UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
OMNI RAIL PRODUCTS, INC.
------------------------
(Exact name of Registrant as specified in its charter)
Delaware 68-0281098
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
975 S.E. Sandy Boulevard, Portland, Oregon 97214
- ------------------------------------------ -----
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 1994 Stock Option Plan
-------------------------------------------
(Full title of the Plan)
Robert E. Tuzik, President, 975 S.E. Sandy Boulevard, Portland, Oregon 97214
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(Name and address of agent for service)
(503) 230-8034
--------------
(Telephone number, including area code, of agent for service)
copies to:
David R. Ludwig
Farleigh, Wada & Witt, P.C.
121 S.W. Morrison Street, Suite 600
Portland, Oregon 97204
(503) 228-6044
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------
Amount to Proposed maximum Proposed maximum Amount of
Title of Securities to be be offering price aggregate offering Registration
registered registered per share price Fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 625,260 $0.90625(1) $ 566,641.88 $157.53
Common Stock, $.01 par value 374,740 $0.27-15.00(2) $ 612,813.51 $170.36
--------- ------------- -------
Total 1,000,000 $1,179,455.39 $327.89
- ------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) Computed pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for purpose of calculating the amount of the registration
fee and based on the average of the bid and asked price of the Registrant's
Common Stock as reported on the OTC Bulletin Board on September 27, 1999.
(2) Computed pursuant to Rule 457(h) promulgated under the Securities Act of
1933, as amended, solely for the purpose of calculating the total
registration fee, based upon the exercise price of the outstanding options.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference herein the following documents which
have been filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
April 30, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the Registrant's fiscal year ended April 30, 1999; and
(c) The description of the Registration's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating that
description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment hereto that indicates that all
securities offered have been sold or that deregisters all such securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
that also is incorporated or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the "DGCL")
provides that a corporation has the power to indemnify a director, officer,
employee, or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made party by reason of such position, if such person shall
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances. The Amended and Restated
Certificate of Incorporation of the Registrant, as amended (the "Certificate of
Incorporation") provides that the Registrant shall indemnify to the fullest
extent permitted by law any person made or threatened to be made a party to any
action or proceeding, whether criminal, civil, administrative, or investigative,
by reason of the fact that he, his testator, or intestate is or was a director,
officer, or employee of the Registrant or any predecessor of the Registrant or
serves or served any other enterprise as a director, officer, or employee at the
request of the Registrant or predecessor of the Registrant.
The Certificate of Incorporation also provides, to the fullest extent permitted
by the DGCL, that a director is not personally liable to the Registrant or its
stockholders for monetary damages for breach of his fiduciary duty as a
director.
The Registrant maintains a directors and officers liability insurance policy
providing for the insurance on behalf of any person who is or was a director or
officer of the Registrant and its subsidiary companies against any liability
incurred by such person in any such capacity or arising out of such person's
status as such. The insurer's limit of liability under the policy is $3,000,000
in the aggregate for all insured losses. The policy contains various reporting
requirements and is subject to certain exclusions and limitations.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
3
<PAGE>
Item 8. Exhibits.
Exhibit Number Description of Exhibit
- -------------- ----------------------
4.1 The Fourth, Sixth, Ninth, and Tenth Articles of the
Registrant's Amended and Restated Certificate of
Incorporation as amended to date (incorporated by reference
to the Registrant's Proxy Statement filed with the
Commission on August 24, 1998).
5.1 Opinion of Farleigh, Wada & Witt, P.C. with respect to the
legality of the securities being registered.
23.1 Consent of Farleigh, Wada & Witt, P.C. (included in Exhibit
5.1).
23.2 Consent of KPMG, LLP, independent public accountants.
Item 9. Undertakings.
The Registrant hereby undertakes:
(a) (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 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement. 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
and 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 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
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<PAGE>
provided however, that paragraphs (1)(i) and (1)(ii) do not
apply if this 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 Registrant 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 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 the 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) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the Registration Statement to include
any financial statements required by Rule 3-19 at the start of
any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by
Section 10(a)(3) of the Act need not be furnished, provided, that
the Registrant includes in the prospectus, by means of a
post-effective amendment, financial statements required pursuant
to this paragraph (d), and other information necessary to ensure
that all other information in the prospectus is at least as
current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration
statements and information required by Section 10(a)(3) of the
Act or Rule 3-19 if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
the Form F-3.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
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<PAGE>
Registrant has been advised that in the opinion of the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereto
duly authorized, in the City of Portland, State of Oregon, on October 4, 1999.
OMNI RAIL PRODUCTS, INC.,
a Delaware corporation
By: /s/ Robert E. Tuzik
-----------------------
Robert E. Tuzik, President and
Chief Operating Officer
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 Dated
- --------- ----- -----
/s/ William E. Cook Chairman of the Board of October 4, 1999
- ------------------------- Directors and Director
William E. Cook
/s/ Robert E. Tuzik President and Chief October 4, 1999
- ------------------------- Operating Officer
Robert E. Tuzik
/s/ Edward S. Smith Director October 4, 1999
- -------------------------
Edward S. Smith
/s/ John E. Hart Secretary and Director October 4, 1999
- -------------------------
John E. Hart
/s/ M. Charles Van Rossen Vice President - Finance October 4, 1999
- ------------------------- and Treasurer
M. Charles Van Rossen
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibits
- ------ -----------------------
4.1 The Fourth, Sixth, Ninth, and Tenth Articles of the Registrant's
Amended and Restated Certificate of Incorporation as amended to
date (incorporated by reference to the Registrant's Proxy
Statement filed with the Commission on August 24, 1998).
5.1 Opinion of Farleigh, Wada & Witt, P.C. with respect to the
legality of the securities being registered.
23.1 Consent of Farleigh, Wada & Witt, P.C. (included in Exhibit 5.1).
23.2 Consent of KPMG, LLP, independent public accountants.
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Exhibit 5.1
Farleigh Wada & Witt, P.C.
121 S.W. Morrison Street, Suite 600
Portland, Oregon 97204
September 29, 1999
OMNI Rail Products, Inc.
975 S.E. Sandy Boulevard
Portland, Oregon 97214
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested the opinion of this firm with respect to certain matters
in connection with the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by you under the Securities Act of 1933, as amended (the
"Securities Act"), for the purpose of registering the offer and sale of up to
1,000,000 authorized but unissued shares (the "Shares") of the Common Stock,
$0.01 par value, of OMNI Rail Products, Inc. (the "Company") reserved for
issuance upon the exercise of stock options granted and to be granted under the
Company's Amended and Restated 1994 Stock Option Plan (the "Option Plan").
For the purpose of rendering the opinions contained in this opinion letter,
we have examined copies of:
(a) The Registration Statement;
(b) The Option Plan and the related forms of option agreement;
(c) The Company's Amended and Restated Certificate of Incorporation and
its Bylaws, each as amended to date; and the records of certain
corporate proceedings and actions taken by the directors of the
Company in connection with the offer and sale of the Shares; and
(d) Such other corporate records and documents as we have deemed necessary
or appropriate.
In the course of our examination and investigations, we have assumed the
genuineness of all signatures on all documents and the due execution and
delivery of all documents requiring due execution and delivery for the
effectiveness thereof.
<PAGE>
OMNI Rail Products, Inc.
September 29, 1999
Page 2
Based upon and subject to the foregoing, and in reliance thereon, it is our
opinion that the issuance of the Shares has been duly authorized and that the
Shares, when issued, delivered and paid for in accordance with the terms of the
Plan and options granted in accordance with the terms thereof, will be legally
issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. Subject to the foregoing sentence, this opinion letter is delivered
solely for your benefit and may not be relied upon by, nor may a copy be
delivered to, any other person without our prior written consent. In giving our
consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules or
regulations thereunder. This opinion letter is delivered as of the date hereof
and we assume no obligation to advise you of any change that may hereafter be
brought to our attention.
Very truly yours,
FARLEIGH, WADA & WITT, P.C.
By: /s/ David R. Ludwig
-----------------------
David R. Ludwig
Exhibit 23.2
KPMG, LLP
Public Accountants
1211 S.W. Fifth Avenue, Suite 2000
Portland, Oregon 97204
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
OMNI Rail Products, Inc.
We consent to the use of our report incorporated herein by reference.
Our report dated June 25, 1999, contains an explanatory paragraph that states
that the Company suffers liquidity constraints, has significant debt maturities
within one year, has a working capital deficit, and a stockholders' deficit
which raise substantial doubt about its ability to continue as a going concern.
The consolidated financial statements do not include any adjustments that might
result from the outcome of that uncertainty.
Portland, Oregon
September 29, 1999
