As filed with the Securities and Exchange Commission on February 12, 2003.
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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SHILOH INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 51-0347683
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
Suite 202, 103 Foulk Road
Wilmington, Delaware 19803
(Address of Principal Executive Offices Including Zip Code)
Shiloh Industries, Inc.
Amended and Restated
1993 Key Employee Stock Incentive Plan
(Full Title of the Plan)
Stephen E. Graham
Chief Financial Officer
Shiloh Industries, Inc.
5389 West 130/th/ Street
Cleveland, Ohio 44130
(Name and Address of Agent For Service Including Zip Code)
(216) 267-2600
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to Offering Price Aggregate Registration
to be Registered be Registered(1) Per Share(2) Offering Price(2) Fee(2)
------------------------------------- -------------------- ------------------------- ---------------------- --------------
Common Stock, par value $.01 per
share 1,250,000 $1.90 $2,375,000 $218.50
===================================== ==================== ========================= ====================== ==============
(1) An aggregate of 1,700,000 shares of Common Stock, $.01 par value per
share, are issuable pursuant to the Amended and Restated 1993 Key
Employee Stock Incentive Plan. The Registrant has previously filed a
registration statement on Form S-8 with respect to 450,000 shares of
Common Stock issuable under the Amended and Restated 1993 Key Employee
Stock Incentive Plan. Pursuant to Rule 416 of the Securities Act of
1933, this Registration Statement also covers such additional shares of
Common Stock as may become issuable pursuant to the anti-dilution
provisions of the Amended and Restated 1993 Key Employee Stock
Incentive Plan.
(2) Estimated solely for the purpose of calculating the amount of
registration fee, pursuant to paragraphs (c) and (h) of Rule 457 of the
General Rules and Regulations under the Securities Act, on the basis of
the average of the high and low sale prices of such securities on the
Nasdaq National Market on February 11, 2003, within five business days
prior to filing.
Item 3. Incorporation of Documents by Reference
The following documents previously filed by Shiloh Industries, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement and are deemed to be
a part hereof from the date of the filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
October 31, 2002 and
(2) The description of the common stock contained in the Registrant's
Registration Statement on Form 8-A filed with the Commission on June
18, 1993, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which de-registers all securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed incorporated herein by reference shall be deemed to be
modified or superseded for the purpose of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document
which also is, or is deemed to be, incorporated herein by reference 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
Article Eight, Section 2 of the Registrant's Restated Certificate of
Incorporation allows indemnification of officers and directors to the fullest
extent permitted for a corporation organized under the laws of the State of
Delaware. In addition, the Registrant has purchased liability insurance covering
certain liabilities that may be incurred by the directors and officers of the
Registrant and its subsidiaries in connection with the performance of their
duties.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware (the "DGCL") empowers a corporation to 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 such 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 or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such 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 such person's conduct was unlawful. Subsection (b)
of Section 145 of the DGCL empowers a corporation to 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 such person acted in any of
the capacities set forth above, against
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expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted under standards similar to those set forth in the paragraph
above, except that no indemnification may 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 of the
State of Delaware or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to be
indemnified for those expenses which the court shall deem proper. Section 145
further provides that, to the extent that a director or officer of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of Section 145, or in defense
of any claim, issue or matter therein, such person will be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith; that any indemnification under subsections (a)
and (b) of Section 145 (unless ordered by a court) will be made by a corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in subsections (a) and (b) of Section 145; that expenses (including
attorney's fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation; that
indemnification provided for by Section 145 will not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that a
corporation is empowered to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under Section 145.
The Registrant has entered into indemnity agreements (the "Indemnity
Agreements") with certain of its former and current directors and executive
officers of the Registrant and expects to enter into similar agreements with any
director or executive officer designated by the Board of Directors of the
Registrant that may, from time to time, be elected or appointed. Pursuant to the
Indemnity Agreements, the Registrant will indemnify a director or officer of the
Registrant (the "Indemnitee") if the Indemnitee 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, by reason
of the fact that the Indemnitee is or was a director or officer of the
Registrant, or is or was serving at the request of the Registrant in specific
capacities with another entity, against any and all costs, charges and expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the Indemnitee in connection with the defense or settlement of such
proceeding. Indemnity is available to the Indemnitee unless it is proved by
clear and convincing evidence that the Indemnitee's action or failure to act was
not in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Registrant. The Indemnity Agreements provide for
advancement of expenses to the Indemnitee if the Indemnitee provides the
Registrant with a written undertaking that (a) the Indemnitee has reasonably
incurred or will reasonably incur actual expenses in defending an actual civil,
criminal, administrative or investigative action, suit, proceeding or claim and
(ii) the Indemnitee will repay such amount if it is ultimately determined that
the Indemnitee is not entitled to be indemnified by the Registrant.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits included as part of this Registration Statement are as
follows:
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Exhibit Number Description
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4.1 Restated Certificate of Incorporation
of the Registrant is incorporated
herein by reference to Exhibit 3.1 (i)
of the Registrant's Annual Report on
Form 10-K for the fiscal year ended
October 31, 1995 (Commission File No.
0-21964).
4.2 By-Laws of the Registrant are
incorporated herein by reference to
Exhibit 3.1 (ii) of the Registrant's
Annual Report on Form 10-K for the
fiscal year ended October 31, 1995
(Commission File No. 0-21964).
4.3 Specimen certificate for the Common
Stock, par value $.01 per share, of the
Registrant is incorporated herein by
reference to Exhibit 4.1 of the
Registrant's Annual Report on Form 10-K
for the fiscal year ended October 31,
1995 (Commission File No. 0-21964).
4.4 Stockholders Agreement, dated June 22,
1993, by and among the Registrant, MTD
Products Inc and the stockholders
named therein is incorporated herein
by reference to Exhibit 4.2 of the
Registrant's Annual Report on Form
10-K for the fiscal year ended October
31, 1995 (Commission File No.
0-21964).
4.5 Registration Rights Agreement, dated
June 22, 1993, by and among the
Registrant, MTD Products Inc and the
stockholders named therein is
incorporated herein by reference to
Exhibit 4.3 of the Registrant's Annual
Report on Form 10-K for the fiscal
year ended October 31, 1995
(Commission File No. 0-21964).
4.6 First Amendment to Stockholders
Agreement, dated March 11, 1994, by and
among the Registrant, MTD Products Inc
and the stockholders named therein is
incorporated herein by reference to
Exhibit 4.4 of the Registrant's Annual
Report on Form 10-K for the fiscal year
ended October 31, 1995 (Commission File
No. 0-21964).
4.7 Termination of Stockholders Agreement,
dated May 29, 2001, by and among the
Registrant, MTD Products Inc and the
stockholders named therein is
incorporated by reference to Exhibit
4.5 of the Registrant's Annual Report
on Form 10-K for the fiscal year ended
October 31, 2001 (Commission File No.
0-21964).
5.1 Opinion of Jones Day.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Jones Day (included in Exhibit
5.1).
24.1 Power of Attorney.
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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;
(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 Registration Statement is on Form S-3, Form S-8
or Form F-3, and 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
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(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 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 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.
(c) 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 Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against
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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 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 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 Cleveland, State of Ohio, on February 12, 2003.
SHILOH INDUSTRIES, INC.
By: /s/ Stephen E. Graham
--------------------------
Stephen E. Graham
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
*
------------------------------------ President and Chief Executive Officer February 12, 2003
Theodore K. Zampetis (Principal Executive Officer) and Director
/s/ Stephen E. Graham
------------------------------------ Chief Financial Officer and Treasurer February 12, 2003
Stephen E. Graham (Principal Financial and Accounting Officer)
* Chairman of the Board and Director February 12, 2003
------------------------------------
Curtis E. Moll
* Director February 12, 2003
------------------------------------
Maynard H. Murch, IV
* Director February 12, 2003
------------------------------------
Ronald C. Houser
* Director February 12, 2003
------------------------------------
David J. Hessler
* Director February 12, 2003
------------------------------------
James A. Karman
* Director February 12, 2003
------------------------------------
John J. Tanis
* Director February 12, 2003
------------------------------------
Dieter Kaesgen
* Stephen E. Graham, the undersigned attorney-in-fact, by signing his
name hereto, does hereby sign and execute this Registration Statement
on behalf of the above indicated officers and directors thereof
(constituting a majority of the directors) pursuant to a power of
attorney filed with the Commission.
By: /s/ Stephen E. Graham February 12, 2003
--------------------------------
Stephen E. Graham
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
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4.1 Restated Certificate of Incorporation
of the Registrant is incorporated
herein by reference to Exhibit 3.1 (i)
of the Registrant's Annual Report on
Form 10-K for the fiscal year ended
October 31, 1995 (Commission File No.
0-21964).
4.2 By-Laws of the Registrant are
incorporated herein by reference to
Exhibit 3.1 (ii) of the Registrant's
Annual Report on Form 10-K for the
fiscal year ended October 31, 1995
(Commission File No. 0-21964).
4.3 Specimen certificate for the Common
Stock, par value $.01 per share, of
the Registrant is incorporated herein
by reference to Exhibit 4.1 of the
Registrant's Annual Report on Form
10-K for the fiscal year ended October
31, 1995 (Commission File No.
0-21964).
4.4 Stockholders Agreement, dated June 22,
1993, by and among the Registrant, MTD
Products Inc and the stockholders
named therein is incorporated herein
by reference to Exhibit 4.2 of the
Registrant's Annual Report on Form
10-K for the fiscal year ended October
31, 1995 (Commission File No.
0-21964).
4.5 Registration Rights Agreement, dated
June 22, 1993, by and among the
Registrant, MTD Products Inc and the
stockholders named therein is
incorporated herein by reference to
Exhibit 4.3 of the Registrant's Annual
Report on Form 10-K for the fiscal
year ended October 31, 1995
(Commission File No. 0-21964).
4.6 First Amendment to Stockholders
Agreement, dated March 11, 1994, by
and among the Registrant, MTD Products
Inc and the stockholders named therein
is incorporated herein by reference to
Exhibit 4.4 of the Registrant's Annual
Report on Form 10-K for the fiscal
year ended October 31, 1995
(Commission File No. 0-21964).
4.7 Termination of Stockholders Agreement,
dated May 29, 2001, by and among the
Registrant, MTD Products Inc and the
stockholders named therein is
incorporated by reference to Exhibit
4.5 of the Registrant's Annual Report
on Form 10-K for the fiscal year ended
October 31, 2001 (Commission File No.
0-21964).
5.1 Opinion of Jones Day.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Jones Day (included in
Exhibit 5.1).
24.1 Power of Attorney.