SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
KENAN TRANSPORT COMPANY
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(Exact name of registrant as specified in its charter)
North Carolina 56-0516485
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
University Square-West, 143 W. Franklin Street
Chapel Hill, North Carolina 27516-3910
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(Address of Principal Executive Offices) (Zip Code)
KENAN TRANSPORT COMPANY
1998 LONG-TERM INCENTIVE PLAN
-----------------------------
(Full title of the plan)
WILLIAM L. BOONE, VICE PRESIDENT
Kenan Transport Company
University Square-West, 143 W. Franklin Street
Chapel Hill, North Carolina 27516-3910
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(Name and address of agent for service)
(919) 967-8221
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount to be Price Offering Registration
registered Registered Per Share* Price* Fee
- -------------------------------------------------------------------------------
Common Stock 450,000 shares $31.50 $14,175,000* $4,181.63*
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no par value
*Pursuant to Rule 457(h), the average of the high and low price of the Common
Stock as reported on NASDAQ's National Market System on July 24, 1998 has been
used to calculate the amount of the registration fee.
This Registration Statement on Form S-8 covers 450,000 shares of the
Common Stock, no par value (the "Common Stock"), of Kenan Transport Company (the
"Registrant") issuable upon exercise of options, exercise of stock appreciation
rights or grant of stock bonuses, in each case pursuant to the Registrant's 1998
Long-Term Incentive Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission. The following documents have previously been filed by the Registrant
with the Commission and are incorporated herein by reference as of their
respective dates:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 1997.
(b) (i) Amendment to Current Report on Form 8-K/A dated
February 12, 1998.
(ii) Current Report on Form 8-K dated March 13, 1998.
(iii) Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998.
(iv) Amendment to Current Report on Form 8-K/A dated
May 13, 1998.
(c) The description of the Common Stock of the Registrant set forth under the
heading "Description of Registrant's Securities to be Registered" in the
Registrant's Form 10 (File No. 0-12058) filed with the Securities and
Exchange Commission.
All documents that are hereafter filed by the Registrant pursuant to
Sections 13, 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of the Common Stock
issuable pursuant to the Plan have been issued or which
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deregisters any shares then remaining unissued, 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.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Legal matters in connection with the securities registered hereunder
are being passed upon for the Registrant by Schell Bray Aycock Abel & Livingston
P.L.L.C., Renaissance Plaza, 230 North Elm Street, Suite 1500, Greensboro, North
Carolina 27401. Braxton Schell, a partner of that firm, has been a director of
the Registrant since 1986.
Item 6. Indemnification of Directors and Officers.
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Article VIII of the Registrant's Bylaws provides:
ARTICLE VIII
Indemnification
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1. Extent. In addition to the indemnification otherwise provided by
law, the corporation shall indemnify and hold harmless its directors and
officers against liability and litigation expense, including reasonable
attorneys' fees, arising out of their status as directors or officers of their
activities in any of such capacities or in any capacity in which any of them is
or was serving, at the corporation's request, in another corporation,
partnership, joint venture, trust or other enterprise, and the corporation shall
indemnify and hold harmless those directors, officers or employees of the
corporation who are deemed to be fiduciaries of the corporation's employee
pension and welfare benefit plans as defined under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA fiduciaries") against all
liability and litigation expense, including reasonable attorneys' fees, arising
out of their status or activities as ERISA fiduciaries; provided, however, that
the corporation shall not indemnify a director or officer against liability or
litigation expense that he may incur on account of his activities that at the
time taken were known or reasonably should have been known by him to be clearly
in conflict with the best interests of the corporation, and the corporation
shall not indemnify an ERISA fiduciary against any liability or litigation
expense that he may incur on account of his activities that at the time taken
were known or reasonably should have been known by him to be clearly in conflict
with the best interests of the employee benefit plan to which the activities
relate. The corporation shall also indemnify the director, officer, and ERISA
fiduciary for reasonable costs, expenses and attorneys' fees in connection with
the enforcement of rights to indemnification granted herein, if it is determined
in accordance with
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Section 2 of this Article that the director, officer or ERISA fiduciary is
entitled to indemnification hereunder.
2. Determination. Any indemnification under Section 1 of this Article
shall be paid by the corporation in any specific case only after a determination
that the director, officer or ERISA fiduciary did not act in a manner, at the
time the activities were taken, that was known or reasonably should have been
known by him to be clearly in conflict with the best interests of the
corporation, or the employee benefit plan to which the activities relate, as the
case may be. Such determination shall be made (a) by the affirmative vote of a
majority (but not less than two) of directors who are or were not parties to
such action, suit or proceeding or against whom any such claim is asserted
("disinterested directors") even though less than a quorum, or (b) if a majority
(but not less than two) of disinterested directors so direct, by independent
legal counsel in a written opinion, or (c) if there are less than two
disinterested directors, by the affirmative vote of all of the directors, or (d)
by the vote of a majority of all of the voting shares other than those owned or
controlled by directors, officers or ERISA fiduciaries who were parties to such
action, suit or proceeding or against whom such claim is asserted, or by an
unanimous vote of all of the voting shares, or (e) by a court of competent
jurisdiction.
3. Advanced Expenses. Expenses incurred by a director, officer or ERISA
fiduciary in defending a civil or criminal claim, action, suit or proceeding
may, upon approval of a majority (but not less than two) of the disinterested
directors, even though less than a quorum, or, if there are less than two
disinterested directors, upon unanimous approval of the Board of Directors, be
paid by the corporation in advance of the final disposition of such claim,
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer or ERISA fiduciary to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified against such
expenses by the corporation.
4. Corporation. For purposes of this Article, references to directors,
officers or ERISA fiduciaries of the "corporation" shall be deemed to include
directors, officers and ERISA fiduciaries of Kenan Transport Company, its
subsidiaries, and all constituent corporations absorbed into Kenan Transport
Company or any of its subsidiaries by a consolidation or merger.
5. Reliance and Consideration. Any director, officer or ERISA fiduciary
who at any time after the adoption of this Bylaw serves or has served in any of
the aforesaid capacities for or on behalf of the corporation shall be deemed to
be doing or to have done so in reliance upon, and as consideration for, the
right of indemnification provided herein. Such right shall inure to the benefit
of the legal representatives of any such person and shall not be exclusive of
any other rights to which such person may be entitled apart from the provision
of this Bylaw. No amendment, modification or repeal of this Article VIII shall
adversely affect the right of any director, officer or ERISA fiduciary to
indemnification hereunder with respect to any activities occurring prior to the
time of such amendment, modification or repeal.
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6. Insurance. The corporation may purchase and maintain insurance on
behalf of its directors, officers, employees and agents and those persons who
were serving at the request of the corporation as a director, officer, partner
or trustee of, or in some other capacity in, another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article or otherwise. Any
full or partial payment made by an insurance company under any insurance policy
covering any director, officer, employee or agent made to or on behalf of a
person entitled to indemnification under this Article shall relieve the
corporation of its liability for indemnification provided for in this Article or
otherwise to the extent of such payment, and no insurer shall have a right of
subrogation against the corporation with respect to such payment.
The North Carolina General Statutes contain provisions prescribing the
extent to which directors and officers shall or may be indemnified. These
statutory provisions are set forth below:
CH. 55 N.C. BUSINESS CORPORATION ACT
Part 5. Indemnification.
ss. 55-8-50. Policy Statement and Definitions.
(a) It is the public policy of this State to enable corporations
organized under this Chapter to attract and maintain responsible, qualified
directors, officers, employees and agents, and, to that end, to permit
corporations organized under this Chapter to allocate the risk of personal
liability of directors, officers, employees and agents through indemnification
and insurance as authorized, in this Part.
(b) Definitions in this Part:
(1) "Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) "Director"means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation,
is or was serving at the corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be serving an
employee benefit plan at the corporation's request if his duties to
the corporation also impose duties on, or otherwise involve services
by, him to the
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plan or to participants in or beneficiaries of the plan. "Director" includes,
unless the context requires otherwise, the estate or personal
representative of a director.
(3) "Expenses" means expenses of every kind incurred in defending a
proceeding, including counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect
to a proceeding.
(5) "Official capacity" means: (i) when used with respect to a director,
the office of director in a corporation; and (ii) when used with
respect to an individual other than a director, as contemplated in
G.S. 55-8-56, the office in a corporation held by the officer or the
employment or agency relationship undertaken by the employee or agent
on behalf of the corporation. "Official capacity" does not include
service for another foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan, or other
enterprise.
(6) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
ss. 55-8-51. Authority to Indemnify.
(a) Except as provided in subsection (d), a corporation may indemnify an
individual made a party to a proceeding because he is or was a director against
liability incurred in the proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of conduct in his
official capacity with the corporation, that his conduct was
in its best interests; and (ii) in all other cases, that his
conduct was at least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a purpose
he reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a)(2)(ii).
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(c) The termination of a proceeding by judgment, order, settlement, conviction,
or upon a plea of no contest or its equivalent is not, of itself, determinative
that the director did not meet the standard of conduct described in this
section.
(d) A corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation; or
(2) In connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official capacity,
in which he was adjudged liable on the basis that personal benefit was
improperly received by him.
(e) Indemnification permitted under this section in connection with a proceeding
by or in the right of the corporation that is concluded without a final
adjudication on the issue of liability is limited to reasonable expenses
incurred in connection with the proceeding.
(f) The authorization, approval or favorable recommendation by the board of
directors of a corporation of indemnification, as permitted by this section,
shall not be deemed an act or corporate transaction in which a director has a
conflict of interest, and no such indemnification shall be void or voidable on
such ground.
ss. 55-8-52. Mandatory Indemnification.
Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by him in
connection with the proceeding.
ss. 55-8-53. Advance For Expenses.
Expenses incurred by a director in defending a proceeding may be paid
by the corporation in advance of the final disposition of such proceeding as
authorized by the board of directors in the specific case or as authorized or
required under any provision in the articles of incorporation or bylaws or by
any applicable resolution or contract upon receipt of an undertaking by or on
behalf of the director to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation against such
expenses.
ss. 55-8-54. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting
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the proceeding or to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers necessary may
order indemnification if it determines:
(1) The director is entitled to mandatory indemnification under G.S.
55-8-52, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or
(2) The director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not he met the standard
of conduct set forth in G.S. 55-8-51 or was adjudged liable as described in
G.S. 55-8-51(d), but if he was adjudged so liable his indemnification is
limited to reasonable expenses incurred.
ss. 55-8-55. Determination and Authorization of Indemnification.
(a) A corporation may not indemnify a director under G.S. 55-8-51 unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because
he has met the standard of conduct set forth in G.S. 55- 8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum consisting
of directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision (1), by majority
vote of a committee duly designated by the board of directors (in
which designation directors who are parties may participate),
consisting solely of two or more directors not at the time parties to
the proceeding;
(3) By special legal counsel (i) selected by the board of directors or
its committee in the manner prescribed in subdivision (1) or (2); or
(ii) if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in
which selection directors who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may
not be voted on the determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible,
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except that if the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of expenses shall be made
by those entitled under subsection (b)(3) to select counsel.
ss. 55-8-56. Indemnification Of Officers, Employees, and Agents.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation is entitled to mandatory
indemnification under G.S. 55-8-52, and is entitled to apply for
court-ordered indemnification under G.S. 55-8-54, in each case to the
same extent as a director.
(2) The corporation may indemnify and advance expenses under this Part
to an officer, employee, or agent of the corporation to the same
extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent,
consistent with public policy, that may be provided by its articles of
incorporation, bylaws, general or specific action of its board of
directors, or contract.
ss. 55-8-57. Additional Indemnification and Insurance.
(a) In addition to and separate and apart from the indemnification
provided for in G.S. 55-8-51, 55-8-52, 55-8-54, 55-8-55 and 55-8-56, a
corporation may in its articles of incorporation or bylaws or by contract or
resolution indemnify or agree to indemnify any one or more of its directors,
officers, employees, or agents against liability and expenses in any proceeding
(including without limitation a proceeding brought by or on behalf of the
corporation itself) arising out of their status as such or their activities in
any of the foregoing capacities; provided, however, that a corporation may not
indemnify or agree to indemnify a person against liability or expenses he may
incur on account of his activities which were at the time taken known or
believed by him to be clearly in conflict with the best interests of the
corporation. A corporation may likewise and to the same extent indemnify or
agree to indemnify a person who, at the request of the corporation, is or was
serving as a director, officer, partner, trustee, employee, agent of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise or as a trust or administrator under an employee benefit plan. Any
provision in any articles of incorporation, bylaw, contract, or resolution
permitted under this section may include provisions for recovery from the
corporation of reasonable costs, expenses, and attorneys' fees in connection
with the enforcement of rights to indemnification granted therein and may
further include provisions establishing reasonable procedures for determining
and enforcing the rights granted therein.
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(b) The authorization, adoption, approval, or favorable recommendation
by the board of directors of a public corporation of any provision in any
articles of incorporation, bylaw, contract or resolution, as permitted in this
section, shall not be deemed an act or corporate transaction in which a director
has a conflict of interest, and no such articles of incorporation or bylaw
provision or contract or resolution shall be void or voidable on such grounds.
The authorization, adoption, approval, or favorable recommendation by the board
of directors of a nonpublic corporation of any provision in any articles of
incorporation, bylaw, contract or resolution, as permitted in this section,
which occurred prior to July 1, 1990, shall not be deemed an act or corporate
transaction in which a director has a conflict of interest, and no such articles
of incorporation, bylaw provision, contract or resolution shall be void voidable
on such grounds. Except as permitted in G.S. 55-8-31, no such bylaw, contract,
or resolution not adopted, authorized, approved or ratified by shareholders
shall be effective as to claims made or liabilities asserted against any
director prior to its adoption, authorization, or approval by the board of
directors.
(c) A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by him in that
capacity or arising from his status as a direct officer, employee, or agent,
whether or not the corporation would have power to indemnify him against the
same liability under any provision of this Chapter.
ss. 55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or advance for
expenses, indemnification and advance for expenses are valid only to the extent
consistent with the articles.
(b) This Part does not limit a corporation's power to pay or reimburse
expenses incurred by a director in connection with his appearance as a witness
in a proceeding at a time when he has not been made a name defendant or
respondent to the proceeding.
(c) This Part shall not affect rights or liabilities arising out of
acts or omissions occurring before July 1, 1990.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits
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The Exhibits to this Form S-8 are listed in the accompanying Index to
Exhibits.
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Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(a) 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;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change in such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (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 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.
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.
(b) 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.
The undersigned Registrant hereby undertakes that, for the 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
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.
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
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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 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 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 Act and
will be governed by the final adjudication of such issue.
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 Chapel Hill, State of North Carolina, on July 30,
1998.
KENAN TRANSPORT COMPANY
By: /s/ Lee P. Shaffer
------------------
Lee P. Shaffer
President and Chief Executive Officer
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/ William L. Boone July 27, 1998
- ---------------------- Vice President-Finance;
William L. Boone Secretary; Treasurer
(Principal Financial Officer)
/s/ J. Earl Cowan Controller July 27, 1998
- ----------------------
J. Earl Cowan (Principal Accounting Officer)
/s/ Thomas S. Kenan III Chairman of the Board of July 27, 1998
- ------------------------- Directors
Thomas S. Kenan III
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Signature Title Date
- --------- ----- ----
/s/ Owen G. Kenan July 27, 1998
- ------------------ Vice Chairman of the Board of
Owen G. Kenan Directors
/s/ William O. McCoy Director July 27, 1998
- ----------------------
William O. McCoy
/s/ Paul J. Rizzo Director July 27, 1998
- ----------------------
Paul J. Rizzo
/s/ William C. Friday Director July 27, 1998
- ----------------------
William C. Friday
/s/ Braxton Schell Director July 27, 1998
- ---------------------
Braxton Schell
/s/ Kenneth G. Younger Director July 27, 1998
- ---------------------
Kenneth G. Younger
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EXHIBITS
Index to Exhibits
Exhibit
No. Description
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*4 Specimen certificate of the Registrant's common stock, filed as
Exhibit 4(a) to the Registrant's Form 10 filed April 27, 1984.
5 Opinion of Schell Bray Aycock Abel & Livingston P.L.L.C.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 The consent of Schell Bray Aycock Abel & Livingston P.L.L.C. is
contained in its opinion filed as Exhibit 5.
*99(a) 1998 Long-Term Incentive Plan filed as Appendix I to the
Registrant's Proxy Statement filed March 30, 1998.
* Incorporated by reference to the statement or report indicated.