-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OiYHgRJ5Tb0U9KB1seFeCunQigposNlt6HMOR64NjwUZ2sKZQ1VkaYugdCnPYE+r 6oFJv1JFrztfVPHRG5MX/Q== /in/edgar/work/0001045969-00-000900/0001045969-00-000900.txt : 20001122 0001045969-00-000900.hdr.sgml : 20001122 ACCESSION NUMBER: 0001045969-00-000900 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001121 EFFECTIVENESS DATE: 20001121 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FEDERAL MOGUL CORP CENTRAL INDEX KEY: 0000034879 STANDARD INDUSTRIAL CLASSIFICATION: [3714 ] IRS NUMBER: 380533580 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-50370 FILM NUMBER: 774233 BUSINESS ADDRESS: STREET 1: 26555 NORTHWESTERN HGWY CITY: SOUTHFIELD STATE: MI ZIP: 48034 BUSINESS PHONE: 2483547700 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on November 21, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 FEDERAL-MOGUL CORPORATION (Exact name of Registrant as Specified in Its Charter) Michigan 38-0544580 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 26555 Northwestern Highway, Southfield, Michigan 48034 (Address of Principal Executive Offices) (Zip Code) Federal-Mogul Corporation Employee Stock Purchase Program (Full Title of the Plan) David M. Sherbin, Esq. Deputy General Counsel & Secretary Federal-Mogul Corporation 26555 Northwestern Highway Southfield, Michigan 48034 (Name and Address of Agent for Service) Telephone Number, Including Area Code, of Agent for Service: (248) 354-7700 Copy to: Mark A. Metz Dykema Gossett PLLC 400 Renaissance Center Detroit, Michigan 48243-1668 CALCULATION OF REGISTRATION FEE ================================================================================
- ---------------------------------------------------------------------------------------------------- Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of to be Registered Registered Offering Price Aggregate Offering Registration Fee Per Share Price - ---------------------------------------------------------------------------------------------------- Common Stock 170,000 $3.34* $567,000* $149.90* - ----------------------------------------------------------------------------------------------------
*Estimated solely for purposes of computing the Registration Fee, at $3.34 per share, the average price for shares of the Common Stock on November 10, 2000, as reported on the New York Stock Exchange, pursuant to Rule 457(h). **The number of shares may be adjusted to prevent dilution from stock splits, stock dividends and similar transactions. The Registration Statement shall cover any such additional shares in accordance with Rule 416(a). The registered shares also include the associated preferred stock purchase rights which attach to each new share of common stock. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by Federal-Mogul Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999; (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000; (c) The Company's Current Report on Form 8-K filed September 19, 2000; and (d) The description of the Common Stock of the Company contained in the Prospectus forming a part of the Company's Registration Statement on Form S-3, No. 333-74661, filed under the Securities Exchange Act of 1934. All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the termination of the offering of the Common Stock covered by this Registration Statement shall be deemed to be incorporated herein by reference and to be a part hereof from the respective date of filing of each such document. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. David M. Sherbin, the Company's Deputy General Counsel & Secretary, has rendered an opinion with respect to the shares registered hereunder. As of the date hereof, Mr. Sherbin owns 500 shares and options to purchase an additional 7,100 shares. Item 6. Indemnification of Directors and Officers. Michigan Business Corporation Act The Company is organized under the Michigan Business Corporation Act (the "MBCA") which, in general, empowers Michigan corporations to indemnify a person who was or is a party or is threatened to be made a party to a threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, 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, partner, trustee, employee or agent of another enterprise, against expenses, including attorney's fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred in connection therewith if the person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation or its shareholders and, with respect to a criminal action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. The MBCA also empowers Michigan corporations to provide similar indemnity to such a person for expenses, including attorney's fees, and amounts paid in settlement actually and reasonably incurred by the person in connection with actions or suits by or in the right of the corporation if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the interests of the corporation or its shareholders, except in respect of any claim, issue or matter in which the person has been found liable to the corporation, unless the court determines that the person is fairly and reasonably entitled to indemnification in view of all relevant circumstances, in which case indemnification is limited to reasonable expenses incurred. If a person is successful in defending against a derivative action or third-party action, the MBCA requires that a Michigan corporation indemnify the person against expenses incurred in the action. The MBCA also permits a Michigan corporation to purchase and maintain on behalf of such a person insurance against liabilities incurred in such capacities. The Company has obtained a policy of directors' and officers' liability insurance. The MBCA further permits Michigan corporations to limit the personal liability of directors for a breach of their fiduciary duty. However, the MBCA does not eliminate or limit the liability of a director for any of the following: (i) the amount of a financial benefit received by a director to which he or she is not entitled; (ii) intentional infliction of harm on the corporation or the shareholders; (iii) a violation of Section 551 of the MBCA; or (iv) an intentional criminal act. Articles of Incorporation of the Registrant The Company's Articles of Incorporation, which limit liability to the maximum extent permitted by law, provide that a director of the Company shall not be personally liable to the Company or its shareholders for monetary damages for breach of the director's fiduciary duty. As a result of the inclusion of such provision, shareholders of the Company may be unable to recover monetary damages against directors for actions taken by them which constitute negligence or which are in violation of their fiduciary duties, although it may be possible to obtain injunctive or other equitable relief with respect to such actions. Bylaws of the Registrant The Company's Bylaws generally require the Company to indemnify officers and directors to the fullest extent legally possible under the MBCA and provide that similar indemnification may be afforded employees and agents. In addition, the Bylaws require the Company to indemnify any person who is or was serving at the request of the Company as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not, to the same degree as the foregoing indemnification of directors and officers. The Company's Bylaws further provide for the advancement of litigation expenses at the request of a director or officer under certain circumstances. Directors and officers are entitled to bring suit against the Company for failure to make a requested indemnification and the Company has the burden of proof to show such indemnification to be improper. Item 7. Exemption from Registration Claimed. Not Applicable Item 8. Exhibits. The following exhibits are filed with this Registration Statement: 5 Opinion of David M. Sherbin, Esq. with respect to the legality of the Common Stock to be registered hereunder. 23.1 Consent of Ernst & Young LLP 23.2 Consent of David M. Sherbin, Esq. (contained in Exhibit 5) 24 Power of Attorney (see "Signatures") 99 Federal-Mogul Corporation Employee Stock Purchase Program Item 9. Undertakings. (1) The undersigned registrant hereby undertakes 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 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; (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 (1)(i) and (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 by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each 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) The undersigned registrant hereby undertakes 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. (4) The undersigned registrant hereby undertakes that, for the purpose 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) or 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. (5) 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 Southfield, State of Michigan on November 21, 2000. FEDERAL-MOGUL CORPORATION By: /s/ Robert S. Miller, Jr. --------------------------------------------- Robert S. Miller, Jr. Chairman and Interim Chief Executive Officer POWER OF ATTORNEY Each of the undersigned whose signature appears below hereby constitutes and appoints James Zamoyski and David M. Sherbin, and each of them acting alone, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his 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, under the Securities Act of 1933. 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 November 21, 2000. Title /s/ Robert S. Miller, Jr. Chairman and Interim Chief Executive Officer - --------------------------------- Robert S. Miller, Jr. (Principal Executive Officer) /s/ Michael L. Pape Vice President and Controller - -------------------------------- Michael L. Pape (Principal Financial and Accounting Officer) /s/ John J. Fannon Director - -------------------------------- John J. Fannon /s/ Roderick M. Hills Director - -------------------------------- Roderick M. Hills /s/ Paul Scott Lewis Director - -------------------------------- Paul Scott Lewis /s/ John C. Pope Director - -------------------------------- John C. Pope /s/ Sir Geoffrey Whalen C.B.E. Director - -------------------------------- Sir Geoffrey Whalen C.B.E. INDEX TO EXHIBITS Exhibit Number Description 5 Opinion of David M. Sherbin, Esq. with respect to the legality of the Common Stock to be registered hereunder. 23.1 Consent of Ernst & Young LLP 23.2 Consent of David M. Sherbin, Esq. (contained in Exhibit 5) 24 Power of Attorney (see "Signatures") 99 Federal-Mogul Corporation Employee Stock Purchase Program EX-5 2 0002.txt OPINION OF DAVID M. SHERBIN, ESQ. Exhibit 5 November 21, 2000 Federal-Mogul Corporation 26555 Northwestern Highway Southfield, Michigan 48034 Ladies and Gentlemen: I have served as counsel to Federal-Mogul Corporation (the "Company") in connection with the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the issuance in the manner described in the Registration Statement of 170,000 shares of the Company's Common Stock, without par value (the "Common Stock"), pursuant to the Company's Employee Stock Purchase Program (the "Plan"). I have examined and relied upon the originals, or copies certified or otherwise identified to my satisfaction, of such corporate records, documents, certificates and other instruments as in my judgment are necessary or appropriate to enable me to render the opinions expressed below. Based upon such examination and my participation in the preparation of the Registration Statement, it is my opinion that (1) the Company is duly incorporated and validly existing as a corporation in good standing under the laws of Michigan and (2) the shares of Common Stock reserved for issuance under the Plan, when issued in the manner described in the Registration Statement, will be validly issued, fully paid and nonassessable. I consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, I do not concede that I am an expert within the meaning of the Securities Act of the rules or regulations thereunder or that this consent is required by Section 7 of the Securities Act. Very truly yours, /s/ David M Sherbin David M. Sherbin, Esq., Deputy General Counsel & Secretary EX-23.1 3 0003.txt CONSENT OF ERNST & YOUNG LLP Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Federal-Mogul Corporation Employee Stock Purchase Program of our report dated February 16, 2000, with respect to the consolidated financial statements and schedule of Federal-Mogul Corporation included in its Annual Report Form 10-K for the year ended December 31, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Detroit, Michigan November 17, 2000 EX-99 4 0004.txt EMPLOYEE STOCK PURCHASE PLAN Exhibit 99 FEDERAL-MOGUL CORPORATION ------------------------- EMPLOYEE STOCK PURCHASE PLAN ---------------------------- Section 1. Establishment. The Board of Directors ("Board") of Federal- ------------- Mogul Corporation ("Company") established the Federal-Mogul Corporation Employee Stock Purchase Plan ("Plan") effective as of May 1, 2000. Section 2. Purpose. The purpose of the Plan is to provide the full-time ------- employees of the Company and its participating subsidiaries with a convenient way to become shareholders of the Company. The Board of Directors of the Company ("Board"), believes that employee participation in the ownership of Company stock will provide employees with an incentive for better performance, and a means by which they may share in the rewards of the Company's growth and success. The Plan is not intended to qualify under Section 423 of the Internal Revenue Code of 1986. Section 3. Administration. The Plan shall be administered by the -------------- Company's Senior Vice President of Human Resources or his designee (the "Plan Administrator"). The Plan Administrator shall prescribe rules and regulations for the administration of the Plan and may decide questions which may arise with respect to its interpretation or application. Section 4. Term of the Plan. The Plan shall become effective as of May 1, ---------------- 2000 and shall continue from year to year; however, the Plan may be modified or discontinued by the Board or the Plan Administrator at any time in accordance with Section 16. Section 5. Stock Subject to the Plan. The stock available for purchase by ------------------------- participants under the Plan shall be (i) shares of the Company's Common Stock acquired on the open market; (ii) previously authorized, but not issued shares of the Company's Common stock; or (iii) authorized, issued and outstanding shares of the Company's Common Stock. Section 6. Eligible Employees. All full-time employees of the Company in ------------------ salary bands 400 above and designated employee classifications in its participating subsidiaries may participate in the Plan upon completion and submission of an election form in accordance with the procedures set forth by the Plan Administrator. Eligibility may be restricted by the Plan Administrator for purposes of Plan administration or cost containment. Section 7. Contributions. Employee contributions shall be by payroll ------------- deduction, and/or during the year 2000 by a one-time contribution in the form of a personal check. An election form designating payroll deduction amounts shall be submitted to the Company's Payroll Department. Payroll deductions shall be in whole percentages of base pay, capped at a participant's net take-home pay, after taxes and other payroll deductions. A year 2000 contribution by check made payable to Federal-Mogul Corporation, together with an election form, shall be submitted to the Company's Benefits Department. The one-time year 2000 contribution by check may be made in addition to payroll deduction contributions. Checks must be received within a reasonable period of time before the end of an Accumulation Period to be effective for that period. Section 8. Participant Brokerage Accounts. Employee Contributions shall ------------------------------ be held in a brokerage account to be established by the Company on behalf of each Plan participant. The Plan Administrator from time to time shall designate the brokerage firm to hold the accounts. No interest accrues on contributions held in a Participant's brokerage account during an Accumulation Period. Purchased shares in a participant's account shall be held in street name until certificates are issued for such shares. Once the account of a participant is credited with shares pursuant to a purchase, the participant shall be eligible to vote and receive dividends held in his or her account. Certificates shall be issued in accordance with procedures to be established by the Plan Administrator. Section 9. Payroll Deduction Form. A payroll deduction form approved by ---------------------- the Plan Administrator shall: (a) designate the amount to be deducted from the employee's pay; (b) authorize the purchase of stock for the employee in accordance with the terms of the Plan; and (c) specify the exact name in which certificates for the stock purchased under the Plan are to be issued. Unless an employee files a new payroll deduction form or withdraws from the Plan, his or her deductions and purchases pursuant to a filed payroll deduction form shall continue as long as the Plan remains in effect. A participant may elect to stop future payroll contributions at any time and may again participate by filing a new election form. Changes to a payroll deduction election form may take place at any time and shall become effective as 2 soon as administratively practicable. Election change forms must be received by the Payroll Department before the payroll cut-off date to be effective for payroll processing. Section 10. Accumulation Periods. Payroll deductions and other -------------------- contributions shall be held in a participant's account until used to purchase shares of the Company's Common Stock at the end of each Accumulation Period. Shares purchased at the end of an Accumulation Period shall be allocated to the accounts of participants on the day following the end of the Accumulation Period. A participant shall receive a confirmation statement for each transaction processed on the participant's brokerage account. Unless designated otherwise by the Plan Administrator, Accumulation Periods shall be each calendar quarter during the term of the Plan; provided however, that the first Accumulation Period shall commence May 1, 2000 and end June 30, 2000. Section 11. Discounted Purchase Price. Shares of Common Stock purchased ------------------------- under the Plan shall be at a discounted purchase price equal to 85% of the lower of the: . Average Stock Price on the first day of the Accumulation Period; or ----- . Average Stock Price on the last day of the Accumulation Period. ---- The Average Stock Price is defined as the average of the highest and lowest trading prices for the applicable day, as reported in The Wall Street Journal. Section 12. Cash Dividends. Cash dividends on shares held in a -------------- participant's brokerage account shall be reinvested in shares of the Company's Common Stock; however, the 15% discount shall not apply when cash dividends are reinvested to purchase additional shares. Section 13. Holding Period. Shares of Common Stock purchased pursuant to -------------- the Plan must be held by the Participants for a period of six months after purchase during which time the shares shall not be sold or transferred. Provided, however, the six month holding period shall be waived in the event of a participant's retirement or death. Section 14. Termination of Employment, Death and Disability. A ----------------------------------------------- participant shall automatically withdraw from the Plan upon termination of employment with the Company. Any contributions held in a participant's brokerage account at termination of employment, retirement or death shall be used to purchase shares at the end of the Accumulation Period in which the termination of employment, death or retirement occurs. 3 However, no additional contributions shall be made to a participant's brokerage account following termination of employment, retirement or death. In the event of death, shares held in a participant's brokerage account shall become the property of the beneficiary or beneficiaries named on the Plan beneficiary designation form filed by the participant with the Company. Section 15. No Transfer or Assignment of Rights. An employee's rights to ----------------------------------- purchase stock under the Plan may not be transferred or assigned to any other person. Section 16. Termination and Amendment of Plan. The Plan may be amended, --------------------------------- suspended or terminated by the Board or Plan Administrator at any time. Upon termination of the Plan, any contribution held in a participant's brokerage account shall be used to purchase shares of the Company's Common Stock at the end of the Accumulation Period in which the Plan termination occurs. Section 17. Payment of Plan Expenses. The Company shall pay the brokerage ------------------------ commissions upon the purchase of shares and the legal, custodial, printing, mailing and administrative expenses incident to the operation of the Plan. Each participant shall pay any other costs associated with his or her brokerage account under the Plan. The Company shall not pay expenses, commissions or taxes incurred in connection with sales of shares by a broker at the request of the participant, which shall be deducted from the proceeds of the sale. Section 18. Participating Subsidiaries. The term "participating -------------------------- subsidiaries" shall mean any subsidiary of the Company or any subsidiary of a subsidiary of the Company who elects to participate in the Plan. Section 19. No Repurchase of Stock by the Company. The Company shall not ------------------------------------- be obligated to purchase from any employee or beneficiary shares of stock that he or she has acquired under the Plan. Section 20. Responsibility. Neither the Company nor the broker shall have -------------- any responsibility or liability, other than liabilities arising out of the Securities Act, for any actions done or left undone, including without limiting the generality of the foregoing, any actions taken with respect to the price, time, quantity or other conditions and circumstances of the purchase of shares under the Plan. A determination by the Board or the Plan Administrator as to any questions that may arise regarding the Plan's conduct or operation shall be final. Section 21. Governing Law. The Plan and all determinations made and ------------- actions taken pursuant thereto, shall be governed by the laws of the State of Michigan and construed in accordance therewith. 4 The Plan is hereby adopted as of May 1, 2000. FEDERAL-MOGUL CORPORATION By: /s/ David M. Sherbin ----------------------- Its: Secretary ---------------------- 5 -----END PRIVACY-ENHANCED MESSAGE-----