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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28, 1998
REGISTRATION NO. 333-__________
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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 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 15148-0001
(Address, including zip code, of Registrant's Principal Executive Offices)
WESTINGHOUSE AIR BRAKE COMPANY
1998 EMPLOYEE STOCK PURCHASE 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
(412) 825-1000
(Name and address, including zip code and telephone number,
including area code, of agent for service)
COPY TO:
PASQUALE D. GENTILE, ESQUIRE
REED SMITH SHAW & MCCLAY LLP
435 SIXTH AVENUE
PITTSBURGH, PA 15219
CALCULATION OF REGISTRATION FEE
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Title Of Proposed Proposed
Securities Amount Maximum Maximum Amount Of
To Be To Be Offering price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price Fee
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Common Stock, par value $.01
per share . . . . . . . . . . . . . . . .500,000 shares $27.34 $13,670,000 $4,142.42
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance under the
Westinghouse Air Brake Company 1998 Employee Stock Purchase Plan as a result of
any future stock split, stock dividend or similar adjustment of the outstanding
Common Stock.
(2) Estimated pursuant to Rules 457(h) and (c), solely for the purpose of
calculating the registration fee. The price per share is estimated to be $27.34,
based on the average of the high and low sales price of the Common Stock as
reported on the New York Stock Exchange Composite transactions listing for May
26, 1998 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 Westinghouse Air Brake Company (the
"Company") with the Securities and Exchange Commission (File No. 1-13782) are
hereby incorporated in this Registration Statement by reference and made a part
of this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997 filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed by the Company pursuant to Section
13(a) of the Exchange 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 Exchange 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 Exchange 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 investigative (other than an action by or in the right of the corporation) 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
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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 the person 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 believe the person's
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 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 the indemnification of the present or former 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 such person 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.
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
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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 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 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.
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) filed with the Commission on April 3, 1995.
4.2 Amended and Restated Bylaws of the Company, as
adopted effective March 31, 1997, incorporated herein
by reference to the Company's Registration Statement
on Form S-8 (Registration No. 333-39195) filed with
the Commission on October 31, 1997.
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).
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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) 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, as amended,
(the "Securities 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 (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 by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934, as
amended (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, 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) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities 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
Securities 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
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court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities 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, STATE OF PENNSYLVANIA, ON THE 28TH DAY OF
MAY, 1998.
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 or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
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 or she 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 or her substitutes, may lawfully do or cause to be
done by virtue thereof.
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 28TH DAY OF MAY, 1998.
Name Title
---- -----
/s/ WILLIAM E. KASSLING Chairman of the Board, President
- ----------------------------------- and Chief Executive Officer
William E. Kassling (principal executive officer)
/s/ ROBERT J. BROOKS Chief Financial and
- ----------------------------------- Accounting Officer and Director
Robert J. Brooks (principal financial officer and
principal accounting officer)
/s/ JAMES C. HUNTINGTON Director
- -----------------------------------
James C. Huntington
/s/ KIM G. DAVIS Director
- -----------------------------------
Kim G. Davis
Director
- -----------------------------------
Emilio A. Fernandez
/s/ JAMES V. NAPIER Director
- -----------------------------------
James V. Napier
Director
- -----------------------------------
James P. Kelley
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WESTINGHOUSE AIR BRAKE COMPANY
1998 EMPLOYEE STOCK PURCHASE PLAN
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REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
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Exhibit Sequential
No. Document Page
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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) filed with the Commission on
April 3, 1995. --
4.2 Amended and Restated Bylaws of the Company,
as adopted effective March 31,1997, incorporated
herein by reference to the Company's Registration
Statement on Form S-8 (Registration No. 333-39159,
filed with the Commission on October 31, 1997). --
5.1 Opinion of Reed Smith Shaw & McClay, as to the legality
of the Common Stock, filed herewith. 8
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. 10
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 LLP
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219-1886
Phone: 412-288-3131
Fax: 412-288-3063
May 28, 1998
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, PA 15148-0001
Re: Registration Statement on Form S-8
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Gentlemen and Ladies:
We have acted as special counsel to Westinghouse Air Brake
Company (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 500,000 shares of Common Stock,
par value $.01 per share, of the Company (the "Common Stock") which may be
purchased by employees of the Company under the Company's 1998 Stock Purchase
Plan (the "Plan"). The Plan provides that only 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 Restated Certificate of Incorporation of the Company,
as amended to date;
(2) resolutions adopted by the Board of Directors of the
Company on October 22, 1997 adopting the Plan and on April
1, 1998 making 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 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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REED SMITH SHAW & MCCLAY LLP
Westinghouse Air Brake Company -2- May 28, 1998
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. In giving such consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Yours truly,
/s/ Reed Smith Shaw & McClay LLP
PDG, Jr.:SSA
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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 16, 1998
included in Westinghouse Air Brake Company's Form 10-K for the year ended
December 31, 1997, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Pittsburgh, PA
May 27, 1998
