Registration No.
----------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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KOPPERS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-1588399
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or orgainzation)
436 SEVENTH AVENUE 15219-1800
PITTSBURGH, PENNSYLVANIA (Zip Code)
(Address of Principal Executive Offices)
KOPPERS INDUSTRIES, INC. 1998 STOCK OPTION PLAN
KOPPERS INDUSTRIES, INC. 1997 STOCK OPTION PLAN
KOPPERS INDUSTRIES, INC. RESTATED AND AMENDED STOCK OPTION PLAN
(Full title of the plans)
--------------------
WALTER W. TURNER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KOPPERS INDUSTRIES, INC.
436 SEVENTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219-1800
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO TO BE MAXIMUM MAXIMUM REGISTRATION
BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE FEE
PER SHARE OFFERING PRICE
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Voting Common Stock, 93,900 $17.00(1)
$.01 par value 1,500 $17.25(1)
105,500 $14.00(1)
4,124 $ 2.00(1)
23,564 $ 2.77(1)
70,947 $ 3.59(1)
28,350 $ 3.57(1)
56,625 $10.56(1)
914,685 $ 8.73(2) $12,111,767 $3,198
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(1) Based upon the exercise price of the options in respect of which the shares
may be issued, in accordance with Rule 457(h).
(2) Based upon the book value of the shares as of March 31, 2000, in accordance
with Rule 457(h).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Koppers Industries, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement: (i) the
Company's Annual Report on Form 10-K (File No. 1-12716) for the fiscal year
ended December 31, 1999; and (ii) the Company's Quarterly Report on Form 10-Q
(File No. 1-12716) for the quarterly period ended March 31, 2000.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, but prior
to the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered by this Registration Statement have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. Each document
incorporated by reference into this Registration Statement shall be deemed to be
a part of this Registration Statement from the date of filing of such document
with the Commission until the information contained therein is superseded or
updated by any subsequently filed document which is incorporated by reference
into this Registration Statement or by any document that constitutes part of the
prospectus relating to the Koppers Industries, Inc. 1998 Stock Option Plan, the
Koppers Industries, Inc. 1997 Stock Option Plan, and the Koppers Industries,
Inc. Restated and Amended Stock Option Plan (the "Stock Option Plans") meeting
the requirements of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act").
ITEM 4. DESCRIPTION OF SECURITIES.
General
The Company is authorized to issue up to 37,000,000 shares of voting
common stock, $.01 par value per share ("Voting Common Stock"), 3,000,000 shares
of non-voting common stock, $.01 par value per share ("Non-Voting Common Stock"
and, together with the Voting Common Stock, the "Common Stock") and 10,000,000
shares of preferred stock, $.01 par value per share ("Preferred Stock"). As of
March 1, 2000, an aggregate of 1,351,921 shares of Voting Common Stock was
outstanding and held of record by 171 stockholders and no shares of Non-Voting
Common Stock were outstanding. As of March 1, 2000, 2,288,481 shares of Senior
Convertible Preferred Stock (the "Senior Preferred Stock") were outstanding.
Common Stock
Holders of Voting Common Stock are entitled to one vote for each share
held on all matters submitted to a vote of stockholders. Holders of Common Stock
are entitled to receive ratably such dividends, if any, as may be declared by
the Board of Directors of the Company (the "Board") out of funds legally
available therefor, subject to any preferential dividend rights of outstanding
Preferred Stock. Upon the liquidation, dissolution or winding up of the Company,
the holders of Common Stock are entitled to receive ratably the net assets of
the Company available for distribution to stockholders and subject to the prior
rights of any outstanding Preferred Stock. Holders of the Common Stock have no
preemptive, subscription, redemption or conversion rights. The outstanding
shares of Common Stock are, and the shares offered by the Company in connection
with the Stock Option Plans will be, when issued in accordance with the Stock
Option Plans, fully paid and nonassessable. The rights, preferences and
privileges of holders of Common Stock are subject to the rights of the holders
of shares of the Senior Preferred Stock and of any series of Preferred Stock
which the Company may designate and issue in the future.
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Senior Preferred Stock
The terms of the Senior Preferred Stock are summarized below.
Dividends. Holders of Senior Preferred Stock, in preference to
the holders of shares of any class or series of Common Stock, are entitled to
receive dividends in an amount per share equal to the aggregate per share amount
of all cash dividends and the aggregate per share amount of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or as a result of a subdivision of the outstanding shares of Common
Stock.
In the event the Company declares a dividend on the Common Stock
payable in shares of Common Stock or effects a subdivision, combination or
consolidation of the outstanding shares of Common Stock, the aggregate amount of
dividends to which holders of shares of Senior Preferred Stock are entitled will
be adjusted to reflect the ratio of the number of shares of Common Stock
outstanding immediately after such event to the number of shares of Common Stock
that were outstanding immediately prior to such event.
The Company must declare a dividend or distribution on the Senior
Preferred Stock immediately after it declares a dividend or distribution on the
Common Stock (other than dividend payable in shares of Common Stock and other
than as a result of a subdivision of the outstanding shares of Common Stock) and
must pay such dividend or distribution on the same date on which such dividend
or distribution is paid to holders of Common Stock.
Conversion. Subject to provision for adjustment in certain
events, each share of Senior Preferred Stock is convertible into one fully paid
and nonassessable share of voting Common Stock.
Redemption or Repurchase. The shares of Senior Preferred Stock
are not redeemable. The Company will not purchase or otherwise acquire any
shares of Senior Preferred Stock except pursuant to a pro rata offer made in
writing, on identical terms, to each holder of Senior Preferred Stock at the
time outstanding.
Voting Rights. The holders of Senior Preferred Stock, voting as a
separate series from all other series of Preferred Stock and classes of capital
stock, are entitled at each annual shareholder's meeting to elect the smallest
number representing a majority of the number of members of the Board. Each share
of the Senior Preferred Stock entitles the holder thereof to one vote per share
with respect to the election of directors. The directors so elected may be
removed without cause only by the holders of a majority in voting power of the
outstanding Senior Preferred Stock. Vacancies on the Board that result in fewer
directors in office than the holders of the Senior Preferred Stock are entitled
to elect shall be filled only by election by holders of a majority in voting
power of the Senior Preferred Stock. With respect to matters upon which the
holders of Voting Common Stock are entitled to vote (other than the election of
Directors not elected pursuant to the above-referenced right of the holders of
the Senior Preferred Stock to elect a majority of the Board), the holders of
Senior Preferred Stock are entitled to cast that number of votes per share of
Senior Preferred Stock equal to the number of shares of Voting Common Stock into
which such shares of Senior Preferred Stock are convertible.
The consent of the holders of at least two-thirds of the
outstanding shares of Senior Preferred Stock is required for the Company to:
alter, change or amend the Articles of Incorporation or By-Laws of the Company
or the Certificate of Designation for the Senior Preferred Stock (the
"Certificate of Designation") if any such alteration, change or amendment would
alter or change the powers, preferences or special rights of the shares of
Senior Preferred Stock; authorize or issue any additional shares of Senior
Preferred Stock or authorize or issue any shares of any class or series of stock
ranking prior to or on a parity with the Senior Preferred Stock as to the
payment of dividends or as to the distribution of assets on liquidation,
dissolution or winding up; increase or decrease the number of directors
constituting the Board of the Company; redeem, repurchase, declare or pay a
dividend or distribution with respect to any class or series of capital stock of
the Company, except for redemptions pursuant to restricted stock agreements
approved by a majority of the directors elected by the holders of Senior
Preferred Stock pursuant to the Certificate of Designation; enter into any
transaction or series of related transactions involving an aggregate amount in
excess of $[ ] with any officer, director, employee or affiliate of the Company;
enter into any business other than a business in which the Company or a
subsidiary of the Company is engaged as of December 4, 1997 (or businesses
reasonably related thereto); acquire any Person or assets if the fair market
value of the purchase price therefore exceeds 25% of the total consolidated
assets of the Company (determined in accordance with generally accepted
accounting principles) as of the most recently completed fiscal quarter of the
Company; approve the
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annual capital expenditures budget of the Company and its subsidiaries; or enter
into any employment agreement with any executive officer of the Company.
The consent of the holders of at least a majority of the
outstanding shares of Senior Preferred Stock is required to merge, consolidate
or combine with any person or transfer all or substantially all of the
consolidated assets of the Company and its subsidiaries to any person or
persons.
Liquidation. Upon liquidation, dissolution or winding up of the
Company, the Senior Preferred Stock ranks senior to each other class or series
of capital stock of the Company with respect to the payment of dividends and the
distribution of assets. No distribution will be made to the holders of stock
ranking junior to the Senior Preferred Stock unless, prior thereto, the holders
of shares of Senior Preferred Stock have received $.01 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payments, provided that the holders of shares of
Senior Preferred Stock will be entitled to receive an aggregate amount per share
including the preferential payment of $.01 per share (subject to an adjustment
for a change in the number of shares of Common Stock outstanding due to a
dividend on the Common Stock payable in shares of Common Stock or subdivision,
combination or consolidation of the outstanding shares of Common Stock), equal
to the aggregate amount to be distributed per share to holders of Common Stock.
Stockholders' Agreement
The Stockholders' Agreement sets forth certain rights and
obligations among (i) Saratoga Partners III, L.P. ("Saratoga"), the beneficial
owner of all of the 2,288,481 outstanding shares of Senior Preferred Stock,
representing approximately 63% of the outstanding Voting Common Stock and Senior
Preferred Stock (collectively, "Voting Shares"), (ii) certain current and former
senior management of the Company (the "Management Investors"), holding in the
aggregate as of the date hereof 1,111,271 shares of Voting Common Stock and
(iii) other holders of Voting Common Stock who agree to be bound by the
Stockholders' Agreement. With respect to 142,857 of the shares of Senior
Preferred Stock, Saratoga has voting power with respect to such shares and the
Company has been informed that Brown University Third Century Fund has
dispositive directive power with respect to such shares subject to the terms of
the Stockholders' Agreement. As a condition to acquiring shares of Voting Common
Stock upon the exercise of options under the Stock Option Plans, an optionee
must agree to be bound by the Stockholders' Agreement. The terms of the
Stockholders' Agreement are summarized briefly below and in the section later in
this Information Statement under the caption "Restrictions on Resale." The
following description is qualified in its entirety by reference to the
Stockholders' Agreement incorporated by reference as an exhibit to the Company's
Registration Statement on Form S-8 (File No. 333-42989).
Corporate Governance. In general, it is the stated intention of
the parties to the Stockholders' Agreement that Saratoga remain in a majority
position with respect to stock ownership and Board representation. Provision is
made, however, for certain rights on the part of the Board representatives of
the Management Investors with respect to specified corporate actions. Specific
rights and obligations of the parties regarding these matters are summarized
below.
Saratoga is at all times entitled to nominate two directors. As
long as Saratoga and certain permitted transferees hold a majority of the
outstanding Voting Shares, Saratoga is entitled to nominate a majority of the
Board. At any time Saratoga owns less than a majority of the Voting Shares,
other than as a result of a sale of Voting Shares to a third party, Saratoga has
the option to purchase additional shares of Senior Preferred Stock sufficient to
increase its percentage ownership of Voting Shares to 52%. All of Saratoga's
foregoing rights are transferable to any third party to whom Saratoga transfers
a majority of the outstanding Voting Shares, and such third party may similarly
transfer such rights.
The Representatives of the Management Investors are at all times
entitled to nominate two directors. The current Representatives of the
Management Investors are Walter W. Turner and Clayton A. Sweeney. Either or both
of them may be removed by the vote of at least three-fourths of the Voting
Shares held by Management Investors. Any replacement for a Management Investor
who has retired, died or been removed will be chosen by the Board from the
Management Investors who are employees and who are among the ten largest
Management Investor holders of Voting Shares. If no one who qualifies is willing
to serve, the Board can fill the vacancy in its discretion. In such a case, the
person chosen can be removed by Management Investors holding at least a majority
of the Management Investors' Voting Shares.
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One non-employee director will be nominated by mutual agreement
of Saratoga and the Representatives of the Management Investors (the
"Independent Director"). Any other director may be nominated in the same way.
Each holder of Voting Shares who is party to the Stockholders'
Agreement (a "Voting Shareholder") agrees not to take any action to remove any
director, except that Voting Shareholders can vote their shares for removal of
particular directors upon the recommendation of Saratoga and/or the
Representatives of the Management Investors (i) respectively, with respect to
directors representing Saratoga or the Management Investors, (ii) mutually, with
respect to the Independent Director and (iii) of either of Saratoga or the
Management Investors, with respect to any other director. Each Voting
Stockholder agrees to vote for the Board nominees who are nominated in
accordance with the Stockholders' Agreement.
A Supermajority Vote (as defined below) of the Board or the
unanimous vote of a Board Committee that was appointed by a Supermajority Vote
is required for approval of specified fundamental and other significant
corporate actions outside the ordinary course of business. The holders of Voting
Shares bound by the Stockholders' Agreement agree to use their best efforts not
to permit the Company to take any such action that has not been approved by the
required Board action. A Supermajority Vote means the affirmative vote of at
least a majority (i.e., more than 50%) of the number of directors as last fixed
in accordance with the Company's By-Laws, plus one additional director. As long
as the Board has six members, and two each are nominated by Saratoga and the
Representatives of the Management Investors, and the remaining two are nominated
by mutual agreement of Saratoga and such Representatives, then, for purposes of
the Supermajority Vote only, each Saratoga nominee is entitled to 2-1/2 votes
(or 5 votes if there is only one Saratoga nominee), each other director is
entitled to one vote and the Supermajority Vote is six votes.
Certain Rights. Shareholders who are party to the Stockholders'
Agreement are entitled to certain registration, preemptive and bring along
rights as summarized below.
The Company is required to use its best efforts to include in any
registration (including registrations requested by Saratoga as described below)
of any shares of Common Stock or Senior Preferred Stock (collectively, "Shares")
(other than shares issuable solely pursuant to any stock option or other
employee benefit plan) all Shares requested to be included within a specified
time period by any stockholder bound by the Stockholders' Agreement. The number
of shares included in any underwritten offering would be subject to being cut
back as determined to be necessary by the managing underwriter in order to
effect an orderly public distribution. Saratoga has the right to cause the
Company to use its best efforts to effect two registrations of any Shares
requested to be included by Saratoga.
If the Company offers to sell additional Shares, each stockholder
party to the Stockholders' Agreement has the right to subscribe for additional
Shares at the offered price, in proportion to the number of Shares outstanding.
Registered public offerings, conversions of the Senior Preferred Stock, employee
stock options and other sales of Shares to employees to the extent of Shares
repurchased pursuant to the Stockholders' Agreement would not trigger this
right.
If Saratoga proposes to sell a portion of its Shares to a person
who is not a party to the Stockholders' Agreement, and such sale would entitle
the buyer to elect a majority of the Board, the buyer must agree to purchase
from each Management Investor the same percentage of shares as Saratoga is
selling.
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Restrictions On Resale
Restrictions Under Stockholder's Agreement. Except in a
registered public offering, and as otherwise provided in the Stockholders'
Agreement, no stockholder bound by the Stockholders' Agreement is permitted to
sell, assign, pledge, encumber or otherwise transfer any shares of Voting Common
Stock to any person (a "Transferee") unless the Transferee agrees in writing to
become a party to the Stockholders' Agreement and the shares of Voting Common
Stock bear the following restrictive legends in addition to any additional
endorsement which may be required for compliance with state securities or blue
sky laws:
"The shares represented by this certificate are
subject to restrictions on transfer, certain voting
restrictions, certain rights of the Company and the
Stockholders of the Company to repurchase such shares
and certain rights of the registered holder to sell
such shares to the Company on the terms and
conditions set forth in a Stockholders' Agreement
dated as of December 1, 1997, a copy of which may be
obtained from the Company or from the holder of this
certificate. No transfer of such shares will be made
on the books of the Company unless accompanied by
evidence of compliance with the terms of such
Agreement."
Any such transfer otherwise must be effected in accordance with
the terms of the Stockholders' Agreement. A stockholder may pledge shares of
Voting Common Stock to an affiliate of that stockholder or to a commercial bank
or other lending institution as security for indebtedness of such stockholder or
the Company to such lender, provided that the pledgee agrees to be bound by the
terms of the Stockholders' Agreement.
The Company and the Management Investors have the right to
purchase any shares of Voting Common Stock that a stockholder bound by the
Stockholders' Agreement desires to sell or otherwise transfer, at the price at
which the stockholder otherwise proposes to sell them. If the Company and/or the
Management Investors do not fully exercise their right, a stockholder may sell
to a third party for total consideration equal to at least 95% of the proposed
price. Any lesser price must be reoffered to the Company and the Management
Investors. If they do not purchase all of the offered shares of Voting Common
Stock, the stockholder may sell them to a third party at a price (and terms) at
least equal to the reoffer price. No Management Investor may sell or otherwise
transfer shares of Voting Common Stock other than to the Company, another
Management Investor, such Management Investor's spouse, to a buyer pursuant to
the bring-along rights described above under "Description of Common Stock" or in
connection with an involuntary transfer.
If a stockholder bound by the Stockholders' Agreement
involuntarily transfers his or her shares of Voting Common Stock directly or
indirectly, such stockholder must give written notice within 30 days, and the
Company will have the option to buy all of the shares of Voting Common Stock.
The purchase price for such shares will be equal to the lesser of (i) the price
which the involuntary transferee paid or (ii) adjusted book value as determined
by the Company.
Upon a Management Investor's ceasing to be employed by the
Company, the Company has the right in its sole discretion to purchase all of the
Voting Common Stock owned by that Management Investor, including shares of
Voting Common Stock jointly owned with a spouse, at fair value on the
termination date. Otherwise, the Company is required to purchase, and the
Management Investor is required to sell, 25% of the Management Investor's shares
of Voting Common Stock upon termination and the remaining shares of Voting
Common Stock in three annual installments on the anniversary date of the
termination. For installment sales, the price per share, at the election of the
Management Investor, will be either the fair value on the termination date for
all shares of Voting Common Stock purchased, or the respective fair value on the
actual dates of purchase.
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Restrictions under the Federal Securities Laws. Under the United
States federal securities laws, if an optionee is deemed to be an "affiliate" of
the Company, the optionee is restricted in the resale of the optionee's shares
of Voting Common Stock (whether acquired under the Stock Option Plans or
otherwise). For this purpose, an "affiliate" of the Company is any person who
controls the Company, is controlled by the Company, or is under common control
with the Company, whether directly or indirectly through one or more
intermediaries. A corporation's "affiliates" would usually include all persons
whose security holdings are substantial enough to affect the corporation's
management. Also, all directors and executive or policy-making officers are
presumed to be "affiliates."
In general, unless specifically registered for resale, shares
owned by affiliates can be sold only in compliance with Rule 144 of the
Securities and Exchange Commission (the "SEC") or another applicable exemption
from registration. Among other things, Rule 144 imposes limitations on the
amount of securities sold by an affiliate in any three-month period and requires
that sales be conducted through a broker. These limitations apply in addition to
the restrictions imposed under the Stockholder's Agreement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law
(the "BCL") provide that a business corporation shall have the power to
indemnify any person who was or is a party, or is threatened to be made a party,
to any proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action by or in the right of the corporation, such
indemnification is limited to expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person has been adjudged to be liable to
the corporation unless, and only to the extent that, a court determines upon
application that, despite the adjudication of liability but in view of all the
circumstances, such person is fairly and reasonably entitled to indemnity for
the expenses that the court deems proper.
BCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct. Such determination shall be made:
(1) by the Board by a majority vote of a quorum consisting of
directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and
a majority vote of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to the
extent that a director, officer, employee or agent of a business corporation is
successful on the merits or otherwise in defense of any proceeding referred to
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
BCL Section 1745 provides that expenses (including attorney's
fees) incurred by an officer, director, employee or agent of a business
corporation in defending any proceeding may be paid by the corporation in
advance of the final
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disposition of the proceeding upon receipt of an undertaking to repay the amount
advanced if it is ultimately determined that the indemnitee is not entitled to
be indemnified by the corporation.
BCL Section 1746 provides that the indemnification and advancement
of expenses provided by, or granted pursuant to, the foregoing provisions are
not exclusive of any other rights to which a person seeking indemnification may
be entitled under any bylaw, agreement, vote of shareholders or directors or
otherwise, and that indemnification may be granted under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise for any action
taken or any failure to take any action whether or not the corporation would
have the power to indemnify the person under any other provision of law and
whether or not the indemnified liability arises or arose from any action by or
in the right of the corporation, provided, however, that no indemnification is
determined by a court to have constituted willful misconduct or recklessness.
BCL Section 1747 permits a Pennsylvania business corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against any liability asserted against
such person and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
the person against such liability under the provisions described above.
The Company's Articles of Incorporation and By-Laws provide for
(i) indemnification of directors, officers, employees and agents of the Company
and its subsidiaries and (ii) the elimination of a director's liability for
monetary damages, to the maximum extent permitted by the BCL. The Company also
maintains directors' and officers' liability insurance covering its directors
and officers with respect to liabilities, including liabilities under the
Securities Act of 1933, as amended, which they may incur in connection with
their serving as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by
reference as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Restated and Amended Articles of Incorporation of Koppers
Industries, Inc. (incorporated by reference to Exhibit 4.1
of the Company's Registration Statement on Form S-8 filed on
December 22, 1997 (File No. 333-42989))
4.2 Restated and Amended By-Laws of Koppers Industries, Inc.
(incorporated by reference to Exhibit 4.2 of the Company's
Registration Statement on Form S-8 filed on December 22,
1997 (File No. 333-42989))
4.3 Stockholders' Agreement by and among Koppers Industries,
Inc., Saratoga Partners, III, L.P. and The Management
Investors (incorporated by reference to Exhibit 4.3 of the
Company's Registration Statement on Form S-8 filed on
December 22, 1997 (File No. 333-42989))
5.1 Opinion of Metz Schermer & Lewis L.L.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Metz Schermer & Lewis L.L.C. (included in
Exhibit 5.1)
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers of 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 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;
(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) of this section do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
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.
* * *
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
9
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Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, Pennsylvania as of June 14, 2000.
KOPPERS INDUSTRIES, INC.
By: /s/ WALTER W. TURNER
-----------------------------------
Walter W. Turner
President and Chief Executive Officer
We, the undersigned directors and officers of Koppers Industries,
Inc., do hereby constitute and appoint Walter W. Turner and Clayton A. Sweeney,
or either of them, our true and lawful attorneys and agents, to do any and all
acts and things in our name and on our behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the
capacities indicated below, which said attorneys and agents, or either of them,
may deem necessary or advisable to enable said corporation to comply with the
Securities Act and any rules, regulations and requirements of the Commission, in
connection with this Registration Statement, including specifically, but without
limitation, power and authority to sign for us or any of us in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto and we do hereby ratify and confirm all that said attorneys
and agents, or either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement and the foregoing Power of Attorney have been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Robert Cizik Chairman and Director June 13, 2000
-------------------------
Robert Cizik
/s/ Walter W. Turner President and Chief Executive Officer June 14, 2000
------------------------- (Principal Executive Officer) and
Walter W. Turner a Director
/s/ Donald E. Davis Chief Financial Officer (Principal June 14, 2000
------------------------- Financial Officer and Principal
Donald E. Davis Accounting Officer)
/s/ Clayton A. Sweeney Director June 14, 2000
-------------------------
Clayton A. Sweeney
/s/ Christian L. Oberbeck Director June 15, 2000
-------------------------
Christian L. Oberbeck
/s/ N.H. Prater Director June 14, 2000
-------------------------
N.H. Prater
/s/ David M. Hillenbrand Director June 13, 2000
-------------------------
David M. Hillenbrand
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INDEX TO EXHIBITS
-----------------
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Restated and Amended Articles of Incorporation of Koppers
Industries, Inc. (incorporated by reference to Exhibit 4.1
of the Company's Registration Statement on Form S-8 filed on
December 22, 1997 (File No. 333-42989))
4.2 Restated and Amended By-Laws of Koppers Industries, Inc.
(incorporated by reference to Exhibit 4.2 of the Company's
Registration Statement on Form S-8 filed on December 22,
1997 (File No. 333-42989))
4.3 Stockholders' Agreement by and among Koppers Industries,
Inc., Saratoga Partners, III, L.P. and The Management
Investors (incorporated by reference to Exhibit 4.3 of the
Company's Registration Statement on Form S-8 filed on
December 22, 1997 (File No. 333-42989))
5.1 Opinion of Metz Schermer & Lewis L.L.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Metz Schermer & Lewis L.L.C. (included in
Exhibit 5.1)
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement)
11
