As filed with the Securities and Exchange Commission on November 9, 2000
Registration No. 333-42080
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Nations Express, Inc.
(Name of small business issuer in its charter)
North Carolina 4731 56-2077063
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of
incorporation or Classification Code Number) Identification No.)
organization)
1328B Crossbeam Road
Charlotte, North Carolina 28217
(704) 423-9911
(Address and telephone number
of principal executive offices and principal place of business)
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Allen D. Watson
President and Chief Executive Officer
Nations Express, Inc.
1328B Crossbeam Road
Charlotte, North Carolina 28217
(704) 423-9564
(Name, address and telephone number of agent for service)
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Copy to:
Brian T. Atkinson, Esq. William M. Prifti, Esq.
Moore & Van Allen PLLC 5 Market Square
100 North Tryon Street, Suite 47 Suite 109
Charlotte, North Carolina 28202-4003 Amesbury, Massachusetts 01913
(704) 331-1000 (978) 388-4942
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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EXPLANATORY NOTE
This Amendment No. 3 is being filed with the Securities and Exchange Commission
solely for the purpose of filing Exhibit 23.1.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of Directors and Officers.
Permissible Indemnification. The North Carolina Business Corporation Act
(the "NCBCA") allows a corporation, by charter, bylaw, contract or resolution,
to indemnify or agree to indemnify its officers, directors, employees and
agents and any person who is or was serving at the corporation's request as a
director, officer, employee or agent of another entity or enterprise or as a
trustee or administrator under an employee benefit plan, against liability and
expenses, including reasonable attorneys' fees, 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 as summarized herein. Any provision in a corporation's
charter or bylaws or in a contract or resolution 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 such rights.
The corporation may indemnify such person against liability expenses
incurred only where such person conducted himself or herself in good faith and
reasonably believed (i) in the case of conduct in his or her official corporate
capacity, that his or her conduct was in the corporation's best interests, and
(ii) in all other cases, that his or her conduct was at least not opposite to
the corporation's best interests; and, in the case of a criminal proceeding, he
or she had no reasonable cause to believe his or her conduct was unlawful;
provided, however, that a corporation may not indemnify such person either in
connection with a proceeding by or in the right of the corporation in which
such person was adjudged liable to the corporation, or in connection with any
other proceeding charging improper personal benefit to such person (whether or
not involving action in an official capacity) in which such person was adjudged
liable on the basis that personal benefit was improperly received.
Mandatory Indemnification. Unless limited by the corporation's charter, the
NCBCA requires a corporation to indemnify a director or officer of the
corporation who is wholly successful, on the merits or otherwise, in the
defense of any proceeding to which such person was a party because he or she is
or was a director or officer of the corporation against reasonable expenses
incurred in connection with the proceeding.
Advance for Expenses. Expenses incurred by a director, officer, employee or
agent of the corporation in defending a proceeding may be paid by the
corporation in advance of the final disposition of the proceeding as authorized
by the board of directors in the specific case, or as authorized by the charter
or bylaws or by any applicable resolution or contract, upon receipt of an
undertaking by or on behalf of such person to repay amounts advanced unless it
ultimately is determined that such person is entitled to be indemnified by the
corporation against such expenses.
Court-Ordered Indemnification. Unless otherwise provided in the
corporation's charter, a director or officer of the corporation who is a party
to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court deems necessary, may
order indemnification if it determines either (i) that the director or officer
is entitled to mandatory indemnification as described above, in which case the
court also will order the corporation to pay the reasonable expenses incurred
to obtain the court-ordered indemnification, or (ii) that the director or
officer is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not such person met the requisite standard
of conduct or was adjudged liable to the corporation in connection with a
proceeding by or in the right of the corporation or on the basis that personal
benefit was
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improperly received in connection with any other proceeding so charging (but if
adjudged so liable, indemnification is limited to reasonable expenses
incurred).
Parties Entitled to Indemnification. The NCBCA defines "director" to include
ex-directors and the estate or personal representative of a director. Unless
its charter provides otherwise, a corporation may indemnify and advance
expenses to an officer, employee or agent of the corporation to the same extent
as to a director and also may indemnify and advance expenses to an officer,
employee or agent who is not a director to the extent, consistent with public
policy, as may be provided in its charter or bylaws, by general or specific
action of its board of directors, or by contract.
Indemnification by Registrant. Registrant's bylaws provide for
indemnification of its directors and officers to the fullest extent permitted
by North Carolina law, and require its board of directors to take all actions
necessary and appropriate to authorize such indemnification.
Under North Carolina law, a corporation also may purchase insurance on
behalf of any person who is or was a director or officer against any liability
arising out of his status as such. Registrant currently maintains a directors'
and officers' liability insurance policy.
SEC Position on Indemnification. Insofar as indemnification for liabilities
under the Securities Act of 1933 (the "Act") may be permitted to directors,
officers and controlling persons of the small business issuer pursuant to the
foregoing provisions, or otherwise, the small business issuer 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.
Item 25. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the securities covered by this Registration Statement, other than underwriting
discounts and commissions, are as follows:
Printing fees and expenses......................................... $100,000
Legal fees and expenses............................................ 150,000
Accounting fees and expenses....................................... 150,000
NASD filing fee.................................................... 4,155
SEC filing fee..................................................... 9,161
Other.............................................................. 18,684
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Total............................................................ $450,000
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Item 26. Recent Sales of Unregistered Securities
In connection with the formation of Nations Express in March 1998, the
company issued 500,000, 296,000 and 200,000 shares of common stock to Allen D.
Watson, John P. Manry, and Daniel H. McPherson, III, respectively (the
"Founders"), in exchange for capital contributions of $0.10 per share. All
three individuals were promoters (as such term is defined by Rule 1-02(s) of
Regulation S-X), initial directors and executive officers of Nations Express.
These transactions were not registered under the Securities Act pursuant to the
exemption provided by Section 4(2) thereof for transactions not involving any
public offering.
The table below provides information regarding shares of common stock issued
in May 1998 to directors of Nations Express:
Capital
Name No. of Shares Contribution
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Thomas E. McChesney 150,000 $15,000
Jerry N. Carr 100,000 10,000
Daniel R. Dukesherer 50,000 5,000
Daniel R. Dukesherer 150,000 Assets
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Each of the directors listed on the table above had pre-existing
relationships with one or more of the Founders and were named to the board of
directors in connection with their decision to invest in the company. Each was
provided with or had access to financial and other information concerning
Nations Express and had the opportunity to ask questions of and receive answers
from the Founders concerning the company's business plan. These transactions
were not registered under the Securities Act pursuant to the exemption provided
by Section 4(2) thereof for transaction not involving any public offering.
In May and June 1998, the Nations Express sold 824,000 shares of common
stock to 13 persons, each of whom was an accredited investor with a pre-
existing personal, family or business relationships with one or more of the
directors. Each investor was provided with or had access to financial and other
information concerning Nations Express and had the opportunity to ask questions
of and receive answers from the directors concerning the company's business
plan. These transactions were not registered under the Securities Act pursuant
to the exemption provided by Section 4(2) thereof for transactions not
involving any public offering.
In July 1999, we issued 100,000 shares to six existing shareholders in
payment of $10,000 in interest that had accrued on loans to the Company. Also
in July 1999, Nations Express permitted Jerry N. Carr, a director, and his
brother, William Carr, to convert notes payable to each of them in the amount
of $37,500 into 33,333 shares of common stock. These transactions were not
registered under the Securities Act pursuant to the exemption provided by
Section 4(2) thereof for transactions not involving any public offering.
In May 1999 and July 1999, we sold 254,783 units, each consisting of one
share of common stock and one share of convertible preferred stock, at a price
of $4.50 per unit in a private offering to 57 persons. As compensation for
serving as placement agent in the offering, Blackwell Donaldson & Company, a
registered broker-dealer, received a sales commission in the amount of
approximately $136,000 and 25,478 warrants with an approximate value of
$50,000. Each warrant entitles the holder to purchase two shares of common
stock for nominal consideration. The offering was limited to accredited
investors with whom Blackwell Donaldson & Company or directors of Nations
Express had a pre-existing relationship. Each purchaser received a private
placement memorandum containing a detailed description of the company's
business plan and management and financial statements compiled by an
independent accounting firm. This transaction was not registered pursuant to
Section 4(6) and Section 4(2) of the Securities Act and Rule 506 promulgated
thereunder. A Form D for this transaction was filed with the Commission on July
2, 1999.
In September 1999, we sold 33,333 and 33,334 shares of common stock,
respectively, to Jerry N. Carr and his brother, William Carr, at a price of
$2.25 per share. This transaction was not registered under the Securities Act
pursuant to the exemption provided by Section 4(2) thereof for transactions not
involving any public offering.
Since its inception, Nations Express has issued options to purchase 681,500
shares of common stock (net of forfeitures) to its employees. These options
were issued pursuant a written compensatory benefit plan, a copy of which was
provided to each optionee. Each option was granted pursuant to a written
agreement. Nations Express did not register the options granted to employees or
the underlying shares in reliance upon the exemptions provided by (i) Section
3(b) of the Securities Act and Rule 701 promulgated thereunder for certain
compensatory benefit plan transactions and (ii) and Section 4(2) of the
Securities Act for transactions not involving any public offering.
Since its inception, Nations Express has issued options purchase 108,000
shares of common stock (net of forfeitures) to agents operating Express Centers
and independent sales agents. Each agent optionee was generally familiar with
the operations of freight forwarders and had the opportunity to ask questions
of and receive answers from management regarding the company and its
operations. These transactions were not registered under the Securities Act
pursuant to the exemption provided by Section 4(2) thereof for transactions not
involving any public offering.
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Item 27. Exhibits.
An index of exhibits appears at page II-6 of this Registration Statement and
is incorporated herein by reference.
Item 28. 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;
(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% change in the
maximum aggregate offering price set forth in "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.
2. that, for the purpose of determining any liability under 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 this offering.
(B) To provide the underwriter at the closing specified in the underwriting
agreement certificates in such denominations and registered in such names as
required by the underwriter to permit prompt delivery to each purchaser.
(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.
(D) For determining any liability under the Securities Act, to treat the
information omitted from the form of prospectus filed as part of the
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by Nations Express under Rule 424(b)(1), or (4) or 497(h)
under the Securities Act as part of this Registration Statement as of the time
the Commission declared it effective.
(E) For determining any liability under the Securities Act, treat each post-
effective amendment that contains a form of prospectus as a new registration
statement for the securities offered in the registration statement, and that
the offering of the securities at that time as the initial bona fide offering
of those securities.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form SB-2 and has duly caused this
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Charlotte, State of
North Carolina, on November 9, 2000.
Nations Express, Inc.
/s/ William R. Frazier
By: _________________________________
William R. Frazier
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form SB-2 has been signed by the following persons in
the capacity and on the dates indicated.
Name Title Date
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* President, Chief Executive November 9, 2000
______________________________________ Officer and Director
Allen D. Watson (principal executive
officer)
* Executive Vice President, November 9, 2000
______________________________________ Chief Financial Officer
William R. Frazier (principal financial and
accounting officer) and
Corporate Secretary and
Director
* Chairman of Board of November 9, 2000
______________________________________ Directors
John P. Manry
* Vice President November 9, 2000
______________________________________ Western Region and
Daniel R. Dukesherer Director
* Director November 9, 2000
______________________________________
Jerry N. Carr
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Name Title Date
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* Vice President of November 9, 2000
______________________________________ Operations and Director
Daniel H. McPherson, III
* Director November 9, 2000
______________________________________
Thomas E. McChesney
*By: /s/ William R. Frazier
William R. Frazier
(Attorney-in-fact for
each of the persons
indicated)
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EXHIBIT INDEX
Exhibit
No. Description
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1.1 Form of Agreement among Underwriters*
1.2 Form of Underwriting Agreement*
1.3 Form of Selected Dealers Agreement*
1.4 Form of Underwriters' Warrant Agreement*
1.5 Form of Consulting Agreement*
3.1 Articles of Incorporation of Nations Express, Inc.*
3.1a Articles of Amendment of Nations Express, Inc. amending Articles
of Incorporation*
3.2 Form of Amended and Restated Bylaws of Nations Express*
4.1 Form of Stock Certificate*
4.1a Form of Unit Certificate*
4.2 Form of Placement Agent Warrant*
4.3 Form of Warrant Certificate*
4.4 Form of Shareholder Lock-Up Agreement*
4.5 Form of Shareholder Lock-Up Agreement for NASD members*
4.6 Form of Management and 5% Shareholder Lock-Up Agreement*
4.7 Form of Unit, Common Stock and Warrant Agreement*
5.1 Form of Opinion of Moore & Van Allen PLLC*
10.1 1998 Incentive Stock Option Plan*
10.2 1999 Stock Option Plan*
10.3 Nations Express, Inc. Omnibus Stock Plan*
10.4 Employment Agreement by and between Nations Express, Inc. and
Allen D. Watson*
10.5 Employment Agreement by and between Nations Express, Inc. and
William R. Frazier*
10.6 Employment Agreement by and between Nations Express, Inc. and
Daniel H. McPherson, III*
10.7 Employment Agreement by and between Nations Express, Inc. and
Daniel Dukesherer*
10.8 Form of Express Center Agency Agreement*
10.9 Form of Commissioned Sales Contractor Agreement*
10.10 Form of Motor Vehicle and Hauling Agreement*
23.1 Consent of Arthur Andersen LLP
Powers of Attorney (included on signature page of Registration
24.1 Statement)*
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* Filed previously.
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