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As filed with the Securities and Exchange Commission on April 30, 1996
Registration No. ________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WESTINGHOUSE AIR BRAKE COMPANY
(Exact name of issuer 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 15148-0001
(Address of Principal Executive Offices) (Zip Code)
1995 NON-EMPLOYEE DIRECTORS' FEE AND STOCK OPTION PLAN
(Full title of the plan)
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ALVARO GARCIA-TUNON
VICE PRESIDENT
WESTINGHOUSE AIR BRAKE COMPANY
1001 AIR BRAKE AVENUE
WILMERDING, PENNSYLVANIA 15148-0001
(Name and address of agent for service)
(412) 825-1000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
================================================================================================
TITLE OF PROPOSED PROPOSED
SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- ------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share 4,000 shares $9.1875* $36,750*
20,000 shares $14.00 $280,000
76,000 shares $12.75 ** $969,000**
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100,000 shares $1,295,750 $444
================================================================================================
*Based on the average of the high and low sales prices of the Common Stock
as reported on the New York Stock Exchange Composite transactions listing
for November 2, 1995 as quoted in The Wall Street Journal.
**Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rules 457(h) and (c), the proposed maximum aggregate offering
price for these shares which may be issued under the 1995 Non-employee
Directors' Fee and Stock Option Plan is based on the average of the high and
low sales prices of the Common Stock as reported on the New York Stock
Exchange Composite transaction listing for April 25, 1996 as quoted in
The Wall Street Journal.
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PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (File No. 1-13782) are incorporated in this Registration
Statement by reference and made a part of this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) All other reports filed by the Company pursuant to Section
13(a) of the 1934 Act since the end of the fiscal year covered by the
annual report on Form 10-K referred to above; and
(c) the description of the Company's Common Stock set forth in
the Company's Form 8-A filed May 19, 1995 and any description of the
Common Stock which is contained in a later registration statement filed
by the Company pursuant to the 1934 Act, including any amendment or
report filed for the purpose of updating such descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act on or subsequent to 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 shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
1. Section 145 of the Delaware General Corporation Law ("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
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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 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 he 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, with respect to any criminal action
or proceeding, had no reasonable cause to 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 his 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 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
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit, if he
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 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 director, officer, employee or agent 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 the 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) if there are no such directors, or, if such directors so
direct, by independent legal counsel in a written opinion; or
(3) 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 his status as such, whether or not the corporation would have the power
to indemnify such person against such liability.
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2. 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 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 in paragraph 3 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.
3. Certificate of Incorporation Provision on Liability of Directors.
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.
4. Indemnification Agreements. The Company 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 Representatives, 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.
5. 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.
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ITEM 8. EXHIBITS.
Exhibit
No.
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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
(Registration No. 33-90866).
4.2 Bylaws of the Company, as adopted effective
January 31, 1995, incorporated herein by
reference to the Company's Registration
Statement on Form S-1 (Registration
No. 33-90866).
5.1 Opinion of Reed Smith Shaw & McClay as to the
legality of the Common Stock, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay
(included in Exhibit 5.1 filed herewith).
23.2 Consent of Arthur Andersen LLP, filed herewith.
24.1 Power of Attorney, contained on the
signature page to this Registration Statement.
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;
(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 registration statement is on Form S-3 or Form S-8, and 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 that are incorporated by reference
in the 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
that time shall be deemed to be the initial bona fide offering
thereof; and
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(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 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 that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (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 WILMERDING, PENNSYLVANIA, ON THE 29TH DAY OF APRIL, 1996.
WESTINGHOUSE AIR BRAKE COMPANY
BY /s/ William E. Kassling
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WILLIAM E. KASSLING, CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William E. Kassling and Robert J.
Brooks, and each of them, his 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
therewith, with the Securities and Exchange Commission, 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 requisite and necessary to be done, 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 any of
them, or their or his substitutes, may lawfully do or cause to be done by
virtue thereof.
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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 THE 29TH DAY OF APRIL, 1996.
Name Title
---- -----
/s/ William E. Kassling ...... Chairman of the Board, President
- ------------------------------ and Chief Executive Officer
William E. Kassling
/s/ Robert J. Brooks ......... Chief Financial and
- ------------------------------ Accounting Officer and Director
Robert J. Brooks
/s/ James C. Huntington ...... Director
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James C. Huntington
/s/ Mikael Lilius ............ Director
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Mikael Lilius
/s/ Emilio A. Fernandez ...... Director
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Emilio A. Fernandez
/s/ James V. Napier .......... Director
- ------------------------------
James V. Napier
/s/ James P. Kelley .......... Director
- ------------------------------
James P. Kelley
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WESTINGHOUSE AIR BRAKE COMPANY
1995 NON-EMPLOYEE DIRECTORS' FEE AND STOCK OPTION PLAN
-----------------
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
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Exhibit Sequential
No. Document Page
- ------- ---------------------------------------------------- ----------
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 (Registration
No. 33-90866). --
4.2 Bylaws of the Company, as adopted effective January 31,
1995, incorporated herein by reference to the Company's
Registration Statement on Form S-1 (Registration
No. 33-90866). --
5.1 Opinion of Reed Smith Shaw & McClay, as to
the legality of the Common Stock, filed
herewith. 10
23.1 Consent of Reed Smith Shaw & McClay (included
in Exhibit 5.1 filed herewith). --
23.2 Consent of Arthur Andersen LLP, independent
accountants, filed herewith. 12
24.1 Power of Attorney, contained on the signature
page to this Registration Statement. --
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EXHIBIT 5.1
REED SMITH SHAW & McCLAY
435 SIXTH AVENUE
PITTSBURGH, PA 15219-1886
412-288-3131
April 30, 1996
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, PA 15148-0001
Registration Statement on Form S-8
re 1995 Non-employee Directors' Fee and Stock Option Plan
---------------------------------------------------------
Gentlemen:
We have acted as special counsel to Westinghouse Air Brake Company
(the "Company") in connection with the above-captioned Registration
Statement (the "Registration Statement") relating to up to 100,000 shares
of Common Stock, par value $.01 per share, of the Company (the "Common
Stock") which may be purchased by directors of the Company under the Company's
1995 Non-employee Directors' Fee and Stock Option Plan (the "Plan"). The Plan
provides that either authorized but unissued or reacquired shares of Common
Stock may be issued under the Plan. In rendering our opinion below, we have
assumed that any previously issued shares reacquired by the Company and used
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 Certificate of Incorporation of the Company, as
amended to date;
(2) resolutions adopted by the Board of Directors of the
Company on October 6, 1995 adopting the Plan;
(3) the Plan, as currently in effect; and
(4) evidence of the stockholders of the Company approving
the adoption of the Plan at the Annual Meeting of Stockholders of the
Company on April 30, 1996.
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 State of Delaware; and
(b) The shares of Common Stock being registered and which may
be issued 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 such shares will be validly issued, fully paid
and nonassessable.
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April 30, 1996
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
DLD:PDG, Jr.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 19, 1996 included in Westinghouse Air Brake Company's Form 10-K for
the year ended December 31, 1995, and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
Pittsburgh, PA
April 29, 1996
