Our common
stock is listed on the Nasdaq Stock Market's National Market System under the
symbol "ABCR."
<PAGE>
SELLING STOCKHOLDERS
The Shares covered by this prospectus are being offered by or for the
account of the following individuals: Steven M. Yoder, Ronald W. Carne, Mary
Ellen Carne, Wendell Keene, Diane Keene, Norman M. Doerr, Robert D. Birt, Jerry
Conlon (the "AST Selling Stockholders") and J. Michael Wilson, Jamil F. Nasr,
David K. Joyner, James L.R. Burch, Caroline P. Keeney, Larry E. Kerley and
William B. Young, Jr. (the "URSG Selling Stockholders" and, together with the
AST Selling Stockholders, the "Selling Stockholders").
The table below sets forth certain information as of May 16, 2000,
regarding the ownership of ABC-NACO's common stock by the Selling Stockholders
and as adjusted to give effect to the sale of the Shares offered in this
prospectus. None of the Selling Stockholders holds any stock options to acquire
ABC-NACO's common stock.
<TABLE>
<CAPTION>
Number of Number of
Shares Owned Prior Shares Shares Owned
Selling Stockholders to Offering Offered After Offering(1)
<S> <C> <C> <C>
Steven M. Yoder . . . 289,159 91,188 197,971
Ronald W. Carne . . . 226,503 57,858 168,645
Mary Ellen Carne. . . 116,656 33,330 83,326
Wendell Keene . . . . 43,255 10,930 32,325
Diane Keene . . . . . 43,255 10,930 32,325
Norman M. Doerr . . . 18,350 5,243 13,107
Robert D. Birt. . . . 28,100 10,943 17,157
Jerry Conlon. . . . . 6,300 1,800 4,500
J. Michael Wilson . . 18,889 18,889 -
Jamil F. Nasr . . . . 18,889 18,889 -
David K. Joyner . . . 18,889 18,889 -
James L.R. Burch. . . 4,444 4,444 -
Caroline P. Keeney. . 23,611 18,889 4,722
Larry E. Kerley . . . 5,555 4,444 1,111
William B. Young, Jr. 5,555 4,444 1,111
</TABLE>
---------------
(1) Assumes that each Selling Stockholder will sell all of the Shares being
offered for sale under this prospectus, in which case each Selling Stockholder
will own less than 1% of the outstanding shares of ABC-NACO's common stock.
There can be no assurance that the Selling Stockholders will sell all or any of
the Shares being offered for sale under this prospectus.
The AST Selling Stockholders acquired their Shares in connection with the
Supplemental Agreement, dated as of December 17, 1996, by and among us and the
AST Selling Stockholders. Under that agreement, in exchange for the Shares, we
purchased from the AST Selling Stockholders, all of the outstanding capital
stock of American Systems Technologies, Inc., a Wisconsin corporation ("AST").
Neither the AST Selling Stockholders nor any of their affiliates has had within
the past three years any material relationship with us or any of our affiliates,
except that the persons below held the following positions with AST (which
changed its corporate name to ABC Rail Systems in August 1998 and to ABC-NACO
Rail Systems, Inc. in January 2000): Robert D. Birt was Vice President
Operations from 1997 to 1999 and Senior Vice President from 1998 to 1999; Ronald
W. Carne was Executive Vice President from 1992 to 1999; Jerry Conlon was
Director/Consultant from 1997 to 1999; Norman Doerr was Director from 1996 to
1999; and Steven M. Yoder was President from 1996 to present.
The URSG Selling Stockholders acquired their Shares in connection with the
Supplemental Agreement, dated as of October 31, 1997, by and among us and the
URSG Selling Stockholders. Under that agreement, in exchange for the Shares, we
purchased from the URSG Selling Stockholders, all of the outstanding capital
stock of United Railway Signal Group, Inc., a Florida corporation ("URSG").
Neither the URSG Selling Stockholders nor any of their affiliates has had within
the past three years any material relationship with us or any of our affiliates,
except that the persons below held the following positions with URSG (which was
merged into ABC Rail Systems in December 1998): James L.R. Burch was Program
Engineer from 1995 to 1999 and Senior Contract Engineer from 1999 to present;
David K. Joyner was Operations Manager, Wiring and Distribution from 1996 to
1998, Operations Manager, Wiring and Distribution from 1998 to January 2000,
Systems Development Engineer of The AIMS Group (one of our divisions) from
January 2000 to present; Caroline P. Keeney was Assistant Chief Engineer from
1997 to 1998 and Chief Engineer Eastern Region from 1998 to present; Larry E.
Kerley was Assistant Chief Engineer from 1997 to 1998 and Chief Engineer Eastern
Region from 1998 to present; Jamil F. Nasr was Chief Engineer from 1997 to 1999
and Vice President of Engineering from 1999 to present; Michael Wilson was
President & CEO from 1992 to 1997, President, Engineering Division, from 1997 to
1998, President Engineering from 1998 to 1999 and Vice President, The AIMS Group
from January 2000 to present; and William B. Young was Program Engineer from
1996 to 2000 and Engineering Manager from January 2000 to present.
As of May 16, 2000, the Selling Stockholders collectively owned 867,410
shares of ABC-NACO's common stock, 311,110 of which are being offered for sale
under this prospectus. Under our respective agreements with the Selling
Stockholders, we have agreed to keep the registration statement in which this
prospectus is included effective until such time as the Selling Stockholders may
freely sell any unsold Shares in reliance upon Rule 144(k) under the Securities
Act of 1933.
<PAGE>
USE OF PROCEEDS
The Selling Stockholders will receive all of the proceeds from sales of the
Shares, and we will not receive any proceeds from the sale of Shares.
PLAN OF DISTRIBUTION
We are registering the Shares on behalf of the Selling Stockholders. For
purposes of this section of the prospectus, the term "Selling Stockholders"
shall include all donees and pledgees of the Selling Stockholders. We will pay
all costs, expenses and fees in connection with the registration of the Shares
offered by this prospectus. The Selling Stockholders will pay brokerage
commissions and similar selling expenses, if any, attributable to the sale of
Shares. The Selling Stockholders may sell Shares from time to time in one or
more types of transactions (which may include block transactions) in the over-
the-counter market, in negotiated transactions, through put or call options
transactions relating to the Shares, through short sales of Shares, or a
combination of such methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. These transactions may or may not involve brokers
or dealers. The Selling Stockholders have advised us that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of its Shares, and no underwriter or
coordinating broker is acting in connection with the proposed sale of Shares by
the Selling Stockholders.
The Selling Stockholders may effect such transactions by selling Shares
directly to purchasers or to or through broker-dealers, which may act as agents
or principals. These broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the Selling Stockholders and/or the
purchasers of Shares for whom such broker-dealers may act as agents or to whom
they sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
The Selling Stockholders and any broker-dealers that act in connection with
the sale of Shares might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933, and any commissions received by
these broker-dealers and any profit on the resale of the Shares sold by them
while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act of 1933. We have agreed to indemnify the
Selling Stockholders against certain liabilities, including liabilities arising
under the Securities Act of 1933. The Selling Stockholders may agree to
indemnify any agent, dealer or broker-dealer that participates in transactions
involving sales of the Share against certain liabilities, including liabilities
arising under the Securities Act of 1933.
Because any one of the Selling Stockholders may be deemed to be an
"underwriter" within the meaning of Section 2(11) of the Securities Act of 1933,
the Selling Stockholders will be subject to the prospectus delivery requirements
of the Securities Act of 1933, which may include delivery through the facilities
of the New York Stock Exchange pursuant to Rule 153 under the Securities Act.
We have informed the Selling Stockholders that the anti-manipulative provisions
of Regulation M under the Securities Exchange Act of 1934 may apply to their
sale of Shares in the market.
The Selling Stockholders also may resell all or a portion of the Shares in
open market transaction in reliance upon Rule 144 under the Securities Act of
1933, provided they meet the criteria and conform to the requirements of such
Rule.
Upon notification by a Selling Stockholder that any material arrangement
has been entered into with a broker-dealer for the sale of Shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, if required, pursuant to Rule 424(b) under the Act, disclosing (1)
the name of the Selling Stockholder(s) and of the participating broker-
dealer(s), (2) the number of Shares involved, (3) the price at which such Shares
were sold, (4) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (5) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus and (6) other facts material to the transaction. In
addition, upon a Selling Stockholder notifying us that a donee or pledgee
intends to sell more than 500 Shares, we will file a supplement to this
prospectus.
LEGAL OPINION
Mark F. Baggio, Vice President, General Counsel and Secretary of the
Company will pass upon the validity of the Shares offered by this prospectus.
As of May 16, 2000, Mr. Baggio beneficially owned 1,667 shares of ABC-NACO's
common stock, all of which are shares issuable pursuant to stock options
exercisable within 60 days.
EXPERTS
We have incorporated by reference in this prospectus our audited financial
statements as of December 31, 1999, July 31, 1999, 1998 and 1997, and for the
five months ended December 31, 1999 and for each of the three years in the
period ended July 31, 1999, along with Arthur Andersen LLP's audit report on
these financial statements. Arthur Andersen LLP issued the report as
independent accountants and as experts in auditing and accounting. We refer you
to that report, which includes an explanatory paragraph with respect to our
change in the method of accounting for business process reengineering costs
effective August 1, 1997, and our method of accounting for start-up costs
effective August 1, 1998, as discussed in Note 2 to the financial statements.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the estimated amounts of expenses to be borne
by us in connection with the offering described in this registration statement:
SEC registration fee $ 523.60
Printing and engraving expenses 5,000.00
Accounting fees and expenses 8,000.00
Legal fees and expenses 10,000.00
Miscellaneous expenses 476.40
------
Total $24,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law (the "Delaware law")
allows a corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his or her duty
of loyalty to the corporation or its stockholders, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of the law, willfully
or negligently authorized the unlawful payment of a dividend or approved an
unlawful stock redemption or repurchase or obtained an improper personal
benefit. Our restated certificate of incorporation contains a provision which
eliminates directors' personal liability as set forth above.
Our restated certificate of incorporation and restated by-laws provide in
effect that we shall indemnify its directors and officers to the extent
permitted by the Delaware law. Section 145 of the Delaware law provides that a
Delaware corporation has the power to indemnify its directors, officers,
employees and agents in certain circumstances. Subsection (a) of Section 145
of the Delaware law empowers a corporation to indemnify any director, officer,
employee or agent, or former director, officer, employee or agent, who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director, officer, employee or agent acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, provided that such director, officer, employee or
agent had no reasonable cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the Delaware law empowers a corporation to
indemnify any director, officer, employee or agent, or former director,
officer, employee or agent, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact
that such person acted in any of the capacities set forth above, against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such person acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery shall determine that
despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent that a director or officer
or employee of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith; that indemnification provided by Section 145 shall
not be deemed exclusive of any other rights to which the party seeking
indemnification may be entitled; and the corporation is empowered to purchase
and maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him or her or incurred by
him or her in any such capacity or arising out of his or her status as such
whether or not the corporation would have the power to indemnify him or her
against such liabilities under Section 145; and that, unless indemnification is
ordered by a court, the determination that indemnification under subsections (a)
and (b) of Section 145 is proper because the director, officer, employee or
agent has met the applicable standard of conduct under such subsections shall be
made by (1) a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
We have in effect insurance policies for general officers' and directors'
liability insurance covering all of our officers and directors.
Pursuant to an agreement, dated December 17, 1996, between us and the AST
Selling Stockholders, we have agreed to indemnify the AST Selling Stockholders,
and the AST Selling Stockholders have agreed to indemnify us against certain
liabilities, including certain liabilities under the Securities Act of 1933.
ITEM 16. EXHIBITS.
A list of the exhibits filed herewith or incorporated by reference is set
forth in the Index to Exhibits which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
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 maximum 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 a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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
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 SEC by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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
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 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 registrant of expenses incurred or paid by a director, officer or
controlling person 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 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.
<PAGE>
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 the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Downers Grove, State of Illinois, on this 1st day of
June, 2000.
ABC-NACO INC.
(Registrant)
By: /s/ Joseph A. Seher
----------------------------
Joseph A. Seher
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on June 1, 2000 by the following persons
in the capacities indicated.
SIGNATURE TITLE
--------- -----
/s/ Joseph A. Seher
----------------------
Joseph A. Seher Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Donald W. Grinter*
------------------------
Donald W. Grinter Chairman of the Board of Directors
/s/ J.P. Singsank Senior Vice President and Chief Financial Officer
------------------- (Principal Financial Officer)
J.P. Singsank
/s/ Brian L. Greenburg
-------------------------
Brian L. Greenburg Vice President and Corporate Controller
(Principal Accounting Officer)
/s/ Richard A. Drexler*
-------------------------
Richard A. Drexler Director
/s/ Daniel W. Duval*
----------------------
Daniel W. Duval Director
/s/ Jean-Pierre M. Ergas*
---------------------------
Jean-Pierre M. Ergas Director
/s/ James E. Martin*
----------------------
James E. Martin Director
/s/ George W. Peck IV*
-------------------------
George W. Peck IV Director
/s/ Willard H. Thompson*
--------------------------
Willard H. Thompson Director
* By: /s/ J.P. Singsank
-------------------
J. P. Singsank
Attorney-in-Fact
(Pursuant to Powers of
Attorney filed as Exhibits
to this Registration Statement)
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
------ -------
3.1 Our Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to our Current Report on Form 8-K dated February 19,
1999).
3.2 Our Amended and Restated By-laws (incorporated by reference
to Exhibit 3.2 to our Form 10-Q for our fiscal quarter ended March 31, 2000).
4.1 Our Restated Certificate of Incorporation (see Exhibit
3.1).
4.2 Our Restated By-laws (see Exhibit 3.2).
4.3 Rights Agreement, dated as of September 29, 1995, between
us and LaSalle National Trust, N.A., as Rights Agent (the "Rights Agreement")
(incorporated by reference to Exhibit 4.2 to our Current Report on Form 8-K
filed with the SEC on October 2, 1995 (SEC File No. 0-22906)).
4.4 Amendment No. 1 to the Rights Agreement, dated November 15,
1996 (incorporated by reference to Exhibit 4.1 to our Form 10-Q our fiscal
quarter ended October 31, 1996 (SEC File No. 0-22906)).
4.5 Amendment No. 2 to the Rights Agreement, dated September
17, 1998 (incorporated by reference to Exhibit 4.1 to our Form 8-A/A filed with
the SEC on September 24, 1998 (SEC File No. 0-22906)).
4.6 Amendment No. 3 to the Rights Agreement, dated March 8,
2000 (incorporated by reference to Exhibit 4.1 to our Form 8-A/A filed with the
SEC on March 17, 2000 (SEC File No. 0-22906)).
5.1 Opinion of Counsel.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Counsel (contained in its opinion filed as
Exhibit 5.1).
24.1 Power of Attorney for Donald W. Grinter.
24.2 Power of Attorney for Richard A. Drexler.
24.3 Power of Attorney for Daniel W. Duval.
24.4 Power of Attorney for Jean-Pierre M. Ergas.
24.5 Power of Attorney for James E. Martin.
24.6 Power of Attorney for George W. Peck IV.
24.7 Power of Attorney for Willard H. Thompson.
<PAGE>
