As filed with the Securities and Exchange Commission on
October 4, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
OTR EXPRESS, INC.
(Exact name of registrant as specified in its charter)
Kansas 48-0993128
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
804 N. Meadowbrook Drive, Olathe, Kansas 66062
(Address of Principal Executive Offices) (Zip Code)
OTR Express, Inc. 1996 Directors' Stock Option Plan
(Full title of the plan)
William P. Ward, President
OTR Express, Inc.
804 North Meadowbrook Drive
Olathe, Kansas 66062
(Name and address of agent for service)
(913) 829-1616
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
Titles of Amount of Proposed Proposed Amount of
securities shares to be maximum maximum registration
to be registered offering aggregate fee
registered <FN1> price per offering
share price
Common Stock,
par value
$.01 per share 10,000 Shares $5.00 $50,000 $100.00
<FN>
<FN1>Plus such additional indeterminate number of shares as
may be issuable pursuant to the anti-dilution provisions of the
Plan.
Calculated in accordance with the provisions of Rule 457(h) of
the Securities Act of 1933, as amended, solely for the purpose of
computing the registration fee using the average of the high and
low sales prices for the Company's Common Stock as reported on
the NASDAQ National Market System on October 1, 1996.
</FN>
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the benefit
plan described above.
INTRODUCTION
This Registration Statement on Form S-8 is filed by OTR
Express, Inc. (the "Company") relating to shares of its Common
Stock, par value $.01 per share ("Common Stock"), issuable
pursuant to the OTR Express, Inc. Directors' 1996 Stock Option
Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1.Plan Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration
statement in accordance with Rule 428 under the Securities Act of
1933, as amended ("Securities Act") and the Note to Part I of
Form S-8.
Item 2.Registrant Information and Employee Plan Annual
Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration
statement in accordance with Rule 428 under the Securities Act
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, which previously have been filed by
the Company with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference and made a
part hereof:
(a)The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "1934
Act");
(b)The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1996 and June 30, 1996.
(c)The description of the Common Stock contained in the
Company's Registration Statement on Form S-18 (Registration
No. 33-44422-FW), filed under the 1934 Act on December 9,
1991, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters
all securities offered hereunder then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Item 4.Description of Securities.
The class of securities to be offered is registered under Section 12
of the 1934 Act such that a description of the Common Stock
required by Item 202 of Regulation S-K is not required.
Item 5.Interests of Named Experts and Counsel.
None.
Item 6.Indemnification of Directors and Officers.
Section 17-6305 of the Kansas General Corporation Code
provides for indemnification by a corporation of its officers and
directors as follows:
PAGE
17-6305 INDEMNIFICATION OF OFFICER, DIRECTORS,
EMPLOYEES AND AGENTS; ADVANCEMENT OF
EXPENSES; INSURANCE; DEFINITIONS
(a) A corporation shall have power to indemnify any person who
was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, other than
an action by or in the right of the corporation, by reason of the
fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such action, suit or proceeding, including attorney fees, if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests
of the corporation; and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that such person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who
was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against expenses actually and reasonably incurred by
such person in connection with the defense or settlement of such
action or suit, including attorney fees, if such person acted in
good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue or
matter therein, such director, officer, employee or agent shall be
indemnified against expenses actually and reasonably incurred by
such person in connection therewith, including attorney fees.
(d) Any indemnification under subsections (a) and (b), unless
ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because such director, officer,
employee or agent has met the applicable standard of conduct set
forth in subsections (a) and (b). Such determination shall be
made (1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such a quorum is not obtainable, or even
if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses incurred by a director or officer in defending a civil
or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay such amount if it is ultimately
determined that the director or officer is not entitled to be
indemnified by the corporation as authorized in this section.
Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in a
person's official capacity and as to action in another capacity
while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether
or not the corporation would have the power to indemnify such
person against such liability under the provisions of this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in
the same position under this section with respect to the resulting
or surviving corporation as such person would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not
opposed to the best interest of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director, officer, employee or agent and shall
inure to the benefit of heirs, executors and administrators of such
a person.
The officers and directors of the Company are indemnified
pursuant to specific provisions of the Company's Articles of
Incorporation (as amended) and Restated Bylaws to the fullest
extent permissible under the laws of the State of Kansas.
Item 7.Exemption from Registration Claimed.
Not Applicable.
Item 8.Exhibits.
Exhibit No.Description
4.1 Articles of Incorporation, as amended, of the Company
(incorporated by reference from Exhibit 3(a) to Form 10-K for
the year ended December 31, 1995 (File No. 1-19773)).
4.2 Restated Bylaws of the Company (incorporated by
reference from Exhibit 3(a) to Form 10-K for the year ended
December 31, 1995 (File No. 1-19773)).
5 Opinion of Bryan Cave llp as to the legality of the
securities being registered.
23.1 Consent of Bryan Cave llp (included in Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (reference is made to page 9 hereof).
Item 9.Undertakings.
(a)The undersigned Company 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, as amended (the "1933 Act");
(ii) to reflect in the prospectus any facts or event 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; 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 (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-3 , Form S-8 or Form F-3,
and 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 pursuant to Section 13
or Section 15(d) of the Securities and Exchange Act of 1934 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
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 of
1933, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities and 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 and 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 Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company
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 Olathe,
State of Kansas, on September 30, 1996.
OTR EXPRESS, INC.
By:/s/ William P. Ward
William P. Ward, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose individual signature appears below hereby constitutes and
appoints William P. Ward, Gary J. Klusman, and Steven W.
Ruben or any of them, as his true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him
and his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this registration statement, and to file the same with all exhibits
thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants full
power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or any of
them, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the 1933 Act, this registration
statement has been signed by the following persons in the
capacities indicated and on the date indicated.
Signatures Title Date
William P. Ward Chairman of the Board 9/30/96
William P. Ward of Directors President
and Principal Executive
Officer
Gary J. Klusman Executive Vice President 9/30/96
Gary J. Klusman and Director
Janice K. Ward Vice President 9/30/96
Janice K. Ward Compensation
and Administration,
Secretary and Director
Steven W. Ruben Vice President Finance, 9/30/96
Steven W. Ruben Principal Financial Officer
and Principal Accounting
Officer
Christine D. Schowengerdt Treasurer 9/30/96
Christine D. Schowengerdt
James P. Anthony Director 9/30/96
James P. Anthony
Dean W. Graves Director 9/30/96
Dean W. Graves
Ralph E. MacNaughton Director 9/30/96
Ralph E. MacNaughton
Terry G. Christenberry Director 9/30/96
Terry G. Christenberry
Charles M. Foudree Director 9/30/96
Charles M. Foudree