As filed with the Securities and Exchange Commission on May 30, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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M.S. CARRIERS, INC.
(Exact name of registrant as specified in its charter)
Tennessee 62-1014070
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
3171 Directors Row
Memphis, Tennessee 38131
(901) 332-2500
(Address of Principal Executive Offices)
1993 Stock Option Plan
1996 Stock Option Plan
(Full title of the plan)
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Michael S. Starnes, President
M.S. Carriers, Inc.
3171 Directors Row
Memphis, Tennessee 38131
(Name and address of agent for service)
(901) 332-2500
(Telephone number, including area code, of agent for service)
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Copy to:
Robert E. Orians, Esq.
Martin, Tate, Morrow & Marston, P.C.
22 N. Front Street, Suite 1100
Memphis, Tennessee 38103
(901) 522-9000
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
- -----------------------------------------------------------------------------
Common Stock, $0.01 par
value issuable under:
1993 Stock Option Plan 500,000 $30.60(3) $15,300,000 $ 3,825
1996 Stock Option Plan 1,500,000 $30.60(3) 45,900,000 11,475
Total 2,000,000 $61,200,000 $ 15,300
=============================================================================
(1) This Registration Statement shall also cover any additional shares of
common stock that become issuable under any of the referenced plans being
registered pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration, which results in an
increase in the number of the Registrant's outstanding shares of common
stock.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Computed in accordance with Rule 457(h) and Rule 457(c) of the Securities
Act of 1933, as amended. Such computation is based on the average of the
high and low prices of the Registrant's Common Stock as reported on The
Nasdaq National Market on May 29, 2001.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE
WITH RULE 462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Document by Reference.
The Registrant hereby incorporates by reference in this Registration Statement
the following documents and information filed with the Securities and Exchange
Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed with the Commission on March 30, 2001 (File No. 000-
14781);
2. The Registrant's Amendment No. 1 to Annual Report on Form 10-K/A for the
fiscal year ended December 31, 2000, filed with the Commission on April 30,
2001 (File No. 000-14781);
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 2001, filed with the Commission on May 9, 2001 (File No. 000-14781); and
4. The description of the Registrant's Common Stock as set forth in the
Registration Statement on Form S-3 (Registration No. 33-63280) filed with the
Commission on May 25, 1993, including any amendments or reports filed with the
Commission for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act 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 remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document 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 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.
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Item 6. Indemnification of Directors And Officers.
Under Section 48-18-501 through 48-18-509 of the Tennessee Business
Corporation Act, the Registrant has broad powers to indemnify its directors
and officers against liabilities they may incur in such capacities, including
liabilities under the Securities Act of 1933, as amended. The Registrant's
Restated Charter and Amended and Restated Bylaws provide for mandatory
indemnification of its directors, officers and employees to the fullest extent
permissible under Tennessee law.
The Registrant's Restated Charter provides that the liability of its directors
for monetary damages shall be eliminated to the fullest extent permissible
under Tennessee law. Pursuant to Tennessee law, this includes elimination of
liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its shareholders; however, each director will
continue to be subject to liability for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct, and for payments or distributions to
shareholders that are unlawful under Tennessee law. The Registrant maintains
a policy of directors' and officers' liability insurance that insures its
directors and officers against the costs of defense, settlement or payment of
a judgment under certain circumstances.
The above discussion of the Registrant's Restated Charter and Amended and
Restated Bylaws and of Tennessee law is not intended to be exhaustive and is
qualified in its entirety by such Restated Charter, Amended and Restated
Bylaws and statutes.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
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4.1 1993 Stock Option Plan (1).
4.2 1996 Stock Option Plan (2).
5.1 Opinion of Martin, Tate, Morrow & Marston,
P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Martin, Tate, Morrow & Marston,
P.C. (included in Exhibit 5.1).
(1) Incorporated by reference from exhibits to the Registrant's Registration
Statement on Form S-3 (Registration No. 33-63280).
(2) Incorporated by reference from exhibits to the Registrant's Proxy
Statement dated April 4, 1996.
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Item 9. Undertakings.
(a) 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 of 1933;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
Registration Statement; and
iii. To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (1)(ii) shall 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 the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be in 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
the Registrant's annual report pursuant to Section 13(a) or Section 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
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Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
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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 Memphis, State of Tennessee, on May 30, 2001.
M.S. CARRIERS, INC.
By: \s\ Michael S. Starnes
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Michael S. Starnes
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons and in the
capacities and on the dates indicated.
\s\ Michael S. Starnes Chairman of the Board, President, May 30, 2001
- -------------------------- Chief Executive Officer and Date
Michael S. Starnes Director
\s\ James W. Welch Senior Vice President - May 30, 2001
- -------------------------- Marketing and Director Date
James W. Welch
\s\ M.J. Barrow Senior Vice President - May 30, 2001
- -------------------------- Finance and Administration, Date
M.J. Barrow Secretary-Treasurer and Director
\s\ Pierce Crockett Controller May 30, 2001
- -------------------------- Date
Pierce Crockett
\s\ Jack H. Morris, III Director May 30, 2001
- -------------------------- Date
Jack H. Morris, III
Director
- -------------------------- Date
Morris H. Fair
Director
- -------------------------- Date
Edward A. Labry, III
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 1993 Stock Option Plan (1).
4.2 1996 Stock Option Plan (2).
5.1 Opinion of Martin, Tate, Morrow & Marston, P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Martin, Tate, Morrow & Marston, P.C.
(included in Exhibit 5.1).
(1) Incorporated by reference from exhibits to the Registrant's Registration
Statement on Form S-3 (Registration No. 33-63280).
(2) Incorporated by reference from exhibits to the Registrant's Proxy
Statement dated April 4, 1996.
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