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 82-046101
(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.
DEFERRED COMPENSATION PLAN
and
MOTIVEPOWER INDUSTRIES, INC.
DEFERRED COMPENSATION PLAN
FOR MICHAEL A. WOLF
and
MOTIVEPOWER INDUSTRIES, INC.
DEFERRED COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
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)
2
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
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
===================================================================================================================
Shares of Common Stock, 700,000 shares $14.44 (1) $10,108,000 (1) $2,811
$0.01 par value
Preferred Stock Purchase Rights 700,000 rights (2) (2) (2)
(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.
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.
REOFFER PROSPECTUS
Up to 700,000 Shares
MOTIVEPOWER INDUSTRIES, INC.
Common Stock
This Prospectus relates to up to 700,000 shares of our common stock
which the people identified under "Selling Shareholders" may offer and sell from
time to time in one or more types of transactions (which may include block
transactions) on the New York Stock Exchange, where our common stock is listed
for trading under the symbol "MPO," in other markets where our common stock is
traded, in negotiated transactions, through put or call options transactions,
through short sales transactions, or in a combination of such methods of sale.
They will sell the common stock at prices to which the parties agree. The
selling shareholders may or may not use brokers and dealers in these
transactions. The respective selling shareholders will pay any brokerage fees or
commissions relating to sales by them. See "Method of Sale."
We may issue these shares of common stock to the selling shareholders
under the terms of either the MotivePower Industries, Inc. Deferred Compensation
Plan, the MotivePower Industries, Inc. Deferred Compensation Plan for Michael A.
Wolf or the MotivePower Industries, Inc. Deferred Compensation Plan for
Non-Employee Directors (the "Plans").
We will not receive any of the proceeds from any sales by the selling
shareholders. We will pay all of the expenses associated with the registration
of the common stock and this Prospectus.
On August 18, 1999, the last reported sale price of the common stock on
the New York Stock Exchange was $13.63 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 OF THIS PROSPECTUS FOR A
DISCUSSION OF CERTAIN RISKS AND OTHER FACTORS THAT YOU SHOULD CONSIDER BEFORE
PURCHASING OUR COMMON STOCK.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, and they have not
determined if this Prospectus is truthful and complete. Any representation to
the contrary is a criminal offense.
-----------
The date of this Prospectus is August 20, 1999.
1
4
We have not authorized anyone to give any information or to make any
representation which is not contained in this Prospectus or in a document
incorporated by reference into this Prospectus. If anyone gives any information
or makes any representation which is not contained in, or incorporated into this
Prospectus, you must not rely upon it as having been authorized by us or by
anyone acting on our behalf. This Prospectus is not an offer to sell, or a
solicitation of an offer to buy, our securities by any person in any
jurisdiction in which it is unlawful for that person to make such an offer or
solicitation. No matter when you receive this Prospectus or purchase securities
to which it relates, you must not assume it is correct at any time after its
date.
TABLE OF CONTENTS
Heading: Page Number
- -------- -----------
The Company ....................................................................................................... 2
Proposed Merger ................................................................................................... 2
Risk Factors ...................................................................................................... 3
Selling Shareholders .............................................................................................. 9
Use of Proceeds ................................................................................................... 9
Method of Sale .................................................................................................... 9
Where You Can Find More Information ...............................................................................10
Legal Matters .....................................................................................................11
Experts ...........................................................................................................11
Annex I - Selling Shareholders ....................................................................................12
THE COMPANY
MotivePower is a leader in the manufacturing and distribution of
products for rail and other power-related industries, and also provides a
variety of related contract services. MotivePower provides products and services
to freight and passenger railroads, including every Class I railroad in North
America, metropolitan transit and commuter rail authorities, original equipment
manufacturers, industrial power-related markets and other customers
internationally. MotivePower has its headquarters in Pittsburgh, Pennsylvania
and other strategically located facilities in the United States, Canada and
Mexico.
MotivePower was incorporated in Delaware in 1994 and became a
Pennsylvania corporation through its merger into a wholly-owned subsidiary in
April 1999.
MotivePower's principal executive offices are located at Two Gateway
Center, 14th Floor, Pittsburgh, Pennsylvania 15222, telephone number (412)
201-1101.
PROPOSED MERGER
The Boards of Directors of MotivePower and Westinghouse Air Brake
Company have approved a merger agreement which provides for a combination of the
two companies. If the merger is completed, holders of WABCO common stock will
receive, for each WABCO share, 1.3 shares of MotivePower common stock.
MotivePower shareholders will continue to own their existing shares after the
merger.
The Boards of Directors of MotivePower and WABCO have asked the
shareholders to approve and adopt the merger agreement and the merger at special
meetings of the companies scheduled to be held on August 23, 1999. The merger
cannot be completed unless the shareholders of both companies approve it.
2
5
RISK FACTORS
TERMINATION FEES AND RECIPROCAL STOCK OPTION AGREEMENTS COULD DETER ALTERNATIVE
TRANSACTIONS BY MAKING THEM MORE DIFFICULT OR EXPENSIVE.
MotivePower or WABCO must pay to the other a termination fee of $15
million plus up to $2 million in expenses if the merger agreement proposed to be
entered into by the parties terminates under specified circumstances.
MotivePower and WABCO have also entered into reciprocal stock option agreements
which provide MotivePower and WABCO the right to acquire up to 19% of the
other's outstanding common stock under specified conditions, with the profit
either party can derive from the option limited to $15 million. The termination
fees and the stock option agreements could deter either MotivePower or WABCO
from entering into an alternative transaction by making an alternative
transaction more difficult or expensive. Among other effects, the stock option
agreements could prevent an alternative business combination with WABCO or
MotivePower from being accounted for as a "pooling of interests." The stock
option agreements may therefore discourage proposals for alternative business
combinations with WABCO or MotivePower, even if a third party were prepared to
offer shareholders of WABCO or MotivePower consideration with a higher market
value than the value of the MotivePower stock to be exchanged for WABCO stock in
the merger.
THE COMBINED COMPANY MAY NOT BE ABLE TO REALIZE THE COST SAVINGS AND OTHER
SYNERGIES OF THE MERGER OR SUCCESSFULLY INTEGRATE THE OPERATIONS OF MOTIVEPOWER
AND WABCO.
The merger involves the integration of two companies that have
previously operated independently. WABCO and MotivePower expect to realize
significant cost savings and other synergies from the merger, but the combined
company may not be able to achieve these synergies or cost savings. Further, the
costs of achieving these synergies may be significantly greater than we
anticipate. MotivePower and WABCO estimate that the direct costs of the merger
will be approximately $20-25 million. MotivePower and WABCO also estimate that
MotivePower will incur integration-related expenses, including severance, of
approximately $35-40 million. These expenses may impact the combined company
going forward. In addition, if these costs and expenses are higher than
estimated, the merger benefits may be reduced. MotivePower and WABCO will also
need to integrate numerous systems, including management information,
purchasing, accounting and finance, sales, billing and payroll, which will
require substantial attention from management. MotivePower and WABCO do not
expect that they will complete their systems integration before the end of 1999.
Diversion of management attention to and difficulties associated with
integrating MotivePower and WABCO could harm the operating results of the
combined company and impact the value of its common stock.
THE COMBINED COMPANY'S ABILITY TO EXPAND ITS INTERNATIONAL OPERATIONS MAY BE
LIMITED BY THE NEED TO OBTAIN ADDITIONAL REGULATORY APPROVALS IN FOREIGN
JURISDICTIONS AND THE NEED TO MEET LOCAL EQUIPMENT REQUIREMENTS.
MotivePower and WABCO conduct international operations through a
variety of wholly-owned subsidiaries, majority-owned subsidiaries and equity
interests located in the United States, Canada, Mexico, Europe, Australia and
Asia. MotivePower and WABCO are also exploring the possibility of expansion into
other international markets. The combined company's ability to expand sales of
its products internationally, in particular its locomotive and freight braking
products, is limited by the necessity of obtaining regulatory approval in new
jurisdictions. For example, local regulatory approval is required in order to
market WABCO's brake shoes in India. The combined company's international growth
strategy can also be hampered by the additional expense of modifying products to
comply with local railroad equipment requirements.
3
6
THE COMBINED COMPANY'S FINANCIAL PERFORMANCE ON A U.S. DOLLAR-DENOMINATED BASIS
MAY BE SIGNIFICANTLY AFFECTED BY FLUCTUATIONS IN CURRENCY EXCHANGE RATES.
The combined company's international operations also pose risks due to
currency exchange rates. The combined company's financial performance is
reported on a U.S. dollar-denominated basis. However, MotivePower's and WABCO's
international operations are generally conducted in the currencies of the
countries in which such operations are located. Fluctuations in currency
exchange rates can negatively impact the combined company's financial results.
FLUCTUATIONS IN CUSTOMER ORDERS IN THE RAILWAY INDUSTRY DUE TO ECONOMIC
CONDITIONS AND ALTERNATE FORMS OF TRANSPORTATION CAN REDUCE THE COMBINED
COMPANY'S REVENUES AND HARM ITS FINANCIAL RESULTS.
The railway industry has historically been subject to significant
fluctuations due to overall economic conditions and the level of use of
alternate methods of transportation. In economic downturns, railroads may defer
some expenditures in order to conserve cash in the short term and reductions in
freight traffic may reduce demand for the combined company's products. This
could reduce the combined company's revenues without a corresponding decrease in
its fixed costs. This can negatively impact the combined company's financial
results. We cannot assure you that the economic conditions will remain favorable
or that there will not be significant fluctuations adversely affecting the
industry as a whole and, as a result, the combined company.
CYCLICALITY IN THE PASSENGER TRANSIT INDUSTRY CAN REDUCE THE COMBINED COMPANY'S
REVENUES AND HARM ITS FINANCIAL RESULTS.
Although many industries tend to be cyclical, the passenger transit
railway industry is particularly so. New passenger transit car orders vary from
year to year and are influenced greatly by major replacement programs and by the
construction or expansion of transit systems by transit authorities. Although
the combined company's revenues may be reduced at any time due to lack of orders
from the passenger transit industry, its fixed costs which are necessary to be
prepared for busy periods may stay the same. This can negatively impact the
combined company's financial results.
BECAUSE A MATERIAL PORTION OF THE COMBINED COMPANY'S FUTURE NET SALES WILL
DERIVE FROM GOVERNMENTAL OR OTHER PUBLIC ENTITIES, AND NOT PRIVATE COMPANIES, IT
CAN BE NEGATIVELY AFFECTED BY CHANGES IN POLITICAL, ECONOMIC OR SIMILAR
CONDITIONS.
A substantial portion of WABCO's net sales have been, and WABCO and
MotivePower expect that a substantial portion of the combined company's future
net sales may be, derived from contracts with metropolitan transit and commuter
rail authorities and Amtrak. To the extent that future funding for proposed
public projects is curtailed or withdrawn altogether as a result of changes in
political, economic, fiscal or other conditions beyond the combined company's
control, these projects may be delayed or canceled, resulting in a potential
loss of new business.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS MAY REQUIRE THE COMBINED COMPANY TO
USE ITS CASH TO PAY FOR LEGAL FEES AND SETTLEMENTS OR JUDGMENTS.
The combined company may be the subject of intellectual infringement
claims by third parties. Any infringement claims, even if meritless, will be
costly and time-consuming to defend. GE Harris Railway Electronics, LLC and GE
Harris Railway Electronic Services, LLC have brought suit against WABCO for
alleged patent infringement and unfair competition related to a communications
system installed in one of WABCO's products. These GE Harris entities are
seeking to prohibit WABCO from future infringement and are seeking an
unspecified amount of money damages to recover, in part, royalties. WABCO is
defending, and the combined company will continue to defend, these claims.
However, if the combined company is not successful, it may require the combined
company to use its cash to pay for legal fees and settlements or judgments.
4
7
YEAR 2000 ISSUES MAY NEGATIVELY AFFECT THE COMBINED COMPANY'S OPERATIONS AND THE
COMBINED COMPANY'S SUPPLIERS OR CUSTOMERS IN A MANNER WHICH COULD IMPACT THE
COMBINED COMPANY'S BUSINESS.
The Year 2000 problem is the result of computer programs using two
digits rather than four to define the applicable year. Any of MotivePower's and
WABCO's computer programs that use two digits rather than four digits to specify
the year will be unable to interpret dates beyond December 31, 1999. This
problem could result in a system failure or miscalculations causing disruptions
of operations. The three major areas that could be critically affected are
financial and information system applications, manufacturing operations and
third-party relationships with vendors and with customers. MotivePower and WABCO
have developed plans to address this exposure. MotivePower and WABCO have
assessed financial and operational systems and manufacturing equipment,
developed and continue to develop detailed plans and have commenced conversion
efforts. Each of MotivePower and WABCO believes that its present remediation and
replacement programs will adequately address the Year 2000 problems with respect
to their internal systems in all material respects. However, the combined
company may experience minor disruptions with respect to the remediation and
replacement programs that are currently operating. In addition, MotivePower's
and WABCO's vendors, suppliers and other service providers may not successfully
resolve their own Year 2000 problems in a manner which avoids significant impact
to MotivePower and WABCO. MotivePower and WABCO have received written assurances
from some of their suppliers and customers and other providers acknowledging the
Year 2000 problems and stating their present intention to be compliant.
MotivePower and WABCO have not received assurances from all of their suppliers
and other providers and one or more key suppliers and other providers could fail
to become compliant in time to avoid a disruption to the combined company's
business.
A Year 2000 failure of the combined company's systems, or those of key
suppliers or other providers, could cause disruptions of its business. These
disruptions could include a slowdown or shutdown of production, an inability to
invoice or collect from customers, an inability to receive critical supplies or
a reduction in customer orders. Any one or more of these could harm the combined
company's financial results.
MotivePower's and WABCO's products are generally sold with a limited
warranty for defects. MotivePower and WABCO have reviewed their products
currently in use by their customers or being sold and do not believe that there
will be material increases in warranty or liability claims arising out of Year
2000 non-compliance. However, a material increase in such claims could require
the combined company to apply substantial amounts of money or time to correct
any defects.
FOLLOWING THE MERGER THE COMBINED COMPANY WILL HAVE SUBSTANTIAL LEVERAGE AND
SERVICING DEBT WILL REQUIRE A SUBSTANTIAL PORTION OF THE COMBINED COMPANY'S CASH
FLOWS.
Following the merger, MotivePower's leverage will increase as a result
of the assumption of WABCO's indebtedness. On a pro forma basis, after giving
effect to the merger, total indebtedness of the combined company as of December
31, 1998 would have been $573.6 million resulting in pro forma total
capitalization of the combined company of approximately 80% debt and 20% equity,
exclusive of the effect of any prepayment premiums, costs of refinancing or
costs of the merger, compared with actual company total indebtedness of $105.8
million and total capitalization of 37% debt and 63% equity as of December 31,
1998. The additional indebtedness will require the combined company to dedicate
a substantial portion of its future cash flow to the payment of principal and
interest on this indebtedness, thereby reducing funds available for capital
expenditures and future business opportunities. The combined company may choose
to refinance a significant portion of WABCO's and MotivePower's outstanding
long-term debt. In addition, management has plans to reduce indebtedness, but we
cannot be certain that we will be successful in either refinancing or reducing
the indebtedness of the combined company. The high level of debt may
-- limit the combined company's ability to fund future working
capital, capital expenditures, research and development costs
and other general corporate requirements,
5
8
-- increase the combined company's vulnerability to adverse
economic and industry conditions,
-- limit the combined company's flexibility in planning for, or
reacting to, changes in the combined company's business and
the industry,
-- place the combined company at a competitive disadvantage
compared to its competitors that have less debt, and
-- limit the combined company's ability to borrow additional
funds.
WABCO'S CURRENT CREDIT FACILITIES LIMIT ITS ABILITY TO TAKE CERTAIN ACTIONS
WHICH MAY REQUIRE ACCELERATED REPAYMENT OF INDEBTEDNESS AFTER THE MERGER AND
WILL LIMIT THE COMBINED COMPANY'S ABILITY TO ENTER INTO SOME TRANSACTIONS AND TO
INCUR ADDITIONAL INDEBTEDNESS AFTER THE MERGER.
Indebtedness under WABCO's current credit agreement is guaranteed by
all of WABCO's domestic subsidiaries and secured by substantially all of WABCO's
and its domestic subsidiaries' assets. WABCO's current credit agreement contains
covenants that, among other things, limit the payment of dividends and the
incurrence of additional debt and restricts mergers, acquisitions and sales of
assets or sales of the stock of WABCO's subsidiaries. WABCO is also required to
maintain specified financial ratios and meet other financial tests. Although
WABCO and MotivePower believe that the combined company will be able to maintain
compliance with the financial tests contained in WABCO's current credit
agreement, there can be no assurance that it will be able to do so. The
restrictions imposed by these covenants may adversely affect the combined
company's ability to make acquisitions or take advantage of favorable business
opportunities.
WABCO believes that the proposed merger with MotivePower will
constitute an event of default under WABCO's credit agreement but not directly
under either of its indentures. WABCO anticipates receiving a waiver or
renegotiating its credit agreement prior to the merger. However, WABCO may not
receive this waiver or renegotiate the credit agreement on favorable terms. If
WABCO does not receive a waiver or successfully renegotiate the credit agreement
prior to the merger, a portion of WABCO's indebtedness would be payable.
The indentures under which WABCO's 9 3/8% Notes due 2005 were issued
also contain covenants that, among other things, limit the ability of WABCO and
some of its subsidiaries to:
-- incur indebtedness,
-- pay dividends on and redeem capital stock,
-- create restrictions on investments in unrestricted
subsidiaries,
-- make distributions from some subsidiaries,
-- use proceeds from the sale of assets and subsidiary stock,
-- enter into transactions with affiliates,
-- create liens and
-- enter into sale/leaseback transactions.
WABCO's requirement to meet the foregoing covenants impacts the manner
in which it operates its business and will limit the manner in which the
combined company operates after the merger. It could limit the combined
company's ability to spend money on capital projects, research and development
costs, or similar items.
6
9
It could also make the combined company unable to complete acquisitions or to
take advantage of favorable business opportunities. Further, the combined
company's failure to meet any of the foregoing covenants could trigger defaults
under the WABCO credit facilities. The documents for the WABCO credit facilities
are cross-defaulted, so that defaults in one document would trigger defaults in
others and could cause the related indebtedness to become payable.
WABCO IS CURRENTLY INVOLVED IN ASBESTOS LITIGATION WHICH COULD, UNDER CERTAIN
CIRCUMSTANCES, REQUIRE THE COMBINED COMPANY TO USE SUBSTANTIAL AMOUNTS OF CASH
FOR LEGAL FEES AND SETTLEMENTS OR JUDGMENTS.
WABCO and Railroad Friction Products Corporation and Vapor Corporation,
each wholly-owned subsidiaries of WABCO, are defendants in asbestos bodily
injury actions pending in various state and federal jurisdictions. WABCO
believes that pursuant to the asset purchase agreement by which it acquired the
North American operations of the railway products group of American Standard,
Inc., American Standard remains liable for all asbestos claims filed against
WABCO. Although WABCO believes that American Standard is willing and able to
fulfill its indemnity obligation, there can be no assurance that American
Standard will not dispute or become unable to perform its obligations. If this
occurs, the combined company would be required to use its cash to pay for legal
fees and settlements or judgments related to the asbestos claims.
With respect to asbestos claims against Railroad Friction Products
Corporation, WABCO believes that the American Standard asset purchase agreement
requires American Standard to indemnify WABCO and Railroad Friction Products
Corporation for 50% of any liability and defense costs Railroad Friction
Products Corporation may incur with respect to asbestos claims. The remaining
costs are covered by insurance. American Standard's indemnity obligation with
respect to Railroad Friction Products Corporation claims expires in March 2000
in connection with claims that are initiated after that date. Again, although
WABCO believes that American Standard is willing and able to fulfill its
indemnity obligation with respect to Railroad Friction Products Corporation
asbestos claims, there can be no assurance that American Standard will not
dispute or become unable to perform its obligations. In addition, claims may be
made after American Standard's indemnification obligations expire and/or the
coverage afforded by insurance may at some time in the future be exhausted or
unavailable. If this occurs, the combined company would be required to use its
cash to pay for legal fees and settlements or judgments related to the asbestos
claims.
Finally, WABCO believes that Mark IV Industries, Inc., the former owner
of Vapor is obligated to indemnify WABCO and Vapor for asbestos claims against
Vapor. Although WABCO believes that Mark IV is willing and able to fulfill its
indemnity obligation with respect to Vapor asbestos claims, there can be no
assurance that Mark IV will not dispute or become unable to perform its
obligations. If this occurs, the combined company would be required to use its
cash to pay for legal fees and settlements or judgments related to the asbestos
claims.
MOTIVEPOWER'S ANTI-TAKEOVER DEFENSE PROVISIONS MAY DETER POTENTIAL ACQUIRORS AND
MAY DEPRESS ITS STOCK PRICE.
MotivePower's articles of incorporation and bylaws contain provisions
that could have the effect of making it more difficult for a third party to
acquire, or of discouraging a third party from attempting to acquire, control of
MotivePower. These provisions allow MotivePower to issue preferred stock with
rights senior to those of its common stock and impose various procedural and
other requirements that could make it more difficult for MotivePower
shareholders to effect some corporate actions.
In addition, under MotivePower's shareholder rights plan, holders of
MotivePower common stock are entitled to one preferred share purchase right for
each outstanding share of common stock they hold, exercisable under specified
circumstances involving a potential change of control. The preferred share
purchase rights have the anti-takeover effect of causing substantial dilution to
a person or group that attempts to acquire MotivePower on terms not approved by
the MotivePower Board. The foregoing provisions could reduce the premium that
7
10
potential acquirors might be willing to pay in an acquisition or that investors
might be willing to pay in the future for shares of MotivePower common stock.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
We have made forward-looking statements in this document and in the
documents which are incorporated by reference that are subject to risks and
uncertainties. For those statements, we claim the protection of the safe harbor
for forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995. You should understand that the following important factors,
in addition to those discussed elsewhere in this document and in the documents
which are incorporated by reference, could affect the future results of
MotivePower and WABCO, and of the combined company after the closing, and could
cause those results or other outcomes to differ materially from those expressed
in our forward-looking statements:
Economic and Industry Conditions
-- materially adverse changes in economic or industry conditions
generally or in the markets served by our companies, including
North America, South America, Europe, Australia and Asia
-- demand for services in the freight and passenger rail industry
-- consolidations in the rail industry
-- demand for our products and services
-- continued outsourcing by our customers
-- demand for freight cars, locomotives, passenger transit cars
and buses
-- industry demand for faster and more efficient braking
equipment
-- fluctuations in interest rates
Operating Factors
-- supply disruptions
-- technical difficulties
-- changes in operating conditions and costs
-- successful introduction of new products
-- labor relations
-- completion and integration of additional acquisitions
-- the development and use of new technology
-- year 2000 disruptions
8
11
Competitive Factors
-- the actions of competitors
Political/Governmental Factors
-- political stability in relevant areas of the world
-- future regulation/deregulation of our customers and/or the
rail industry
-- governmental funding for some of our customers
-- political developments and laws and regulations, such as
forced divestiture of assets, restrictions on production,
imports or exports, price controls, tax increases and
retroactive tax claims, expropriation of property,
cancellation of contract rights, and environmental regulations
Transaction or Commercial Factors
-- the outcome of negotiations with partners, governments,
suppliers, customers or others
-- our ability to integrate the businesses of MotivePower and
WABCO successfully after the merger.
SELLING SHAREHOLDERS
The table attached as Annex I hereto sets forth, as of the date of this
Prospectus or a subsequent date if amended or supplemented, (a) the name of each
selling shareholder and his or her relationship to MotivePower during the past
three years; (b) the number of shares of common stock each selling shareholder
beneficially owns (assuming that all options and restricted shares which they
have previously been granted are fully vested and free from restrictions on
transfer); (c) the number of shares of common stock offered pursuant to this
Prospectus by each selling shareholder; and (d) the amount and percentage of the
common stock outstanding to be held by such selling shareholder after giving
effect to the offering of the common stock covered by this Prospectus, except
that such information is not provided for non-affiliates of MotivePower who
beneficially hold less than the lesser of 1,000 shares of common stock issued
under the Plans or 1% of the shares of common stock issuable under the Plans. In
accordance with applicable SEC rules, these unnamed shareholders may sell up to
that number of shares under this prospectus. The information contained in Annex
I may be amended or supplemented from time to time.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of common stock
by selling shareholders covered by this Prospectus.
METHOD OF SALE
This Prospectus relates to the possible offer and sale from time to
time by the selling shareholders of their shares of common stock which they may
receive under the terms of the Plans. We have registered their shares for resale
to provide them with freely tradeable securities. However, registration of their
shares does not necessarily mean that they will offer or sell any of their
shares. We will not receive any proceeds from the offering or sale of their
shares.
9
12
The selling shareholders may offer and sell the shares of common stock
to which this Prospectus relates from time to time in one or more types of
transactions (which may include block transactions) on the New York Stock
exchange, where our common stock is listed for trading under the symbol "MPO,"
in other markets where our common stock is traded, in negotiated transactions,
through put or call options transactions, through short sales transactions, or
in a combination of such methods of sale. They will sell the common stock at
prices which are current when the sales take place or at other prices to which
the parties agree. The respective selling shareholders may use brokers or
dealers to sell the shares, and will pay any brokerage fees or commissions
relating to sales by them in amounts to be negotiated by them prior to sale. The
selling shareholders and any brokers or dealers participating in the sale of the
common stock may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), and any discounts and
commissions received by them and any profit realized by them on the resale of
the shares may be deemed to be underwriting discounts and commissions under the
Securities Act. Some shares may also be sold by other people or entities which
receive the shares from one or more of the selling shareholders by gift, by
operation of law (including the laws of descent and distribution) or by other
transfers or assignments.
Selling shareholders also may resell all or a portion of their shares
in open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of such Rule.
WHERE YOU CAN FIND MORE INFORMATION
MotivePower files annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
reports, statements or other information we file at the SEC's public reference
rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
Our SEC filings are also available to the public from commercial document
retrieval services and at the web site maintained by the SEC at
http://www.sec.gov.
This prospectus is a part of a registration statement on Form S-8 filed
by MotivePower with the SEC. As allowed by SEC rules, this prospectus does not
contain all the information you can find in the registration statement or the
exhibits to the registration statement.
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. When we file
documents in accordance with Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 between the date of this prospectus and the time
we file a post-effective amendment to the registration statement reporting that
all the securities which are the subject of the registration statement have been
sold or deregistering any securities which have not been sold, those documents
we file will be incorporated into this prospectus and will be a part of it
beginning on the date those documents are filed. If any document which we file
changes anything said in this prospectus or in an earlier document which is
incorporated into this prospectus, the later document will modify or supersede
what is said in this prospectus or the earlier document.
This prospectus also incorporates by reference the documents set forth
below that we have previously filed with the SEC. These documents contain
important information about MotivePower.
10
13
REPORT PERIOD OR FILING DATE SEC FILE NO.
Annual Report on Form 10-K Fiscal Year ended December 31, 1998 001-13225
Quarterly Report Form 10-Q Filed on May 14, 1999 001-13225
Quarterly Report Form 10-Q Filed on August 16, 1999 001-13225
Current Report on Form 8-K Filed on May 14, 1999 001-13225
Current Report on Form 8-K Filed on June 3, 1999 001-13225
Current Report on Form 8-K Filed on August 18, 1999 001-13225
The description of MotivePower common Filed on May 4, 1999 001-13225
stock set forth in the Registration
Statement on Form 8-A
The description of share purchase Filed on May 4, 1999 and amended 001-13225
rights set forth in the Registration on June 3, 1999
Statement on Form 8-A
Registration Statement on Form S-4 Filed on July 20, 1999 333-83221
Documents incorporated by reference are available from us without
charge, excluding all exhibits unless we have specifically incorporated by
reference an exhibit in this prospectus. Shareholders may obtain documents
incorporated by reference in this prospectus by requesting them in writing or by
telephone from Two Gateway Center, 14th Floor, Pittsburgh, PA 15222, Tel: (412)
201-1101.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for
MotivePower by Doepken Keevican & Weiss Professional Corporation, Pittsburgh,
Pennsylvania.
EXPERTS
The consolidated financial statements and the related financial
statement schedule incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-K for the year ended December 31, 1998 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
The Westinghouse Air Brake Company consolidated financial statements
and schedules as of December 31, 1998 and 1997 and for the years ended December
31, 1998, 1997 and 1996 incorporated in this prospectus which is part of this
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and have
been so incorporated in reliance upon the authority of said firm as experts in
giving said reports.
11
14
ANNEX I
SELLING SHAREHOLDERS (1)
Shares Beneficially Owned
After Offering: (2)
--------------------------------------------
Percentage
Shares Shares following
Relationships Beneficially Offered WABCO
Name to the Company Owned Hereby Number Percentage merger
- ------------------------- -------------------- -------------- ----------- ---------- ---------- ----------------
John C. Pope Chairman 917,628 259,006 658,622 2.4% 1.0%
Michael A. Wolf President, Chief 1,093,234 85,197 1,008,037 3.7% 1.5%
Executive Officer
and Director
David Bonvenuto Vice President, 24,165 1,007 23,158 (3) (3)
Controller and
Principal
Accounting Officer
Joseph S. Crawford, Jr. Executive Vice 307,669 11,858 295,811 1.1% (3)
President and
Chief Operating
Officer
William Fabrizio Senior Vice 191,109 5,440 185,669 (3) (3)
President and
Chief Financial
Officer
Jeannette Fisher-Garber Vice President, 60,790 3,866 56,924 (3) (3)
Secretary and
General Counsel
Thomas Lyons Vice President and 15,278 1,416 13,862 (3) (3)
Treasurer
Jeffrey Plut Vice President of 29,123 1,590 27,533 (3) (3)
Business
Development
Scott Wahlstrom Vice President, 31,932 1,501 30,431 (3) (3)
Human Resources
and Administration
Timothy Wesley Vice President, 25,482 1,646 23,836 (3) (3)
Investor Relations
Philip Brown President of Power 50,335 1,459 48,876 (3) (3)
Parts Co.
Paul Burton Vice President of 16,798 1,798 15,000 (3) (3)
Engine Systems Co.
12
15
Shares Beneficially Owned
After Offering: (2)
--------------------------------------------
Percentage
Shares Shares following
Relationships Beneficially Offered WABCO
Name to the Company Owned Hereby Number Percentage merger
- ------------------------- -------------------- -------------- ----------- ---------- ---------- ---------------
Jack Floyd President of Boise 61,856 3,685 58,171 (3) (3)
Locomotive Co.
Keith Hildum Director of 28,444 1,444 27,000 (3) (3)
Accounting
Robert Hurka Director of Tax 8,106 1,731 6,375 (3) (3)
Frank Larkin Vice President of 25,366 2,866 22,500 (3) (3)
Boise Locomotive Co.
William Lauro Vice President of 7,141 3,391 3,750 (3) (3)
Motor Coils
Manufacturing Co.
James Lindsay President of 118,882 6,382 112,500 (3) (3)
Engine Systems Co.
Brian Marty Vice President of 17,232 2,232 15,000 (3) (3)
Boise Locomotive Co.
Brian Moroney Vice President of 29,646 1,521 28,125 (3) (3)
Engine Systems Co.
Dennis Nott Vice President of 16,419 1,419 15,000 (3) (3)
Boise Locomotive Co.
Gerald Rowe President of MPI 38,845 1,345 37,500 (3) (3)
de Mexico
Gary Ryker President of Motor 39,750 2,250 37,500 (3) (3)
Coils
Manufacturing Co.
Louie Sanchez Vice President of 25,356 2,856 22,500 (3) (3)
MPI de Mexico
Robert Singleton Vice President of 17,063 2,063 15,000 (3) (3)
Engine Systems Co.
13
16
Shares Beneficially Owned
After Offering: (2)
---------------------------------------------------
Percentage
Shares Shares following
Relationships Beneficially Offered WABCO
Name to the Company Owned Hereby Number Percentage merger
- ------------------ -------------------- -------------- ----------- ------------- ------------- ----------------
Richard Tamborski Vice President of 17,657 1,720 15,937 (3) (3)
Motor Coils
Manufacturing Co.
Alfredo Varas Vice President of 8,558 1,058 7,500 (3) (3)
MPI de Mexico
Carlos Vidaurreta Director General 33,321 3,321 30,000 (3) (3)
of MPI de Mexico
Mark Warner Vice President of 17,146 2,146 15,000 (3) (3)
Boise Locomotive Co.
Ronald Witt Vice President of 19,300 4,300 15,000 (3) (3)
Power Parts Co.
Lynn Young Consultant 62,359 2,359 60,000 (3) (3)
(formerly President
of Motor Coils
Manufacturing Co.)
- ---------
(1) Assumes that all options held by the listed individuals are fully
vested and exercisable and that all restricted shares held are freely
transferable without restriction. Shares deemed beneficially owned by
virtue of these assumptions are treated as outstanding for purposes of
determining beneficial ownership by such individual.
(2) Assumes the sale of all securities offered hereby irrespective of
whether there is any present intention to do so.
(3) Less than 1%.
14
17
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").
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.
15
18
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
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.
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).
16
19
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. Deferred Compensation
Plan, as amended.
*4.10 MotivePower Industries, Inc. Deferred Compensation
Plan for Michael A. Wolf.
*4.11 MotivePower Industries, Inc. Deferred Compensation
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).
Item 9. Undertakings.
(a) The 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:
17
20
(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 the Registrant 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 the
Registrant'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, 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 a 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.
18
21
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 18th 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.
Signature Title Date
- --------- ----- ----
/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
19