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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 2001
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ALLIED HOLDINGS, INC.
(Exact name of issuer as specified in its charter)
GEORGIA 58-0360550
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
160 CLAIREMONT AVENUE, SUITE 200 30030
DECATUR, GEORGIA (Zip Code)
(Address of principal executive offices)
ALLIED HOLDINGS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
THOMAS M. DUFFY, ESQ.
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
160 CLAIREMONT AVENUE, SUITE 200
DECATUR, GEORGIA 30030
(404) 370-1100
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed Amount of
Title of securities Amount to be offering price maximum aggregate registration
to be registered (1) registered (2) per share (3) offering price (3) fee
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Common Stock, no par value 350,000
shares $2.85 $997,500 $249.38
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate amount of interests to be offered pursuant to
the employee benefit plan described herein.
(2) Pursuant to Rule 416(a) under the Securities Act, includes an
indeterminate number of additional shares which May be offered and
issued to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(3) Pursuant to Rule 457(h)(1) under the Securities Act, the offering price
is estimated solely for the purpose of calculating the registration fee
on the basis of the average of the high and low prices of the
Registrant's Common Stock on the New York Stock Exchange on as reported
by the Wall Street Journal.
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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 this Registration Statement in accordance
with the Note to Part I of Form S-8.
PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such document.
(a) the Registrant's annual report on Form 10-K for the fiscal
year ended December 31, 2000;
(b) the Registrant's quarterly report on Form 10-Q for the fiscal
quarter ended March 31, 2001;
(c) the description of the Registrant's Common Stock contained in
the Company's Registration Statement on Form 8-A filed on
February 11, 1998 pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), including
any amendments or reports filed for the purpose of updating
such descriptions.
All documents filed subsequent to the date of this registration
statement by the undersigned Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act prior to the filing of a post-effective amendment
hereto which indicates that all shares of Common Stock offered hereby have been
sold or which deregisters any shares of such Common Stock then remaining unsold,
shall also be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from their respective dates of filing. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein, or
in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement contained in this Registration Statement shall be deemed to be
modified or superseded to the extent that a statement contained in a
subsequently filed document which is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Amended and Restated Articles of Incorporation (the
"Restated Charter") eliminate, to the fullest extent permitted by applicable
law, the personal liability of directors to the Company or its shareholders for
monetary damages for breaches of such directors' duty of care or other duties as
a director. This provision of the Restated Charter will limit the remedies
available to a shareholder in the event of breaches of any director's duties to
such shareholder or the Company. Under current Georgia law, the Restated Charter
does not provide for the elimination of or any limitation on the personal
liability of a director for (i) any appropriation, in violation of the
director's duties, of any business opportunity of the Company, (ii) acts or
omissions which involve intentional misconduct or a knowing violation of law,
(iii) unlawful corporate distributions or (iv) any transactions from which the
director received an improper personal benefit.
Under the Company's Bylaws, the Company shall indemnify to the fullest
extent permitted under the GBCC any person made a party to a proceeding because
he or she is or was a director or officer of the Company, if he or she acted in
a manner he or she believed in good faith to be in or not opposed to the best
interests of the Company and, in the case of any criminal proceeding, if he or
she had no reasonable cause to believe his or her conduct was unlawful. The
Company shall have the power to indemnify to the fullest extent permitted under
the GBCC any person made a party to a proceeding because he or she is or was an
employee or agent of the Company, if he or she acted in a manner he or she
believed in good faith to be in or not opposed to the best interests of the
Company and, in the case of any criminal proceeding, if he or she had no
reasonable cause to believe his or her conduct was unlawful.
Under the GBCC, a Georgia corporation May indemnify an individual who
is a party to a proceeding because he or she is or was a director, against
liability incurred in such proceeding, provided that such individual acted in
good faith and reasonably believed (a) in the case of conduct in his or her
official capacity, that such conduct was in the best interests of the
corporation, (b) in all other cases other than a criminal proceeding, that such
conduct was at least not opposed to the best interests of the corporation, and
(c) in the case of a criminal proceeding, that such individual had no reasonable
cause to believe that such conduct was unlawful. A Georgia corporation May not
indemnify a director under the GBCC (i) in connection with a proceeding by or in
the right of the corporation, except for reasonable expenses incurred by such
director in connection with the proceeding, provided it is determined that such
director met the relevant standard of conduct set forth above, or (ii) in
connection with any proceeding with respect to conduct for which such director
was adjudged liable on the basis that he or she received an improper personal
benefit. Additionally, a Georgia corporation May, before final disposition of a
proceeding, advance funds to pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding because he or she is a
director, provided that such director delivers to the corporation a written
affirmation of his or her good faith belief that
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he or she met the relevant standard of conduct or that the proceeding involves
conduct for which such director's liability has been properly eliminated by
action of the corporation, and a written undertaking by the director to repay
any funds advanced if it is ultimately determined that such director was not
entitled to such indemnification. The GBCC also allows a Georgia corporation to
indemnify directors made a party to a proceeding without regard to the
above-referenced limitations, if authorized by the articles of incorporation or
a bylaw, contract, or resolution duly adopted by a vote of the shareholders of
the corporation by a majority of votes entitled to be cast, excluding shares
owned or voted under the control of the director or directors who are not
disinterested.
The Company's directors and executive officers are insured against
damages from actions and claims incurred in the course of performing duties, and
the Company is insured against expenses incurred in defending lawsuits arising
from certain alleged acts against directors and executive officers.
The foregoing summaries are necessarily subject to the complete text of
the statutes, Restated Charter and agreements referred to above and are
qualified in their entirety by reference thereto.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibits:
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4.1 Allied Holdings, Inc. Amended and Restated 1999 Employee Stock Purchase Plan.
5.1 Opinion of Allied Holdings, Inc..
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Allied Holdings, Inc. (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature pages of this Registration Statement).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the
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plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(b) 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.
(c) 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.
(d) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of each of the Securities Exchange Act of 1934) that
is incorporated by reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(e) That, insofar as indemnification for liabilities arising under
the Securities Act of 1933 May be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 it has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Decatur, State of Georgia, on June 5, 2001.
ALLIED HOLDINGS, INC.
By: /s/ Robert J. Rutland
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Robert J. Rutland
Chairman, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Rutland and Daniel H. Popky,
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 such 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 his or her substitute or substitutes, May lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement, or amendment thereto, has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Robert J. Rutland Chairman of the Board of Directors and Chief June 5, 2001
- ------------------------------------ Executive Officer (Principal Executive Officer)
Robert J. Rutland
/s/ Daniel H. Popky Senior Vice President and Chief Financial Officer June 5, 2001
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Daniel H. Popky
/s/ Guy W. Rutland, III Chairman Emeritus and Director June 5, 2001
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Guy W. Rutland, III
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/s/ Bernard O. De Wulf Vice Chairman, Executive Vice President June 5, 2001
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Bernard O. De Wulf
/s/ Berner F. Wilson, Jr. Director June 5, 2001
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Berner F. Wilson, Jr.
/s/ Guy W. Rutland, IV Vice President and Director June 5, 2001
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Guy W. Rutland, IV
/s/ Joseph W. Collier Director June 5, 2001
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Joseph W. Collier
/s/ David G. Bannister Director June 5, 2001
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David G. Bannister
/s/ Robert R. Woodson Director June 5, 2001
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Robert R. Woodson
/s/ William P. Benton Director June 5, 2001
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William P. Benton
Pursuant to the requirements of the Securities of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Decatur, State of Georgia, on June 5,
2001.
ALLIED HOLDINGS, INC. AMENDED AND RESTATED 1999
EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Daniel H. Popky
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Title: Senior Vice President, Chief Financial Officer
and Assistant Secretary for
the Registrant
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EXHIBIT INDEX
Exhibits
4.1 Amended and Restated Allied Holdings, Inc. 1999 Employee Stock Purchase Plan
5.1 Opinion of Allied Holdings, Inc.
23.1 Consent of Arthur Andersen LLP independent auditors.
23.2 Consent of Allied Holdings, Inc. (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this Registration Statement).