AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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
incorporation or organization) Identification No.)
2001 BUTTERFIELD ROAD
SUITE 502
DOWNERS GROVE, ILLINOIS 60515
(Address of principal executive offices)
(630) 852-1300
(Registrant's telephone number)
ABC-NACO INC.
1999 OMNIBUS STOCK PLAN
(Full title of the plan)
MARK F. BAGGIO
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ABC-NACO INC.
2001 BUTTERFIELD ROAD, SUITE 502
DOWNERS GROVE, ILLINOIS 60515
(Name and address of agent for service)
(630) 852-1300
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
ROBERT J. REGAN
SCHIFF HARDIN & WAITE
6600 SEARS TOWER
CHICAGO, ILLINOIS 60606-6473
(312) 258-5500
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
<S> <C> <C>
Title of Securities to be Registered. Amount Proposed Proposed
to be Maximum Maximum Amount of
Registered Offering Price Aggregate Registration
Per Share(1) Offering Price(1) Fee
Common Stock, par value $0.01
per share (and related preferred.
stock purchase rights) 600,000 $7.25 $4,350,000.00 $1,148.40
</TABLE>
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based on
$7.25, the average of the high and low sales prices of the registrant's common
stock on May 12, 2000. The value attributable to the preferred stock purchase
rights is reflected in the value attributable to the common stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Securities and Exchange Commission ("SEC") allows us to "incorporate by
reference" into this registration statement the information we file with it,
which means that we can disclose important information by referring to those
documents. The information incorporated by reference is considered to be part of
this registration statement, 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, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold. Our subsequent filings
with the SEC will automatically update and supersede information in this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Mark F. Baggio, Vice President, General Counsel and Secretary of ABC-NACO,
has given the legal opinion attached as Exhibit 5 to this Registration Statement
regarding the validity of the securities covered by this Registration Statement.
As of May 16, 2000 Mr. Baggio beneficially owned 1,667 shares of common stock of
ABC-NACO, all of which are shares issuable pursuant to stock options exercisable
within the next 60 days.
ITEM 6. 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 our 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 its 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 or 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.
<PAGE>
We have in effect insurance policies for general officers' and directors'
liability insurance covering all of our officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed herewith or incorporated by reference herein are set
forth in the Exhibit Index filed as part of this Registration Statement.
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 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 Commission 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 or Form S-8, and 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 Section 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.
The undersigned Registrant hereby undertakes 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.
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, ABC-NACO
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 Downers Grove, State of Illinois, on this 16th day of
May, 2000.
ABC-NACO INC.
(Registrant)
By: /s/ Joseph A. Seher
----------------------------
Joseph A. Seher
Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
Joseph A. Seher and J. P. Singsank, the true and lawful attorneys-in-fact and
agents of the undersigned, with full power of substitution and resubstitution,
for and in the name, place and stead of the undersigned, 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, and hereby grants to such attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, fully to all intents and purposes as the undersigned might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, 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 and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Joseph A. Seher Chief Executive Officer and Director May 16, 2000
- -------------------------
Joseph A. Seher (Principal Executive Officer)
/s/ Donald W. Grinter Chairman of the Board of May 16, 2000
- -------------------------
Donald W. Grinter Directors
/s/ J.P. Singsank Senior Vice President and May 16, 2000
- -------------------------
J. P. Singsank Chief Financial Officer
(Principal Financial Officer)
/s/ Brian L. Greenburg Vice President and Corporate May 16, 2000
- -------------------------
Brian L. Greenburg Controller (Principal Accounting
Officer)
/s/ Richard A. Drexler Director May 16, 2000
- -------------------------
Richard A. Drexler
/s/ Daniel W. Duval Director May 16, 2000
- -------------------------
Daniel W. Duval
/s/ Jean-Pierre M. Ergas Director May 16, 2000
- ---------------------------
Jean-Pierre M. Ergas
/s/ James E. Martin Director May 16, 2000
- ----------------------
James E. Martin
/s/ George W. Peck IV Director May 16, 2000
- -------------------------
George W. Peck IV
/s/ Willard H. Thompson Director May 16, 2000
- --------------------------
Willard H. Thompson
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
- ------ -------
5 Opinion of Counsel.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Counsel (contained in
its opinion filed as Exhibit 5).
24 Powers of Attorney (as set forth on the signature
pages hereto).
May 16, 2000
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
RE: ABC-NACO INC. - REGISTRATION OF
COMMON STOCK, PAR VALUE $0.01 PER SHARE, ON FORM S-8
-------------------------------------------------------------
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of ABC-NACO Inc., a
Delaware corporation (the "Company"), and have served in that capacity in
connection with the Company's filing of a Registration Statement on Form S-8
(the "Registration Statement") relating to the registration by the Company of
600,000 shares of its common stock, $0.01 par value (together with the related
preferred stock purchase rights, the "Common Stock") issuable under the ABC-NACO
Inc. 1999 Omnibus Stock Plan (the "Plan"), as more fully described in the
Registration Statement.
In this connection, I have examined such documents and have made such
factual and legal investigations as I have deemed necessary or appropriate in
order to enable me to render the opinion contained herein.
Based on the foregoing, it is my opinion that the Common Stock has been
duly authorized and, when issued in accordance with the terms of the Plan, will
be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ABC-NACO Inc.
By: /s/ Mark F. Baggio
Mark F. Baggio
Vice President, General Counsel
and Secretary
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
WITH RESPECT TO FORM S-8
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 8, 2000 and
September 2, 1999 included in the ABC-NACO Inc. and Subsidiaries' Form 10-K for
the five months ended December 31, 1999 and Form 10-K for the year ended July
31, 1999, respectively, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
- ------------------------
Chicago, Illinois
May 16, 2000
Consent of Counsel (contained in its opinion filed as Exhibit 5).
Powers of Attorney (as set forth on the signature pages hereto)
