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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1999
REGISTRATION NO. 333-88903
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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WESTINGHOUSE AIR BRAKE COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 25-1615902
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1001 AIR BRAKE AVENUE
WILMERDING, PENNSYLVANIA 15148
412-825-1000
(Address, including ZIP Code, and telephone number, including area code,
of registrant's principal executive offices)
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MOTIVEPOWER INDUSTRIES STOCK INCENTIVE PLAN
ROBERT J. BROOKS
CHIEF FINANCIAL OFFICER AND CHIEF ACCOUNTING OFFICER
1001 AIR BRAKE AVENUE
WILMERDING, PENNSYLVANIA 15148
(412) 825-1000
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copy to:
JEFFREY G. AROMATORIO, ESQ.
REED SMITH SHAW & MCCLAY LLP
435 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219
412-288-3364
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Proposed Proposed Amount of
Securities to be Amount to be Maximum Offering Maximum Aggregate Registration
Registered Registered (1) Price per share Offering Price Fee (3)
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,100,384 (2) (2) $8570.60
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</TABLE>
(1) In addition, pursuant to Rule 416(a) of the Securities Act of 1933,
this registration statement also covers an indeterminate number of additional
shares which may be offered and issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions as provided in the plan
described herein.
(2) All of the shares of Common Stock included in this post effective
Amendment No. 1 have been previously registered and the applicable registration
fee paid. Such shares consist of 2,100,384 shares of Common Stock which were
previously registered and included in the Registration Statement on Form S-4
(No. 333-88903) as originally filed with respect to shares issuable upon
exercise of options granted under the above-referenced plan and a registration
fee of $ 8,570.60 was paid in connection therewith.
(3) The required registration fee for all shares of Registrant's Common
Stock to be registered pursuant to this Registration Statement on Form S-8 has
been previously paid in connection with the prior registration of such shares as
described in Footnote (2) above.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents have been filed by Westinghouse Air Brake
Company (the "Company") with the Securities and Exchange Commission (the "SEC")
(File No. 001-13782) and are incorporated herein by reference:
(a) The Company's annual report on Form 10-K for the fiscal
year ended December 31, 1998;
(b) All of the reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") since the
end of the Company's fiscal year ended December 31, 1998;
(c) The description of the Company's Common Stock which is
contained in the Registration Statement on Form 8-A as filed on May 14,
1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all 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 such 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 hereof to the extent that a statement contained herein or in any
other subsequently filed incorporated document modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to exist or constitute a part hereof.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
Section 145 of the DGCL. Section 145 of the DGCL provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
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 the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if the person acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
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believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that the person's conduct was unlawful.
Section 145 also provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the 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, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit,
if the person acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the 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
which the Court of Chancery or such other court shall deem proper.
To the extent that a former or present director or officer of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or 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.
Any such indemnification (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of conduct
set forth above. Such determination shall be made:
(1) by a majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum; or
(2) by a committee of such directors designated by a majority vote of
such directors, even though less than a quorum; or
(3) if there are no such directors, or, if such directors so direct, by
independent legal counsel in a written opinion; or
(4) by the stockholders.
Section 145 permits a Delaware 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,
partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by him in any such capacity, or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability.
Section 102(b)(7) of the DGCL. Section 102(b)(7) of the DGCL provides
that a corporation may set forth in its Certificate of Incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional
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misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
regarding the unlawful payment of dividends or approval of unlawful stock
repurchases or redemptions, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective (in the case of the Company, October 19,
1989). As noted below, the Company's Amended and Restated Certificate of
Incorporation (the "Company Charter") includes a provision contemplated by
Section 102(b)(7) of the DGCL.
Certificate of Incorporation Provision on Liability of Directors and
Indemnification. The Company Charter eliminates the liability of its directors
to the fullest extent permitted by Section 102(b)(7) of the DGCL. The Company
Charter provides that the Company's directors shall not be personally liable to
the Company or its stockholders for monetary damages for breach of their
fiduciary duty as directors, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the DGCL, or (iv) for any
transactions from which a director derived an improper personal benefit. This
provision does not eliminate the duty of care, and in appropriate circumstances
equitable remedies such as injunctive or other forms of nonmonetary relief are
available under Delaware law.
Indemnification Agreements. The Company has entered or intends to enter
into Indemnification Agreements (the "Indemnification Agreements") with its
directors, officers and certain employees, agents, fiduciaries and designees
(each an "Authorized Representative"). The Indemnification Agreements authorize
the Company to pay all or part of certain expenses and liabilities of the
Authorized Representative, either in advance or otherwise, upon written request
from such Authorized Representatives. The Indemnification Agreements indemnify
the Authorized Representatives in accordance with and to the maximum extent
permitted by the Company Charter and Sections 102(b)(7) and 145 of the DGCL, all
as described in the immediately preceding paragraphs.
Director and Officer Liability Insurance. The Company maintains
director and officer liability insurance covering its directors and officers
with respect to certain liabilities which they may incur in connection with
their serving as such.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
No. Description and Method of Filing
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<S> <C>
4.1 Restated Certificate of Incorporation of the Company dated
January 30, 1995, as amended March 30, 1995, incorporated
herein by reference to the Company's registration statement on
Form S-1 (No. 33-90866) filed with the Commission on April 3,
1995.
4.2 Amended and Restated Bylaws of Company (incorporated herein by
reference to Exhibit 1.4(b) to Annex A to the Company's
Registration Statement on Form S-4 (No. 333-88903)).
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality of
the Common Stock, filed herewith.
</TABLE>
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<TABLE>
<S> <C>
23.1 Consent of Reed Smith Shaw & McClay LLP (included in Exhibit 5.1
filed herewith).
23.2 Consent of Arthur Andersen LLP, filed herewith.
24.1 Power of Attorney previously filed as part of the signature page to
Registration Statement on Form S-4 (No. 333-88903).
</TABLE>
ITEM 9. Undertakings.
(a) Rule 415 offering.:
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 (the
"1933 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 (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 by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 (the
"1934 Act") that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability
under the 1933 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; and
(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) Filings incorporating subsequent Exchange Act Documents by
Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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.
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(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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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 WILMERDING, COMMONWEALTH OF PENNSYLVANIA, ON NOVEMBER
19, 1999.
WESTINGHOUSE AIR BRAKE COMPANY
By /s/ William E. Kassling
----------------------------------------
William E. Kassling
Director, Chairman of the Board and Chief
Executive Officer
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 NOVEMBER 19, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
* Director, Chairman of the Board and
- ------------------------------------------------------------------- Chief Executive Officer
William E. Kassling
* Director and Vice Chairman
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Emilio A. Fernandez
* President, Chief Operating Officer and Director
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Gregory T. H. Davies
* Director, Chief Executive Officer and
- ------------------------------------------------------------------- Chief Accounting Officer
Robert J. Brooks
* Director
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Kim G. Davis
* Director
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James C. Huntington, Jr.
* Director
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James P. Kelley
* Director
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James V. Napier
/s/ William E. Kassling
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William E. Kassling
for himself and as attorney-in-fact for the indicated directors
</TABLE>
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REED SMITH SHAW & MCCLAY LLP
435 SIXTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219-1886
PHONE: 412-288-3131
FAX: 412-288-3063
Exhibit 5.1
November 19, 1999
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, PA 15148
Re: Registration Statement No. 333-88903; Post Effective Amendment
No. 1 on Form S-8 to Form S-4 for MotivePower Industries Stock
Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to Westinghouse Air Brake Company, a
Delaware corporation (the "Company"), in connection with the above-captioned
Registration Statement (the "Registration Statement") relating to up to
2,100,384 shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock") which may be purchased or issued pursuant to stock options,
stock appreciation rights and restricted stock granted under the MotivePower
Industries Stock Incentive Plan (the "Plan") assumed by the Company in
connection with the merger of MotivePower Industries, Inc. with and into the
Company. The Plan provides that either authorized but unissued or treasury
shares of Common Stock may be issued upon the exercise of stock options or stock
appreciation rights or issuance of restricted stock granted under the Plan. In
rendering our opinion below, we have assumed that any previously issued shares
reacquired by the Company and delivered under the Plan will have been duly
authorized, validly issued and fully paid at the time of their original
issuance.
In connection with this opinion, we have examined, among other
things:
(1) the Restated Certificate of Incorporation of the Company;
(2) the Amended and Restated Agreement and Plan of Merger
between MotivePower Industries, Inc. and Westinghouse Air
Brake Company dated as of September 26, 1999, as amended,
pursuant to which the Company assumed the stock options and
stock appreciation rights granted under the Plan and
authorized the issuance of shares pursuant to the exercise of
such options and stock appreciation rights; and
(3) the Plan, together with forms of option agreements
evidencing the options granted.
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 assumption set forth above, we are pleased to advise you that in our
opinion the 2,100,384 shares of Common Stock being registered and which may be
issued by the Company pursuant to the provisions of the Plan upon the exercise
of stock options, stock appreciation rights and restricted stock granted under
the Plan have been duly authorized, and upon such issuance in accordance with
the provisions of the Plan such shares will be validly issued, fully paid and
nonassessable.
In rendering the foregoing opinion, we have not examined the
laws of any jurisdiction other than the laws of the Commonwealth of
Pennsylvania, the General Corporate Laws of the State of Delaware and the
federal laws of the United States of America and the foregoing opinion is
limited to such laws.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name in the Prospectus under
the caption "Legal Opinion."
Yours truly,
/s/ Reed Smith Shaw & McClay LLP
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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
ARTHUR ANDERSEN LLP
Pittsburgh, Pennsylvania
November 19, 1999
