-----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, OrWel6I8Qm+Ee1i6+RvYOuAh8+J42rNm+y/RAbKgsdKteFHx2vJMEMb1xwVJba0e fG4JhKLn07zRhvWxn8ugvQ== 0000950144-00-014627.txt : 20001204 0000950144-00-014627.hdr.sgml : 20001204 ACCESSION NUMBER: 0000950144-00-014627 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20001201 EFFECTIVENESS DATE: 20001201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLIED HOLDINGS INC CENTRAL INDEX KEY: 0000909950 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 580360550 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-51102 FILM NUMBER: 782322 BUSINESS ADDRESS: STREET 1: 160 CLAIRMONT AVE STREET 2: STE 200 CITY: DECATUR STATE: GA ZIP: 30030 BUSINESS PHONE: 4043701100 MAIL ADDRESS: STREET 1: 160 CLAIREMONT AVENUE SUITE 200 CITY: DECATUR STATE: GA ZIP: 30030 S-8 1 g65799s-8.txt ALLIED HOLDINGS, INC. 1 As filed with the Securities and Exchange Commission on December 1, 2000 Registration No. 333- _____ ================================================================================ 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 Registrant 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 DECATUR, GEORGIA 30030 (Address of principal executive offices) (Zip Code) ALLIED HOLDINGS, INC. DEFERRED COMPENSATION PLAN (Full title of the plan) THOMAS M. DUFFY VICE PRESIDENT - CORPORATE AFFAIRS, GENERAL COUNSEL AND SECRETARY ALLIED HOLDINGS, INC. 160 CLAIREMONT AVENUE, SUITE 200 DECATUR, GEORGIA 30030 (404) 373-4285 (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------- Title of each class of Amount to be Proposed maximum Proposed Amount of securities to be registered registered(2) offering price per maximum aggregate registration fee obligation(2) offering price(2) - -------------------------------------------------------------------------------------------------------------- Deferred Compensation $4,000,000 100% $4,000,000 $1,056 Obligations(1)
(1) The Deferred Compensation Obligations are unsecured obligations of Allied Holdings, Inc. to pay deferred compensation in the future under the Allied Holdings, Inc. Deferred Compensation Plan. (2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457 (h)(1) under the Securities Act, based on an estimate of the amount of compensation to be deferred by participants. 2 PART I -- INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents constituting part I of this Registration Statement have been or will be sent or given to participants in the Allied Holdings, Inc. Deferred Compensation Plan (the "Plan") as specified by Rule 428 (b)(1) under the Securities Act. 2 3 PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated by reference into this Registration Statement: (a) the Annual Report on Form 10-K of Allied Holdings, Inc., (the "Corporation") for the fiscal year ended December 31, 1999 and Amendment to the Annual Report on Form 10-K filed June 30, 2000; (b) the Corporation's Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000, and September 30, 2000; (c) the Corporation's Current Report on Form 8-K dated June 14, 2000; and (d) all other documents filed by the Corporation pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters securities that remain unsold. Any statement contained in a document incorporated or deemed incorporated herein by reference 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 subsequently filed document that also is, or is deemed to be, incorporated herein by reference 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. 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 modified 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. The following description of the Deferred Compensation Obligations registered hereby is qualified in its entirety by reference to the full text of the Plan, a complete copy of which is filed as Exhibit 4 to this Registration Statement. Under the Plan, the Corporation will provide employees of the Corporation and its subsidiaries at the Vice President level and above, as well as possibly other employees of the Corporation and its subsidiaries, designated as eligible at the sole discretion of the Compensation Committee of the Corporation (which is the Plan's administrator), the opportunity to defer receipt of all or a portion of the base salary, annual bonus, and cash portion of any awards under the Corporation's Amended an Restated Long Term Incentive Plan that they are entitled to receive. When an employee makes a deferral election, an account will be established on behalf of such employee, and interest will accrue on the account from the date of the deferral until the 3 4 date of final distribution. Such interest will be credited at a rate equal to the Average Corporate Rate of Moody's Long-Term Corporate Bond Yield Averages as established each year on the last day of June during the preceding Plan year and will be compounded daily during the applicable Plan year. The obligations of the Corporation under the Plan to make payments of amounts deferred and any interest thereon to Plan participants in the future in accordance with the terms of the Plan will be unsecured general obligations of the Corporation, and will rank equally with other unsecured and unsubordinated indebtedness of the Corporation outstanding from time to time. An aggregate principal amount of $4,000,000 of such obligations are being registered hereunder and are referred to herein as the Deferred Compensation Obligations. The amounts to be deferred by each Plan participant for each calendar year will be determined in accordance with the Plan based on annual elections made by the participant. The Deferred Compensation Obligations in a participant's account will be distributed in accordance with the Plan either in a lump sum payment or in annual installments based on the participant's election. Payments will begin (i) in January following retirement or permanent disability in the form of a lump sum payment or installments over a period not to exceed ten years, (ii) in January following termination other than retirement in the form of a lump sum payment or installments over a period not to exceed ten years, or (iii) following death in the form of a lump sum payment. In addition, participants may apply to the Compensation Committee for a hardship withdrawal of all or a portion of the his or her account balance, which, if granted, will be paid in a lump sum amount subject to a 5% penalty. Any other distribution received by a participant prior to death, retirement of termination will result in a 10% penalty. A participant's interest in a deferred compensation account is only a right to receive payments pursuant to the Plan. All amounts credited to such accounts are non-forfeitable, and the right of any participant to receive payments under the Plan cannot be alienated, sold, transferred, assigned, pledged or encumbered. The Corporation may amend the Plan in whole or in part at any time, provided that no such amendment shall reduce the benefits accrued through the date of amendment. The Corporation may terminate the Plan at any time, at which point all deferral elections shall cease and benefits shall be paid out in lump sums and/or installments, at the option of the Compensation Committee. Item 5. Interests of Named Experts and Counsel. The validity of the Deferred Compensation Obligations is being passed upon by Thomas M. Duffy, Esq., Vice President, Secretary and General Counsel for the Corporation. Thomas M. Duffy is an officer of, and receives compensation from, the Corporation and is the beneficial holder of 5,630 shares of the Corporation's Common Stock. Item 6. Indemnification of Directors and Officers. Subsection (a) of Section 14-2-851 of the Georgia Business Corporation Code provides that a 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 the proceeding if (1) such individual conducted himself or herself in good faith; and (2) such individual reasonably believed (A) in the case of 4 5 conduct in his or her official capacity, that such conduct was in the best interests of the corporation, (B) in all other cases, that such conduct was at least not opposed to the best interests of the corporation; and (C) in the case of any criminal proceeding, that the individual had no reasonable cause to believe such conduct was unlawful. Subsection (d) of Section 14-2-851 of the Georgia Business Corporation Code provides that a corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct, or in connection with any proceeding with respect to conduct for which he or she was adjudged liable on the basis that personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. Notwithstanding the foregoing, pursuant to Section 14-2-854, a court may order a corporation to indemnify a director if such court determines, in view of all the relevant circumstances, that it is fair and reasonable to indemnify the director even if the director has not met the relevant standard of conduct set forth in subsections (a) and (b) of Section 14-2-851 of the Georgia Business Corporation Code, failed to comply with Section 14-2-853 of the Georgia Business Corporation Code, or was adjudged liable in a proceeding referred to in paragraph (1) or (2) of subsection (d) of Section 14-2-851 of the Georgia Business Corporation Code, but if the director was adjudged so liable, the indemnification shall be limited to reasonable expenses incurred in connection with the proceeding. Section 14-2-852 of the Georgia Business Corporation Code provides that a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. Section 14-2-857 of the Georgia Business Corporation Code provides that a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation to the same extent as a director. If the officer is not a director, (or if the officer is a director but the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer) to such further extent as may be provided by the articles of incorporation, the bylaws, a resolution of the board of directors, or contract except for liability arising out of conduct that constitutes (1) appropriation, in violation of their duties, of any business opportunity of the corporation, (2) acts or omissions that involve intentional misconduct or a knowing violation of law, (3) the types of liability set forth in Section 14-2-832 of the Georgia Business Corporation Code or (4) receipt of an improper personal benefit. An officer of a corporation who is not a director is entitled to mandatory indemnification under Section 14-2-852 of the Georgia Business Corporation Code and may apply to a court under Section 14-2-854 of the Georgia Business Corporation Code for indemnification, in each case to the same extent to which a director may be entitled to indemnification under those provisions. Finally, a corporation may also indemnify an employee or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation, bylaws, general or specific action by its board of directors or contract. 5 6 The Corporation'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 Corporation 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 Corporation. 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 Corporation, (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 Corporation's Bylaws, the Corporation 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 Corporation, 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 Corporation 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 Corporation 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 Corporation, 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 Corporation 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 Corporation's directors and executive officers are insured against damages from actions and claims incurred in the course of performing duties, and the Corporation 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.
Exhibit No. Description ----------- ----------- 4 Allied Holdings, Inc. Deferred Compensation Plan. 5 Opinion of Thomas M. Duffy, Esq. 23.1 Consent of Arthur Andersen LLP.
6 7 23.2 Consent of Thomas M. Duffy, Esq. (included in Exhibit 5) 24 Powers of Attorney (included on Signature Page).
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: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (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 the undertakings set forth in paragraphs (i) and (ii) above 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 Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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 that remain unsold at the termination of any offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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. 7 8 Insofar as indemnification for liabilities arising under the Securities Act 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 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 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 Securities Act and will be governed by the final adjudication of such issue. 8 9 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Atlanta, State of Georgia, on this 29th day of November, 2000. ALLIED HOLDINGS, INC. By: /s/ Daniel H. Popky ---------------------------------------- Daniel H. Popky Senior Vice President and Chief Financial Officer 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 either of them (with full power in each to act alone), as true and lawful attorneys-in-fact, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any 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, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated below on this 29th day of November, 2000.
Signature Title --------- ----- /s/ Robert J. Rutland Chairman --------------------------- Robert J. Rutland /s/ Guy W. Rutland, III Chairman Emeritus and Director --------------------------- Guy W. Rutland, III /s/ A. Mitchell Poole, Jr. Vice-Chairman, Chief Executive Officer and --------------------------- Director (Principal Executive Officer) A. Mitchell Poole, Jr. /s/ Randall E. West President, Chief Operating Officer and --------------------------- Director Randall E. West
9 10 /s/ Daniel H. Popky Senior Vice-President and Chief Financial --------------------------- Officer (Principal Financial and Accounting Daniel H. Popky Officer) /s/ Bernard O. DeWulf Vice Chairman, Executive Vice-President and --------------------------- Director Bernard O. DeWulf /s/ David G. Bannister Director --------------------------- David G. Bannister /s/ Robert R. Woodson Director --------------------------- Robert R. Woodson /s/ William P. Benton Director --------------------------- William P. Benton /s/ Guy W. Rutland, IV Director --------------------------- Guy W. Rutland, IV
10 11 INDEX TO EXHIBITS
Exhibit No. Sequentially Numbered Description - ----------- --------------------------------- 4 Allied Holdings, Inc. Deferred Compensation Plan 5 Opinion of Thomas M. Duffy, Esq. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Thomas M. Duffy, Esq. (included in Exhibit 5) 24 Powers of Attorney (included on Signature Page).
11 EX-4 2 g65799ex4.txt DEFERRED COMPENSATION PLAN 1 EXHIBIT 4 ALLIED HOLDINGS, INC. DEFERRED COMPENSATION PLAN ALLIED HOLDINGS, INC., (the "Employer") hereby adopts this Deferred Compensation Plan (the "Plan") effective January 1, 2001. The Plan is an unfunded deferred compensation arrangement for a select group of management or highly compensated Employees. Benefits under the Plan are payable from the Employer's general assets and are subject to the claims of the Employer's creditors. ARTICLE I DEFINITIONS "ACCOUNT" means the account, including any sub-accounts, established on behalf of each Participant in the Plan. "ACTIVE PARTICIPANT" means, in accordance with Section 2.1, (a) an Employee who: (1) has satisfied the Plan's participation requirements for the Plan Year; and (2) has made a Deferral Election for the Plan Year. Should the Plan terminate, Active Participant status shall cease. "BASE PAY" means a Participant's base salary. A Participant's Base Pay equals his salary, exclusive of allowances and reimbursements. "BENEFICIARY" means the person chosen on the Beneficiary Election Form to receive the undistributed balance of benefits to which a Participant is entitled to receive at the time of his death. "BENEFICIARY ELECTION FORM" means the form provided by the Employer on which the Participant selects his Beneficiary. "BOARD" means the Board of Directors of Employer. "BONUS PLAN" means the Allied Holdings, Inc. EVA Based Incentive Plan. "CHANGE IN CONTROL" means any of the following events: (a) The acquisition (other than from the Employer) by any "Person" (as used for purposes of Section 13(d) or 14(d) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of the combined voting power of the Employer's then outstanding voting securities; or (b) The individuals who, as of the date of adoption of this Plan by the Board, are members of the Board (the "Incumbent Board"), cease for any reason to constitute 1 2 at least two-thirds (2/3) of the Board; provided, however, that if the election, or nomination for election by the Employer's stockholders, of any new director was approved by a vote of at least two-thirds (2/3) of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; or (c) Approval by stockholders of the Employer of (i) a merger or consolidation involving the Employer if the stockholders of the Employer, immediately before such merger or consolidation do not, as a result of such merger or consolidation, own, directly or indirectly, more than seventy percent (70%) of the combined voting power of the then outstanding voting securities of the corporation resulting from such merger or consolidation in substantially the same proportion as their ownership of the combined voting power of the voting securities of the Employer outstanding immediately before such merger or consolidation, or (ii) a complete liquidation or dissolution of the Employer or an agreement for the sale or other disposition of all or substantially all of the assets of the Employer. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur pursuant to subsection (a) above, solely because twenty percent (20%) or more of the combined voting power of the Employer's then outstanding securities is acquired by (i) a trustee or other fiduciary holding securities under one or more Employee benefit plans maintained by the Employer or any of its subsidiaries, or (ii) any corporation which, immediately prior to such acquisition, is owned directly or indirectly by the stockholders of the Employer in the same proportion as their ownership of stock in the Employer immediately prior to such acquisition. "CODE" means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder. "COMPENSATION" means Base Pay, the cash awards payable under the Incentive Plan and the cash payable under the Bonus Plan. "DEFERRAL ELECTION" means an election to defer Compensation which would otherwise be payable in cash. "DEFERRAL ELECTION FORM" means the form supplied by Employer or the Plan Administrator (or its designee) to Participants, on which numerous elections with respect to the Plan are to be made. "DEFERRAL ELECTION REVOCATION FORM" means the form supplied by Employer or the Plan Administrator (or its designee) which revokes a Deferral Election Form. "DISABILITY" means mental or physical disability as determined under the Allied Holdings, Inc. Long-Term Disability Plan. "EARLY RETIREMENT" means retirement under the conditions of and as such term is defined in the Allied Holdings, Inc. Defined Benefit Plan. 2 3 "ELECTIVE DEFERRAL" means an amount which would have been paid to Participant but for a Deferral Election. "EMPLOYEE" means an Employee of the Employer or a Subsidiary. "EMPLOYER" means Allied Holdings, Inc. and its corporate successors. "ERISA" means the Employee Retirement Income Security Act of 1974. "FISCAL YEAR" means the Employer's fiscal year beginning on January 1st and ending on the subsequent December 31st. "INCENTIVE PLAN" means the Allied Holdings, Inc. Long-Term Incentive Plan, as amended and restated. "NORMAL RETIREMENT" means retirement under the conditions of and as such term is defined in the Allied Holdings, Inc. Defined Benefit Plan. "PARTICIPANT" means an Employee or former Employee who has not received all of the benefits to which he is entitled under the Plan. Should the Plan terminate, Participant status shall cease for all individuals. "PLAN" means this Allied Holdings, Inc. Deferred Compensation Plan, as it may be amended from time to time. "PLAN ADMINISTRATOR" means the Compensation Committee of the Employer. The Plan Administrator may choose a designee(s) to handle some or all of its responsibilities under the Plan. "PLAN YEAR" means the twelve (12) month period beginning on January 1st and ending on the subsequent December 31st. "SUBSIDIARY" means any company in which the Employer owns, directly or indirectly, at least a majority of the shares having voting power in the election of directors. ARTICLE II PARTICIPATION 2.1 GENERAL. The Plan is intended to qualify as a "top hat" plan which is exempt from Title I of ERISA. Accordingly, only a select group of management or highly compensated employees may participate in this Plan. Any provision of this Plan or any action taken by the Board, the Plan Administrator or the Employer which would cause the Plan to fail to qualify as a top hat plan under ERISA shall be null and void. 2.2 ANNUAL ELIGIBILITY DETERMINATION. Eligibility to participate in the Plan shall be 3 4 determined on an annual basis. An Employee who participates in the Plan for any given Plan Year shall not be eligible to participate in the Plan for any subsequent Plan Year unless such Employee satisfies the eligibility requirements for such subsequent Plan Year. 2.3 ELIGIBILITY STANDARD. An Employee shall be eligible to participate in the Plan for a Plan Year if the Employee holds the position of vice-president or higher with the Employer. The Plan Administrator may, in its sole discretion, allow other Employees to participate pursuant to the provisions of Section 2.1. The Employer shall notify each Employee eligible to participate in the Plan for a Plan Year of such eligibility upon hire, promotion or at such time as administratively practicable after the Plan Administrator, in its sole discretion, deems an Employee eligible to participate in the Plan. 2.4 ELECTION TO PARTICIPATE. Subject to Sections 2.5 and 2.7, in order to participate in the Plan for a Plan Year, an eligible individual must properly complete and submit to the Plan Administrator a Deferral Election on a Deferral Election Form. Employees must follow the annual enrollment procedures set forth in Section 2.5. However, in the case of a new Employee selected as an eligible Employee as of his date of hire, such Employee shall be eligible to participate during such Plan Year of hire if, within sixty (60) days from his date of hire, he submits a Deferral Election Form to participate; such Deferral Election Form shall be effective for the first month after the month it is received by the Plan Administrator and shall remain in effect for the remainder of the then current Plan Year. 2.5 ANNUAL ENROLLMENT. The Deferral Election Form submitted by an eligible Employee shall only be effective for the Plan Year to which it relates. An eligible Employee must submit a Deferral Election Form for each subsequent Plan Year. Such election must be received by the Plan Administrator no later than December 27th of the Plan Year which immediately precedes the Plan Year for which participation is elected, provided that if December 27th falls on a weekend, a Participant may submit his Deferral Election form on the next business day following December 27th. If a Deferral Election form is mailed to the Plan Administrator, the post mark date shall be considered the date of receipt by the Plan Administrator. 2.6 REVOCATION. A Deferral Election may be prospectively revoked. A revocation shall apply only with respect to pay periods beginning after the date the revocation is received by the Plan Administrator. A revocation is effectuated by filing a Deferral Election Revocation Form with the Plan Administrator. A Participant may revoke a Deferral Election as to Base Pay, the Incentive Plan cash award and/or the Bonus Plan cash award which would otherwise be payable to the Participant. 2.7 FORMER ACTIVE PARTICIPANTS. If a Participant is not an Active Participant, his Account will be distributed in the manner elected on his Deferral Election Form(s) (and, if applicable, his Distribution Election Change Form) at such time said Participant is eligible for a distribution pursuant to the provisions of Article VI. 4 5 ARTICLE III TYPES OF COMPENSATION ELIGIBLE FOR DEFERRAL 3.1 GENERAL DEFERRAL ELECTION. An individual eligible to participate may elect to defer a specific amount or a specific percentage of his Base Pay which would otherwise be payable for the Plan Year following the Plan Year in which the Deferral Election is made. The period in which deferrals are made will correspond with the period in which the Base Pay would have been paid. Any such amount shall be elected on the Deferral Election Form. 3.2 DEFERRAL ELECTION AS TO INCENTIVE PLAN. An individual eligible to participate may elect to defer a specific percentage of his cash award earned for the Plan Year following the Plan Year in which the Deferral Election is made under the Incentive Plan (which would otherwise be payable in the Plan Year next following the Plan Year to which the Deferral Election relates). Any such election shall be made on the Deferral Election Form. 3.3 DEFERRAL ELECTION AS TO BONUS PLAN. A Participant may elect to defer a specific percentage of his annual bonus earned for the Plan Year following the Plan Year in which the Deferral Election is made under the Bonus Plan (which would otherwise be payable in the Plan Year next following the Plan Year to which the Deferral Election relates). Any such election shall be made on the Deferral Election Form. 3.4 TIMING OF DEFERRALS. Amounts deferred under Section 3.1 shall be withheld from Base Pay on an equal pro rated basis throughout the entire Plan Year for which the Deferral Election applies. 3.5 LIMITATION ON DEFERRALS. Notwithstanding anything in this Article III to the contrary, Elective Deferrals shall not be limited for any Plan Year, and Participants may defer up to 100% of their Compensation. Subject to Section 2.6, a Participant's Elective Deferrals for a Plan Year will be accepted until the Participant retires or his employment is terminated. ARTICLE IV OPTIONAL BENEFIT FORMS, ELECTIONS AND TIMING OF BENEFIT PAYMENTS 4.1 DISTRIBUTION FORMS. All benefits under the Plan shall be paid in cash from the Employer's general assets and are subject to the claims of the Employer's general creditors. Benefits distributed under the Plan, except in the case of retirement, death, Disability or other termination of employment, are subject to a withdrawal penalty. There is a ten percent (10%) penalty for in-service distributions pursuant to Section 6.4 and a five percent (5%) penalty for hardship distributions pursuant to Section 6.5. Installment payments shall be calculated by dividing the Participant's Account by the number of installments remaining. (a) Participants may elect to receive their benefits as either: 5 6 (i) a lump-sum distribution; or (ii) annual installments payable over a period no less than two (2) years and no more than ten (10) years. (b) Payment(s) will commence as of the later of (i) January of the Plan Year following the Plan Year of retirement or other termination or (ii) as soon as administratively practicable following retirement or other termination. 4.2 ELECTION OF BENEFIT FORMS. In accordance with Section 2.5, the distribution form chosen pursuant to Section 4.1 must be elected on the Deferral Election Form prior to the time the Compensation to which the benefit form relates is earned and payable. A distribution benefit form chosen prior to a Plan Year shall apply to amounts deferred in the immediately following Plan Year and to amounts deferred in all subsequent Plan Years, unless a Distribution Election Change Form is submitted to the Plan Administrator, in which case the distribution benefit form chosen under the Distribution Election Change Form shall apply to amounts deferred in Plan Years following the Plan Year of receipt of such Form by the Plan Administrator. However, the benefit form chosen under the prior Deferral Election Form (or Distribution Election Change Form, if applicable) shall apply as to Elective Deferrals made while such prior Deferral Election Form (or Distribution Election Change Form, if applicable) was operative. At any time, a Participant may change his benefit form with respect to future Elective Deferrals, to be effective as of the beginning of the next Plan year, by filing a Distribution Election Change Form with the Plan Administrator. 4.3 BENEFICIARY ELECTION. Each Participant may designate a Beneficiary or Beneficiaries to receive benefits to which the Participant is entitled and which are undistributed and remaining in the Plan at the time of the Participant's death. Such election shall be made on the Beneficiary Election Form provided by the Employer. A Participant may change his Beneficiary Election at any time. Notwithstanding Section 4.2, benefits (including any installment benefits not yet paid) shall be paid in accordance with Section 6.1 in the event of the death of a Participant. 4.4 SUPREMACY OF ARTICLE VI. Notwithstanding Section 4.2, benefits shall be paid in accordance with Section 6.1 in the event of the death of a Participant and in accordance with Section 6.2 in the event of the Disability of the Participant. ARTICLE V ACCOUNTS, EARNINGS AND INVESTMENTS 5.1 ACCOUNTS. The Plan Administrator shall maintain records of Accounts for Participants to which amounts deferred shall be credited. 5.2 INTEREST CREDIT TO ACCOUNTS. Any Account which is distributed, in whole or in part, 6 7 shall be credited with interest accruing from the date of the deferral until the date of distribution at a rate equal to the Average Corporate Rate of Moody's Long-Term Corporate Bond Yield Averages (the "Interest Rate"). The Interest Rate for any Plan Year shall be calculated as of June 30th of the preceding Plan Year. (For the 2001 Plan Year, the June 30, 2000 rate shall apply.) If, in any given calendar year, June 30th should fall on either a Saturday or Sunday, the Interest Rate shall be calculated as of the immediately preceding Friday (June 29th or June 28th, as applicable). Such Interest Rate earnings shall be (a) compounded daily during the applicable Plan Year; (b) paid by the Employer from its general assets; and (c) subject to the claims of the Employer's general creditors. Accounts distributed on an installment basis shall continue to be credited with Interest Rate earnings until such accounts have been fully distributed. ARTICLE VI TIMING OF DISTRIBUTIONS 6.1 DEATH. In the event of the death of a Participant, such Participant's Account balance shall be paid to his Beneficiary as soon as administratively practicable following death. In the event the Participant dies after installment distributions have begun, the Beneficiary shall receive the undistributed balance of the Participant's Account as a lump-sum distribution. In the event the Participant dies before distributions have begun, the Beneficiary shall receive the Participant's undistributed balance as a lump-sum distribution. In the event the Participant dies without a valid Beneficiary Designation Form, the Participant's Account Balance will be paid to the Participant's estate. No additional benefits shall be payable thereafter to anyone with respect to such Participant or his benefits. A Beneficiary Designation Form shall become null and void upon a Participant's divorce or legal separation. 6.2 DISABILITY. In the event of the Disability of a Participant prior to termination of employment or retirement, a Participant's benefits shall be paid in the benefit form elected on his Deferral Election Form as if the Participant retired. Consistent with Section 4.1(c), if a lump-sum distribution option was elected, then such distribution shall be made as soon as administratively practicable following the determination of Disability. Consistent with Section 4.1(c), if an installment option was elected, then the initial installment payment shall be made as soon as administratively practicable following the determination of Disability. 6.3 EARLY AND NORMAL RETIREMENT AND OTHER EMPLOYMENT TERMINATION DISTRIBUTIONS. In the event of termination of employment upon Early Retirement or Normal Retirement, or upon any other termination of employment other than due to death or Disability, a Participant shall be paid his Account pursuant to the benefit form chosen under Section 4.1(a). Consistent with Section 4.1(c), if a lump-sum distribution option was elected, then such distribution shall be made by the later of: (a) January of the Plan Year following the Plan Year of retirement or other termination; or (b) as soon as administratively practicable following retirement or other termination. Consistent with Section 4.1(c), if an installment payments option was elected, then the initial installment 7 8 payment shall be made by the later of: (a) January of the Plan Year following the Plan Year of retirement or other termination; or (b) as soon as administratively practicable following retirement or other termination. If the Participant elected to receive installment payments, subsequent Disability of the Participant after installments have begun shall have no impact on the installment benefits being received. 6.4 IN-SERVICE DISTRIBUTIONS. Upon submission of a request by a Participant in a situation which is not described in Section 6.5, the Plan Administrator will make an in-service distribution to the Participant from the Participant's Account equal to the amount requested less an early withdrawal penalty equal to ten percent (10%) of the amount requested. Participants may make only one in-service distribution request during each Plan Year. Additionally, any Active Participant who receives an in-service distribution shall be ineligible to participate in the Plan for the remainder of the then current Plan Year and for the entirety of the next subsequent Plan Year. 6.5 HARDSHIP DISTRIBUTIONS. Upon submission of a request by a Participant, the Plan Administrator will make a hardship distribution to such Participant in an amount not to exceed the hardship amount by more than five percent (5%). For this purpose, a hardship is an immediate and heavy financial need of the Participant and hardship distributions will be made for: (a) Expenses for medical care described in section 213(d) of the Code previously incurred by the Participant, the Participant's spouse, or any dependents of the Participant or necessary for these persons to obtain medical care described in section 213(d) of the Code; (b) Costs directly related to the purchase of a principal residence for the Participant (excluding mortgage payments); (c) Payment of tuition, related educational fees, and room and board expenses, for the next 12 months of post-secondary education for the Participant, or the Participant's spouse, children, or dependents; or (d) Payments necessary to prevent the eviction of the Participant from the Participant's principal residence or foreclosure on the mortgage on that residence. For purposes of this Section 6.5, the term "hardship amount" means an amount no greater than 105% of the amount necessary to satisfy the financial need resultant from one of the above described hardship situations. The Plan Administrator, in its sole discretion, shall decide whether an event qualifies as a hardship and shall further decide the hardship amount. Hardship distributions will be paid in a lump-sum, less a five percent (5%) early withdrawal penalty, and payment will be made as soon as administratively practicable following approval. Any Participant who receives a hardship distribution shall be ineligible to participate in the Plan for the remainder of the then current Plan Year. Only one hardship distribution shall be made in any Plan Year. 8 9 6.6 CHANGE IN CONTROL. Upon the occurrence of a Change in Control, unless the surviving entity after the Change in Control agrees to assume the Plan (as determined by the Plan Administrator), the Plan shall be terminated as soon as administratively feasible before, after or simultaneous with such Change in Control, and Participants shall be paid their Accounts in accordance with the termination provisions of Section 9.3. ARTICLE VII RIGHTS OF PARTICIPANTS Participants have the status of general unsecured creditors of the Employer. The Plan constitutes a mere promise by the Employer to make benefit payments in the future. It is the intention of the Participants, the Employer and the Plan Administrator that the arrangements provided herein be "unfunded" for purposes of Title I of ERISA. ARTICLE VIII ADMINISTRATION AND MISCELLANEOUS 8.1 ADMINISTRATION. The Plan Administrator shall administer and interpret this Plan in accordance with the provisions specified herein. Any determination or decision by the Plan Administrator shall be conclusive and binding on all persons who at any time have or claim to have any interest whatsoever under this Plan. 8.2 LIABILITY OF PLAN ADMINISTRATOR, INDEMNIFICATION. To the extent permitted by law, no member of the committee serving as Plan Administrator shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of this Plan unless attributable to his own gross negligence or willful misconduct. The Employer shall indemnify the members of the committee serving as Plan Administrator against any and all claims, losses, damages, expenses, including counsel fees, incurred by them, and any liability, including any amounts paid in settlement with their approval, arising from their action or failure to act, except when the same is judicially determined to be attributable to their gross negligence or willful misconduct. 8.3 EXPENSES AND BOOKS AND RECORDS. The books and records to be maintained for the purpose of the Plan shall be maintained by the Employer at its expense and subject to the supervision and control of the Plan Administrator. All expenses of administering the Plan shall be paid by the Employer. 8.4 BENEFITS NOT ASSIGNABLE. The right of any Participant in any benefit or to any payment hereunder shall not be subject in any manner to attachment or other legal process for the debts of such Participant; and any such benefit or payment shall not be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment by creditors of the Participant. 9 10 8.5 GOVERNING LAW. All rights and benefits hereunder shall be governed and construed in accordance with the laws of the State of Georgia. 8.6 ADOPTION BY SUBSIDIARIES. The Employer may, by adoption agreement, allow any Subsidiary to adopt the Plan and thereby allow its eligible Employees to participate in the Plan. Any provision of this Plan applicable to a Subsidiary shall only apply if such Subsidiary adopts the Plan. A Subsidiary's adoption may be retroactive. 8.7 SEVERABILITY. In the event that any provision of this Plan shall be declared illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions of this Plan but shall be fully severable and this Plan shall be construed and enforced as if said illegal or invalid provision had never been inserted herein. However, after deletion or elimination of any illegal or invalid provision, the remaining provisions of the Plan shall be construed in a manner so as to achieve, as closely as possible, the intent and objectives of the Plan, as provided by reading the Plan in its entirety. 8.8 CONSTRUCTION. The article and section headings and numbers are included only for convenience of reference and are not to be taken as limiting or extending the meaning of any of the terms and provisions of this Plan. Whenever appropriate, words used in the singular shall include the plural or the plural may be read as the singular. Where appropriate, pronouns used in the masculine shall be read to include the feminine on neuter. 8.9 INFORMATION TO BE FURNISHED. Participants shall provide the Employer and the Plan Administrator with such information and evidence, and shall sign such documents, as may reasonably be requested from time to time for the purpose of administration of the Plan. ARTICLE IX AMENDMENT OR TERMINATION OF PLAN 9.1 AMENDMENT. The Plan may be amended in whole or in part from time to time by the Employer. However, no amendment shall reduce the benefits accrued through the date of the amendment. For this purpose, a right to receive a particular benefit form or optional form of benefit shall be considered neither a benefit which has accrued nor an accrued benefit. 9.2 NOTICE TO PARTICIPANTS. Notice of any such amendment shall be given in writing to each Participant. 9.3 PLAN MAY BE TERMINATED AT ANY TIME. The Plan has been created by the Employer voluntarily. The Employer reserves the right to terminate the Plan at any time. Upon termination, all Deferral Elections shall cease. Benefits may be paid from the Plan in lump-sums or installments, as chosen by the Plan Administrator. If the Plan Administrator makes installment payments, it may discontinue such installments at any 10 11 time and pay lump-sum distributions for remaining Accounts. The Plan Administrator may defer payment of benefits following termination of the Plan until the time distributions would ordinarily be paid to Participants pursuant to prior elections, provided that the Plan Administrator shall be authorized to pay benefits whenever it chooses following termination of the Plan. IN WITNESS WHEREOF, the Employer has caused this Plan to be executed this 29th day of November, 2000 to be effective as of January 1, 2001.
ATTEST: ALLIED HOLDINGS, INC. /s/ Thomas M. Duffy By: /s/ Randall E. West - -------------------------------------------- ------------------------- Thomas M. Duffy Randall E. West Vice President - Corporate Affairs, President, Chief Operating Secretary and General Counsel Officer and Director (CORPORATE SEAL)
EX-5 3 g65799ex5.txt OPINION OF THOMAS M. DUFFY, ESQ. 1 EXHIBIT 5 November 29, 2000 To the Board of Directors of Allied Holdings, Inc. Gentlemen: As Vice President, Secretary and General Counsel of Allied Holdings, Inc., a Georgia corporation (the "Company"), I have reviewed the proceedings in connection with the registration statement on Form S-8 proposed to be filed with the Securities and Exchange Commission (the "Commission") relating to the registration pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of $4,000,000 of Deferred Compensation Obligations (the "Obligations") of the Company arising under the Allied Holdings, Inc. Deferred Compensation Plan (the "Plan"). This opinion is rendered pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K. In the capacity described above, I have reviewed such documents and made such investigations as I have deemed appropriate in rendering this opinion. I am of the opinion that, subject to compliance with the pertinent provisions of the Securities Act and compliance with such securities or "Blue Sky" laws of any jurisdiction as may be applicable, the Obligations have been duly authorized and, when accrued in accordance with the terms of the Plan, the Obligations will be legal, valid and binding obligations of the Company, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights and remedies of creditors and the effect of general principles of equity. I am a member of the Bar of the State of Georgia. In expressing the opinions set forth above, I am not passing on the laws of any jurisdiction other than the laws of the State of Georgia and the Federal law of the United States of America. I hereby consent to the filing of this opinion or copies thereof as an exhibit to the registration statement referred to above. Very truly yours, /s/ Thomas M. Duffy ------------------------------------------- Thomas M. Duffy Vice President-Corporate Affairs Secretary and General Counsel EX-23.1 4 g65799ex23-1.txt CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accounts, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 11, 2000 included in Allied Holdings, Inc.'s Form 10-K/A for the year ended December 31, 1999 and to all references to our firm included in this Registration Statement. /s/ Arthur Andersen LLP Atlanta, Georgia November 29, 2000 -----END PRIVACY-ENHANCED MESSAGE-----