<PAGE> 1
As filed with the Securities and Exchange Commission on January 12, 1999
REGISTRATION NO. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
RUSH ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-1733016
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8810 I.H. 10 EAST 78219
SAN ANTONIO, TEXAS (Zip Code)
(Address of Principal Executive Offices)
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the Plan)
MARTIN A. NAEGELIN, JR.
VICE PRESIDENT AND CHIEF FINANCIAL 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)
-----------------
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 224-5575
ATTENTION: PHILLIP M. RENFRO, ESQ.
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER SHARE(1) PRICE(1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 100,000(2) $11.60 $1,160,000 $342.20
- -----------------------------------------------------------------------------------------------------------------
Purchase Rights(3)(4) 100,000
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Total 100,000 - $1,160,000 $342.20
=================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(c) and (h), the maximum offering price per
security and maximum aggregate offering price of the Common Stock have
been calculated 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 January __, 1999.
(2) Pursuant to Rule 416(a), this Registration Statement shall also cover
any additional shares of Common Stock which become issuable by reason
of any stock dividend, stock split, recapitalization or other similar
transactions effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of
Common Stock.
(3) No fee pursuant to Rule 457(g).
(4) 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.
<PAGE> 2
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 Annual Report on Form 10-K of Rush Enterprises, Inc., a
Texas corporation (the "Registrant"), for the year ended December 31, 1997;
2. The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30, 1998 and September 30, 1998; and
3. The description of the Registrant's Common Stock, $.01 par
value, 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 Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to 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 such documents.
For purposes of this Registration Statement, any document or
any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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
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furtherance, and 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
(incorporated herein 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
herein 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
herein by reference to Exhibit 4.1 of the Company's
Registration Statement on Form S-1, as amended
(Reg. No. 333-03346)).
4.2 Rights Agreement dated April 8, 1996, between the
Company and American Stock Transfer & Trust
Company, Trustee (incorporated herein by reference
to Exhibit 4.3 of the Company's Registration
Statement on Form S-1, as amended (Reg. No.
333-03346)).
*4.3 Rush Enterprises, Inc. 1997 Non-Employee Director
Stock Option Plan.
*4.4 Form of Stock Option Agreement granted pursuant to
Rush Enterprises, Inc. 1997 Non-Employee Director
Stock Option Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P.
*23.1 Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
*24.1 Powers of Attorney from the members of the Board of
Directors of the Registrant (contained on signature
page).
- -------------------
* Filed herewith.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
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(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, as amended (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) 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 Exchange Act, 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.
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 of 1933, 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
December 2, 1998.
RUSH ENTERPRISES, INC.
By: /s/ W. Marvin Rush
-----------------------------
W. Marvin Rush
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints W. Marvin Rush, Martin A.
Naegelin, Jr., W. M. "Rusty" Rush and Robin M. Rush, or any of them, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, severally, 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 each 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 each 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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ W. Marvin Rush Chairman of the Board and December 2, 1998
- --------------------------- Chief Executive Officer
W. Marvin Rush (principal executive officer)
/s/ Martin A. Naegelin, Jr. Vice President and December 2, 1998
- --------------------------- Chief Financial Officer
Martin A. Naegelin, Jr. (Principal financial officer and
accounting officer)
/s/ W. M. "Rusty" Rush Director and President December 2, 1998
- ---------------------------
W. M. "Rusty" Rush
/s/ Robin M. Rush Executive Vice President, December 2, 1998
- --------------------------- Secretary, Treasurer and
Robin M. Rush Director
/s/ Ronald J. Krause Director December 2, 1998
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Ronald J. Krause
/s/ John D. Rock Director December 2, 1998
- ---------------------------
John D. Rock
/s/ Joseph M. Dunn Director December 2, 1998
- ---------------------------
Joseph M. Dunn
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
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3.1 Amended and Restated Articles of Incorporation (incorporated
herein 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 herein 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 herein by
reference to Exhibit 4.1 of the Company's Registration
Statement on Form S-1, as amended (Reg. No. 333-03346)).
4.2 Rights Agreement dated April 8, 1996, between the Company and
American Stock Transfer & Trust Company, Trustee (incorporated
herein by reference to Exhibit 4.3 of the Company's
Registration Statement on Form S-1, as amended (Reg. No.
333-03346)).
*4.3 Rush Enterprises, Inc. 1997 Non-Employee Director Stock Option
Plan.
*4.4 Form of Stock Option Agreement granted pursuant to Rush
Enterprises, Inc. 1997 Non-Employee Director Stock Option
Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P.
*23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit
5.1).
*23.2 Consent of Arthur Andersen LLP.
*24.1 Powers of Attorney from the members of the Board of Directors
of the Registrant (contained on signature page).
- -------------------
* Filed herewith.
<PAGE> 1
EXHIBIT 4.3
RUSH ENTERPRISES, INC.
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. This 1997 Non-Employee Director Stock Option Plan (the
"Plan") of Rush Enterprises, Inc., a Texas corporation (the "Company"), is
adopted for the benefit of the directors of the Company who at the time of their
service are not employees of the Company or any of its subsidiaries
("Non-Employee Directors"), and is intended to advance the interests of the
Company by providing the Non-Employee Directors with additional incentive to
serve the Company by increasing their proprietary interest in the success of the
Company.
2. Administration. The Plan shall be administered by a committee of the
Board of Directors of the Company (the "Committee"), the members of which shall
consist solely of directors who are employees of the Company. For the purposes
of the Plan, a majority of the members of the Committee shall constitute a
quorum for the transaction of business, and the vote of a majority of those
members present at any meeting shall decide any question brought before that
meeting. In addition, the Committee may take any action otherwise proper under
the Plan by the affirmative vote, taken without a meeting, of a majority of its
members. No member of the Committee shall be liable for any act or omission of
any other member of the Committee or for any act or omission on his own part,
including but not limited to the exercise of any power or discretion given to
him under the Plan, except those resulting from his own gross negligence or
willful misconduct. Except as otherwise expressly provided for herein, all
questions of interpretation and application of the Plan, or as to options
granted hereunder (the "Options"), shall be subject to the determination, which
shall be final and binding, of a majority of the whole Committee.
Notwithstanding the above, the selection of Non-Employee Directors to whom
Options are to be granted, the number of shares subject to any Option, the
exercise price of any Option and the term of any Option shall be as hereinafter
provided and the Committee shall have no discretion as to such matters.
3. Option Shares. The stock subject to the Options and other provisions
of the Plan shall be shares of the Company's Common Stock, $.01 par value (or
such other par value as may be designated by act of the Company's shareholders)
(the "Common Stock"). The total amount of the Common Stock with respect to which
Options may be granted shall not exceed in the aggregate 100,000 shares;
provided, that the class and aggregate number of shares which may be subject to
the Options granted hereunder shall be subject to adjustment in accordance with
the provisions of Paragraph 12 hereof. Such shares may be treasury shares or
authorized but unissued shares.
In the event that any outstanding Option for any reason shall expire or
terminate by reason of the death of the optionee or the fact that the optionee
ceases to be a director, the surrender of any such Option, or any other cause,
the shares of Common Stock allocable to the unexercised portion of such Option
may again be subject to an Option under the Plan.
4. Grant of Options. Subject to the provisions of Paragraph 16 and the
availability under the Plan of a sufficient number of shares of Common Stock
that may be issuable upon the exercise of outstanding Options, there shall be
granted the following Options:
<PAGE> 2
(a) To each Non-Employee Director as of March 25, 1997, an
Option to purchase 10,000 shares of Common Stock at a purchase price
per share of Common Stock equal to the fair market value of the Common
Stock as defined in Paragraph 7 hereof as of the date of grant (the
"Option Price");
(b) To each Non-Employee Director who is elected at the Annual
Meeting of Shareholders of the Company held in 1997 (other than
Non-Employee Directors receiving options under subparagraph (a) above),
an Option to purchase 10,000 shares of Common Stock at the Option Price
on the date of such Annual Meeting of Shareholders of the Company; and
(c) To each Non-Employee Director who is elected or reelected
as a director of the Company at an Annual Meeting of Shareholders of
the Company held in 1998 or thereafter, an Option to purchase 10,000
shares of Common Stock at the Option Price on the date of each such
Annual Meeting of Shareholders of the Company.
No Option shall be granted pursuant to the Plan after March 25, 2007.
5. Duration of Options. Each Option granted under the Plan shall be
exercisable for a term of ten years from the date of grant, subject to earlier
termination as provided in Paragraph 9 hereof.
6. Amount Exercisable. Each Option granted pursuant to the Plan shall
be fully exercisable on the date of grant.
7. Exercise of Options. Payment of the purchase price of the shares of
Common Stock subject to an Option granted hereunder may be made (i) in any
combination of cash or whole shares of Common Stock already owned by the
optionee or (ii) in shares of Common Stock withheld by the Company from the
shares of Common Stock otherwise issuable to the optionee as a result of the
exercise of such Option ("cashless exercise"). Subject to the terms and
conditions of this Agreement, such Option may be exercised by written notice to
the Company at its principal office, attention of the Secretary. Such notice
shall (a) state the election to exercise such Option, the number of shares in
respect of which it is being exercised and the manner of payment for such shares
and (b) be signed by the person or persons so exercising such Option and, in the
event such Option is being exercised pursuant to Paragraph 9 by any person or
persons other than the optionee, accompanied by appropriate proof of the right
of such person or persons to exercise such Option. Such notice shall either (i)
elect cashless exercise or be accompanied by payment of the full purchase price
of such shares, in which event the Company shall issue and deliver a certificate
or certificates representing such shares as soon as practicable after the notice
is received, or (ii) fix a date (not more than 10 business days from the date of
such notice) for the payment of the full purchase price of such shares at the
Company's principal office, against delivery of a certificate or certificates
representing such shares. Cash payments of such purchase price shall, in case of
clause (i) or (ii) above, be made by cash or check payable to the order of the
Company. Common Stock payments (valued at fair market value on the date of
exercise, as determined by the Committee), shall be made by delivery of stock
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<PAGE> 3
certificates in negotiable form. All cash and Common Stock payments shall, in
either case, be delivered to the Company at its principal office, attention of
the Secretary. Shares of Common Stock withheld pursuant to a cashless exercise
election shall be valued at the fair market value on the date of exercise, as
determined by the Committee. If certificates representing Common Stock are used
to pay all or part of the purchase price of an Option granted hereunder, a
replacement certificate shall be delivered by the Company representing the
number of shares delivered but not so used, and an additional certificate shall
be delivered representing the additional shares to which the holder of such
Option is entitled as a result of the exercise of such Option. The certificate
or certificates for the shares as to which such Option shall have been so
exercised shall be registered in the name of the person or persons so exercising
the Option and shall be delivered as aforesaid to or upon the written order of
the person or persons exercising such Option. All shares issued as provided
herein will be fully paid and nonassessable.
For purposes of this Paragraph 7, the "fair market value" of a share of
stock as of any particular date shall mean the closing sale price of a share of
Common Stock on that date as reported by the principal national securities
exchange on which the Common Stock is listed if the Common Stock is then listed
on a national securities exchange, or if the Common Stock is not so listed, the
average of the bid and asked price of a share of Common Stock on that date and
reported in the National Association of Securities Dealers Automated Quotation
system (the "NASDAQ System"); provided that if no such closing price or quotes
are so reported on that date or if in the discretion of the Committee another
means of determining the fair market value of a share of stock at such date
shall be necessary or advisable, the Committee may provide for another means for
determining such fair market value.
8. Transferability of Options. Options shall not be transferable by the
optionee otherwise than by will or under the laws of descent and distribution,
and shall be exercisable, during his lifetime, only by him.
9. Termination. Except as may be otherwise expressly provided herein,
each Option, to the extent it shall not previously have been exercised, shall
terminate on the earlier of the following:
(a) On the last day within the thirty day period commencing on the
date on which the optionee ceases to be a member of the
Company's Board of Directors, for any reason other than the
death or disability of the optionee or his resignation after
five years of service, during which period the optionee shall
be entitled to exercise all Options fully vested as described
in Paragraph 6 by the optionee on the date on which the
optionee ceased to be a member of the Company's Board of
Directors;
(b) On the last day within the one year period commencing on the
date on which the optionee ceases to be a member of the
Company's Board of Directors because of permanent disability,
during which period the optionee shall be entitled to exercise
all Options fully vested as described in Paragraph 6 by the
optionee on the date on which
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<PAGE> 4
the optionee ceased to be a member of the Company's Board of
Directors because of such disability;
(c) On the last day within the one year period commencing on the
date of the optionee's death while serving as a member of the
Company's Board of Directors, during which period the executor
or administrator of the optionee's estate or the person or
persons to whom the optionee's Option shall have been
transferred by will or the laws of descent or distribution,
shall be entitled to exercise all Options in respect of the
number of shares that the optionee would have been entitled to
purchase had the optionee exercised such Options on the date
of his death;
(d) On the last day within the one year period commencing on the
date an optionee who has had at least five years of service on
the Board of Directors of the Company resigns from the Board
of Directors of the Company, during which period the optionee,
or the executor or administrator of the optionee's estate or
the person or persons to whom such Option shall have been
transferred by the will or the laws of descent or distribution
in the event of the optionee's death within such one year
period, as the case may be, shall be entitled to exercise all
Options in respect of the number of shares that the optionee
would have been entitled to purchase had the optionee
exercised such Options on the date of such resignation; and
(e) Ten years after the date of grant of such Option.
10. Requirements of Law. The Company shall not be required to sell or
issue any shares under any Option if the issuance of such shares shall
constitute a violation by the optionee or the Company of any provisions of any
law or regulation of any governmental authority. Each Option granted under the
Plan shall be subject to the requirements that, if at any time the Board of
Directors of the Company or the Committee shall determine that the listing,
registration or qualification of the shares subject thereto upon any securities
exchange or under any state or federal law of the United States or of any other
country or governmental subdivision thereof, or the consent or approval of any
governmental regulatory body, or investment or other representations, are
necessary or desirable in connection with the issue or purchase of shares
subject thereto, no such Option may be exercised in whole or in part unless such
listing, registration, qualification, consent, approval or representation shall
have been effected or obtained free of any conditions not acceptable to the
Board of Directors. If required at any time by the Board of Directors or the
Committee, an Option may not be exercised until the optionee has delivered an
investment letter to the Company. In addition, specifically in connection with
the Securities Act of 1933 (as now in effect or hereafter amended), upon
exercise of any Option, the Company shall not be required to issue the
underlying shares unless the Committee has received evidence satisfactory to it
to the effect that the holder of such Option will not transfer such shares
except pursuant to a registration statement in effect under such Act or unless
an opinion of counsel satisfactory to the Company has been received by the
Committee to the effect that such registration is not required. Any
determination in this connection by the Committee shall be final, binding and
conclusive. In the event the shares issuable on exercise of an Option are not
registered under the Securities Act of 1933, the Company may imprint on the
certificate for such shares the
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<PAGE> 5
following legend or any other legend which counsel for the Company considers
necessary or advisable to comply with the Securities Act of 1933:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any state and may not be sold or transferred
except upon such registration or upon receipt by the Corporation
of an opinion of counsel satisfactory, in form and substance to
the Corporation, that registration is not required for such
sale or transfer."
The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended) and, in the event any shares are so registered, the Company
may remove any legend on certificates representing such shares. The Company
shall not be obligated to take any other affirmative action in order to cause
the exercise of an Option or the issuance of shares pursuant thereto to comply
with any law or regulation of any governmental authority.
11. No Rights as Shareholder. No optionee shall have rights as a
shareholder with respect to shares covered by his Option until the date of
issuance of a stock certificate for such shares; and, except as otherwise
provided in Paragraph 12 hereof, no adjustment for dividends, or otherwise,
shall be made if the record date therefor is prior to the date of issuance of
such certificate.
12. Changes in the Company's Capital Structure. In the event of any
stock dividends, stock splits, recapitalizations, combinations, exchanges of
shares, mergers, consolidation, liquidations, split-ups, split-offs, spin-offs,
or other similar changes in capitalization, or any distribution to shareholders,
including a rights offering, other than regular cash dividends, changes in the
outstanding stock of the Company by reason of any increase or decrease in the
number of issued shares of Common Stock resulting from a split-up or
consolidation of shares or any similar capital adjustment or the payment of any
stock dividend, any share repurchase at a price in excess of the market price of
the Common Stock at the time such repurchase is announced or other increase or
decrease in the number of such shares, the Committee shall make appropriate
adjustment in the number and kind of shares authorized by the Plan, in the
number, price or kind of shares covered by the Options and in any outstanding
Options under the Plan; provided, however, that no such adjustment shall
increase the aggregate value of any outstanding Option.
In the event of any adjustment in the number of shares covered by any
Option, any fractional shares resulting from such adjustment shall be
disregarded and each such Option shall cover only the number of full shares
resulting from such adjustment.
13. Amendment or Termination of Plan. The Board of Directors may at any
time and from time to time modify, revise or amend the Plan in such respects as
the Board of Directors may deem advisable in order that the Options granted
hereunder may conform to any changes in the law or in any other respect that the
Board of Directors may deem to be in the best interests of the Company;
provided, however, that without approval by the shareholders of the Company
voting the proper percentage of its voting power, no such amendment shall make
any change in the Plan for
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<PAGE> 6
which shareholder approval is required in order to comply with (i) Rule 16b-3,
(ii) the Internal Revenue Code of 1986, as amended, or regulatory provisions
dealing with Incentive Stock Options, (iii) any rules for listed companies
promulgated by any national stock exchange on which the Company's Common Stock
is traded or (iv) any other applicable rule or law. All Options granted under
the Plan shall be subject to the terms and provisions of the Plan and any
amendment, modification or revision of the Plan shall be deemed to amend, modify
or revise all Options outstanding under the Plan at the time of the amendment,
modification or revision.
14. Written Agreement. Each Option granted hereunder shall be embodied
in a written option agreement, which shall be subject to the terms and
conditions prescribed above, and shall be signed by the optionee and by the
appropriate officer of the Company for and in the name and on behalf of the
Company. Such an option agreement shall contain such other provisions as the
Committee in its discretion shall deem advisable.
15. Indemnification of Committee. The Company shall indemnify each
present and future member of the Committee against, and each member of the
Committee shall be entitled without further act on his part to indemnity from
the Company for, all expenses (including the amount of judgments and the amount
of approved settlements made with a view to the curtailment of costs of
litigation, other than amounts paid to the Company itself) reasonably incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his being or having been a member of the
Committee, whether or not he continues to be such member of the Committee at the
time of incurring such expenses; provided, however, that such indemnity shall
not include any expenses incurred by any such member of the Committee (a) in
respect of matters as to which he shall be finally adjudged in any such action,
suit or proceeding to have been guilty of gross negligence or willful misconduct
in the performance of his duty as such member of the Committee, or (b) in
respect of any matter in which any settlement is effected, to an amount in
excess of the amount approved by the Company on the advice of its legal counsel;
and provided further, that no right of indemnification under the provisions set
forth herein shall be available to or enforceable by any such member of the
Committee unless, within sixty (60) days after institution of any such action,
suit or proceeding, he shall have offered the Company, in writing, the
opportunity to handle and defend same at its own expense. The foregoing right of
indemnification shall inure to the benefit of the heirs, executors or
administrators of each such member of the Committee and shall be in addition to
all other rights to which such member of the Committee may be entitled to as a
matter of law, contract, or otherwise. Nothing in this Paragraph 15 shall be
construed to limit or otherwise affect any right to indemnification, or payment
of expense, or any provisions limiting the liability of any officer or director
of the Company or any member of the Committee, provided by law, the Certificate
of Incorporation of the Company or otherwise.
16. Effective Date of Plan. The Plan shall become effective and shall
be deemed to have been adopted on March 25, 1997, if within one year of that
date it has been approved by the holders of at least a majority of the
outstanding shares of voting stock of the Company voting in person or by proxy
at a duly held shareholders' meeting, or if the provisions of the corporate
charter, bylaws or applicable state law prescribe a greater degree of
shareholder approval for this action, the approval
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<PAGE> 7
by the holders of that percentage, at a duly held meeting of shareholders. No
Options which are incentive stock options shall be granted pursuant to the Plan
after March 25, 2007.
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<PAGE> 1
EXHIBIT 4.4
RUSH ENTERPRISES, INC.
1997 NON-EMPLOYEE DIRECTOR PLAN
STOCK OPTION AGREEMENT
Under the terms and conditions of the Rush Enterprises, Inc. 1997
Non-Employee Director Plan (the "Plan"), a copy of which is incorporated in this
Agreement by reference, Rush Enterprises, Inc. (the "Company") grants to Joseph
M. Dunn (the "Optionee") the option to purchase 10,000 shares of the Company's
Common Stock, $.01 par value ("Common Stock"), at the price of $_____ per share,
subject to adjustment as provided in the Plan (the "Option").
This Option shall be for a term commencing on this date and ending ten
years from the date of grant (such date being indicated below), unless this
Option is terminated earlier by reason of the Optionee's ceasing to be a
director as provided in the Plan.
Each Option shall be fully exercisable as of the date of grant.
This Option may be exercised as set forth above, unless exercise within
six months of this date of grant would violate securities laws, in which case
the Option may not be exercised until such time as it may be exercised legally.
This Option is a non-qualified stock option which is not intended to be
governed by Section 422 of the Internal Revenue Code of 1986, as amended.
If all or any portion of an Option granted hereby is exercised
subsequent to any stock dividend, stock split, recapitalization, combination,
exchange of shares, merger, consolidation, liquidation, split-up, split-off,
spin-off or other similar change in capitalization, any distribution to
stockholders, including a rights offering, other than regular cash dividends,
changes in the outstanding stock of the Company by reason of any increase or
decrease in the number of issued shares of Common Stock resulting from a
split-up or consolidation of shares or any similar capital adjustment or the
payment of any stock dividend, any share repurchase at a price in excess of the
closing market price (as determined by the Committee) of the Common Stock at the
time such repurchase is announced or other increase or decrease in the number of
such shares, the Committee may make such appropriate adjustments in the purchase
price paid upon exercise of such Option and the aggregate number and class of
shares or other securities or property issuable upon any such exercise as the
Committee shall, in its sole discretion, determine. In any such event, no
fractional share shall be issued upon any such exercise, and the aggregate price
paid shall be appropriately reduced on account of any fractional share not
issued; further, the minimum number of full shares which may be purchased upon
any such exercise shall be the minimum number specified herein adjusted
proportionately.
The Optionee in accepting this Option accepts and agrees to be bound by
all the terms and conditions of this Agreement and of the Plan.
Granted the 20th day of May, 1998.
<PAGE> 2
RUSH ENTERPRISES, INC.
By:
------------------------------------
ACCEPTED this 20th day of May, 1998.
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Optionee
<PAGE> 1
EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
December 1, 1998
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 100,000
shares (the "Shares") of Common Stock, $.01 par value ("Common Stock"), of the
Company to be issued pursuant to the Company's 1997 Non-Employee Director Stock
Option Plan (the "Plan").
In connection therewith, we have examined, among other things, the
Plan, the Articles 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 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.
<PAGE> 1
EXHIBIT 23.2
[ARTHUR ANDERSEN LLP LETTERHEAD]
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 February 20,
1998, included in Rush Enterprises, Inc.'s Form 10-K for the year ended
December 31, 1997, and to all references to our firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
San Antonio, Texas
January 5, 1999
