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. Stock Option Plan of 1991
(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 50,000 shares $5.00 $250,000 $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. Stock Option Plan of 1991 (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:
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