1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1998 REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PARK-OHIO HOLDINGS CORP.
(SUCCESSOR TO PARK-OHIO INDUSTRIES, INC.)
(Exact name of Registrant as specified in its charter)
OHIO 34-1867219
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
23000 EUCLID AVENUE
CLEVELAND, OHIO 44117
(Address of principal executive offices)
PARK-OHIO HOLDINGS CORP.
1998 LONG-TERM INCENTIVE PLAN
(Full Title of Plan)
Ronald J. Cozean, Esq.
Secretary and General Counsel
23000 Euclid Avenue
Cleveland, Ohio 44117
(216) 692-7200
(Name, address, including zip code
& telephone number, including
area code of agent for service)
With a copy to:
Mary Ann Jorgenson, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title Of Maximum Maximum Amount Of
Securities To Amount To Be Offering Aggregate Registration
Be Registered Registered Price Per Share (1) Offering Price (1) Fee (2)
- ----------------------------------------------------------------------------------------------------------
Common Stock 550,000 $18.125 $9,968,750 $2,941
par value $1.00
per share
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee and, pursuant to Rule 457(h),
based on the average of high and low sale prices of Park-Ohio Holdings Corp.'s Common Stock on
the NASDAQ National Market System on June 24, 1998.
(2) Computed in accordance with Rule 457(h) of the Securities Act of 1933.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Park-Ohio Holdings Corp. (the
"Registrant") or its predecessor, Park-Ohio Industries, Inc. ("Park-Ohio"),
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated herein by
reference and made a part hereof:
1. Park-Ohio's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2
3
2. Park-Ohio's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
3. Park-Ohio's Current Reports on Form 8-K filed January 14, 1998
and April 23, 1998, respectively.
4. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-4 filed with the
Commission under the Securities Act (Registration No. 333-46931);
declared effective April 24, 1998 (the "Reorganization
Registration Statement").
5. Registrant's Current Report on Form 8-K filed June 16, 1998.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 34 of the Registrant's Regulations, as currently in effect
("Section 34"), provides that the Registrant will indemnify any director or
officer or any former director or officer of the Registrant or any person who is
or has served at the request of the Registrant as a director, officer or trustee
of another corporation, joint venture, trust or other enterprise (and his heirs,
executors and administrators) against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative to the
full extent and according to the procedures and requirements set forth in the
Ohio General Corporation Law as the same may be in effect from time to time.
Section 34 further provides that the indemnification provided for
therein shall not be deemed to restrict the right of the Registrant to indemnify
employees, agents and others as permitted by such Law, and shall be in addition
to any other rights granted to
3
4
those seeking indemnification under the Articles or Incorporation or these
Regulations or any Indemnification Agreement (as hereinafter defined), vote of
shareholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
In addition, Section 34 provides that, without derogation to the power
of the Registrant from time to time to enter into, or assume the obligations of
any affiliate of the Registrant under, any agreement granting rights of
indemnification to any person or entity ("Indemnification Agreement"), the
Registrant is expressly authorized to assume the obligations of Park-Ohio under
any Indemnification Agreement existing on the date of the initial adoption of
the Registrant's Regulations, and any obligations so assumed will be binding
upon the Registrant with the same force and effect as if the Registrant had been
an original party to such Indemnification Agreement. Pursuant to the Merger
Agreement, the Registrant assumed Park-Ohio's obligations under all such
Indemnification Agreements, effective as of the consummation of the Merger. The
terms of such Indemnification Agreements are substantially the same as the terms
of the Indemnification Agreements that the Registrant has entered into with all
of its directors and certain of its officers, as described below.
Section 34 also authorizes the Registrant to purchase and maintain
insurance or furnish similar protection, including but not limited to trust
funds, letters of credit or self-insurance, on behalf of or for any person who
is or was a director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant as a director, trustee, officer,
employee or agent of another corporation, joint venture, trust or other
enterprise (and his heirs, executors and administrators), against any liability
asserted against him and incurred by him in such capacity, or arising out of his
status as such, regardless of whether the Registrant would have indemnified him
against such liability under any other provision of Section 34. It further
provides that insurance may be purchased from or maintained with a person in
which the Registrant has a financial interest.
Section 1701.13(E) of the Ohio General Corporation Law provides in
regard to indemnification of directors and officers as follows:
(1) A corporation may indemnify or agree 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 he 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, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal
4
5
action or proceeding, if he had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
(2) A corporation may indemnify or agree 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 he is or was a director, officer, employee, member,
manager, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that,
the court of common pleas or the court in which such action or suit
was brought determines, upon application, that, despite the
adjudication of liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses as the court of common pleas or such other court shall
deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer,
employee, member, manager, or agent has been successful on the merits
or otherwise in defense of any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in division (E)(1) or (2)
of this section. Such determination shall be made as follows:
5
6
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties to or
threatened with the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be indemnified
within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1)(2) of this
section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten
days after receipt of such notification, such person shall have the
right to petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the
regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director
in an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section is pursuant to section 1701.95 of the Revised
Code, expenses, including attorney's fees, incurred by a director in
defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding upon receipt of an undertaking by
or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the corporation or undertaken
with reckless disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the
6
7
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding, as authorized by the directors in
the specific case, upon receipt of an undertaking by or on behalf of
the director, trustee, officer, member, manager, employee, or agent to
repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any 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 this section. Insurance may be
purchased from or maintained with a person in which the corporation
has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving bank, so that any person who is or was a director,
officer, employee, trustee, member, manager, or agent of such a
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, shall stand in
the same position under this section with respect to the new or
surviving bank as he would if he had served the new or surviving bank
in the same capacity.
7
8
In addition to assuming the Indemnification Agreements of Park-Ohio
described above, the Registrant has entered into Indemnification Agreements with
each of its directors and certain of its officers ("Indemnitees"). Pursuant to
each such Indemnification Agreement, the Registrant must indemnify the
Indemnitee with respect to his activities as a director or officer of the
Registrant and/or as a person who is serving or has served on behalf of the
Registrant ("Representative") as a director, officer or trustee of another
corporation, joint venture, trust or other enterprise, domestic or foreign, in
which the Registrant has a direct or indirect ownership interest against
expenses (including, without limitation, attorneys' fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred by him ("Expenses")
in connection with any claim against the Indemnitee which is the subject of any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise and whether formal or
informal (a "Proceeding"), to which the Indemnitee was, is or is threatened to
be made a party by reason of facts which include the Indemnitee's being or
having been such a director, officer or Representative, to the extent of the
highest and most advantageous to the Indemnitee, as determined by the
Indemnitee, of one or any combination of the following:
(a) The benefits provided by the Registrant's Regulations as of the
date of the Indemnification Agreement;
(b) The benefits provided by the Articles of Incorporation, Regulations
or By-laws or their equivalent of the Registrant in effect at the time Expenses
are incurred by the Indemnitee;
(c) The benefits allowable under Ohio law in effect as of the date of
the Indemnification Agreement;
(d) The benefits allowable under the law of the jurisdiction under
which the Registrant exists at the time Expenses are incurred by the Indemnitee;
(e) The benefits available under liability insurance obtained by the
Registrant;
(f) The benefits which would have been available to the Indemnitee
under his Executive Liability Insurance Policy; and
(g) Such other benefits as are or may be otherwise available to the
Indemnitee.
The Indemnification Agreements provide for the advancement of Expenses
to the Indemnitee if the Indemnitee provides the Registrant with a written
undertaking that (i) the Indemnitee has notified the Registrant of any
Proceeding; (ii) the Indemnitee believes he should prevail in the Proceeding and
(iii) that the Indemnitee will reimburse the Registrant for all Expenses if it
is determined that the Indemnitee is not entitled to indemnification.
8
9
The Registrant also maintains directors' and officers' liability
insurance, pursuant to which directors and officers of the Registrant are
insured against certain liabilities, including certain liabilities under the
1933 Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as a part of or
incorporated by reference in this Registration Statement:
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Agreement of Merger dated as of February 20, 1998 by and among the
Registrant, Park-Ohio and PKOH Merger Corp. (Incorporated by reference
to Exhibit 2 to the Reorganization Registration Statement)
4.2 Amended and Restated Articles of Incorporation of the Registrant (Incorporated
by reference to Exhibit 4.2 Post-Effective Amendment No. 1 to Registration
Statement on Form S-8, Registration No. 333-28407, filed June 16, 1998)
4.3 Regulations of the Registrant (Incorporated by reference to Exhibit 3.2 to
the Reorganization Registration Statement)
4.4 Specimen Stock Certificate of the Registrant (Incorporated by reference to
Exhibit 4.4 Post-Effective Amendment No. 1 to Registration Statement on Form
S-8, Registration No. 333-28407, filed June 16, 1998)
5 Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality
15 Letter from Ernst & Young LLP regarding unaudited interim financial
information
23.1 Consent of Ernst & Young LLP
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (contained in opinion filed as
Exhibit 5)
24 Power of Attorney
99 Park-Ohio Holdings Corp. Long-Term Incentive Plan
9
10
ITEM 9. UNDERTAKINGS
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: (a) to include any prospectus
required by section 10(a)(3) of the Securities Act of
1933; (b) 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.
Notwithstanding the foregoing, any increase or decrease
in the volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum offering price set forth in
the "Calculation of Registration Fee" table in the
effective Registration Statement; (c) 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 (1)(a) and (1)(b) of this section
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 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.
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
10
11
(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.
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.
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 the 29th day of
June, 1998.
PARK-OHIO HOLDINGS CORP.
By:/s/ Ronald J. Cozean
--------------------------------
Ronald J. Cozean, Secretary
11
12
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to Registration Statement has been signed by the following persons in
the capacities and on June 29, 1998.
*
- ----------------------------------------
Edward F. Crawford
Chairman, President and Chief Executive Officer
(Principal Executive Officer)
*
James S. Walker
- ----------------------------------------
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
*
- ----------------------------------------
Lewis E. Hatch, Jr.
Director
*
- ----------------------------------------
Thomas E. McGinty
Director
*
- ----------------------------------------
Lawrence O. Selhorst
Director
*
James W. Wert
- ----------------------------------------
Director
*
Matthew V. Crawford
- ----------------------------------------
Director
*
Felix J. Tarorick
- ----------------------------------------
Director
*
Kevin R. Greene
- ----------------------------------------
Director
* The undersigned pursuant to a Power of Attorney executed by each of
the Directors and Officers identified above and filed with the
Securities and Exchange Commission, by signing his name hereto, does
hereby sign and execute this
12
13
Registration Statement on behalf of each of the persons noted above,
in the capacities indicated.
By: /s/ Ronald J. Cozean June 29, 1998
---------------------------------------- -------------
Ronald J. Cozean, Attorney-in-Fact Date
13
14
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Agreement of Merger dated as of February 20, 1998 by and among the
Registrant, Park-Ohio and PKOH Merger Corp. (Incorporated by reference
to Exhibit 2 to the Reorganization Registration Statement)
4.2 Amended and Restated Articles of Incorporation of the Registrant (Incorporated
by reference to Exhibit 4.2 Post-Effective Amendment No. 1 to Registration
Statement on Form S-8, Registration No. 333-28407, filed June 16, 1998)
4.3 Regulations of the Registrant (Incorporated by reference to Exhibit 3.2 to
the Reorganization Registration Statement)
4.4 Specimen Stock Certificate of the Registrant (Incorporated by reference to
Exhibit 4.4 Post-Effective Amendment No. 1 to Registration Statement on Form
S-8, Registration No. 333-28407, filed June 16, 1998)
5 Opinion of Squire, Sanders & Dempsey L.L.P. regarding legality
15 Letter from Ernst & Young LLP regarding unaudited interim financial
information
23.1 Consent of Ernst & Young LLP
23.2 Consent of Squire, Sanders & Dempsey L.L.P. (contained in opinion filed as
Exhibit 5)
24 Power of Attorney
99 Park-Ohio Holdings Corp. Long-Term Incentive Plan
14
