<PAGE> 1
As Filed With The Securities And Exchange Commission on January 14, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------------------------------
DYNAMEX INC.
(Exact name of issuer as specified in its charter)
Delaware 86-0712225
(State of incorporation) (I.R.S. employer identification no.)
2630 Skymark Avenue
Suite 610 L4W SA4
Mississauga, Ontario (Zip code)
(Address of principal executive office)
------------------------------------------------
Dynamex Inc. 1996 Stock Option Plan
(Full title of the plan)
Robert P. Capps Bruce H. Hallett
Vice President--Finance Crouch & Hallett, L.L.P.
and Corporate Development 717 N. Harwood Street
Dynamex Inc. Suite 1400
One Galleria Tower Dallas, Texas 75201
13355 Noel Road, Suite 1050 (214) 953-0053
Dallas, Texas 75240
(972) 960-4859
(Names, addresses and telephone numbers, including area codes,
of agents for service)
------------------------------------------------
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLANS: Sales
to the optionees of securities proposed to be registered hereunder will occur
from time to time after the effective date of this Registration Statement.
------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share Offering Price Registration Fee*
- ------------------- ------------ ---------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 630,000 Shs. $11.375 $7,166,250 $2,172
- --------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for purposes of calculating the registration fee, which has
been computed in accordance with Rule 457(h), based on the average high and low
prices of the registrant's Common Stock on January 10, 1997, as reported on the
Nasdaq National Market.
<PAGE> 2
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed (i) through (iii) below are hereby incorporated by
reference into this Registration Statement. All documents subsequently filed
by the registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") prior to 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 herein and to be a part hereof from the date of
filing of such documents.
(i) The registrant's latest annual report filed pursuant to Section 13
or 15(d) of the 1934 Act or the latest prospectus filed pursuant to Rule 424(b)
or (c) under the Securities Act of 1933 (the "1933 Act"), which contains,
either directly or by incorporation by reference, certified financial
statements for the registrant's latest fiscal year for which such statements
have been filed.
(ii) All other reports filed pursuant to Section 13(a) or 15(d) of the
1934 Act since the end of the fiscal year covered by the annual reports or the
prospectus referred to in (i) above.
(iii) The description of the registrant's Common Stock which is
contained in a registration statement on Form 8-A filed under the 1934 Act,
including any amendment or report filed for the purpose of updating such
description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Restated Certificate of Incorporation eliminates to the
fullest extent permissible under the General Corporation Law of Delaware the
liability of directors to the Company and the stockholders for monetary damages
for breach of fiduciary duty as a director. This provision does not eliminate
liability (a) for any breach of a director's duty of loyalty to the Company or
its stockholders; (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law; (c) in connection
with payment of any illegal dividend or illegal stock repurchase; or (d) for
any transaction from which the director derives an improper personal benefit.
In addition, these provisions do not apply to equitable remedies such as
injunctive relief.
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<PAGE> 3
The Company's Bylaws provide that the Company shall indemnify each of
its directors and officers, acting in such capacity, so long as such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company. Such indemnification may be
made only upon a determination that such indemnification is proper in the
circumstances because the person to be indemnified has met the applicable
standard of conduct to permit indemnification under the law. The Company is
also required to advance to such persons payment for their expenses incurred in
defending a proceeding to which indemnification might apply, provided the
recipient provides an undertaking agreeing to repay all such advanced amounts
if it is ultimately determined that he is not entitled to be indemnified.
The Company also maintains a directors' and officers' liability
insurance policy insuring directors and officers of the Company for up to $5.0
million of covered losses as defined in the policy. The Company has entered
into Indemnification Agreements with each of its directors and certain of its
officers contractually requiring the Company to provide such indemnification to
the extent permitted by applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a) Dynamex Inc. 1996 Stock Option Plan and related form of stock
option agreements (filed herewith).
5 Opinion of Crouch & Hallett, L.L.P. (filed herewith).
23(a) Independent Auditors' Consent of Deloitte & Touche (filed
herewith)
23(b) Independent Auditors' Consent of Deloitte & Touche LLP (filed
herewith)
23(c) Consent of Crouch & Hallett, L.L.P. (included as part of Exhibit
5).
ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
and
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<PAGE> 4
(b) 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 the time shall
be deemed to be the initial bona fide offering thereof; and
(c) 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.
(2) 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 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.
(3) 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 restated certificate of incorporation
or bylaws of the registrant 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 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.
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<PAGE> 5
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 Dallas and the State of Texas, on the 14th day
of January, 1997.
DYNAMEX INC.
By /s/ Robert P. Capps
------------------------------------
Robert P. Capps, Vice President
Finance and Corporate Development
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on January 14, 1997.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<S> <C>
/s/ Richard K. McClelland President, Chief Executive Officer and Chairman of the
- ------------------------------------ Board (Principal Executive Officer)
Richard K. McClelland
/s/ Robert P. Capps Vice President-Finance and Corporate
- ------------------------------------ Development (Principal Financial Officer)
Robert P. Capps
/s/ Martin A. Piccolo Vice President, Controller and Secretary
- ------------------------------------ (Principal Accounting Officer)
Martin A. Piccolo
/s/ James M. Hoak Director
- ------------------------------------
James M. Hoak
/s/ Wayne Kern
- ------------------------------------ Director
Wayne Kern
</TABLE>
II-1
<PAGE> 6
<TABLE>
<S> <C>
/s/ Stephen P. Smiley
- -------------------------------- Director
Stephen P. Smiley
/s/ Brian J. Hughes Director
- --------------------------------
Brian J. Hughes
/s/ Kenneth H. Bishop Director
- --------------------------------
Kenneth H. Bishop
/s/ E. T. Whalen Director
- --------------------------------
E. T. Whalen
</TABLE>
II-2
<PAGE> 7
INDEX TO EXHIBITS
4(a) Dynamex Inc. 1996 Stock Option Plan and related form of stock
option agreements.
5 Opinion of Crouch & Hallett, L.L.P.
23(a) Independent Auditors' Consent of Deloitte & Touche.
23(b) Independent Auditors' Consent of Deloitte & Touche LLP.
23(c) Consent of Crouch & Hallett, L.L.P. (included as part of Exhibit 5).
E-1
<PAGE> 1
DYNAMEX INC. 1996 STOCK OPTION PLAN
SECTION 1.
PURPOSE
The purposes of this Dynamex Inc. 1996 Stock Option Plan (this "Plan")
are to attract and retain the best available employees and directors of Dynamex
Inc. (the "Company") and any Parent or Subsidiary of the Company (each as
hereinafter defined), to provide additional incentive to such persons and to
promote the success of the business of the Company. This Plan is intended to
comply with Rule 16b-3 under Section 16 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or any successor provision ("Rule 16b-3"), and
this Plan shall be construed, interpreted and administered to so comply. This
Plan amends and restates the Parcelway Systems Holding Corp. 1993 Stock Option
Plan.
SECTION 2.
OTHER DEFINITIONS
As used in this Plan:
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Compensation Committee or other committee
appointed by the Board, which shall consist of two or more directors, each of
whom shall be a "disinterested person" within the meaning of Rule 16b-3(c)
under the Exchange Act, or any successor provision.
"Common Stock" means the Common Stock, $.01 par value, of the Company.
"Effective Date" means June 5, 1996.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Fair Market Value" means, with respect to the Common Stock and at any
date, (i) the reported closing price of such stock on the New York Stock
Exchange or other established stock exchange or the Nasdaq National Market
System on such date, or if no sale of such stock shall have been made on such
an exchange or the Nasdaq National Market System on that date, on the preceding
date on which there was such a sale, (ii) if such stock is not then listed on
such an exchange or quoted on the Nasdaq National Market System, the average of
the closing bid and asked prices per
<PAGE> 2
share for such stock in the over-the-counter market as quoted on the National
Association of Securities Dealers, Inc. Automated Quotation System ("Nasdaq")
on such date, or (iii) if such stock is not then listed on such an exchange or
quoted on Nasdaq or the Nasdaq National Market System, an amount determined in
good faith by the Committee in its sole discretion.
"Incentive Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under this Plan which is intended to meet the
requirements of Section 422 of the Code or any successor provision.
"Non-Employee Director" means a director of the Company who is not an
employee of the Company or any parent or Subsidiary of the Company.
"Non-Qualified Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under this Plan which is not intended to
be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Non-Qualified Stock
Option.
"Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
"Participant" means a person selected by the Committee to receive an
award under this Plan and Non-Employee Directors.
"Restricted Stock" means Common Stock awarded to a Participant subject
to restrictions pursuant to the Plan.
"Restricted Stock Grant" means an award of shares of Restricted Stock.
"Section 16 Participant" means a Participant subject to Section 16 of
the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Subsidiary" means a "subsidiary corporation," whether now or hereafter
existing, as defined in Section 424(f) of the Code.
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<PAGE> 3
SECTION 3.
ADMINISTRATION
(a) Committee Authority; Delegation. This Plan shall be administered
by the Committee. Among other things, the Committee shall have authority,
subject to the terms of this Plan (including, without limitation, the
provisions governing participation in this Plan by Non-Employee Directors), to
grant awards under this Plan and to determine the individuals to whom and the
time or times at which awards may be granted, the type(s) of award(s) to be
granted to such individuals pursuant to this Plan and the terms and conditions
of such awards. All administrative powers may be delegated by the Committee,
except where (i) such powers with respect to the selection of and determination
of awards for Section 16 Participants are required to be exercised by the
Committee in order to enable this Plan to qualify for the exemption provided by
Rule 16b-3 or (ii) such delegation would cause the benefits under this Plan to
"covered employees" within the meaning of Section 162(m) of the Code to not
qualify as performance-based compensation within the meaning of Section 162(m)
of the Code and applicable interpretive authority thereunder.
(b) Actions of Committee. Subject to the provisions of Section 10(e)
hereof, the Committee shall have authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the operation of this
Plan as it shall from time to time consider advisable, to interpret the
provisions of this Plan and any Option Agreement or Restricted Stock Agreement
(each as hereinafter defined), and to decide all disputes arising in connection
with this Plan. The Committee's decisions and interpretations shall be final
and binding. Any action of the Committee with respect to the administration of
this Plan shall be taken pursuant to a majority vote or by the unanimous
written consent of its members.
(c) Indemnification. The Company shall indemnify and hold harmless
each director of the Company and each Committee member for any action or
determination made in good faith with respect to this Plan or any Option
Agreement or Restricted Stock Agreement.
SECTION 4.
ELIGIBILITY
The following individuals shall be eligible to receive awards pursuant
to this Plan as follows:
(a) Any employee (including any officer or director who is an
employee) of the Company or any Parent or Subsidiary of the Company shall be
eligible to receive Incentive Stock Options under this Plan. Any employee
(including any officer or
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<PAGE> 4
director who is an employee) of the Company or any Parent, Subsidiary or other
affiliate of the Company shall be eligible to receive Non-Qualified Stock
Options and Restricted Stock Grants under this Plan. Eligible employees may
receive more than one Option or Restricted Stock Grant under this Plan.
(b) Any Non-Employee Director of the Company shall be eligible to
receive Options and Restricted Stock Grants only as set forth in Section 8
hereof.
SECTION 5.
STOCK AVAILABLE UNDER THIS PLAN
(a) Number of Shares Available. Subject to any adjustments made
pursuant to Section 5(b) hereof, the aggregate number of shares of Common Stock
that may be delivered pursuant to the exercise of all Options granted and
pursuant to all Restricted Stock Grants awarded under this Plan shall be
630,000, of which no more than 50,000 shares may be delivered pursuant to
Restricted Stock Grants and the exercise of Options awarded to Non-Employee
Directors in accordance with Section 8 hereof. If any Option expires or is
terminated before exercise or if any portion of any Restricted Stock Grant is
forfeited for any reason, the shares of Common Stock which were subject to but
were either forfeited to the Company or not delivered under such Option or
Restricted Stock Grant, and any other shares of Common Stock that for any other
reason are not issued to a Participant, shall again be available for award
under this Plan as if no Option or Restricted Stock Grant had been awarded with
respect to such shares. Awards under this Plan may be fulfilled with either
authorized and unissued shares of Common Stock or issued and reacquired shares
of Common Stock.
(b) Adjustment. In the event of a stock dividend, stock split or
combination of shares of Common Stock, recapitalization or other increase or
decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Company, appropriate and proportionate
adjustment shall be made in (i) the number and kind of shares of stock in
respect of which Options or Restricted Stock Grants may be awarded under this
Plan, (ii) the number and kind of shares of stock or other property subject to
outstanding Options and Restricted Stock Grants, and (iii) the award, exercise
or conversion price with respect to any of the foregoing.
SECTION 6.
TERMS AND CONDITIONS OF OPTIONS
(a) Grants of Options. Subject to the provisions of this Plan, the
Committee may award Incentive Stock Options and Non-Qualified Stock Options and
determine the number of shares to be covered by each Option, the option price
therefor, the term
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<PAGE> 5
of the Option, and the other conditions and limitations applicable to the
exercise of the Option. The terms and conditions of Incentive Stock Options
shall be subject to and comply with Section 422 of the Code, or any successor
provision, and any regulations thereunder. Each grant of an Option may be made
alone or in combination with, in addition to or in relation to any other award
authorized by this Plan. The terms of each Option need not be identical, and
the Committee need not treat Participants uniformly. Except as otherwise
provided by this Plan or a particular Option Agreement, any determination with
respect to an Option may be made by the Committee at the time of award or at
any time thereafter.
(b) Agreement in Writing; Provisions. Each Option under this Plan
shall be evidenced by a written agreement (each, an "Option Agreement")
delivered to the Participant specifying the terms and conditions thereof and
containing such other terms and conditions not inconsistent with the provisions
of this Plan as the Committee considers necessary or advisable to achieve the
purposes of this Plan or comply with applicable tax and regulatory laws and
accounting principles. Each Option Agreement shall specify whether the Options
granted thereby are Incentive Stock Options or Non-Qualified Stock Options.
(c) Option Price. The option price per share of Common Stock
purchasable under an Option shall be 100% of the Fair Market Value of the
Common Stock on the date of award. If the Participant owns or is deemed to own
(by reason of the attribution rules applicable under Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of stock of the
Company or any Subsidiary or Parent of the Company and an Incentive Stock
Option is granted to such Participant, the option price shall be 110% of Fair
Market Value of the Common Stock on the date of award.
(d) Method of Payment. The purchase price for any share purchased
pursuant to the exercise of any Option granted under this Plan shall be paid in
full upon exercise of the Option by any of the following methods, to the extent
permitted under the particular Option Agreement: (i) by cash, (ii) by check or
(iii) by transferring to the Company shares of Common Stock at their Fair
Market Value as of the date of exercise of the Option. Notwithstanding the
foregoing, the Company may arrange for or cooperate in permitting cashless
exercise procedures and may extend and maintain, or arrange for the extension
and maintenance of, credit to a Participant to finance the Participant's
purchase of shares pursuant to the exercise of Options, on such terms as may be
approved by the Committee, subject to applicable regulations of the Federal
Reserve Board and any other applicable laws or regulations in effect at the
time such credit is extended.
(e) Termination. No Option shall be exercisable more than ten years
after the date the Option is awarded. If a Participant owns or is deemed to
own (by reason of
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<PAGE> 6
the attribution rules of Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the Company or any Subsidiary
or Parent of the Company and an Incentive Stock Option is awarded to such
Participant, such Option shall not be exercisable after the expiration of five
years from the date of award.
(f) Exercise. No Option shall be exercisable during the lifetime of
a Participant by any person other than the Participant or his or her guardian
or legal representative. The Committee shall have the power to set the time or
times within which each Option shall be exercisable and to accelerate the time
or times of exercise of each Option, other than, in each case, Options awarded
or to be awarded to Non-Employee Directors. To the extent that a Participant
has the right to exercise one or more Options and purchase shares pursuant
thereto, the Options may be exercised from time to time by written notice to
the Company stating the number of shares being purchased and accompanied by
payment in full of the option price for such shares. Any certificate for
shares of outstanding Common Stock used to pay the option price shall be
accompanied by a stock power duly endorsed in blank by the registered owner of
the certificate (with the signature thereon guaranteed). In the event the
certificate tendered by the Participant in such payment covers more shares than
are required for such payment, the certificate shall also be accompanied by
instructions from the Participant to the Company's transfer agent with respect
to the disposition of the balance of the shares covered thereby.
(g) Disability, Death, Retirement or Other Termination. The
Committee shall determine the effect on an Option (other than an Option awarded
or to be awarded to a Non-Employee Director) of the disability, death,
retirement or other termination of employment of a Participant and the extent
to which, and the period during which, the Participant's legal representative,
guardian or designated beneficiary may exercise rights thereunder.
(h) Nontransferability. No Option or interest therein or right
thereunder shall be transferable by a Participant other than by will or the
laws of descent and distribution.
(i) $100,000 Limit for Incentive Stock Options. If required by
applicable tax rules regarding a particular grant, to the extent that the
aggregate Fair Market Value (determined as of the date an Incentive Stock
Option is granted) of the shares with respect to which an Incentive Stock
Option grant under this Plan (when aggregated, if appropriate, with shares
subject to other Incentive Stock Option grants made before said grant under
this Plan or any other plan maintained by the Company or any Parent or
Subsidiary of the Company) is exercisable for the first time by a Participant
during any calendar year exceeds $100,000 (or such other limit as is prescribed
by the Code),
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<PAGE> 7
such Option grant shall be treated as a grant of Non-Qualified Stock Options
pursuant to Code Section 422(d).
(j) Disposition of Incentive Stock Options. A Participant shall
notify the Committee in the event that he or she disposes of Common Stock
acquired upon exercise of an Incentive Stock Option within the two-year period
following the date the Incentive Stock Option was granted or within the one-
year period following the date he or she received Common Stock upon the
exercise of an Incentive Stock Option.
(k) Option Modification. The Committee may amend, modify or
terminate any outstanding Option held by a Participant other than a Non-
Employee Director, including substituting therefor another Option of the same
or a different type, changing the date of exercise or vesting and converting an
Incentive Stock Option to a Non-Qualified Stock Option, provided that the
Participant's consent to such action shall be required unless the Committee
determines in its sole discretion that the action, taking into account any
related action, would not materially and adversely affect the Participant.
SECTION 7.
TERMS AND CONDITIONS OF RESTRICTED STOCK GRANTS
(a) Restricted Stock Grants. Subject to the provisions of this Plan,
the Committee may award Restricted Stock Grants and determine the number of
shares of Restricted Stock covered by such Grant, the restrictions thereon
(which may include, without limitation, restrictions on the transfer of such
shares, restrictions on the right to vote such shares and restrictions on the
right to receive dividends on such shares), the time or times at which and the
conditions upon which such restrictions shall lapse, and the other terms and
conditions applicable to such Grant. Each Restricted Stock Grant may be made
alone or in combination with, in addition to or in relation to any other award
authorized by this Plan. The terms of each Restricted Stock Grant need not be
identical, and the Committee need not treat Participants uniformly. Except as
otherwise provided by this Plan or a particular Restricted Stock Agreement, any
determination with respect to a Restricted Stock Grant may be made by the
Committee at the time of award or at any time thereafter. The Committee may,
but shall not be required to, award Restricted Stock Grants based upon the
attainment of one or more "performance goals" within the meaning of Section
162(m) of the Code and applicable interpretive authority thereunder.
(b) Agreement in Writing; Provisions. Each Restricted Stock Grant
shall be evidenced by a written agreement (each, a "Restricted Stock
Agreement") delivered to the Participant specifying the terms and conditions
thereof and containing such other terms and conditions not inconsistent with
the provisions of this Plan as the
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<PAGE> 8
Committee considers necessary or advisable to achieve the purposes of this Plan
or comply with applicable tax and regulatory laws and accounting principles.
(c) Delivery of Shares. Each share of Restricted Stock, when issued,
shall be issued in the name of the Participant and the certificate evidencing
such share shall be deposited with the Company, together with a stock power
duly endorsed in blank, upon such issuance and continuing until all applicable
restrictions on such share shall have lapsed.
(d) Disability, Death, Retirement or Other Termination. The
Committee shall determine the effect on a Restricted Stock Grant (other than a
Restricted Stock Grant awarded or to be awarded to a Non-Employee Director) of
the disability, death, retirement or other termination of employment of a
Participant.
(e) Nontransferability. Prior to the lapse of all restrictions
thereon, no share of Restricted Stock or interest therein or right thereunder
shall be transferable by a Participant otherwise than by will or the laws of
descent and distribution.
(f) Restricted Stock Grant Modification. The Committee may amend,
modify or terminate any outstanding Restricted Stock Grant held by a
Participant other than a Non-Employee Director, including substituting therefor
another Restricted Stock Grant of the same or a different type and changing the
time or times at which any restrictions shall lapse, provided that the
Participant's consent to such action shall be required unless the Committee
determines in its sole discretion that the action, taking into account any
related action, would not materially and adversely affect the Participant.
SECTION 8.
NONDISCRETIONARY AWARDS
TO NON-EMPLOYEE DIRECTORS
Notwithstanding any other provision of this Plan, Non-Employee Directors
shall participate in this Plan only to the extent set forth in this Section 8.
The provisions of this Plan applicable to awards granted or to be granted to
Non-Employee Directors are intended to comply with the provisions of Rule 16b-
3(c)(2)(ii) under the Exchange Act, or any successor provision, and such
provisions shall be construed, interpreted and administered to so comply. The
Committee shall have no authority to take any action, and shall not take any
action, if the authority to take such action, or the taking of such action,
would result in noncompliance with such provisions.
(a) Date of Grant; Number of Shares. On the later of (i) the date
upon which a Non-Employee Director is first elected or appointed a member of
the Board or (ii) the
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<PAGE> 9
closing of the initial public offering of the Company's Common Stock, he or she
shall receive a grant of a Non-Qualified Stock Option to purchase 2,000 shares
of Common Stock. Non-Employee Directors subsequently re-elected at any meeting
of stockholders shall receive as of the anniversary of the initial grant of a
Non-Qualified Stock Option to such director, the grant of a Non-Qualified Stock
Option to purchase 2,000 shares of Common Stock. Options granted to Non-
Employee Directors shall be immediately exercisable.
(b) Term. The term of each Option granted to a Non-Employee Director
shall be ten years from its date of grant, unless sooner terminated or extended
in accordance with Section 8(d) below.
(c) Option Price. The option price of the shares of Common Stock
subject to each Option granted to a Non-Employee Director shall be the Fair
Market Value of such shares on the date the Option is granted.
(d) Exercise after Death or Other Termination. If a Non-Employee
Director ceases to be a director of the Company, such Non-Employee Director's
Options shall be exercisable by him only during the six months following the
date such person ceases to be a director, except that:
(i) if a Non-Employee Director dies while serving as a
director, such Non-Employee Director's Options shall be exercisable by
his or her executor or administrator or, if not so exercised, by the
legatees or the distributees of his or her estate, only during the six
months following his or her death; and
(ii) notwithstanding the foregoing, a Non-Employee Director's
Options shall terminate immediately on the date that such person is
removed as a director for cause. For purposes of this Section 8, a Non-
Employee Director shall be considered to have been dismissed "for cause"
in the event he or she is dismissed on account of any act of (x) fraud
or intentional misrepresentation or (y) embezzlement, misappropriation,
or conversion of assets or opportunities of the Company or any
Subsidiary of the Company.
SECTION 9.
ACCELERATION OF EXERCISABILITY AND
VESTING UNDER CERTAIN CIRCUMSTANCES
Notwithstanding any provision in this Plan to the contrary, with regard
to any Option or Restricted Stock Grant awarded to any executive officer or
director of the Company, unless the particular Option or Restricted Stock
Agreement provides otherwise, the Option will become immediately exercisable
and vested in full, and all restrictions on any shares of Restricted Stock
subject to a Restricted Stock Grant shall
-9-
<PAGE> 10
immediately lapse, upon the occurrence, before the expiration or termination of
such Option or forfeiture of such shares, of any of the events listed below:
(a) a sale, transfer or other conveyance of all or substantially all
of the assets of the Company on a consolidated basis;
(b) the acquisition of beneficial ownership (as such term is defined
in Rule 13d-3 promulgated under the Exchange Act) by any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than (i) the Company, (ii) Cypress Capital Partners
I, L.P., (iii) James M. Hoak, or (iv) any of the affiliates of
any of the foregoing, directly or indirectly, of securities
representing 15% or more of the total number of votes that may be
cast for the election of directors of the Company; or
(c) the commencement (within the meaning of Rule 14d-2 promulgated
under the Exchange Act) of a "tender offer" for stock of the
Company subject to Section 14(d)(2) of the Exchange Act; or
(d) the failure at any annual or special meeting of the Company's
stockholders following an "election contest" subject to Rule 14a-
11 promulgated under the Exchange Act, of any of the persons
nominated by the Company in the proxy material mailed to
stockholders by the management of the Company to win election to
seats on the Board, excluding only those who die, retire
voluntarily, are disabled or are otherwise disqualified in the
interim between their nomination and the date of the meeting.
SECTION 10.
MISCELLANEOUS
(a) No Right of Employment. No person shall have any claim or right
to be awarded an Option or Restricted Stock Grant, and the award of an Option
or Restricted Stock Grant shall not be construed as giving a Participant the
right to continued employment. The Company expressly reserves the right at any
time to dismiss a Participant free from any liability or claim under this Plan,
except as expressly provided in the applicable Option or Restricted Stock
Agreement.
(b) Plan Not Exclusive. Nothing contained in this Plan shall prevent
the Company from adopting other or additional compensation arrangements for its
employees or directors.
-10-
<PAGE> 11
(c) No Rights as Stockholders. Subject to the provisions of the
applicable Option or Restricted Stock Agreement, no Participant shall have any
rights as a stockholder with respect to any shares of Common Stock to be
distributed under this Plan until he or she becomes the record holder thereof.
(d) Investment Representation. The Committee may require, as a
condition of receiving shares of Common Stock (including shares of Restricted
Stock) issued pursuant to any Option or Restricted Stock Grant, that a
Participant furnish to the Company such written representations and information
as the Committee deems appropriate to permit the Company, in light of the
existence or nonexistence of an effective Registration Statement under the
Securities Act, to deliver such shares in compliance with the provisions of the
Securities Act.
(e) Section 16 Participants. Notwithstanding any other provision of
this Plan, in order to qualify for the exemption provided by Rule 16b-3, (i)
any shares of Restricted Stock or other equity security received by a Section
16 Participant pursuant to a Restricted Stock Grant and any Common Stock or
other equity security acquired by a Section 16 Participant upon exercise of an
Option may not be sold for six months and one day after the date of award of
the Restricted Stock Grant or Option and (ii) any Option or other right related
to an equity security issued under this Plan that constitutes a "derivative
security" within the meaning of Rule 16b-3(a)(2) under the Exchange Act, or any
successor provision, shall not be transferable other than by will or the laws
of descent and distribution. The Committee shall have no authority to take any
action, and shall not take any action, if the authority to take such action, or
the taking of such action, would disqualify this Plan from the exemption
provided by Rule 16b-3.
(f) Effectiveness. This Plan amendment and restatement shall become
effective upon its approval by the Board, subject to approval by the
stockholders of the Company. Prior to such stockholder approval, awards may be
granted under this Plan amendment and restatement subject to such stockholder
approval.
(g) Amendment; Termination. The Board may amend, suspend or
terminate this Plan or any portion thereof at any time, provided that (i) no
amendment shall be made without stockholder approval if such approval is
necessary to comply with any applicable tax or regulatory requirement,
including any requirements for exemptive relief under Section 16(b) of the
Exchange Act or any successor provision, and (ii) Section 8 hereof and, as it
relates to awards granted or to be granted to Non-Employee Directors, Section 9
hereof may not be amended more than once every six months other than to comport
with changes in the Code or ERISA or the rules and regulations under either
thereof. If any amendment, suspension or termination of this Plan shall
materially and adversely affect the rights of the holder of any award then
outstanding,
-11-
<PAGE> 12
such amendment, suspension or termination shall not be deemed to alter such
rights unless the holder shall consent thereto.
(h) Term. Options and Restricted Stock Grants may not be awarded
under this Plan after ten years from the Effective Date, but then outstanding
Options and Restricted Stock Grants may extend beyond such date. Unless sooner
terminated, this Plan shall terminate on the tenth anniversary of the Effective
Date, provided that such termination shall not terminate or affect any Option
or Restricted Stock Grant then outstanding.
-12-
<PAGE> 13
DYNAMEX INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dynamex Inc. (the "Company"), acting pursuant to the Dynamex Inc. 1996
Stock Option Plan (the "Plan"), hereby grants to ______________ (the "Option
Holder") options to purchase common stock, $.01 par value ("Common Stock"), of
the Company upon the following terms and conditions and in all respects subject
to the provisions of the Plan, the terms of which are incorporated herein by
reference:
1. Grant of Option. The Option Holder is hereby granted an option
(the "Option") to purchase from the Company up to __________ shares of Common
Stock of the Company at $____ per share (the "Option Exercise Price")(being at
least equal to the fair market value of the Common Stock on the date of grant),
in the amounts, during the periods and upon the terms and conditions set forth
in this Agreement. This Option is intended by the Company and the Option
Holder not to qualify for any special tax benefits to the Option Holder. This
Option is therefore not subject to the provisions of Section 6(i) of the Plan.
2. Time of Exercise. The vested portion of the Option is
exercisable in whole or in part (but not as to any fractional shares) at any
time prior to the termination of the Option. The Option shall vest in the
following manner:
<TABLE>
<CAPTION>
If Option Holder remains in the Vested
employ of the Company through: Number of Shares
- -------------------------------- ----------------
<S> <C>
______________, 199___ 20% of shares
______________, 199___ 40% of shares
______________, 19___ 60% of shares
______________, ______ 80% of shares
______________, ______ and thereafter 100% of shares
</TABLE>
The right to purchase shares under the Option shall be cumulative, and shares
not purchased in any year may be purchased in subsequent years, subject to the
termination provisions contained elsewhere herein.
3. Exercise of Option. The exercise of the Option shall entitle the
Option Holder to purchase shares of Common Stock of the Company in the manner
set forth in Section 7.
4. Term. The Option will terminate at the first of the following:
(a) 5 p.m. on ___________________.
<PAGE> 14
(b) 5 p.m. on the date which is six months after the date of the
death or disability of the Option Holder.
(c) 5 p.m. on the date 90 days following the date the Option Holder's
employment with the Company and its subsidiaries terminates.
5. Rights in Event of Death or Disability. If the Option Holder
dies or becomes disabled prior to the termination date specified in Section 4
hereof without having exercised the Option as to all of the shares then
exercisable, the Option may be exercised with respect to all of such shares
prior to the date specified in Section 4(b) by (a) the Option Holder's estate
or a person who acquired the right to exercise the Option by bequest or
inheritance or by reason of the death of the Option Holder in the event of the
Option Holder's death, or (b) the Option Holder or his personal representative
or attorney-in-fact in the event of the Option Holder's disability, subject to
the other terms of this Agreement and applicable laws, rules and regulations.
6. Restrictions on Exercise. This option:
(a) may be exercised only with respect to full shares and no
fractional share of stock shall be issued; or
(b) may not be exercised in whole or in part and no cash or
certificates representing shares subject to such option shall be
delivered, if any requisite approval or consent of any government
authority of any kind or having jurisdiction over the exercise of
options shall not have been secured.
7. Manner of Exercise. The Option Holder or beneficiary shall, in
order to exercise the Option, give written notice to the Company of the number
of shares which he will purchase and furnish an undertaking to make payment of
the exercise price in United States dollars before issuance of such shares.
The Company must receive full payment in United States dollars of the Option
Exercise Price for each share so exercised within five business days after the
date of the Option Holder's notice, unless the Company extends the time of
payment. As a condition of exercise, the Option Holder shall also execute such
documents as the Company in its discretion deems necessary to comply with or
satisfy the requirements of the Securities Act of 1933, or any other law, as
then in effect. Upon receipt of payment for the shares being purchased and
such documents referenced in the preceding sentence, the Company shall, as
expeditiously as possible, deliver to the Option Holder a certificate or
certificates for such shares out of authorized but theretofore unissued shares
of its Common Stock.
2
<PAGE> 15
8. Assignability. The Option is not assignable or transferrable by
the Option Holder except by will or by the laws of descent or distribution.
Subject to the foregoing sentence, the Option shall inure to the benefit of and
be binding upon the successors and assigns of the Option Holder.
9. Right of Stockholder. The Option Holder will have no rights as a
stockholder with respect to any shares covered by the Option until the issuance
of a certificate or certificates to the Option Holder for the shares. Except
as otherwise provided in Section 10 hereof, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date of
full payment of the Option Exercise Price.
10. Capital Adjustments and Reorganizations. The number of shares of
Common Stock covered by the Option, and the Option Exercise Price thereof,
shall be subject to appropriate proportionate adjustment to reflect any stock
dividend, stock split, share combination, separation, reorganization,
liquidation or the like, of or by the Company.
11. Subject to Plan. This Option and the grant and exercise thereof
are subject to the terms and conditions of the Plan, which is incorporated
herein by reference and made a part hereof, but the terms of the Plan shall not
be considered an enlargement of any benefits under this Agreement. In
addition, this Option is subject to any rules and regulations promulgated
pursuant to the Plan, now or hereafter in effect.
12. Law Governing. This Agreement is intended to be performed in the
State of Delaware and shall be construed and enforced in accordance with and
governed by the laws of such state.
Dated as of the ______day of ___________________________.
-----------------------------------
[Optionee]
Dynamex Inc.
By:
-------------------------------
3
<PAGE> 16
DYNAMEX INC.
INCENTIVE STOCK OPTION AGREEMENT
Dynamex Inc. (the "Company"), acting pursuant to the Dynamex Inc. 1996
Stock Option Plan (the "Plan"), hereby grants to _________ (the "Option
Holder") options to purchase common stock, $.01 par value ("Common Stock"), of
the Company upon the following terms and conditions and in all respects subject
to the provisions of the Plan, the terms of which are incorporated herein by
reference:
1. Grant of Option. The Option Holder is hereby granted an option
(the "Option") to purchase from the Company up to _________ shares of Common
Stock of the Company at $_____ (the "Option Exercise Price")(being at least
equal to the fair market value of the Common Stock on the date of grant), in
the amounts, during the periods and upon the terms and conditions set forth in
this Agreement.
2. Time of Exercise. The vested portion of the Option is
exercisable in whole or in part (but not as to any fractional shares) at any
time prior to the termination of the Option. The Option shall vest in the
following manner:
<TABLE>
<CAPTION>
If Option Holder remains in the Vested
employ of the Company through: Number of Shares
- -------------------------------- ----------------
<S> <C>
_____________, 199___ 20% of shares
_____________, 199___ 40% of shares
_____________, 199___ 60% of shares
_____________, ______ 80% of shares
_____________, ______ and thereafter 100% of shares
</TABLE>
The right to purchase shares under the Option shall be cumulative, and shares
not purchased in any year may be purchased in subsequent years, subject to the
termination provisions contained elsewhere herein.
3. Exercise of Option. The exercise of the Option shall entitle the
Option Holder to purchase shares of Common Stock of the Company in the manner
set forth in Section 7.
4. Term. The Option will terminate at the first of the following:
(a) 5 p.m. on _____________.
(b) 5 p.m. on the date which is six months after the date of the
death or disability of the Option Holder.
<PAGE> 17
(c) 5 p.m. on the date 90 days following the date the Option Holder's
employment with the Company and its subsidiaries terminates.
5. Rights in Event of Death or Disability. If the Option Holder
dies or becomes disabled prior to the termination date specified in Section 4
hereof without having exercised the Option as to all of the shares then
exercisable, the Option may be exercised with respect to all of such shares
prior to the date specified in Section 4(b) by (a) the Option Holder's estate
or a person who acquired the right to exercise the Option by bequest or
inheritance or by reason of the death of the Option Holder in the event of the
Option Holder's death, or (b) the Option Holder or his personal representative
or attorney-in-fact in the event of the Option Holder's disability, subject to
the other terms of this Agreement and applicable laws, rules and regulations.
6. Restrictions on Exercise. This option:
(a) may be exercised only with respect to full shares and no
fractional share of stock shall be issued; or
(b) may not be exercised in whole or in part and no cash or
certificates representing shares subject to such option shall be
delivered, if any requisite approval or consent of any government
authority of any kind or having jurisdiction over the exercise of
options shall not have been secured.
7. Manner of Exercise. The Option Holder or beneficiary shall, in
order to exercise the Option, give written notice to the Company of the number
of shares which he will purchase and furnish an undertaking to make payment of
the exercise price in United States dollars before issuance of such shares.
The Company must receive full payment in United States dollars of the Option
Exercise Price for each share so exercised within five business days after the
date of the Option Holder's notice, unless the Company extends the time of
payment. As a condition of exercise, the Option Holder shall also execute such
documents as the Company in its discretion deems necessary to comply with or
satisfy the requirements of the Securities Act of 1933, or any other law, as
then in effect. Upon receipt of payment for the shares being purchased and
such documents referenced in the preceding sentence, the Company shall, as
expeditiously as possible, deliver to the Option Holder a certificate or
certificates for such shares out of authorized but theretofore unissued shares
of its Common Stock.
8. Assignability. The Option is not assignable or transferrable by
the Option Holder except by will or by the laws of descent or distribution.
Subject to the foregoing sentence, the Option shall inure to the benefit of and
be binding upon the successors and assigns of the Option Holder.
2
<PAGE> 18
9. Right of Stockholder. The Option Holder will have no rights as a
stockholder with respect to any shares covered by the Option until the issuance
of a certificate or certificates to the Option Holder for the shares. Except
as otherwise provided in Section 10 hereof, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date of
full payment of the Option Exercise Price.
10. Capital Adjustments and Reorganizations. The number of shares of
Common Stock covered by the Option, and the Option Exercise Price thereof,
shall be subject to appropriate proportionate adjustment to reflect any stock
dividend, stock split, share combination, separation, reorganization,
liquidation or the like, of or by the Company.
11. Subject to Plan. This Option and the grant and exercise thereof
are subject to the terms and conditions of the Plan, which is incorporated
herein by reference and made a part hereof, but the terms of the Plan shall not
be considered an enlargement of any benefits under this Agreement. In
addition, this Option is subject to any rules and regulations promulgated
pursuant to the Plan, now or hereafter in effect.
12. Law Governing. This Agreement is intended to be performed in the
State of Delaware and shall be construed and enforced in accordance with and
governed by the laws of such state.
Dated as of the _____ day of ______________________.
------------------------------------
[Optionee]
Dynamex Inc.
By:
---------------------------------
3
<PAGE> 1
[CROUCH & HALLETT LETTERHEAD]
(214) 953-0053
January 14, 1997
Dynamex Inc.
13355 Noel Road, Suite 1050
Dallas, Texas 75240
Gentlemen:
We have served as counsel for Dynamex Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933, as amended,
covering the issuance of 630,000 shares (the "Shares") of Common Stock, $0.01
par value, of the Company to be issued in connection with the Dynamex Inc. 1996
Stock Option Plan.
We have examined such documents and questions of law as we have deemed
necessary to render the opinion expressed herein. Based upon the foregoing, we
are of the opinion that the Shares, when issued and delivered, will be duly and
validly issued and outstanding, fully paid and non-assessable.
We consent to the use of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Crouch & Hallett, L.L.P.
<PAGE> 1
[DELOITTE & TOUCHE LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dynamex Inc. on Form S-8 of our report dated September 20, 1996, except for
Note 13(b)(ii), as to which the date is October 1, 1996 on the consolidated
financial statements of Dynamex Inc. and subsidiaries, appearing in the Annual
Report on Form 10-K of Dynamex Inc. for the year ended July 31, 1996 and in the
Registration Statement on Form S-1 of Dynamex Inc. dated November 12, 1996 and
our reports dated (i) March 8, 1996 on the consolidated financial statements of
K.H.B. & Associates Ltd.; (ii) May 22, 1996 on the consolidated financial
statements of Southbank Courier, Inc.; (iii) March 29, 1996 on the consolidated
financial statements of Action Deliver and Messenger Service Limited; and (iv)
April 5, 1996 on the combined financial statements of Seko Enterprises, Inc.
and Related Companies, appearing in the Registration Statement on Form S-1 of
Dynamex Inc. dated November 12, 1996.
/s/ Deloitte & Touche
Toronto, Ontario
January 9, 1997
<PAGE> 1
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dynamex Inc. on Form S-8 pertaining to the Dynamex Inc. 1996 Stock Option Plan
of our report dated April 19, 1996 on the combined statements of operations and
cash flows of Mayne Nickless Courier (a wholly owned business of Mayne Nickless
Transport, North America until December 28, 1995) for the six months ended
December 28, 1995 and each of the three fiscal years in the period ended July
2, 1995 (which report expresses an unqualified opinion on such financial
statements and includes an explanatory paragraph referring to Mayne Nickless
Courier's basis of presentation) and our report dated March 22, 1996 on the
combined financial statements of Seidel Delivery (which include accounts of
Seidel Enterprises, Inc. and NOW Courier, Inc.) for the years ended December
31, 1994 and 1995, appearing in the Registration Statement on Form S-1 dated
November 12, 1996 of Dynamex Inc.
/s/ Deloitte & Touche, LLP
January 10, 1997
