-----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, Fyn2zS6rw2/d6oStTCR7m7WWrtEZq0LfEdSQ416Awz4HLWXDbjY0Q12aGagSG0z3 ijkmRzZ6pIcMTtezGAYegw== 0000931763-97-001700.txt : 19971015 0000931763-97-001700.hdr.sgml : 19971015 ACCESSION NUMBER: 0000931763-97-001700 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971014 EFFECTIVENESS DATE: 19971014 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: US XPRESS ENTERPRISES INC CENTRAL INDEX KEY: 0000923571 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 621378182 STATE OF INCORPORATION: NV FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-37795 FILM NUMBER: 97694823 BUSINESS ADDRESS: STREET 1: 2931 SOUTH MARKET ST CITY: CHATTANOOGA STATE: TN ZIP: 37410 BUSINESS PHONE: 6156967377 MAIL ADDRESS: STREET 1: 2931 SOUTH MARKET ST CITY: CHATTONOOGA STATE: TN ZIP: 37410 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on October 14, 1997 Registration No. _________ ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _______________________ U.S. XPRESS ENTERPRISES, INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) NEVADA 62-1378182 - ------------------------ ------------------------------------ (State of incorporation) (I.R.S. Employer Identification No.) _______________________ 2931 SOUTH MARKET STREET, CHATTANOOGA, TENNESSEE 37410 ------------------------------------------------------------ (Address of principal executive offices, including zip code) U.S. XPRESS ENTERPRISES, INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) ________________________ RAY M. HARLIN A. ALEXANDER TAYLOR II, ESQ. CHIEF FINANCIAL OFFICER MILLER & MARTIN U.S. XPRESS ENTERPRISES, INC. 1000 VOLUNTEER BUILDING 2931 SOUTH MARKET STREET CHATTANOOGA, TENNESSEE 37402 CHATTANOOGA, TN 37410 (423) 756-6600 (423) 697-7377 (Name, address and telephone number, including zip code, of agents for service) CALCULATION OF REGISTRATION FEE
============================================================================================ Proposed Proposed TITLE OF Amount Maximum Maximum Amount of SECURITIES TO to be Offering Price Aggregate Registration BE REGISTERED Registered Per Unit(1) Offering Price(1) Fee(1) - -------------------------------------------------------------------------------------------- Class A Common Stock, $.01 par value per share 300,000 $21.81 $6,543,750 $1,982.95 =============================================================================================
(1) Pursuant to Rule 457(c) and (h), the proposed offering price per share, the proposed aggregate offering price and amount of registration fee for the Class A Common Stock have been computed with respect to the aggregate contribution of employees as if all plan participants invested in the 300,000 shares of Class A Common Stock of the Registrant to be purchased, computed and based upon $21.81, the average of the high and low price of Registrant's common stock on October 7, 1997, as reported on the NASDAQ National Market System. PART I ------ INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ---------------------------------------------------- Pursuant to Part I of Form S-8, the information required by Items 1 and 2 of Form S-8 are not filed as a part of this Registration Statement. This information will be sent or given to participants in the U.S. Xpress Enterprises, Inc. Employee Stock Purchase Plan (the "Plan") as specified by Rule 428(b)(1) as promulgated under the Securities Act of 1933, as amended. 2 PART II ------- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT -------------------------------------------------- Item 3. Incorporation of Documents by Reference. --------------------------------------- The following documents previously filed by U.S. Xpress Enterprises, Inc. (the "Registrant") with the Securities and Exchange Commission are hereby incorporated by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended March 31, 1997; and (b) All reports and registration statements filed by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, since March 31, 1997. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the completion or termination of this offering shall be deemed to be incorporated by reference in the registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. -------------------------------------- The legality of the shares of Class A Common Stock issuable under the Plan has been passed upon for the Registrant by the law firm of Miller & Martin. A. Alexander Taylor, II is a partner in Miller & Martin and is also a director of the Registrant. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Article 12 of the Registrant's Restated Articles of Incorporation ("Restated Articles") provides as follows: To the fullest extent permitted by the Nevada General Corporation Law, as the same exists or may hereafter be amended, a director or officer of this corporation shall not be personally liable to the 3 corporation or its shareholders for monetary damages for breach of his or her fiduciary duty as a director or officer. To the fullest extent permitted by the Nevada General Corporation Law, as the same exists or may hereafter be amended, the corporation shall indemnify any person who is made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, by reason of the fact that such person is or was a director or officer of the corporation or of any of its subsidiaries, or is or was serving at the direction of the corporation in any such capacity with any other entity whatsoever. The requirement that the corporation shall provide indemnification pursuant to this Article 12 shall not preclude any other or additional provision of indemnification, whether provided by law, by insurance, by agreement between this corporation and the parties to be indemnified or otherwise. In addition to the rights of indemnification granted herein, this corporation shall, to the fullest extent now or hereafter permitted by the Nevada General Corporation Law, provide for the advancement of expenses as they are incurred by any director or officer of the corporation in the defense of any proceeding of the type described above, in advance of the final disposition of such proceeding. Article 11 of the Registrant's Bylaws provides as follows: "[a]ny director or officer, or the executor or administrator of any director or officer, is entitled to indemnification to the fullest extent permissible under the laws of this state." Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- The exhibits to the registration statement are listed in the Exhibit Index included elsewhere herein. Item 9. Undertakings. ------------ (a) The undersigned Registrant hereby undertakes: 4 (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (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 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, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934, as amended (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 the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against 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 suc cessful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person connected 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. 5 POWER OF ATTORNEY ----------------- The Registrant and each person whose signature appears below hereby appoints Max L. Fuller, Patrick E. Quinn and Ray M. Harlin, and each of them, as attorneys-in-fact with full power of substitution, to execute in their respective names and on behalf of the Registrant and each such person, individually and in each capacity stated below, any and all amendments (including post-effective amendments) to this registration statement as the attorneys-in-fact and to file any such amendment to the registration statement with the Securities and Exchange Commission, granting unto said attorneys-in- fact and their substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and their substitutes may lawfully do or cause to be done by virtue hereof. 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 Chattanooga, State of Tennessee, on October 9, 1997. U.S. XPRESS ENTERPRISES, INC. By: /s/ Patrick E. Quinn ----------------------------- Patrick E. Quinn, President and Co-Chairman of the Board 6 Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date - -------------------------- -------------------- --------------- /s/ Max L. Fuller Co-Chairman of the October 9, 1997 - -------------------------- Board; Director Max L. Fuller (principal executive officer) /s/ Patrick E. Quinn Co-Chairman of the October 9, 1997 - -------------------------- Board; President Patrick E. Quinn and Treasurer; Director (principal executive officer) /s/ Ray M. Harlin Chief Financial October 9, 1997 - -------------------------- Officer (principal Ray M. Harlin financial and accounting officer); Director /s/ E. William Lusk, Jr Executive Vice October 9, 1997 - -------------------------- President of E. William Lusk, Jr. Marketing; Director /s/ William K. Farris Executive Vice October 9, 1997 - -------------------------- President of William K. Farris Operations; Director /s/ James B. Baker Director October 9, 1997 - -------------------------- James B. Baker /s/ A. Alexander Taylor II Director October 9, 1997 - -------------------------- A. Alexander Taylor II 7 EXHIBIT INDEX ------------- No. Description --- ----------- 4.1 Amended and Restated Articles of Incorporation of U.S. Xpress Enterprises, Inc.(1) 4.2 Amended and Restated By-laws of U.S. Xpress Enterprises, Inc.(1) 5 Opinion of Miller & Martin 24.1 Consent of Miller & Martin (included in Exhibit 5) 24.2 Consent of Arthur Andersen LLP 25 Power of Attorney (reference is made to the signature page of this registration statement) - --------------- (1) Incorporated by reference from the Registrant's registration statement on Form S-1, SEC File No. 33-79208. 8 EX-5 2 OPINION OF MILLER & MARTIN Exhibit 5 MILLER & MARTIN --------- ATTORNEYS AT LAW SUITE 1000 VOLUNTEER BUILDING 832 GEORGIA AVENUE CHATTANOOGA, TENNESSEE 37402-2289 423/756-6600 FAX 423/785-8480 NASHVILLE OFFICE: SUITE 1225 SUNTRUST CENTER 424 CHURCH STREET NASHVILLE, TENNESSEE 37219-2301 615/244-3119 FAX 615/244-1423 October 9, 1997 U.S. Xpress Enterprises, Inc. 2931 South Market St. Chattanooga, TN 37410 Re: U.S. Xpress Enterprises, Inc. Employee Stock Purchase Plan Gentlemen: This opinion is furnished in connection with the Registration Statement on Form S-8 (the "Registration Statement") to be filed under the Securities Act of 1933, as amended (the "Act") with respect to 300,000 shares of the Class A Common Stock, $.01 par value (the "Common Stock") of U.S. Xpress Enterprises, Inc. (the "Company") in connection with its Employee Stock Purchase Plan. In rendering this opinion, we have conducted such investigation, have reviewed such matters of law, and have examined such corporate books, records and other documents (including the Registration Statement) as we have deemed necessary or relevant to this opinion. Based on the foregoing, we are of the opinion that when the Registration Statement has become effective under the Act, the Common Stock which may be issued in accordance with the Registration Statement will, when issued, be legally issued, fully paid and non-assessable. As you are aware, A. Alexander Taylor II, a director of the Company, is a partner in the law firm of Miller & Martin. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, MILLER & MARTIN By: /s/ Hugh F. Sharber -------------------- EX-24.2 3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 24.2 ------------ 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 May 7, 1997 included in U.S. Xpress Enterprises, Inc.'s Form 10-K for the year ended March 31, 1997 and to all references to our Firm included in this registration statement. Chattanooga, Tennessee October 9, 1997 -----END PRIVACY-ENHANCED MESSAGE-----