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As filed with the Securities and Exchange Commission on June 28, 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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RUSH ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-1733016
(State or other jurisdiction of (I.R.S Employer Identification No.)
incorporation or organization)
8810 I.H. 10 EAST
SAN ANTONIO, TEXAS 78219
(Address of Principal Executive (Zip Code)
Offices)
RUSH ENTERPRISES, INC. LONG-TERM INCENTIVE PLAN
(Full title of the plan)
W. MARVIN RUSH
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
RUSH ENTERPRISES, INC.
8810 I.H. 10 EAST
SAN ANTONIO, TEXAS 78219
(Name and address of agent for service)
(210) 661-4511
(Telephone number, including area code, of agent for service)
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With Copy to:
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
(210) 224-5575
Attention: Phillip M. Renfro
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed
Maximum
Proposed Maximum Aggregate Amount of
Title of Securities to be Offering Price Per Offering Price Registration
Registered Amount to be registered Share (1) (1) Fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value . . . 500,000 shares $12.56 $6,281,250 $2,165.95
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Purchase Rights(2)(3) . . . . . . . 500,000 shares -- -- --
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Total . . . . . . . . . . . . . . . $6,281,250 $2,165.95
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</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the
purpose of calculating the registration fee on the basis of the
average of the high and low prices of the Common Stock as reported by
the National Market System of NASDAQ on June 19, 1996.
(2) No fee pursuant to Rule 457(g).
(3) Purchase Rights related to the Common Stock pursuant to the Rights
Agreement dated April 8, 1996, between Registrant and American Stock
Transfer & Trust Company, Trustee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in
this Registration Statement:
1. The prospectus of Rush Enterprises, Inc., a Texas
corporation (the "Registrant"), filed with Registration Statement No. 333-03346
pursuant to Rule 424(b) under the Securities of 1933, as amended (the
"Securities Act"), which contains audited financial statements of the
Registrant for the fiscal year ended December 31, 1995;
2. All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the effective date of the Registration Statement No. 333-03346; and
3. The description of the Registrant's common stock, $.01
par value (the "Common Stock"), contained in a registration statement on Form
S-1, Registration Statement No. 333-03346, including any amendment or report
filed for the purpose of updating such description.
4. The description of the Registrant's purchase rights
(the "Purchase Rights"), contained in a registration statement on Form S-1,
Registration Statement No. 333-03346, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of the
filing 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 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 of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act provides
that any director or officer of a Texas corporation may be indemnified against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to
any proceeding arising from actions taken in his official capacity, as a
director or officer, he may be indemnified so long as it shall be determined
that he conducted himself in good faith and that he reasonably believed that
such conduct was in the corporation's best interests. In cases not concerning
conduct in his official capacity as a director or officer, a director may be
indemnified as long as he reasonably believed that his conduct was not opposed
to the corporation's best interests. In the case of any criminal proceeding, a
director or officer may be indemnified if he had no reasonable cause to believe
his conduct was unlawful. If a director or officer is wholly successful, on
the merits or otherwise, in connection with such a proceeding, such
indemnification is mandatory.
The Company's Amended and Restated Articles of Incorporation and
Bylaws provide for indemnification of its present and former directors and
officers. The Company's Bylaws further provide for indemnification of officers
and directors against reasonable expenses actually incurred in connection with
the defense of any such action, suit or proceeding in advance of the final
disposition of the proceeding.
The Amended and Restated Articles of Incorporation of the
Company contain a provision that limits the liability of the Company's
directors as permitted under Texas law. The provision eliminates the liability
of a director to the Company or its shareholders for monetary damages for an
act or omission in the director's capacity as a director. The provision does
not affect the liability of a director for (i) breach of the director's duty of
loyalty to the Company or its shareholders, (ii) an act or omission not in good
faith that constitutes a breach of duty of the director to the Company, or that
involves intentional misconduct or a knowing violation of law, (iii) a
transaction from which the director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the
director's office, or (iv) an act or omission for which the liability of a
director is expressly provided by an applicable statute. In addition, the
limitation of liability of directors applies only to claims against a director
arising out of his or her role as a director and not, if he or she is also an
officer his or her role as an officer and does not limit a director's liability
under any other law, such as federal securities law.
The Company has entered into Indemnification Agreements with all
of its directors, and may in the future enter into such indemnification
agreements with its directors, officers, employees and agents. Such
indemnification agreements are intended to provide a contractual right to
indemnification, to the extent permitted by law, for expenses (including
attorneys' fees), judgments, penalties and fines and amounts paid in settlement
actually and reasonably incurred by the person to be indemnified in connection
with any proceeding (including, to the extent permitted by law, any derivative
action) to which any of such individuals are, or are threatened to be made, a
party by reason of their status in such position. Such indemnification
agreements do not change the basic legal standards for indemnification set
forth in the Texas Business Corporation Act or the Amended and Restated
Articles of Incorporation of the Company. Such provisions are intended to be
in furtherance, and
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not in limitation of, the general right to the indemnification provided in the
Amended and Restated Articles of Incorporation and Bylaws of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1, as amended (Reg. No.
333-03346)).
3.2 Bylaws of the Company, as amended (incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-1, as
amended (Reg. No. 333-03346)).
4.1 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form S-1, as
amended (Reg. No. 333-03346)).
4.2 Warrant Purchase Agreement among the Company and Ladenburg,
Thalmann & Co. Inc. (incorporated by reference to Exhibit 4.2 of
the Company's Registration Statement on Form S-1, as amended (Reg.
No. 333-03346)).
4.3 Rights Agreement dated April 8, 1996, between the Company and
American Stock Transfer & Trust Company, Trustee (incorporated by
reference to Exhibit 4.3 of the Company's Registration Statement on
Form S-1, as amended (Reg. No. 333-03346)).
4.4 Form of Rush Enterprises, Inc. Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.84 of the Company's
Registration Statement on Form S-1, as amended (Reg. No.
333-03346)).
4.5 Form of Option Agreement under the Rush Enterprises, Inc. Long-Term
Incentive Plan (incorporated by reference to Exhibit 10.85 of the
Company's Registration Statement on Form S-1, as amended (Reg. No.
333- 03346)).
* 5.1 Opinion of Fulbright & Jaworski L.L.P.
* 23.1 Consent of Arthur Andersen LLP.
* 23.2 Consent of Ernst & Young LLP.
* 23.3 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
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* 24.1 Powers of Attorney from certain members of the Board of Directors
of the Company (included at II-6).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
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 this
Registration Statement (or the most recent
post-effective amendment hereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
and
(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 paragraphs (i) and (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 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 herein, 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.
The undersigned 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, where applicable, each filing of an employee benefit plan's
annual report 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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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. 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 and will be governed by the final adjudication of such issue.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, AS AMENDED, 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 SAN ANTONIO, STATE OF TEXAS, ON JUNE 24, 1996.
RUSH ENTERPRISES, INC.
By: /s/ W. Marvin Rush
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W. Marvin Rush
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints W. Marvin Rush, W. M. "Rusty" Rush and
D. Jeffrey Michell, or any of them, 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 (including post-effective amendments) to this Registration
Statement, and to file the same and all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting
said attorney-in-fact and agent, and either of them, 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 either of them, or their 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ W. Marvin Rush Director, Chairman of the Board and June 24, 1996
------------------------------------ Chief Executive Officer (Principal
W. Marvin Rush Executive Officer
/s/ W. M. "Rusty" Rush Director and President June 24, 1996
------------------------------------
W. M. "Rusty" Rush
/s/ Robin M. Rush Executive Vice President, Secretary, June 24, 1996
------------------------------------ Treasurer and Director (Principal
Robin M. Rush Financial Officer and Accounting
Officer)
/s/ Joseph M. Dunn Director June 24, 1996
------------------------------------
Joseph M. Dunn
/s/ Ronald J. Krause Director June 24, 1996
------------------------------------
Ronald J. Krause
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[FULBRIGHT & JAWORSKI LETTERHEAD]
June 24, 1996
Rush Enterprises, Inc.
8810 I.H. 10 East
San Antonio, Texas 78219
Gentlemen:
We have acted as counsel for Rush Enterprises, Inc., a Texas
corporation (the "Company"), in connection with the authorization of 500,000
shares (the "Shares") of Common Stock, $.01 par value ("Common Stock"), of the
Company, issued or to be issued pursuant to the Rush Enterprises, Inc.
Long-Term Incentive Plan (the "Plan").
In connection therewith, we have examined, among other things, the
Plan, the Certificate of Incorporation and Bylaws of the Company and the
corporate proceedings with respect to the issuance of the Shares and such other
corporate documents as we have deemed appropriate.
Based on the foregoing, and having due regard for such legal
considerations as we have deemed relevant, we are of the opinion that the
Shares to be issued by the Company pursuant to the terms of the Plan have been
duly authorized by all requisite corporate action and when issued in accordance
with the respective terms thereof, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our names in the Registration
Statement.
The opinions expressed herein are limited exclusively to the laws
of the State of Texas and the federal securities law of the United States of
America.
The opinions expressed herein are for your sole benefit and may be
relied upon only by you.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
March 15, 1996 and March 22, 1996, included in Rush Enterprises, Inc.'s
Registration Statement on Form S-1, as amended (Reg. No. 333-03346); and to
all other references to our firm included in this Registration Statement.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Antonio, Texas
June 25, 1996
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Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 33- ) and related Prospectus (not included herein)
pertaining to the Rush Enterprises, Inc. Long-Term Incentive Plan of our report
dated May 26, 1995, with respect to statements of income, stockholders' equity
and cash flows of Kerr Consolidated, Inc. for the year ended December 31, 1994
included in the Prospectus of Rush Enterprises, Inc. filed with the
Registration Statement on Form S-1 No. 333-03346, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
Oklahoma City, Oklahoma
June 25, 1996
