<PAGE> 1
As filed with the Securities and Exchange Commission on August 20, 1999.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MOTIVEPOWER INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Pennsylvania 82-0461010
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
Two Gateway Center, 14th Floor
Pittsburgh, PA 15222
(Address of Principal Executive Offices)
MOTIVEPOWER INDUSTRIES, INC.
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
Jeannette Fisher-Garber
Vice President, Secretary and General Counsel
MotivePower Industries, Inc.
Two Gateway Center, 14th Floor
Pittsburgh, PA 15222
(412) 201-1101
(Name, Address and Telephone Number of Agent for Service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
Proposed
Proposed Maximum Amount
Title of Amount Maximum Aggregate of
Securities To Be Offering Price Offering Registra-
to be Registered Registered Per Share Price tion Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock, 75,000 shares $14.44 (1) $1,083,000 (1) $302
$0.01 par value
Preferred Stock Purchase 75,000 rights (2) (2) (2)
Rights
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h) and 457(c), the Proposed Maximum Offering Price
Per Share is based upon the reported average of the high and low prices
for the Registrant's common stock on the New York Stock Exchange on
August 18, 1999.
(2) The Preferred Stock Purchase Rights are evidenced by certificates for
shares of MotivePower Common Stock and automatically trade with
MotivePower Common Stock. Value attributable to such Preferred Stock
Purchase Rights, if any, is reflected in the market price of the
MotivePower Common Stock.
On June 23, 1994, MotivePower filed a registration statement or Form
S-8 (File No. 033-80704) relating to the MotivePower Industries, Inc. Stock
Option Plan for Non-Employee Directors (formerly the MK Rail Corporation Stock
Option Plan for Non-Employee Directors) to register 150,000 shares of
MotivePower (as adjusted from 100,000 shares to give effect to MotivePower's 3
for 2 stock split on April 2, 1999). Additional shares under the Plan are
registered hereby.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and
Exchange Commission by MotivePower Industries, Inc., a Pennsylvania corporation
("MotivePower" or the "Company"), are incorporated herein by reference and shall
be deemed to be a part hereof:
(a) The description of common stock of the Company contained
in the Registration Statement on Form 8-A filed by the Company with the
Securities and Exchange Commission (the "Commission") on May 4, 1999
(SEC File No. 001-13225);
(b) The description of the share purchase rights of the
Company contained in the Registration Statements on Form 8-A filed with
the Commission on May 4, 1999 and the amendment thereto on Form 8-A/A
filed with the Commission on June 3, 1999 (SEC File No. 001-13225);
(c) The Company's Annual Report on Form 10-K for the year
ended December 31, 1998 (SEC File No. 001-13225);
(d) The Company's Quarterly Report on Form 10-Q for the three
months ended March 31, 1999 (SEC File No. 001-13225);
(e) The Company's Quarterly Report on Form 10-Q for the three
months ended June 30, 1999 (SEC File No. 001-13225);
(f) The Company's Current Reports on Form 8-K dated May 14,
1999, June 3, 1999 and August 18, 1999 (SEC File No. 001-13225); and
(g) The Company's Registration Statement on Form S-4 filed
July 20, 1999 (SEC File No. 333-83221).
All documents filed by MotivePower pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement and 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, are deemed to be incorporated
by reference into this Registration Statement and to be a part hereof from the
respective dates of filing of such documents (such documents, and the documents
enumerated in paragraphs (a) through (g) above, being hereinafter referred to as
"Incorporated Documents").
1
<PAGE> 4
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such first 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.
Item 6. Indemnification of Directors and Officers
MotivePower's charter and by-laws provide for indemnification of
MotivePower's directors and officers for liabilities and expenses that they may
incur in such capacities. The MotivePower charter provides that, to the fullest
extent permitted by Pennsylvania law, no director will be personally liable to
the corporation for or with respect to any acts or omissions in the performance
of his or her duties. Pennsylvania law permits a corporation to eliminate the
personal liability of its directors for monetary damages for any action taken or
failure to take any action unless: (1) such directors have breached or failed to
perform their duties; and (2) the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness. MotivePower has adopted such a
provision in its charter. However, a Pennsylvania corporation is not empowered
to eliminate personal liability where the responsibility or liability of a
director is pursuant to any criminal statute or is for the payment of taxes
pursuant to any federal, state or local law. Reference is made to MotivePower's
charter incorporated by reference as set forth below as Exhibit 4.1 hereto, and
by-laws set forth below as Exhibit 4.2 hereto.
MotivePower also maintains directors and officers liability insurance
which provides for coverage against loss arising from claims made against
directors and officers in their capacity as such.
MotivePower has agreed to indemnify, to the extent provided under the
charter and by-laws of Westinghouse Air Brake Company ("WABCO") in effect on
June 2, 1999, the individuals who on or before the closing were officers or
directors of WABCO or its subsidiaries with respect to all acts or omissions
before the closing by these individuals in these capacities. MotivePower has
also agreed to provide, for six years after the closing, a directors' and
officers' liability insurance and indemnification policy that provides WABCO's
officers and directors in office immediately prior to the closing coverage
substantially equivalent to WABCO's policy in effect on June 2, 1999.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors or officers, the Company is aware
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in that Act and is
therefore unenforceable. Under certain circumstances, the Company might be
required to submit to a court the question of whether indemnification is
permissible before it could indemnify directors or officers for such
liabilities.
Item 7. Exemption From Registration Claimed.
Not applicable.
2
<PAGE> 5
Item 8. Exhibits.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Articles of Incorporation (incorporated by reference
to Appendix B to MotivePower's Definitive Proxy
Statement filed on March 19, 1999).
4.2 By-laws of MotivePower (incorporated by reference to
Exhibit 2 to MotivePower's Registration Statement on
Form 8-A filed on May 4, 1999).
4.3 Rights Agreement, dated as of January 19, 1996
between MotivePower and Chase Mellon Shareholder
Services, L.L.C., as Rights Agent (incorporated by
reference to Exhibit 1 to MotivePower's Report on
Form 8-K filed on January 31, 1996).
4.4 First Amendment to the Rights Agreement, dated April
5, 1996 (incorporated by reference to Exhibit 2 to
MotivePower's Amendment No. 1 on Form 8-A/A filed on
April 25, 1996).
4.5 Second Amendment to the Rights Agreement, dated June
20, 1996 (incorporated by reference to Exhibit 3 to
MotivePower's Amendment No. 2 on Form 8-A/A filed on
July 3, 1996).
4.6 Third Amendment to the Rights Agreement, dated July
25, 1996 (incorporated by reference to Exhibit 4 to
MotivePower's Registration Statement on Form 8-A
filed on August 1, 1997).
4.7 Fourth Amendment to the Rights Agreement, dated
August 22, 1997 (incorporated by reference to Exhibit
1 to MotivePower's Amendment No. 1 on Form 8-A/A
filed on October 23, 1997).
4.8 Fifth Amendment to the Rights Agreement, dated June
2, 1999 (incorporated by reference to Exhibit 1 to
MotivePower's Amendment No. 1 on Form 8-A/A filed on
June 3, 1999).
*4.9 MotivePower Industries, Inc. Stock Option Plan for
Non-Employee Directors, as amended.
*5.1 Opinion of Doepken Keevican & Weiss, as to the
legality of the securities being registered.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Doepken Keevican & Weiss (included in
Exhibit 5.1 to this Registration Statement).
*24.1 Powers of Attorney.
- -------------------
* Filed herewith. Exhibits incorporated by reference herein have previously been
filed by the Company with the Securities and Exchange Commission (SEC File No.
001-13225).
3
<PAGE> 6
Item 9. Undertakings.
(a) MotivePower 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 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;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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 MotivePower 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 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 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
MotivePower's annual report pursuant to Section 13(a) or 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 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 Securities Act
of 1933 may be permitted to directors, officers and controlling persons of a
Registrant pursuant to the foregoing provisions, or otherwise, MotivePower 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 a Registrant of expenses incurred or
paid by a director, officer or controlling person of MotivePower 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, MotivePower 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.
4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement on Form S-8 to be signed on its behalf of the
undersigned, thereunto duly authorized, in the City of Pittsburgh, State of
Pennsylvania, on this 19th day of August, 1999.
MOTIVEPOWER INDUSTRIES, INC.
By: /s/ Scott E. Wahlstrom
-------------------------------
Scott E. Wahlstrom
Vice President, Human Resources
and Administration
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on August 19, 1999.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ John C. Pope* Non-Executive Chairman August 19, 1999
- ------------------------------ and Director
John C. Pope
/s/ Michael A. Wolf* President and Chief Executive August 19, 1999
- ------------------------------ Officer and Director (Principal
Michael A. Wolf Executive Officer)
/s/ William F. Fabrizio* Senior Vice President and Chief August 19, 1999
- ------------------------------ Financial Officer (Principal
William F. Fabrizio Financial Officer)
/s/ David L. Bonvenuto* Vice President, Controller and August 19, 1999
- ------------------------------ Principal Accounting Officer
David L. Bonvenuto
/s/ Gilbert E. Carmichael* Vice Chairman and Director August 19, 1999
- ------------------------------
Gilbert E. Carmichael
/s/ Ernesto Fernandez Hurtado* Director August 19, 1999
- ------------------------------
Ernesto Fernandez Hurtado
/s/ Lee B. Foster II* Director August 19, 1999
- ------------------------------
Lee B. Foster II
/s/ James P. Miscoll* Director August 19, 1999
- ------------------------------
James P. Miscoll
/s/ Nicholas J. Stanley* Director August 19, 1999
- ------------------------------
Nicholas J. Stanley
* By: /s/ William F. Fabrizio Attorney-in-Fact August 19, 1999
-----------------------
William F. Fabrizio
</TABLE>
5
<PAGE> 1
EXHIBIT 4.9
MOTIVEPOWER INDUSTRIES, INC.
STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
ARTICLE 1 - PURPOSE
The purpose of this Plan is to encourage the highest level of performance from
those members of the Board who are not employees of the Company by granting such
directors discounted options to purchase the Company's common stock. Ownership
of such stock provides non-employee directors with a proprietary interest in the
Company's success and increases their identification with the interests of the
Company's stockholders.
ARTICLE 2 - DEFINITIONS
The following words shall have the meaning set forth in this Article, unless a
different meaning is clearly required by the context in which they appear.
Whenever appropriate, words used in the singular shall be deemed to include the
plural and vice versa, and the masculine gender shall be deemed to include the
feminine gender.
2.1 BOARD shall mean the Board of Directors of the Company.
2.2 CAUSE shall mean a Non-Employee Director's (i) willful engagement in
conduct materially injurious to the Company, (ii) commission of an act
of fraud or embezzlement against the Company or any Subsidiary, or
(iii) conviction for any felony involving moral turpitude. For purposes
of clause (i) of this definition, no act, or failure to act on the
director's part shall be deemed "willful" unless done, or omitted to be
done, by the director not in good faith and without reasonable belief
that the director's act, or failure to act, was in the best interests
of the Company.
2.3 CODE shall mean the Internal Revenue Code of 1986, as now in effect or
as hereafter amended.
2.4 COMMITTEE shall mean the Executive Committee of the Board.
2.5 COMMON STOCK shall mean the $.01 par value common stock of the Company.
2.6 COMPANY shall mean MotivePower Industries, Inc., a Delaware
corporation.
2.7 EFFECTIVE DATE shall mean April 1, 1994.
2.8 FAIR MARKET VALUE shall mean the average of the highest and lowest
quoted selling prices per share of the Common Stock reported on the
NASDAQ on the pertinent date, or, if no sales are reported on that
date, on the next preceding date on which such sales are reported.
2.9 NON-EMPLOYEE DIRECTOR is a member of the Board who is neither an
employee of the Company or any of its Subsidiaries nor an employee of
Morrison Knudsen Corporation, a Delaware corporation.
2.10 OPTION shall mean an Option granted under this Plan.
2.11 PARTICIPANT shall mean any Non-Employee Director who participates in
the Plan.
2.12 PLAN shall mean the MotivePower Industries, Inc. Stock Option Plan for
Non-Employee Directors as set forth herein and as amended from time to
time.
<PAGE> 2
2.13 SUBSIDIARY shall mean any corporation that at the time qualifies as a
subsidiary of the Company under the definition of "subsidiary
corporation" contained in Section 424(f) of the Code, as that section
may be amended from time to time.
ARTICLE 3 - ADMINISTRATION
The Committee shall interpret and administer the Plan. The interpretation and
construction by the Committee of any provision of this Plan shall be final and
binding on all persons interested in the Plan. No member of the Committee shall
be liable for any action taken or determination made in good faith with respect
to the Plan. The Plan and all action taken under it shall be governed, as to
construction and administration, by the law of the State of Delaware.
ARTICLE 4 - ELIGIBILITY
Each Non-Employee Director shall be a Participant in the Plan.
ARTICLE 5 - SHARES SUBJECT TO PLAN
The total number of shares of Common Stock with respect to which Options may be
granted hereunder shall be two hundred twenty-five thousand (225,000) (subject
to adjustment as provided in this Article 5 and Article 8.1). The shares of
Common Stock issued upon exercise of an Option shall be from authorized but
unissued Common Stock or from any outstanding Common Stock which has been
reacquired by the Company. In the event that an Option terminates for any
reason, without having been exercised in full, the unpurchased shares of Common
Stock subject to that Option shall again be available for grant under this
Plan."
ARTICLE 6 - GRANT OF OPTION
On the Effective Date, each current Non-Employee Director shall be granted an
Option to purchase 12,000 shares of Common Stock. In addition, each Non-Employee
Director who is elected to the Board after the Effective Date (except an
incumbent director) shall be granted upon his election, an Option to purchase
12,000 shares of Common Stock. All such Options shall be subject to the terms
and conditions set forth in this Plan.
ARTICLE 7 - TERMS AND CONDITIONS OF OPTIONS
All Options granted under the Plan shall be evidenced by an Option Agreement
which shall be in such form as the Committee may determine and shall be executed
on behalf of the Company by an officer of the Company. Each such Option
Agreement shall be subject to the terms and conditions of the Plan and shall
provide in substance as follows:
7.1 PRICE PER SHARE
The purchase price per share for the shares covered by the Option shall be equal
to fifty percent (50%) of the Fair Market Value of the Common Stock on the date
of grant.
7.2 TERM AND EXERCISE OF OPTION
All Options granted hereunder shall vest over a three (3) year period in annual
increments of one-third (1/3rd) on each anniversary of the date of grant;
provided that, if a Participant ceases to be a Non-Employee Director for any
reason (other than termination of directorship for "Cause"), all vested Options
then held by such Participant shall be exercisable thereafter for a period of
three (3) years and all unvested Options shall terminate thirty (30) days after
such person ceases to be a Non-Employee Director. If a Participant's
directorship is terminated for Cause, all vested Options then held by such
participant shall be exercisable thereafter for a period of thirty (30) days and
all unvested Options shall automatically terminate on the date of termination as
a director.
2
<PAGE> 3
7.3 EXERCISE OF OPTION
Each Option Agreement shall provide that the Option evidenced thereby shall be
exercised by delivering a written notice of exercise to the Company. Each such
notice shall state the number of whole shares of Common Stock with respect to
which the Option is being exercised and shall be signed by the Participant. In
the event the Option is being exercised by any person other than the Participant
the notice shall be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person to exercise the Option. Each notice shall
also be accompanied by (i) cash payment to the Company of the full amount of the
purchase price for the shares being purchased, (ii) shares of Common Stock
previously held by the Participant for more than six (6) months with a Fair
Market Value equal to the full amount of the purchase price for the shares being
purchased, or (iii) by a combination of cash and Common Stock as described in
(i) and (ii) above.
The date of exercise of an Option shall be the date on which written notice of
exercise shall have been received by the Company, but the exercise of an Option
shall not be effective until the person exercising the Option shall have
complied with all the provisions of the Option Agreement governing the exercise
of the Option subject to Article 10. The Company shall thereafter deliver as
soon as possible certificates for the shares of the Common Stock with respect to
which the Option has been exercised.
7.4 NON-TRANSFERABILITY OF OPTIONS
Each Option Agreement shall provide that the Option evidenced thereby is
non-transferable and non-assignable by the Participant other than by will or the
laws of descent and distribution and during the lifetime of the Participant such
Option may be exercised only by the Participant or such Participant's legal
representative.
ARTICLE 8 - EFFECT OF CERTAIN CHANGES
8.1 ANTI-DILUTION
The aggregate number of shares of Common Stock with respect to which Options may
be granted hereunder, the number of shares of Common Stock subject to each
outstanding Option, and the price per share for each such Option, may au be
appropriately adjusted, as the Committee may determine, for any increase or
decrease in the number of shares of issued Common Stock resulting from a
subdivision or consolidation of shares whether through reorganization, payment
of a share dividend or other increase or decrease in the number of such shares
outstanding, without payment of consideration to the Company, provided, however,
that any fractional shares resulting from any such adjustment shall be
eliminated by rounding down to the closest number of whole shares; provided
further, that no such adjustment shall be made if the change in the number of
outstanding shares results from a contribution, directly or indirectly, of
Common Stock by the Company to any Company employee benefit plan.
8.2 SALE OF ASSETS, MERGER OR DISSOLUTION
Subject to any required action by the stockholders, if the Company is dissolved
or becomes a party to a transaction involving a sale of substantially all its
assets, or a merger or a consolidation with another corporation as a result of
which the Company is not the surviving corporation, all unexercised Options
under the Plan shall become exercisable in full immediately before the
consummation of such transaction, and to the extent any Option is not exercised
prior to the consummation of such transaction, such Option shall automatically
terminate upon the consummation of such transaction. The Company shall use its
best efforts, consistent with any applicable legal restrictions, to give all
Participants at least fifteen (15) days advance notice of such a transaction.
ARTICLE 9 - AMENDMENT AND TERMINATION
The Board shall have the right to amend, suspend or terminate this Plan at any
time, provided that unless first approved by the stockholders of the Company no
amendment shall be made to the Plan which: (i) would cause Rule
3
<PAGE> 4
16b-3 of the Securities Exchange Act of 1934 to become inapplicable to the Plan,
(ii) materially modifies the eligibility requirements of Article 4, (iii)
increases the total number of shares of Common Stock which may be issued under
the Plan, (iv) reduces the purchase price of shares under the Plan, (v) extends
the term of the Plan, (vi) extends the term of any Option granted under the
Plan, or (vii) otherwise materially increases the benefits of the Plan to
Participants. No amendment shall impair the rights of a Participant under any
outstanding Option, without the Participant's consent.
ARTICLE 10 - COMPLIANCE WITH GOVERNMENT REGULATIONS
The granting of Options under this Plan and the issuance or transfer of shares
of Common Stock under Options are subject to compliance with all applicable
federal and state laws, rules and regulations and to such approvals by any
regulatory or governmental agency which the Company determines to be necessary
or advisable in connection therewith. In connection with any shares of Common
Stock issued pursuant to the exercise of Options, the person acquiring such
shares shall, if requested by the Company, give assurances satisfactory to the
Company in respect of such matters as the Company may deem necessary or
advisable to assure compliance with all applicable legal requirements. The
Company shall not be required to deliver any shares of Common Stock under the
Plan or any Option prior to (i) the admission of such shares to listing on any
stock exchange on which Common Stock may then be listed, and (ii) the completion
of such registration or other qualification of such shares under any state or
federal law, rule or regulation, as the Company shall determine to be necessary
or advisable.
ARTICLE 11 - NOTICE
Any notice to the Company required or permitted under this Plan shall be in
writing and shall either be delivered in person or sent by registered or
certified mail, return receipt requested, postage prepaid, to the Company at the
following address or such other address as may be specified from time to time:
MotivePower Industries, Inc.
Two Gateway Center, 14th Floor
Pittsburgh, PA 15222
Attention: Scott Wahlstrom
ARTICLE 12 - TERM OF PLAN
The Plan shall terminate ten years after the date upon which it is approved by
the stockholders of the Company or on such earlier date as may be determined by
the Board. No Options may be granted after termination of the Plan. All
unexpired Options shall continue in force after termination of the Plan until
they lapse or are exercised as provided herein.
ARTICLE 13 - EFFECTIVE DATE
This Plan shall be effective as specified by the Company's Board of Directors
and upon approval by the affirmative vote of the holders of a majority of the
shares of the Company's Common Stock.
4
<PAGE> 1
Exhibit 5.1
DOEPKEN KEEVICAN & WEISS
PROFESSIONAL CORPORATION
600 Grant Street
58th Floor
Pittsburgh, Pennsylvania 15219
Phone: 412-355-2600
Fax: 412-355-2609
August 18, 1999
MotivePower Industries, Inc.
Two Gateway Center, 14th Floor
Pittsburgh, PA 15222
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen and Ladies:
We have acted as special counsel to MotivePower Industries, Inc. (the
"Company") in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), relating to up to 75,000 shares of common stock of the
Company (the "Common Stock") issued to non-employee directors of the Company
subject to certain restrictions when issued, or issuable to employees upon the
exercise of stock options, in each case under the MotivePower Industries, Inc.
Stock Option Plan for Non-Employee Directors (formerly the MK Rail Corporation
Stock Option Plan for Non-Employee Directors) (the "Plan").
In connection with this opinion, we have examined, among other things:
(1) the Restated Certificate of Incorporation of the Company, as
amended to date;
(2) resolutions adopted by the shareholders and board of directors
of the Company adopting the Plan and approving certain
amendments to the Plan; and
(3) the Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumptions set forth above, we are pleased to advise you that in our
opinion:
(a) The Company has been duly incorporated and is a validly
existing corporation under the laws of the Commonwealth of
Pennsylvania; and
(b) The shares of Common Stock being registered and issuable by
the Company pursuant to the provisions of the Plan have been
duly authorized, and upon such issuance in accordance with the
provisions of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Yours truly,
/s/ Doepken Keevican & Weiss
Professional Corporation
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
MotivePower Industries, Inc. on Form S-8 of our reports dated February 11, 1999
(March 2, 1999 as to Note 18), appearing in the Annual Report on Form 10-K of
MotivePower Industries, Inc. for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
Pittsburgh, Pennsylvania
August 18, 1999
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 17, 1999 included in Westinghouse Air Brake Company's Form 10-K for the
year ended December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Pittsburgh, Pennsylvania
August 19, 1999
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW BY ALL MEN BY THESE PRESENTS, that each of the undersigned, a
director or officer or both, of MotivePower Industries, Inc., a Pennsylvania
corporation (the "Company"), does hereby appoint Jeannette Fisher-Garber and
William F. Fabrizio, and each of them, with full power to act without the other,
such person's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign Form S-8 Registration Statements, and any and all amendments
thereto (including post-effective amendments), relating to the registration of
shares to be issued in connection with (i) the MotivePower Industries, Inc.
Stock Incentive Plan, (ii) the MotivePower Industries, Inc. Stock Option Plan
for Non-Employee Directors, (iii) the MotivePower, Inc. (401(k)) Savings Plan,
and (iv) the MotivePower Industries, Inc. Deferred Compensation Plan and the
MotivePower Industries, Inc. Deferred Compensation Plan for Michael A. Wolf, and
to file the same, with exhibits and schedules thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact, and each of them, with full power and authority to do
and perform each and every act and thing necessary or desirable to be done in or
about the premises, as fully to all intents and purposes as he or she might or
could do in person, thereby ratifying and confirming all that said
attorneys-in-fact, or any of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
14th day of July, 1999.
/s/ John C. Pope
--------------------------------
John C. Pope
/s/ Michael A. Wolf
--------------------------------
Michael A. Wolf
/s/ William F. Fabrizio
--------------------------------
William F. Fabrizio
/s/ David L. Bonvenuto
--------------------------------
David L. Bonvenuto
/s/ Gilbert E. Carmichael
--------------------------------
Gilbert E. Carmichael
/s/ Ernesto Fernandez Hurtado
--------------------------------
Ernesto Fernandez Hurtado
/s/ Lee B. Foster II
--------------------------------
Lee B. Foster II
/s/ James P. Miscoll
--------------------------------
James P. Miscoll
/s/ Nicholas J. Stanley
--------------------------------
Nicholas J. Stanley
