<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1998
REGISTRATION NO. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
EAGLE USA AIRFREIGHT, INC.
(Exact Name of Registrant as Specified in Its Charter)
15350 VICKERY DRIVE
TEXAS HOUSTON, TEXAS 77032 76-0094895
(State or Other Jurisdiction (Address of Principal (I.R.S. Employer
Jurisdiction of Incorporation Executive Offices Identification No.)
or Organization) and Zip Code)
----------------------
EAGLE USA AIRFREIGHT, INC. LONG-TERM INCENTIVE PLAN
EAGLE USA AIRFREIGHT, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
----------------------
JAMES R. CRANE
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
EAGLE USA AIRFREIGHT, INC.
15350 VICKERY DRIVE
HOUSTON, TEXAS 77032
(Name and Address of Agent for Service)
Telephone Number, Including Area Code,
of Agent for Service:
(281) 618-3100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum
Title of Amount Proposed Maximum Aggregate Amount of
Securities to be to be Offering Price Per Offering Registration
Registered Registered Share(1) Price Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.001 per share . . . . . . 3,200,000 $34.25 $109,600,000 $32,332
========================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the
purpose of calculating the registration fee and based upon the average
of the high and low prices reported on the Nasdaq National Market
System on June 29, 1998.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: THE DOCUMENT(S) CONTAINING THE EMPLOYEE BENEFIT PLAN
INFORMATION REQUIRED BY ITEM 1 OF FORM S-8 AND THE STATEMENT OF AVAILABILITY OF
REGISTRANT INFORMATION AND ANY OTHER INFORMATION REQUIRED BY ITEM 2 OF FORM S-8
WILL BE SENT OR GIVEN TO PARTICIPANTS AS SPECIFIED BY RULE 428 UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). IN ACCORDANCE WITH
RULE 428 AND THE REQUIREMENTS OF PART I OF FORM S-8, SUCH DOCUMENTS ARE NOT
BEING FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION")
EITHER AS PART OF THIS REGISTRATION STATEMENT OR AS PROSPECTUSES OR PROSPECTUS
SUPPLEMENTS PURSUANT TO RULE 424 UNDER THE SECURITIES ACT. THE REGISTRANT
SHALL MAINTAIN A FILE OF SUCH DOCUMENTS IN ACCORDANCE WITH THE PROVISIONS OF
RULE 428. UPON REQUEST, THE REGISTRANT SHALL FURNISH TO THE COMMISSION OR ITS
STAFF A COPY OR COPIES OF ALL OF THE DOCUMENTS INCLUDED IN SUCH FILE.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
This registration statement incorporates herein by reference the
following documents which have been filed with the Commission by Eagle USA
Airfreight, Inc. (the "Company") pursuant to the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
000-27288):
1. The description of the Company's common stock, par
value $0.001 per share (the "Common Stock"), contained in the
Company's Registration Statement on Form 8-A as originally filed with
the Commission on November 27, 1995, and as thereafter amended on June
26, 1998, and as such Registration Statement may be amended from time
to time for the purpose of updating, changing or modifying such
description.
2. The Company's prospectus, dated January 27, 1998, as
filed with the Commission pursuant to Rule 424(b) of the Securities
Act.
3. The Company's Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1997 and March 31, 1998.
4. The Company's Current Report on Form 8-K dated
January 5, 1998.
5. The Company's Current Report on Form 8-K dated
January 22, 1998.
Each document filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement 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
a part hereof from the date of filing such documents.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
supplement to this Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
The consolidated financial statements included in the Company's
Prospectus dated January 27, 1998 for the year ended September 30, 1997 have
been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
II-1
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 2.02-1 of the Texas Business Corporation Act provides that a
corporation may indemnify any director or officer who was, is or is threatened
to be made a named defendant or respondent in a proceeding because he is or was
a director or officer, provided that the director or officer (i) conducted
himself in good faith, (ii) reasonably believed (a) in the case of conduct in
his official capacity, that his conduct was in the corporation's best interests
or (b) in all other cases, that his conduct was at least not opposed to the
corporation's best interests and (iii) in the case of any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. Subject to
certain exceptions, a director or officer may not be indemnified if the person
is found liable to the corporation or if the person is found liable on the
basis that he improperly received a personal benefit. Under Texas law,
reasonable expenses incurred by a director or officer may be paid or reimbursed
by the corporation in advance of a final disposition of the proceeding after
the corporation receives a written affirmation by the director or officer of
his good faith belief that he has met the standard of conduct necessary for
indemnification and a written undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined that the director or
officer is not entitled to indemnification by the corporation. Texas law
requires a corporation to indemnify an officer or director against reasonable
expenses incurred in connection with the proceeding in which he is named
defendant or respondent because he is or was a director or officer if he is
wholly successful in defense of the proceeding.
Texas law also permits a corporation to purchase and maintain
insurance or another arrangement on behalf of any person who is or was a
director or officer against any liability asserted against him and incurred by
him in such a capacity or arising out of his status as such a person, whether
or not the corporation would have the power to indemnify him against that
liability under Article 2.02-1.
The Company's Bylaws provide for the indemnification of its officers
and directors, and the advancement to them of expenses in connection with
proceedings and claims, to the fullest extent permitted by the Texas Business
Corporation Act. The Company has also entered into indemnification agreements
with each of its directors and certain of its officers that contractually
provide for indemnification and expense advancement and include related
provisions meant to facilitate the indemnitees' receipt of such benefits.
These provisions cover, among other things: (i) specification of the method of
determining entitlement to indemnification and the selection of independent
counsel that will in some cases make such determination, (ii) specification of
certain time periods by which certain payments or determinations must be made
and actions must be taken and (iii) the establishment of certain presumptions
in favor of an indemnitee. The benefits of certain of these provisions are
available to an indemnitee only if there has been a change in control (as
defined). In addition, the Company may purchase directors' and officers'
liability insurance policies for its directors and officers in the future. The
Bylaws and such agreements with directors and officers provide for
indemnification for amounts (1) in respect of the deductibles for such
insurance policies, (2) that exceed the liability limits of such insurance
policies and (3) that are available, were available or which become available
to the Company but which the officers or directors of the Company determine are
inadvisable for the Company to purchase, given the cost involved of the
Company. Such indemnification may be made even though directors and officers
would not otherwise be entitled to indemnification under other provisions of
the Bylaws or such agreements.
The above discussion of Article 2.02-1 of the Texas Business
Corporation Act, the Company's Bylaws and the indemnification agreements is not
intended to be exhaustive and is respectively qualified in its entirety by such
statute, the Bylaws and the indemnification agreements.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
II-2
<PAGE> 5
ITEM 8. EXHIBITS
The following documents are filed as a part of this registration
statement or incorporated by reference herein:
<TABLE>
<CAPTION>
Exhibit
No. Description
-------- -----------
<S> <C>
4.1* -- Second Amended and Restated Articles of Incorporation of the Company, as amended (Filed as Exhibit
3(i) to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998).
4.2* -- Amended and Restated Bylaws of the Company (Filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (Registration No. 33-97606)).
4.3* -- Eagle USA Airfreight, Inc. Long-Term Incentive Plan, as amended (Filed as Exhibit 10(ii) to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998).
4.4* -- Eagle USA Airfreight, Inc. 1995 Nonemployee Director Stock Option Plan (Filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-1 (Registration No. 33-97606)).
4.5* -- Eagle USA Airfreight, Inc. Employee Stock Purchase Plan (Filed as Exhibit 10(i) to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998).
5.1 -- Opinion of Baker & Botts, L.L.P.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Baker & Botts, L.L.P. (included in Exhibit 5).
24.1 -- Powers of Attorney (Included on page II-5).
</TABLE>
- -----------------
* Incorporated herein by reference as indicated.
ITEM 9. UNDERTAKINGS
(a) The 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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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) of the Securities Act of 1933 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 the "Calculation of Registration Fee" table in the
effective registration statement;
II-3
<PAGE> 6
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above 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 this 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 undersigned registrant hereby undertakes that, for
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 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 of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
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.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Houston, State of Texas, on June 29, 1998.
EAGLE USA AIRFREIGHT, INC.
By /s/ James R. Crane
---------------------------------
James R. Crane
President, Chief Executive
Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James R. Crane and Douglas A. Seckel,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement and any registration
statement for the same offering filed pursuant to Rule 462 under the Securities
Act of 1933 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, to all intents and purposes and
as fully as they might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or their 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 date indicated.
<TABLE>
<S> <C> <C>
/s/ James R. Crane President and Chairman of the June 29, 1998
- ------------------------------- Board (Principal Executive
James R. Crane Officer)
/s/ Douglas A. Seckel Chief Financial Officer, June 29, 1998
- ------------------------------- Secretary, Treasurer and
Douglas A. Seckel Director (Principal Financial
and Accounting Officer)
/s/ Frank J. Hevrdejs Director June 29, 1998
- -------------------------------
Frank J. Hevrdejs
/s/ Norwood Knight-Richardson Director June 29, 1998
- -------------------------------
Norwood Knight-Richardson
/s/ Neil E. Kelley Director June 29, 1998
- -------------------------------
Neil E. Kelley
/s/ William P. O'Connell Director June 29, 1998
- -------------------------------
William P. O'Connell
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
-------- -----------
<S> <C>
4.1* -- Second Amended and Restated Articles of Incorporation of the Company, as amended (Filed as Exhibit
3(i) to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998).
4.2* -- Amended and Restated Bylaws of the Company (Filed as Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (Registration No. 33-97606)).
4.3* -- Eagle USA Airfreight, Inc. Long-Term Incentive Plan, as amended (Filed as Exhibit 10(ii) to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998).
4.4* -- Eagle USA Airfreight, Inc. 1995 Nonemployee Director Stock Option Plan (Filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-1 (Registration No. 33-97606)).
4.5* -- Eagle USA Airfreight, Inc. Employee Stock Purchase Plan (Filed as Exhibit 10(i) to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998).
5.1 -- Opinion of Baker & Botts, L.L.P.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Baker & Botts, L.L.P. (included in Exhibit 5).
24.1 -- Powers of Attorney (Included on page II-5).
</TABLE>
- ---------------------
* Incorporated herein by reference as indicated.
<PAGE> 1
[BAKER & BOTTS LETTERHEAD]
EXHIBIT 5
July 2, 1998
Eagle USA Airfreight, Inc.
15350 Vickery Drive
Houston, Texas 77032
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Eagle USA Airfreight, Inc., a Texas
corporation (the "Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to (i) 3,000,000 shares (the
"Incentive Plan Shares") of common stock of the Company, par value $0.001 per
share (the "Common Stock"), that may be issued pursuant to the terms of the
Eagle USA Airfreight, Inc. Long-Term Incentive Plan, as amended (the "Incentive
Plan"), and (ii) 200,000 shares (the "Purchase Plan Shares") of Common Stock
that may be issued pursuant to the terms of the Eagle USA Airfreight, Inc. 1998
Employee Stock Purchase Plan (the "Purchase Plan"), certain legal matters in
connection with the Shares (as defined herein) are being passed upon for the
Company by us. The Purchase Plan Shares consist of (i) the Company's authorized
but unissued shares of Common Stock (the "Original Issuance Purchase Plan
Shares," together with the Incentive Plan Shares, the "Shares"), (ii) previously
issued shares of Common Stock reacquired and held by the Company or (iii) shares
of Common Stock purchased on the open market. At your request, this opinion is
being furnished to you for filing as Exhibit 5 to the Registration Statement.
In our capacity as your counsel in the connection referred to
above, we have examined the Company's Second Amended and Restated Articles of
Incorporation and the Amended and Restated Bylaws, each as amended to date,
copies of the Purchase Plan and the Incentive Plan, filed as exhibit 10(i) and
10(ii), respectively, to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 and the originals, or copies certified or otherwise
identified, of corporate records of the Company, certificates of public
officials and of representatives of the Company, statutes and other instruments
and documents as a basis for the opinions hereinafter expressed. In giving such
opinions, we have relied upon certificates of officers of the Company with
respect to the accuracy of the material factual matters contained in such
certificates.
<PAGE> 2
Eagle USA Airfreight, Inc. -2- July 2, 1998
We have assumed that all signatures on all documents examined
by us are genuine, that all documents submitted to us as originals are accurate
and complete, that all documents submitted to us as copies are true and correct
copies of the originals thereof and that all information submitted to us was
accurate and complete. In addition, we have assumed for purposes of paragraphs
2 and 3 below that the consideration received by the Company for the Shares
will be not less than the par value of the Shares.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications hereinafter set forth, we are of the opinion
that:
1. The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Texas.
2. Upon the issuance and sale of the Incentive Plan
Shares pursuant to the provisions of the Incentive Plan for
consideration fixed by the Compensation Committee of the Board of
Directors, such Incentive Plan Shares will be duly authorized by all
necessary corporate action on the part of the Company, validly issued,
fully paid and nonassessable.
3. Upon the issuance and sale of the Original Issuance
Purchase Plan Shares pursuant to the provisions of the Purchase Plan
for consideration calculated pursuant to the terms and provisions of
the Purchase Plan, such Original Issuance Purchase Plan Shares will be
duly authorized by all necessary corporate action on the part of the
Company, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ BAKER & BOTTS, L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 21, 1997, except for Note
12, as to which the date is January 23, 1998, which appears on page F-2 of the
Company's Prospectus dated January 27, 1998, which is incorporated by reference
for the year ended September 30, 1997. We also consent to the reference to us
as "experts" in such Registration Statement.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Houston, Texas
June 26, 1998
