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As filed with the Securities and Exchange Commission on May 20, 1999
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Registration No. 333-________________
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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BOYD BROS. TRANSPORTATION INC.
(Exact name of issuer as specified in its charter)
DELAWARE 63-6006515
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3275 Highway 30
Clayton, Alabama 36016
(Address of principal executive offices)
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BOYD BROS. TRANSPORTATION INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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Richard C. Bailey
Boyd Bros. Transportation Inc.
3275 Highway 30
Clayton, Alabama 36016
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Lizanne Thomas, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share(1) offering price(1) registration fee(2)
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Common Stock, $.001 par value 175,000 shares $10.25 $1,793,750.00 $498.66
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(1) The proposed maximum offering price has been estimated pursuant to
Rule 457(h), solely for the purpose of calculating the amount of the
registration fee. It is not known how many shares will be purchased under the
Plan or at what price such shares will be purchased. The estimate of the
proposed maximum aggregate offering price has been calculated based on the
offering of 175,000 shares, being the aggregate number of shares of common
stock, par value $.001 per share ("Common Stock"), available for issuance upon
exercise of options to be granted under the Plan, at an exercise price of $10.25
which is the average of the reported high and low sales prices of a share of
Common Stock of Boyd Bros. Transportation Inc. on the NASDAQ National Market
("NASDAQ") on May 18, 1999.
(2) The registration fee of $498.66 is calculated by multiplying the
product of $10.25, the weighted average exercise price per share, and 175,000,
the number of shares subject to option, by .000278.
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EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified in
Part I of Form S-8 has been omitted from this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Boyd Bros. Transportation Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act, as
amended (the "Exchange Act"), since December 31, 1998.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission
on April 27, 1994.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into the Prospectus shall be deemed to be modified or
superseded for purposes thereof to the extent that a statement contained therein
or in any other subsequently filed document that is also incorporated or deemed
to be incorporated therein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Prospectus.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the
Certificate of Incorporation (the "Certificate") of the Company, the By-Laws
(the "By-Laws") of the Company and Section 145 ("Section 145") of the Delaware
General Corporation Law (the "DGCL"), as such provisions relate to the
indemnification of the directors and officers of the company. This description
is intended only as a summary and is qualified in its entirety by reference to
the Certificate, the By-Laws and the DGCL.
Article VII of the Certificate provides that to the fullest extent
provided by the DGCL or any other applicable laws, a director will not be
personally liable to the Company or its stockholders for or with respect to any
acts or omissions in the performance of his or her duties as a director of the
Company. Article VIII of the Certificate provides that each person who is or was
or has agreed to become a director or officer of the Company (or was serving or
had agreed to serve, at the request of the Board of Directors or an officer of
the Company, as an employee or agent of the Company or as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust or
other entity, whether for profit or not-for-profit, including the heirs,
executors, administrators, or estate of such person), will
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be indemnified by the Company to the fullest extent permitted by the DGCL or any
other applicable law. It also provides that without limiting the generality or
the effect of the foregoing, the Company may enter into one or more agreements
with any person, which provide for indemnification greater or different than
that provided in Article VIII of the Certificate.
While Article VII of the Certificate provides directors with protection
from awards for monetary damages for breaches of the duty of care, it does not
eliminate the directors' duty of care. Accordingly, the Certificate will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of the duty of care. The provisions of
Article VII as described above apply to officers of the Company only if they are
directors of the Company and are acting in their capacity as directors, and does
not apply to officers of the Company who are not directors.
With respect to indemnification of officers and directors, Section 145
of the DGCL provides that a corporation shall have the 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 he 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 (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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 his conduct was unlawful. Under this provision of
the DGCL, 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 he 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 his conduct was unlawful.
Furthermore, the DGCL provides that 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 he
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 (including attorneys' fees), actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation 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 of Chancery or 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 circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
In addition, the DGCL was amended in 1986 to enable a Delaware
corporation to include in its certificate of incorporation a provision
eliminating or limiting a director's liability to the corporation or its
stockholders for monetary damages for breaches of a director's fiduciary duty of
care. The statutory amendment provides, however, that (a) liability for duty or
loyalty, (b) acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, (c) the unlawful purchase or redemption
of stock or unlawful dividends or (d) the right of improper personal benefits
could not be eliminated or limited in this manner.
Item 7. Exemption from Registration Claimed.
Inapplicable.
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Item 8. Exhibits.
Exhibit
Number Description
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4 Boyd Bros. Transportation Inc. 1999 Employee Stock
Purchase Plan
5 Opinion of Jones, Day, Reavis & Pogue, as to the
legality of the securities being registered
23.1 Consent of Jones, Day, Reavis & Pogue (included in
Exhibit 5)
23.2 Consent of Deloitte & Touche LLP, independent auditors
24 Power of Attorney (included in the signature page)
Item 9. 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 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 to such information in the
registration statement;
provided, however, that sub-paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and 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.
(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
or 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
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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.
(c) 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 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 of 1933 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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURES
THE REGISTRANT. 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 Clayton, State of Alabama, on the 18th day of
May, 1999.
BOYD BROS. TRANSPORTATION INC.
By: /s/ W. Miller Welborn
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W. Miller Welborn
President and Chief Executive Officer
/s/ Richard C. Bailey
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Richard C. Bailey
Executive Vice President and Chief Financial
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, W. Miller Welborn and Richard C. Bailey,
jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each 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 all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or 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 each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
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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 date indicated:
Signature Title Date
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/s/ Dempsey Boyd Chairman of the Board and Director May 18, 1999
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Dempsey Boyd
/s/ W. Miller Welborn President, Chief Executive Officer and May 18, 1999
- ---------------------------------- Director (Principal Executive Officer)
W. Miller Welborn
/s/ Richard C. Bailey Executive Vice President, Chief Financial May 18, 1999
- ---------------------------------- Officer and Director (Principal Financial
Richard C. Bailey and Accounting Officer)
/s/ Stephen J. Silverman Director May 18, 1999
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Stephen J. Silverman
/s/ Boyd Whigham Director May 18, 1999
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Boyd Whigham
/s/ W. Wyatt Shorter Director May 18, 1999
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W. Wyatt Shorter
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Clayton, State of
Alabama, on this 18th day of May, 1999.
BOYD BROS. TRANSPORTATION INC.
EMPLOYEE STOCK PURCHASE PLAN
By Boyd Bros. Transportation Inc.
As Administrator
By: /s/ W. Miller Welborn
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W. Miller Welborn
President and Chief Executive Officer
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EXHIBIT INDEX
Exhibit Page
Number Description Number
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4 Boyd Bros. Transportation Inc. 1999 Employee Stock Purchase Plan Page 8
5 Opinion of Jones, Day, Reavis & Pogue as to the legality of the securities being Page 23
registered
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5) Page 23
23.2 Consent of Deloitte & Touche, independent public accountants Page 24
24 Power of Attorney (included in signature page) Page 5
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