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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON February 9, 1999
REGISTRATION NO. 333-
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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.
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
Title of securities Amount to be offering price maximum aggregate Amount of
to be registered (1) registered (2) per share (3) offering price (3) registration
fee
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Common Stock, no par value 350,000
shares $13.69 $4,791,500 $1,333
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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, 1997;
(b) the Registrant's quarterly reports on Form 10-Q for the
fiscal quarters ended September 30, 1998, June 30, 1998 and
March 31, 1998;
(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 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
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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. 1999 Employee Stock Purchase Plan.
5.1 Opinion of Troutman Sanders LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Troutman Sanders LLP (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 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
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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 February 1, 1999.
ALLIED HOLDINGS, INC.
By: /s/ A. Mitchell Poole, Jr.
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A. Mitchell Poole, Jr.
President, Chief Operating Officer
and Assistant Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Rutland and A. Mitchell Poole,
Jr., 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 February 1, 1999
Robert J. Rutland Executive Officer (Principal Executive Officer)
/s/ A. Mitchell Poole, Jr.
- ------------------------------------ President, Chief Operating Officer, Assistant February 1, 1999
A. Mitchell Poole, Jr. Secretary and Director
/s/ Daniel H. Popky
- ------------------------------------ Senior Vice President and Chief Financial Officer February 1, 1999
Daniel H. Popky (Principal Financial and Accounting Officer)
- ------------------------------------ Chairman Emeritus and Director
Guy W. Rutland, III
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- ------------------------------------ Vice Chairman, Executive Vice President and Director
Bernard O. De Wulf
/s/ Berner F. Wilson, Jr.
- ------------------------------------ Vice Chairman and Director February 1, 1999
Berner F. Wilson, Jr.
/s/ Guy W. Rutland, IV
- ------------------------------------ Vice President and Director February 1, 1999
Guy W. Rutland, IV
/s/ Joseph W. Collier
- ------------------------------------ Director February 1, 1999
Joseph W. Collier
/s/ Randall E. West
- ------------------------------------ Director February 1, 1999
Randall E. West
/s/ David G. Bannister
- ------------------------------------ Director February 1, 1999
David G. Bannister
/s/ Robert R. Woodson
- ------------------------------------ Director February 1, 1999
Robert R. Woodson
/s/ William P. Benton
- ------------------------------------ Director February 1, 1999
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
February 1, 1999.
ALLIED HOLDINGS, INC. 1999 EMPLOYEE STOCK
PURCHASE PLAN
By: /s/ A. Mitchell Poole, Jr.
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Title: President, Chief Operating Officer
and Assistant Secretary for
the Registrant
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EXHIBIT INDEX
Exhibits
4.1 Allied Holdings, Inc. 1999 Employee Stock Purchase Plan
5.1 Opinion of Troutman Sanders LLP
23.1 Consent of Arthur Andersen LLP, independent auditors.
23.2 Consent of Troutman Sanders LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
Registration Statement).