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As filed with the Securities and Exchange Commission
on May 16, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LANDAIR SERVICES, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 62-1120025
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
430 AIRPORT ROAD
GREENEVILLE, TENNESSEE 37745
(Address of Principal Executive Offices) (Zip Code)
NON-EMPLOYEE DIRECTOR STOCK OPTION AWARD
AND
LANDAIR SERVICES, INC. NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
RICHARD H. ROBERTS
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
LANDAIR SERVICES, INC.
430 AIRPORT ROAD
GREENEVILLE, TENNESSEE 37745
(Name and address of agent for service)
(423) 639-7196
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (*) OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Common Stock, par value
$.01 per share 180,000 $14.375 $2,587,500 $892.24
- ----------------------------------------------------------------------------------------------------------------
* Estimated solely for the purpose of determining the amount of the
registration fee. Such estimate has been calculated in accordance with Rule
457(c) and (h) under the Securities Act of 1933, as amended, and is based on
the average of the high and low price per share of the Registrant's Common
Stock as reported on the Nasdaq National Market on May 13, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
and
Item 2. Registrant Information and Employee Plan Annual Information.
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in the award of options to purchase
shares of Common Stock to non-employee directors of the Registrant effective
September 24, 1993 and in the Landair Services, Inc. Non-Employee Director Stock
Option Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but
constitute (along with the documents incorporated by reference into the
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that
meets the requirements of Section 10(a) of the Securities Act. The Registrant
shall provide a written statement to participants in the Plans advising them of
the availability without charge, upon written or oral request, of the documents
incorporated by reference in Item 3 of Part II of the Registration Statement and
of other documents required to be delivered to employees pursuant to Rule
428(b), and shall include the address and telephone number to which the request
is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") are hereby incorporated by reference as of their respective
dates:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act; and
(2) All reports filed, or to be filed, by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the Registrant's documents referred to in
(1) above, including but not limited to, post-effective
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amendments to this Registration Statement and periodic reports to
be filed by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act; and
(3) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed by the Registrant to
register the Common Stock under the Exchange Act, including all
amendments and reports filed for the purpose of updating such
description prior to the termination of the offering of the
Common Stock offered hereby.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities than remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statements contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
replaced for purposes hereof to the extent that a statement contained herein (or
in any other subsequently filed document which also is incorporated or deemed to
be incorporated by reference herein) modifies or replaces such statement. Any
statement so modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part hereof.
Item 5. Interests of Named Experts and Counsel.
Richard H. Roberts is Senior Vice President, General Counsel, Secretary
and a director of the Registrant.
Item 6. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if (i) such person acted in good faith;
(ii) in the case of conduct in an official capacity with the corporation, such
person reasonably believed such conduct was in the corporation's best interest;
(iii) in all other cases, such person reasonably believed that such conduct was
at least not opposed to the best interest of the corporation; and (iv) in
connection with any criminal proceeding, such person had no reasonable cause to
believe such conduct was unlawful. The TBCA further provides that a corporation
may indemnify a director against liability incurred in a proceeding if his
conduct with respect to an employee benefit plan for a purpose he reasonably
believed to be in the best interest of the participants in and the beneficiaries
of such plan was at least not opposed to such best interests.
In actions brought by or in the right of the corporation, however, the
TBCA provides that no indemnification may be made if the director or officer was
adjudged to be liable to the
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corporation. The TBCA also provides that in connection with any proceeding
charging improper personal benefit to an officer or director, no indemnification
may be made if such officer or director is adjudged liable on the basis that
such personal benefit was improperly received. Notwithstanding the foregoing,
the TBCA provides that a court of competent jurisdiction, unless the
corporation's charter provides otherwise, upon application, may order that an
officer or director be indemnified for reasonable expenses if, in consideration
of all relevant circumstances, the court determines that such individual is
fairly and reasonably entitled to indemnification, notwithstanding the fact that
(i) such officer or director was adjudged liable to the corporation in a
proceeding by or in right of the corporation; (ii) such officer or director was
adjudged liable on the basis that personal benefit was improperly received by
such officer or director; or (iii) such officer or director breached his or her
duty of care to the corporation. The Registrant's Charter and Bylaws provide
that each director and officer of the Registrant shall be indemnified by the
Registrant to the fullest extent permitted by Tennessee law.
Presently there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant's Charter provides that to the fullest extent permitted
by Tennessee law no director (in his capacity as director but not in his
capacity as officer) shall be personally liable to the Registrant or its
shareholders for monetary damages for breach of any fiduciary duty as a
director. Under the TBCA, this charter provision relieves the Registrant's
directors from personal liability to the Registrant or its shareholders for
monetary damages for breach of fiduciary duty as a director, except for
liability arising from a judgment or other final adjudication establishing (i)
any breach of the director's duty of loyalty, (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) any unlawful distributions, or (iv) receipt of an improper personal
benefit. The Registrant's Charter provides that if the TBCA is amended after the
effective date of the Charter to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director will be eliminated or limited to the fullest extent permitted by the
law, as so amended.
Item 8. Exhibits.
See Exhibit Index (page II-7)
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Item 9. Undertakings.
A. The 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 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 the offering.
B. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, if
applicable, each filing of the Plan's respective annual reports pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greeneville, State of Tennessee, on May 16,
1996.
LANDAIR SERVICES, INC.
By: /s/ Scott M. Niswonger
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Scott M. Niswonger, Chairman,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Scott M. Niswonger, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement, and to file the same,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, 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 his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
NAME CAPACITY DATE
---- -------- ----
/s/ Scott M. Niswonger Chairman, President and May 16, 1996
- --------------------------------------- Chief Executive Officer
Scott M. Niswonger (Principal Executive Officer)
/s/ Edward W. Cook Chief Financial Officer, Senior May 16, 1996
- --------------------------------------- Vice President, Treasurer
Edward W. Cook and Director (Principal Financial
and Accounting Officer)
/s/ Bruce A. Campbell Executive Vice President, May 16, 1996
- ---------------------------------------- Chief Operating Officer
Bruce A. Campbell and Director
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/s/ Richard H. Roberts Senior Vice President, General May 16, 1996
- ---------------------------------------- Counsel, Secretary and Director
Richard H. Roberts
Director May , 1996
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James A. Cronin, III
/s/ Robert K. Gray Director May 16, 1996
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Hon. Robert K. Gray
/s/ Jack Kemp Director May 16, 1996
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Hon. Jack Kemp
/s/ Jorge L. Mas Canosa Director May 16, 1996
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Hon. Jorge L. Mas Canosa
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EXHIBIT INDEX
Exhibit Description
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(a)4.1 Form of Director Stock Option Agreement
(b)4.2 Non-Employee Director Stock Option Plan
5 Opinion of Counsel
23.1 Consent of Ernst & Young LLP
23.2 Consent of Counsel (included in Exhibit 5 above)
24 Power of Attorney (included at page II-5 hereof)
(a) Filed as an exhibit to the registrant's Registration Statement on Form S-1,
filed with the Commission on September 27, 1993.
(b) Filed as an exhibit to the registrant's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 1995, filed with the Commission on August
14, 1995.
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