-----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, OxuUwxGn7nLKkHjXNXMWPqTBWdKaDxZMDbZC240Sh7ZnH+ZW/xn66PjyEGz+6y6t l5VBkSBTPmDZ9zsURUJ7iw== 0000950128-99-000949.txt : 19990823 0000950128-99-000949.hdr.sgml : 19990823 ACCESSION NUMBER: 0000950128-99-000949 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990820 EFFECTIVENESS DATE: 19990820 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MOTIVEPOWER INDUSTRIES INC CENTRAL INDEX KEY: 0000919563 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 820461010 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-85621 FILM NUMBER: 99696568 BUSINESS ADDRESS: STREET 1: TWO GATEWAY CENTER 14TH FLOOR CITY: PITTSBURGH STATE: PA ZIP: 15222 BUSINESS PHONE: 4122011101 MAIL ADDRESS: STREET 1: TWO GATEWAY CENTER 14TH FLOOR CITY: PITTSBURGH STATE: PA ZIP: 15222 FORMER COMPANY: FORMER CONFORMED NAME: MK RAIL CORP DATE OF NAME CHANGE: 19940228 S-8 1 MOTIVEPOWER INDUSTRIES, INC. 1 As filed with the Securities and Exchange Commission on August 20, 1999. REGISTRATION NO. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MOTIVEPOWER INDUSTRIES, INC. (Exact Name of Registrant as Specified in Its Charter) Pennsylvania 82-0461010 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) Two Gateway Center, 14th Floor Pittsburgh, PA 15222 (Address of Principal Executive Offices) MOTIVEPOWER INDUSTRIES, INC. STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS (Full Title of the Plan) Jeannette Fisher-Garber Vice President, Secretary and General Counsel MotivePower Industries, Inc. Two Gateway Center, 14th Floor Pittsburgh, PA 15222 (412) 201-1101 (Name, Address and Telephone Number of Agent for Service) 2 CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------- Proposed Proposed Maximum Amount Title of Amount Maximum Aggregate of Securities To Be Offering Price Offering Registra- to be Registered Registered Per Share Price tion Fee - -------------------------------------------------------------------------------------------------------------------------------- Shares of Common Stock, 75,000 shares $14.44 (1) $1,083,000 (1) $302 $0.01 par value Preferred Stock Purchase 75,000 rights (2) (2) (2) Rights
(1) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(h) and 457(c), the Proposed Maximum Offering Price Per Share is based upon the reported average of the high and low prices for the Registrant's common stock on the New York Stock Exchange on August 18, 1999. (2) The Preferred Stock Purchase Rights are evidenced by certificates for shares of MotivePower Common Stock and automatically trade with MotivePower Common Stock. Value attributable to such Preferred Stock Purchase Rights, if any, is reflected in the market price of the MotivePower Common Stock. On June 23, 1994, MotivePower filed a registration statement or Form S-8 (File No. 033-80704) relating to the MotivePower Industries, Inc. Stock Option Plan for Non-Employee Directors (formerly the MK Rail Corporation Stock Option Plan for Non-Employee Directors) to register 150,000 shares of MotivePower (as adjusted from 100,000 shares to give effect to MotivePower's 3 for 2 stock split on April 2, 1999). Additional shares under the Plan are registered hereby. 3 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information* Item 2. Registrant Information and Employee Plan Annual Information* *Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents previously filed with the Securities and Exchange Commission by MotivePower Industries, Inc., a Pennsylvania corporation ("MotivePower" or the "Company"), are incorporated herein by reference and shall be deemed to be a part hereof: (a) The description of common stock of the Company contained in the Registration Statement on Form 8-A filed by the Company with the Securities and Exchange Commission (the "Commission") on May 4, 1999 (SEC File No. 001-13225); (b) The description of the share purchase rights of the Company contained in the Registration Statements on Form 8-A filed with the Commission on May 4, 1999 and the amendment thereto on Form 8-A/A filed with the Commission on June 3, 1999 (SEC File No. 001-13225); (c) The Company's Annual Report on Form 10-K for the year ended December 31, 1998 (SEC File No. 001-13225); (d) The Company's Quarterly Report on Form 10-Q for the three months ended March 31, 1999 (SEC File No. 001-13225); (e) The Company's Quarterly Report on Form 10-Q for the three months ended June 30, 1999 (SEC File No. 001-13225); (f) The Company's Current Reports on Form 8-K dated May 14, 1999, June 3, 1999 and August 18, 1999 (SEC File No. 001-13225); and (g) The Company's Registration Statement on Form S-4 filed July 20, 1999 (SEC File No. 333-83221). All documents filed by MotivePower pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, are deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated in paragraphs (a) through (g) above, being hereinafter referred to as "Incorporated Documents"). 1 4 Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such first statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers MotivePower's charter and by-laws provide for indemnification of MotivePower's directors and officers for liabilities and expenses that they may incur in such capacities. The MotivePower charter provides that, to the fullest extent permitted by Pennsylvania law, no director will be personally liable to the corporation for or with respect to any acts or omissions in the performance of his or her duties. Pennsylvania law permits a corporation to eliminate the personal liability of its directors for monetary damages for any action taken or failure to take any action unless: (1) such directors have breached or failed to perform their duties; and (2) the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness. MotivePower has adopted such a provision in its charter. However, a Pennsylvania corporation is not empowered to eliminate personal liability where the responsibility or liability of a director is pursuant to any criminal statute or is for the payment of taxes pursuant to any federal, state or local law. Reference is made to MotivePower's charter incorporated by reference as set forth below as Exhibit 4.1 hereto, and by-laws set forth below as Exhibit 4.2 hereto. MotivePower also maintains directors and officers liability insurance which provides for coverage against loss arising from claims made against directors and officers in their capacity as such. MotivePower has agreed to indemnify, to the extent provided under the charter and by-laws of Westinghouse Air Brake Company ("WABCO") in effect on June 2, 1999, the individuals who on or before the closing were officers or directors of WABCO or its subsidiaries with respect to all acts or omissions before the closing by these individuals in these capacities. MotivePower has also agreed to provide, for six years after the closing, a directors' and officers' liability insurance and indemnification policy that provides WABCO's officers and directors in office immediately prior to the closing coverage substantially equivalent to WABCO's policy in effect on June 2, 1999. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors or officers, the Company is aware that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in that Act and is therefore unenforceable. Under certain circumstances, the Company might be required to submit to a court the question of whether indemnification is permissible before it could indemnify directors or officers for such liabilities. Item 7. Exemption From Registration Claimed. Not applicable. 2 5 Item 8. Exhibits. Exhibit No. Description of Exhibit ----------- ---------------------- 4.1 Articles of Incorporation (incorporated by reference to Appendix B to MotivePower's Definitive Proxy Statement filed on March 19, 1999). 4.2 By-laws of MotivePower (incorporated by reference to Exhibit 2 to MotivePower's Registration Statement on Form 8-A filed on May 4, 1999). 4.3 Rights Agreement, dated as of January 19, 1996 between MotivePower and Chase Mellon Shareholder Services, L.L.C., as Rights Agent (incorporated by reference to Exhibit 1 to MotivePower's Report on Form 8-K filed on January 31, 1996). 4.4 First Amendment to the Rights Agreement, dated April 5, 1996 (incorporated by reference to Exhibit 2 to MotivePower's Amendment No. 1 on Form 8-A/A filed on April 25, 1996). 4.5 Second Amendment to the Rights Agreement, dated June 20, 1996 (incorporated by reference to Exhibit 3 to MotivePower's Amendment No. 2 on Form 8-A/A filed on July 3, 1996). 4.6 Third Amendment to the Rights Agreement, dated July 25, 1996 (incorporated by reference to Exhibit 4 to MotivePower's Registration Statement on Form 8-A filed on August 1, 1997). 4.7 Fourth Amendment to the Rights Agreement, dated August 22, 1997 (incorporated by reference to Exhibit 1 to MotivePower's Amendment No. 1 on Form 8-A/A filed on October 23, 1997). 4.8 Fifth Amendment to the Rights Agreement, dated June 2, 1999 (incorporated by reference to Exhibit 1 to MotivePower's Amendment No. 1 on Form 8-A/A filed on June 3, 1999). *4.9 MotivePower Industries, Inc. Stock Option Plan for Non-Employee Directors, as amended. *5.1 Opinion of Doepken Keevican & Weiss, as to the legality of the securities being registered. *23.1 Consent of Deloitte & Touche LLP. *23.2 Consent of Arthur Andersen LLP. *23.3 Consent of Doepken Keevican & Weiss (included in Exhibit 5.1 to this Registration Statement). *24.1 Powers of Attorney. - ------------------- * Filed herewith. Exhibits incorporated by reference herein have previously been filed by the Company with the Securities and Exchange Commission (SEC File No. 001-13225). 3 6 Item 9. Undertakings. (a) MotivePower hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of 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; and (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 (a)(1)(i) and (a)(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 with or furnished to the Commission by MotivePower pursuant to Section 13 or Section 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 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 the time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of MotivePower'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) of the Securities Exchange Act of 1934) 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 the time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of a Registrant pursuant to the foregoing provisions, or otherwise, MotivePower 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 a Registrant of expenses incurred or paid by a director, officer or controlling person of MotivePower 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, MotivePower 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. 4 7 SIGNATURES 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 on Form S-8 to be signed on its behalf of the undersigned, thereunto duly authorized, in the City of Pittsburgh, State of Pennsylvania, on this 19th day of August, 1999. MOTIVEPOWER INDUSTRIES, INC. By: /s/ Scott E. Wahlstrom ------------------------------- Scott E. Wahlstrom Vice President, Human Resources and Administration 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 August 19, 1999.
Signature Title Date - --------- ----- ---- /s/ John C. Pope* Non-Executive Chairman August 19, 1999 - ------------------------------ and Director John C. Pope /s/ Michael A. Wolf* President and Chief Executive August 19, 1999 - ------------------------------ Officer and Director (Principal Michael A. Wolf Executive Officer) /s/ William F. Fabrizio* Senior Vice President and Chief August 19, 1999 - ------------------------------ Financial Officer (Principal William F. Fabrizio Financial Officer) /s/ David L. Bonvenuto* Vice President, Controller and August 19, 1999 - ------------------------------ Principal Accounting Officer David L. Bonvenuto /s/ Gilbert E. Carmichael* Vice Chairman and Director August 19, 1999 - ------------------------------ Gilbert E. Carmichael /s/ Ernesto Fernandez Hurtado* Director August 19, 1999 - ------------------------------ Ernesto Fernandez Hurtado /s/ Lee B. Foster II* Director August 19, 1999 - ------------------------------ Lee B. Foster II /s/ James P. Miscoll* Director August 19, 1999 - ------------------------------ James P. Miscoll /s/ Nicholas J. Stanley* Director August 19, 1999 - ------------------------------ Nicholas J. Stanley * By: /s/ William F. Fabrizio Attorney-in-Fact August 19, 1999 ----------------------- William F. Fabrizio
5 EX-4.9 2 STOCK OPTION PLAN, NON-EMPLOYEE DIRECTORS 1 EXHIBIT 4.9 MOTIVEPOWER INDUSTRIES, INC. STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS ARTICLE 1 - PURPOSE The purpose of this Plan is to encourage the highest level of performance from those members of the Board who are not employees of the Company by granting such directors discounted options to purchase the Company's common stock. Ownership of such stock provides non-employee directors with a proprietary interest in the Company's success and increases their identification with the interests of the Company's stockholders. ARTICLE 2 - DEFINITIONS The following words shall have the meaning set forth in this Article, unless a different meaning is clearly required by the context in which they appear. Whenever appropriate, words used in the singular shall be deemed to include the plural and vice versa, and the masculine gender shall be deemed to include the feminine gender. 2.1 BOARD shall mean the Board of Directors of the Company. 2.2 CAUSE shall mean a Non-Employee Director's (i) willful engagement in conduct materially injurious to the Company, (ii) commission of an act of fraud or embezzlement against the Company or any Subsidiary, or (iii) conviction for any felony involving moral turpitude. For purposes of clause (i) of this definition, no act, or failure to act on the director's part shall be deemed "willful" unless done, or omitted to be done, by the director not in good faith and without reasonable belief that the director's act, or failure to act, was in the best interests of the Company. 2.3 CODE shall mean the Internal Revenue Code of 1986, as now in effect or as hereafter amended. 2.4 COMMITTEE shall mean the Executive Committee of the Board. 2.5 COMMON STOCK shall mean the $.01 par value common stock of the Company. 2.6 COMPANY shall mean MotivePower Industries, Inc., a Delaware corporation. 2.7 EFFECTIVE DATE shall mean April 1, 1994. 2.8 FAIR MARKET VALUE shall mean the average of the highest and lowest quoted selling prices per share of the Common Stock reported on the NASDAQ on the pertinent date, or, if no sales are reported on that date, on the next preceding date on which such sales are reported. 2.9 NON-EMPLOYEE DIRECTOR is a member of the Board who is neither an employee of the Company or any of its Subsidiaries nor an employee of Morrison Knudsen Corporation, a Delaware corporation. 2.10 OPTION shall mean an Option granted under this Plan. 2.11 PARTICIPANT shall mean any Non-Employee Director who participates in the Plan. 2.12 PLAN shall mean the MotivePower Industries, Inc. Stock Option Plan for Non-Employee Directors as set forth herein and as amended from time to time. 2 2.13 SUBSIDIARY shall mean any corporation that at the time qualifies as a subsidiary of the Company under the definition of "subsidiary corporation" contained in Section 424(f) of the Code, as that section may be amended from time to time. ARTICLE 3 - ADMINISTRATION The Committee shall interpret and administer the Plan. The interpretation and construction by the Committee of any provision of this Plan shall be final and binding on all persons interested in the Plan. No member of the Committee shall be liable for any action taken or determination made in good faith with respect to the Plan. The Plan and all action taken under it shall be governed, as to construction and administration, by the law of the State of Delaware. ARTICLE 4 - ELIGIBILITY Each Non-Employee Director shall be a Participant in the Plan. ARTICLE 5 - SHARES SUBJECT TO PLAN The total number of shares of Common Stock with respect to which Options may be granted hereunder shall be two hundred twenty-five thousand (225,000) (subject to adjustment as provided in this Article 5 and Article 8.1). The shares of Common Stock issued upon exercise of an Option shall be from authorized but unissued Common Stock or from any outstanding Common Stock which has been reacquired by the Company. In the event that an Option terminates for any reason, without having been exercised in full, the unpurchased shares of Common Stock subject to that Option shall again be available for grant under this Plan." ARTICLE 6 - GRANT OF OPTION On the Effective Date, each current Non-Employee Director shall be granted an Option to purchase 12,000 shares of Common Stock. In addition, each Non-Employee Director who is elected to the Board after the Effective Date (except an incumbent director) shall be granted upon his election, an Option to purchase 12,000 shares of Common Stock. All such Options shall be subject to the terms and conditions set forth in this Plan. ARTICLE 7 - TERMS AND CONDITIONS OF OPTIONS All Options granted under the Plan shall be evidenced by an Option Agreement which shall be in such form as the Committee may determine and shall be executed on behalf of the Company by an officer of the Company. Each such Option Agreement shall be subject to the terms and conditions of the Plan and shall provide in substance as follows: 7.1 PRICE PER SHARE The purchase price per share for the shares covered by the Option shall be equal to fifty percent (50%) of the Fair Market Value of the Common Stock on the date of grant. 7.2 TERM AND EXERCISE OF OPTION All Options granted hereunder shall vest over a three (3) year period in annual increments of one-third (1/3rd) on each anniversary of the date of grant; provided that, if a Participant ceases to be a Non-Employee Director for any reason (other than termination of directorship for "Cause"), all vested Options then held by such Participant shall be exercisable thereafter for a period of three (3) years and all unvested Options shall terminate thirty (30) days after such person ceases to be a Non-Employee Director. If a Participant's directorship is terminated for Cause, all vested Options then held by such participant shall be exercisable thereafter for a period of thirty (30) days and all unvested Options shall automatically terminate on the date of termination as a director. 2 3 7.3 EXERCISE OF OPTION Each Option Agreement shall provide that the Option evidenced thereby shall be exercised by delivering a written notice of exercise to the Company. Each such notice shall state the number of whole shares of Common Stock with respect to which the Option is being exercised and shall be signed by the Participant. In the event the Option is being exercised by any person other than the Participant the notice shall be accompanied by proof, satisfactory to counsel for the Company, of the right of such person to exercise the Option. Each notice shall also be accompanied by (i) cash payment to the Company of the full amount of the purchase price for the shares being purchased, (ii) shares of Common Stock previously held by the Participant for more than six (6) months with a Fair Market Value equal to the full amount of the purchase price for the shares being purchased, or (iii) by a combination of cash and Common Stock as described in (i) and (ii) above. The date of exercise of an Option shall be the date on which written notice of exercise shall have been received by the Company, but the exercise of an Option shall not be effective until the person exercising the Option shall have complied with all the provisions of the Option Agreement governing the exercise of the Option subject to Article 10. The Company shall thereafter deliver as soon as possible certificates for the shares of the Common Stock with respect to which the Option has been exercised. 7.4 NON-TRANSFERABILITY OF OPTIONS Each Option Agreement shall provide that the Option evidenced thereby is non-transferable and non-assignable by the Participant other than by will or the laws of descent and distribution and during the lifetime of the Participant such Option may be exercised only by the Participant or such Participant's legal representative. ARTICLE 8 - EFFECT OF CERTAIN CHANGES 8.1 ANTI-DILUTION The aggregate number of shares of Common Stock with respect to which Options may be granted hereunder, the number of shares of Common Stock subject to each outstanding Option, and the price per share for each such Option, may au be appropriately adjusted, as the Committee may determine, for any increase or decrease in the number of shares of issued Common Stock resulting from a subdivision or consolidation of shares whether through reorganization, payment of a share dividend or other increase or decrease in the number of such shares outstanding, without payment of consideration to the Company, provided, however, that any fractional shares resulting from any such adjustment shall be eliminated by rounding down to the closest number of whole shares; provided further, that no such adjustment shall be made if the change in the number of outstanding shares results from a contribution, directly or indirectly, of Common Stock by the Company to any Company employee benefit plan. 8.2 SALE OF ASSETS, MERGER OR DISSOLUTION Subject to any required action by the stockholders, if the Company is dissolved or becomes a party to a transaction involving a sale of substantially all its assets, or a merger or a consolidation with another corporation as a result of which the Company is not the surviving corporation, all unexercised Options under the Plan shall become exercisable in full immediately before the consummation of such transaction, and to the extent any Option is not exercised prior to the consummation of such transaction, such Option shall automatically terminate upon the consummation of such transaction. The Company shall use its best efforts, consistent with any applicable legal restrictions, to give all Participants at least fifteen (15) days advance notice of such a transaction. ARTICLE 9 - AMENDMENT AND TERMINATION The Board shall have the right to amend, suspend or terminate this Plan at any time, provided that unless first approved by the stockholders of the Company no amendment shall be made to the Plan which: (i) would cause Rule 3 4 16b-3 of the Securities Exchange Act of 1934 to become inapplicable to the Plan, (ii) materially modifies the eligibility requirements of Article 4, (iii) increases the total number of shares of Common Stock which may be issued under the Plan, (iv) reduces the purchase price of shares under the Plan, (v) extends the term of the Plan, (vi) extends the term of any Option granted under the Plan, or (vii) otherwise materially increases the benefits of the Plan to Participants. No amendment shall impair the rights of a Participant under any outstanding Option, without the Participant's consent. ARTICLE 10 - COMPLIANCE WITH GOVERNMENT REGULATIONS The granting of Options under this Plan and the issuance or transfer of shares of Common Stock under Options are subject to compliance with all applicable federal and state laws, rules and regulations and to such approvals by any regulatory or governmental agency which the Company determines to be necessary or advisable in connection therewith. In connection with any shares of Common Stock issued pursuant to the exercise of Options, the person acquiring such shares shall, if requested by the Company, give assurances satisfactory to the Company in respect of such matters as the Company may deem necessary or advisable to assure compliance with all applicable legal requirements. The Company shall not be required to deliver any shares of Common Stock under the Plan or any Option prior to (i) the admission of such shares to listing on any stock exchange on which Common Stock may then be listed, and (ii) the completion of such registration or other qualification of such shares under any state or federal law, rule or regulation, as the Company shall determine to be necessary or advisable. ARTICLE 11 - NOTICE Any notice to the Company required or permitted under this Plan shall be in writing and shall either be delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, to the Company at the following address or such other address as may be specified from time to time: MotivePower Industries, Inc. Two Gateway Center, 14th Floor Pittsburgh, PA 15222 Attention: Scott Wahlstrom ARTICLE 12 - TERM OF PLAN The Plan shall terminate ten years after the date upon which it is approved by the stockholders of the Company or on such earlier date as may be determined by the Board. No Options may be granted after termination of the Plan. All unexpired Options shall continue in force after termination of the Plan until they lapse or are exercised as provided herein. ARTICLE 13 - EFFECTIVE DATE This Plan shall be effective as specified by the Company's Board of Directors and upon approval by the affirmative vote of the holders of a majority of the shares of the Company's Common Stock. 4 EX-5.1 3 OPINION OF DOEPKEN KEEVICAN & WEISS 1 Exhibit 5.1 DOEPKEN KEEVICAN & WEISS PROFESSIONAL CORPORATION 600 Grant Street 58th Floor Pittsburgh, Pennsylvania 15219 Phone: 412-355-2600 Fax: 412-355-2609 August 18, 1999 MotivePower Industries, Inc. Two Gateway Center, 14th Floor Pittsburgh, PA 15222 Re: Registration Statement on Form S-8 ---------------------------------- Gentlemen and Ladies: We have acted as special counsel to MotivePower Industries, Inc. (the "Company") in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"), relating to up to 75,000 shares of common stock of the Company (the "Common Stock") issued to non-employee directors of the Company subject to certain restrictions when issued, or issuable to employees upon the exercise of stock options, in each case under the MotivePower Industries, Inc. Stock Option Plan for Non-Employee Directors (formerly the MK Rail Corporation Stock Option Plan for Non-Employee Directors) (the "Plan"). In connection with this opinion, we have examined, among other things: (1) the Restated Certificate of Incorporation of the Company, as amended to date; (2) resolutions adopted by the shareholders and board of directors of the Company adopting the Plan and approving certain amendments to the Plan; and (3) the Plan, as currently in effect. Based upon the foregoing and upon an examination of such other documents, corporate proceedings, statutes, decisions and questions of law as we considered necessary in order to enable us to furnish this opinion, and subject to the assumptions set forth above, we are pleased to advise you that in our opinion: (a) The Company has been duly incorporated and is a validly existing corporation under the laws of the Commonwealth of Pennsylvania; and (b) The shares of Common Stock being registered and issuable by the Company pursuant to the provisions of the Plan have been duly authorized, and upon such issuance in accordance with the provisions of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Yours truly, /s/ Doepken Keevican & Weiss Professional Corporation EX-23.1 4 CONSENT OF DELOITTE & TOUCHE, LLP 1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of MotivePower Industries, Inc. on Form S-8 of our reports dated February 11, 1999 (March 2, 1999 as to Note 18), appearing in the Annual Report on Form 10-K of MotivePower Industries, Inc. for the year ended December 31, 1998. /s/ Deloitte & Touche LLP Pittsburgh, Pennsylvania August 18, 1999 EX-23.2 5 CONSENT OF ARTHUR ANDERSEN 1 Exhibit 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated February 17, 1999 included in Westinghouse Air Brake Company's Form 10-K for the year ended December 31, 1998 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Pittsburgh, Pennsylvania August 19, 1999 EX-24.1 6 POWERS OF ATTORNEY 1 Exhibit 24.1 POWER OF ATTORNEY KNOW BY ALL MEN BY THESE PRESENTS, that each of the undersigned, a director or officer or both, of MotivePower Industries, Inc., a Pennsylvania corporation (the "Company"), does hereby appoint Jeannette Fisher-Garber and William F. Fabrizio, and each of them, with full power to act without the other, such person's true and lawful attorneys-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign Form S-8 Registration Statements, and any and all amendments thereto (including post-effective amendments), relating to the registration of shares to be issued in connection with (i) the MotivePower Industries, Inc. Stock Incentive Plan, (ii) the MotivePower Industries, Inc. Stock Option Plan for Non-Employee Directors, (iii) the MotivePower, Inc. (401(k)) Savings Plan, and (iv) the MotivePower Industries, Inc. Deferred Compensation Plan and the MotivePower Industries, Inc. Deferred Compensation Plan for Michael A. Wolf, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact, and each of them, with full power and authority to do and perform each and every act and thing necessary or desirable to be done in or about the premises, as fully to all intents and purposes as he or she might or could do in person, thereby ratifying and confirming all that said attorneys-in-fact, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned has subscribed these presents this 14th day of July, 1999. /s/ John C. Pope -------------------------------- John C. Pope /s/ Michael A. Wolf -------------------------------- Michael A. Wolf /s/ William F. Fabrizio -------------------------------- William F. Fabrizio /s/ David L. Bonvenuto -------------------------------- David L. Bonvenuto /s/ Gilbert E. Carmichael -------------------------------- Gilbert E. Carmichael /s/ Ernesto Fernandez Hurtado -------------------------------- Ernesto Fernandez Hurtado /s/ Lee B. Foster II -------------------------------- Lee B. Foster II /s/ James P. Miscoll -------------------------------- James P. Miscoll /s/ Nicholas J. Stanley -------------------------------- Nicholas J. Stanley -----END PRIVACY-ENHANCED MESSAGE-----