As filed with the Securities and Exchange Commission on November 5, 1997 -
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOWER AUTOMOTIVE, INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1746238
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4508 IDS Center, Minneapolis, Minnesota 55402
(Address of Principal Executive Offices) (Zip Code)
Tower Automotive Union 401(k) Plan
Tower Automotive Profit Sharing Retirement Plan
Tower Automotive Employee Savings Plan
Tower Automotive Employee 401(k) Savings Plan
Tower Automotive Savings Investment Plan
Tower Automotive Savings and Security Plan
(Full Title of the Plans)
Scott D. Rued, 4508 IDS Center, Minneapolis, Minnesota 55402
(Name and address of agent for service)
Copies of Communications to:
Michael G. Wooldridge
Varnum, Riddering, Schmidt & Howlett
333 Bridge Street, N.W., P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
<TABLE>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Being Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(2) Offering Price(2) Registration Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 510,000 shares(1) $42.125 $21,483,750 $6,510.22
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes (a) 70,000 shares that may be issued pursuant to the Tower
Automotive Union 401(k) Plan, (b) 45,000 shares that may be issued
pursuant to the Tower Automotive Profit Sharing Retirement Plan, (c)
200,000 shares that may be issued pursuant to the Tower Automotive
Employee Savings Plan, (d) 130,000 shares that may be issued pursuant
to the Tower Automotive Employee 401(k) Savings Plan, (e) 20,000 shares
that may be issued pursuant to the Tower Automotive Savings Investment
Plan, and (f) 45,000 shares that may be issued pursuant to the Tower
Automotive Savings and Security Plan, until a new Registration
Statement becomes effective. All such plans are collectively referred
to herein as the "Plans."
(2) For the purpose of computing the registration fee only, the price shown
is based upon the price of $42.125 per share, the average of the high
and low sales prices for the Common Stock of Tower Automotive, Inc. on
the New York Stock Exchange on October 31, 1997, in accordance with
Rule 457(h).
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement covers an indeterminate amount of interests to be offered
and sold pursuant to the Plans described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") 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 filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Annual Report on Form 10-K of the Registrant for the year
ended December 31, 1996.
(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 fiscal year covered by the Annual Report on Form 10-K referred
to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 1-12733) filed
February 11, 1997, pursuant to Section 12(b) of the Exchange Act, including
any amendments or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, as well as
any Plan's latest annual report filed pursuant to Section 13(a) or 15(d) of the
Exchange Act, 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, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents. Any statement contained in a document incorporated or
deemed to be 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 which
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
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 102(b)(7) of the General Corporation Law of the State of Delaware
permits a Delaware corporation to limit the personal liability of its directors
in accordance with the provisions set forth therein. The Amended and Restated
Certificate of Incorporation of the Registrant provides that the personal
liability of its directors shall be limited to the fullest extent permitted by
applicable law.
1
<PAGE>
Section 145 of the General Corporation Law of the State of Delaware
contains provisions permitting Delaware corporations organized thereunder to
indemnify directors, officers, employees or agents against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit or 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 provided that (i) such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporation's best interests and (ii) in the case of a
criminal proceeding such person had no reasonable cause to believe his or her
conduct was unlawful. In the case of actions or suits by or in the right of the
corporation, no indemnification shall be made in a case in which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses. Indemnification
as described above shall be granted in a specific case only upon a determination
that indemnification is proper in the circumstances because such person has met
the applicable standard of conduct. Such determination shall be made (a) by a
majority of a quorum of directors who were not parties to such proceeding, (b)
if such a quorum cannot be obtained or if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (c) by the
stockholders of the corporation. The Amended and Restated Certificate of
Incorporation and the Amended and Restated By-Laws of the Registrant provide for
indemnification of its directors and officers to the fullest extent permitted by
applicable law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index which appears on page S-6. The
Company hereby undertakes that it shall submit the Plans and any amendments
thereto to the Internal Revenue Service in order to maintain the Plans as
qualified plans under Section 401 of the Internal Revenue Code of 1986, as
amended, to the extent required.
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, represents 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 (1)(i) and (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 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
<PAGE>
(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.
3
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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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on the 3rd day of
November, 1997.
TOWER AUTOMOTIVE, INC.
By /s/ S. A. Johnson
S. A. Johnson, Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Dugald K. Campbell and Anthony A. Barone, and
each of them, as true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, 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 there-with, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing required and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his 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 below on November 3, 1997, by the
following persons in the capacities indicated.
/s/ S. A. Johnson /s/ Adrian Vander Starre
S. A. Johnson, Chairman and Director Adrian Vander Starre, Director
/s/ Dugald K. Campbell /s/ Anthony A. Barone
Dugald K. Campbell, President, Anthony A. Barone, Vice President
Chief Executive Officer and Director and Chief Financial Officer
(Principal Executive Officer)
/s/ Scott D. Rued /s/ James R. Lozelle
Scott D. Rued, Director James R. Lozelle, Director
Eric J. Rosen, Director /s/ W.H. Clement
W.H. Clement, Director
/s/ F. J. Loughrey
F. J. Loughrey, Director Matthew O. Diggs, Jr. Director
/s/ Kim B. Clark
Kim B. Clark, Director
S-1
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EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit
Number Description of Document
5 Determination Letters issued by the Internal Revenue Service evidencing
the Plans' qualification under Section 401(a) of the Internal Revenue
Code
23 Consent of Arthur Andersen, LLP -included on page S-3 hereof
24 Power of Attorney included in Part II of Registration Statement
S-2
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EXHIBIT 5
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
Date: August 21, 1996 41-1746238
DLN:
TOWER AUTOMOTIVE, INC. 17007046006006
C/O MARY W. MANGUSE Person to Contact:
VARNUM, RIDDERING, SCHMIDT & HOWLETT JUDY HEGENER
333 BRIDGE ST., NW, PO BOX 352 Contact Telephone Number:
GRAND RAPIDS, MI 49501-0352 (513) 684-3957
Plan Name:
RET. PLAN
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated August 05, 1996. The proposed amendments should
be adopted on or before the date prescribed by the regulations under Code
section 401(b).
This determination letter is applicable for the amendment(s) adopted on
04/28/95 & 06/26/98.
This determination letter is also applicable for the amendment(s) adopted
on 12/21/94 & 03/30/95.
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a general test described
in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan satisfies the nondiscriminatory current availability requirements
of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights, and features that are currently available to all employees in the Plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefiting for purposes of demonstrating that the
plan satisfies the minimum coverage requirements of section 410(b) of the Code.
<PAGE>
TOWER AUTOMOTIVE, INC.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 18,
1997, incorporated by reference in Tower Automotive, Inc.'s Form 10-K for the
year ending December 31, 1996, and to all references to our Firm included in
this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
November 5, 1997
Exhibit 23
S-3
