<PAGE> 1
As filed with the Securities and Exchange Commission on October 31, 1997
Registration No. 333-15911
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-3 TO FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DYNAMEX INC.
(Exact name of registrant as specified in its charter)
Delaware 4215 86-0712225
(State of incorporation) (I.R.S. employer
identification number)
1431 Greenway Drive
Suite 345
Irving, Texas 75038
972-756-8180
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
--------------------
Robert P. Capps
Vice President-Chief Financial Officer
1431 Greenway Drive, Suite 345
Irving, Texas 75038
972-756-8184
(Name, address including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copy to:
Bruce H. Hallett
Crouch & Hallett, L.L.P.
717 N. Harwood St., Suite 1400
Dallas, Texas 75201
214-953-0053
--------------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Post-Effective Amendment to the Registration
Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to a dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ x ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
--------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 2
EXPLANATORY NOTES
This Post-Effective Amendment No. 1 on Form S-3 of Dynamex Inc. (the
"Company") amends the Registration Statement on Form S-1 (No. 333-15911) of the
Company declared effective by the Securities and Exchange Commission on
November 14, 1997, and is filed pursuant to the undertaking of the Company set
forth in Item 17(a) of such Registration Statement.
This Post-Effective Amendment No. 1 on Form S-3 contains a prospectus
relating to shares of the Company's Common Stock, par value $.01 per share,
held by selling stockholders.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION DATED OCTOBER 31, 1997
592,920 Shares
DYNAMEX INC.
COMMON STOCK
--------------------
Up to a maximum of 592,920 shares of common stock, $.01 par
value (the "Common Stock") of Dynamex Inc., a Delaware corporation (the
"Company" or "Dynamex"), are being offered from time to time by certain of the
Company's stockholders named herein (the "Selling Stockholders") who have
received shares of Common Stock as full or partial consideration for
acquisitions of delivery businesses consummated by the Company. The Company
will not receive any of the proceeds from the sale of the shares of Common
Stock by the Selling Stockholders.
The Common Stock may be offered by the Selling Stockholders
from time to time in open market transactions (which may include block
transactions), through underwriting syndicates represented by one or more
managing underwriters or in private transactions, or a combination of such
methods of sale, at market prices prevailing at the time of sale, at prices
relating to prevailing market prices or at negotiated prices.
The costs, expenses and fees incurred in connection with the
registration of the Common Stock (excluding any selling commissions and
brokerage fees incurred by the Selling Stockholders) will be paid by the
Company, which has also agreed to indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act of 1933
(the "Act").
SEE "RISK FACTORS" BEGINNING ON PAGE 8 OF THIS PROSPECTUS FOR
A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE
PURCHASERS OF THE SHARES OF COMMON STOCK OFFERED HEREBY.
The shares of Common Stock are traded on the Nasdaq National
Market under the symbol "DYMX." The last reported sale price of the Common
Stock on the Nasdaq National Market on October 28, 1997 was $8.875 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The date of this Prospectus is October , 1997
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "1934 Act") and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
concerning the Company can be inspected and copied at the public reference
facilities maintained by the Commission at its offices at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, such material can be inspected at the offices of the
Nasdaq Stock Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
Reports, proxy statements and other information concerning the
Company can also be obtained electronically through a variety of databases,
including among others, the Commission's Electronic Data Gathering, Analysis
And Retrieval ("EDGAR") program, Knight-Ridder Information, Inc., Federal
Filings/Dow Jones and Lexis/Nexis. Additionally, the commission maintains a
Website (at http://www.sec.gov) that contains such information regarding the
Company.
The Company has filed a Registration Statement on Form S-3
(the "Registration Statement") with the Commission under the Act with respect
to the Shares. As permitted by the rules and regulations of the Commission,
this Prospectus omits certain information, exhibits, and undertakings contained
in the Registration Statement. Reference is made to the Registration Statement
and to the exhibits thereto for further information, which may be inspected
without charge at the office of the Commission at 450 Fifth Street, N.W.,
Washington, D.C., and copies of which may be obtained from the Commission at
prescribed rates. Statements contained in this Prospectus or in any document
incorporated by reference in this Prospectus relating to the contents of any
contract or other document referred to herein or therein are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or such other document. Each
such statement is qualified in its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the
Securities and Exchange Commission are incorporated in this Prospectus by
reference:
1. The Company's Annual Report on Form 10-K for the year
ended July 31, 1997, filed October 29, 1997 by the Company pursuant to Section
13 or 15(d) of the 1934 Act;
2. The Company's Report on Form 8-KA filed July 31,1997,
concerning certain financial statements of the Company and Road Runner, Inc.,
(a subsidiary acquired in May 1997), and the Company's Report on Form 8-K filed
October 7, 1997, concerning the Company's acquisition of City Courier, Inc.,
New York Document Exchange Corporation and Eastwide/Westside, Inc.
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3. The description of the Company's Common Stock which is
contained in the Company's latest registration statement filed under the 1934
Act, including any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the termination of
the offering of the shares of Common Stock hereunder shall be deemed to be
incorporated herein by reference and shall be a part hereof from the date of
the filing of such documents. Any statements contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or replaced for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
replaces such statement. Any such statement so modified or replaced shall not
be deemed, except as so modified or replaced, to constitute a part of this
Prospectus.
The Company will provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, upon written
or oral request of such person, a copy of the documents incorporated by
reference herein, other than exhibits to such documents not specifically
incorporated by reference. Such requests should be directed to Dynamex Inc.,
1431 Greenway Drive, Suite 345, Irving, Texas 75038, Attention: Investor
Relations (telephone (972) 756-8185).
THE COMPANY
Statements and information presented within this prospectus
for Dynamex Inc., a Delaware corporation, and its subsidiaries (collectively,
the "Company"), contain "forward-looking statements" within the meaning of
Section 21E of the Securities Exchange Act of 1934, as amended. These
forward-looking statements can be identified by the use of predictive,
future-tense or forward-looking terminology, such as "believes," "anticipates,"
"expects," "estimates," "may," "will" or similar terms. Forward-looking
statements also include projections of financial performance, statements
regarding management's plans and objectives and statements concerning any
assumptions relating to the foregoing. Certain important factors which may
cause actual results to vary materially from these forward-looking statements
accompany such statements and appear elsewhere in this report under "Risk
Factors". All subsequent written or oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified by these factors.
GENERAL
The Company is a leading provider of same-day delivery and
logistics services in the U.S. and Canada. Through internal growth and
acquisitions, the Company has built the only national network of same-day
delivery and logistics systems in Canada and has established operations in 20
U.S. metropolitan areas from which it intends to build a national network in
the U.S.
Through its network of branch offices, the Company provides
same-day, door-to-door delivery services utilizing ground couriers for
intra-city deliveries and third party air transportation providers in
conjunction with ground couriers for inter-city deliveries. The
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Company's same-day delivery services include both on-demand and scheduled
deliveries. On-demand services are typically unscheduled deliveries of
time-sensitive materials and include deliveries of inventory made on a
just-in-time basis from strategic stocking locations managed by Company
personnel. Scheduled distribution services encompass recurring, often daily,
deliveries provided on a point-to-point basis or deliveries that require
intermediate handling, routing or sorting of items to be delivered to multiple
locations. With its fleet management services, the Company assumes complete
responsibility for providing and managing a fleet of dedicated vehicles at a
customer site. The Company's on-demand delivery capabilities are available to
supplement the scheduled distribution and dedicated fleets as necessary.
The Company intends to expand its operations in the U.S. and
Canada by (i) increasing customer utilization of its primary services at each
location, (ii) targeting national and regional accounts, (iii) creating
alliances with strategic partners, and (iv) continuing to actively pursue
acquisitions of high quality same-day delivery companies.
HISTORY; RECENT ACQUISITIONS
The Company was organized under the laws of Delaware in 1992
as Parcelway Systems Holding Corp. In May 1995, the Company acquired Dynamex
Express, the ground courier operations of Air Canada, which was led by Richard
K. McClelland, the Company's Chief Executive Officer. In July 1995, the
Company changed its name to Dynamex Inc. In December 1995, the Company
acquired the on-demand ground courier operations of Mayne Nickless Incorporated
and Mayne Nickless Canada Inc. In August 1996, using a portion of the proceeds
from the initial public offering of the Company's Common Stock (the "IPO") and
by issuing additional shares of Common Stock, the Company purchased same-day
delivery businesses in New York, New York; Columbus, Ohio; Chicago, Illinois;
Halifax, Nova Scotia; and Winnipeg, Manitoba (collectively, the "IPO
Acquisitions"). The aggregate consideration paid by the Company in the IPO
Acquisitions was approximately $7.2 million in cash and 173,485 shares of
Common Stock and the Company repaid an aggregate of approximately $840,000 of
indebtedness of the acquired companies.
Subsequent to the IPO and through September 30, 1997, the
Company purchased the following additional delivery businesses:
<TABLE>
<CAPTION>
Effective Date
Company Metropolitan Areas Served of Acquisition
------- ------------------------- --------------
<S> <C> <C>
Express It, Inc. New York, New York October 1, 1996
Dollar Courier San Diego, California October 18, 1996
Winged Foot Couriers, Inc. New York, New York December 1, 1996
Boogey Transportation Limited Saskatoon, Saskatchewan December 1, 1996
One Hour Delivery Services, Inc. Dallas, Texas January 1, 1997
Priority Parcel Express, Inc. Dallas, Texas January 1, 1997
Max America Holdings, Inc. Dallas, Texas January 1, 1997
Eagle Couriers, Inc. Richmond, Virginia February 1, 1997
One Hour Courier Service, Inc. Kansas City, Missouri March 1, 1997
Regina Mail Marketing, Inc. Regina, Saskatchewan April 28, 1997
Road Runner Transportation, Inc. Minneapolis/St. Paul, MN May 16, 1997
Central Delivery Service of Hartford, Connecticut
Washington, Inc. (2 branches only) Boston, Massachusetts August 16, 1997
</TABLE>
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<TABLE>
<S> <C> <C>
Road Management Systems, Inc. Atlanta, Georgia September 26, 1997
and certain related companies
City Courier, Inc. and certain New York, New York September 30, 1997
related companies
</TABLE>
The consideration paid by the Company for the Post-IPO Acquisitions
was determined through arms-length negotiations among the Company and the
representatives of the stockholders of these acquired companies. The factors
considered by the parties in determining the purchase price include, among
other things, the historical operating results and the future prospects of the
acquired companies. The Company paid approximately $52.3 million as aggregate
consideration for the Post-IPO Acquisition Companies, consisting of
approximately $39.0 million in cash and 1,164,678 shares of Common Stock. In
addition, in certain instances, additional cash consideration may be paid by
the Company if such acquired businesses obtain certain performance goals.
Each of the above referenced acquisitions is being accounted for using
the purchase method of accounting. Accordingly, each acquired company is
included in the Company's consolidated results of operations from the date of
its respective acquisition. The Company is currently integrating recently
acquired companies into the Company's operating environment. Each acquired
company has been assigned to the appropriate regional division of the Company.
A manager of each acquired company has agreed to continue to manage such
operation after the consummation of the respective acquisition and has been
appointed branch manager at such operation. Management is training the staff of
the acquired companies so that each branch will be able to provide and market
the full range of Company services. As soon as practicable and where
appropriate, the Company will assimilate each acquired company's accounting,
payroll and cash management functions, standardize its insurance coverage and
employee benefits and supplement or replace the use of the acquired company's
tradename with "Dynamex."
PRINCIPAL EXECUTIVE OFFICES
The principal executive officers of the Company are located at 1431
Greenway Drive, Suite 345, Irving, Texas 75038 and its telephone number is
(972) 756-8180.
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RISK FACTORS
The following risk factors should be considered carefully in
evaluating the Company and its business. This report contains forward-looking
statements which involve risks and uncertainties. The Company's actual results
could differ materially from those anticipated in these forward-looking
statements as a result of certain factors set forth below and elsewhere in this
report.
ACQUISITION STRATEGY; POSSIBLE NEED FOR ADDITIONAL FINANCING
In order to expand its network of facilities, the Company plans to
acquire local delivery businesses in new geographic regions and in the
metropolitan areas where the Company currently operates. Due to consolidation
within the same-day delivery and logistics industry, there is significant
competition in acquiring such businesses. There can be no assurance that the
Company will be able to acquire or profitably manage additional companies or
successfully integrate their operations into the Company. In addition, there
can be no assurance that companies acquired in the future either will be
beneficial to the successful implementation of the Company's overall strategy
or will ultimately produce returns that justify the investment therein, or that
the Company will be successful in achieving meaningful economies of scale
through the acquisition thereof.
The Company's acquisition strategy may require the Company to incur
additional debt in the future, may result in potentially dilutive issuances of
securities and may result in increased goodwill, intangible assets and
amortization expense. Additionally, the Company's primary lender must consent
to any acquisitions consummated in the next 12 months. There can be no
assurance that the Company's primary lender will consent to such acquisitions
or that, if additional financing is necessary, it can be obtained on terms the
Company deems acceptable. As a result, the Company might be unable to
successfully implement its acquisition strategy.
Recent acquisitions have greatly expanded the size and scope of the
operations of the Company. The process of integrating acquired businesses often
involves unforeseen difficulties and may require a disproportionate amount of
the Company's financial and other resources, including management time. There
can be no assurance that the Company will be able to profitably manage recently
acquired businesses or successfully integrate their operations into the
Company.
COMPETITION
The market for same-day delivery and logistics services has been and
is expected to remain highly competitive. Competition is often intense,
particularly for basic delivery services. The industry is highly fragmented
with low barriers to entry, and there is a recent trend toward consolidation.
Other companies in the industry compete with the Company not only for provision
of services but also for acquisition candidates. Some of these companies have
longer operating histories and greater financial and other resources than the
Company. Additionally, companies that do not currently operate delivery and
logistics businesses may enter the industry in the future.
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CLAIMS EXPOSURE
The Company utilizes the services of approximately 3,520 drivers, and
from time to time such drivers are involved in accidents or other activities
that may give rise to liability claims. The Company currently carries liability
insurance with an aggregate limit of $15.0 million, and independent
owner/operators are required to maintain liability insurance of at least the
minimum amounts required by applicable state or provincial law. The Company
also has insurance policies covering property and fiduciary trust liability,
which coverage includes all drivers. There can be no assurance that claims
against the Company, whether under the liability insurance or the surety bonds,
will not exceed the applicable amount of coverage, that the Company's insurer
will be solvent at the time of settlement of an insured claim, or that the
Company will be able to obtain insurance at acceptable levels and costs in the
future. In addition, the Company's increased visibility and financial strength
as a public company may create additional claims exposure. If the Company were
to experience a material increase in the frequency or severity of accidents,
liability claims, workers' compensation claims, or unfavorable resolutions of
claims, the Company's business, financial condition and results of operations
could be materially and adversely affected. In addition, significant increases
in insurance costs could adversely affect the Company's profitability.
CERTAIN TAX MATTERS RELATED TO DRIVERS
The Company uses independent owner/operators as drivers in a
significant portion of its operations. As of September 30, 1997, approximately
88% of the Company's drivers were independent owner/operators. From time to
time, taxing authorities in the U.S. and Canada have sought to assert that
independent owner/operators in the transportation industry, including those
utilized by the Company, are employees rather than independent contractors. The
Company believes that the independent owner/operators utilized by the Company
are not employees under existing interpretations of federal (U.S. and
Canadian), state and provincial laws. However, there can be no assurance that
federal, state or provincial authorities will not challenge this position, or
that other laws or regulations, including tax laws, or interpretations thereof,
will not change. If, as a result of any of the foregoing, the Company is
required to pay for and administer added benefits to independent
owner/operators, the Company's operating costs would increase. Additionally,
if the Company is required to pay back-up withholding with respect to amounts
previously paid to such persons, it may be required to pay penalties which
could have a material adverse impact on the Company's financial condition and
results of operations.
In addition, certain of the Company's drivers are employed by the
Company and own and operate the vehicles used during the course of their
employment. The Company reimburses these employees for all or a portion of the
operating costs of those vehicles. The Company believes that these
reimbursement arrangements do not represent additional compensation to those
employees. However, there can be no assurance that federal (U.S. and Canadian),
state or provincial taxing authorities will not seek to recharacterize some or
all of such payments as additional compensation. If such amounts were so
recharacterized, the Company would have to pay additional employment related
taxes on such amounts.
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FOREIGN EXCHANGE
A significant portion of the Company's operations are conducted in
Canada. Exchange rate fluctuations between the U.S. and Canadian dollar result
in fluctuations in the amounts relating to the Canadian operations reported in
the Company's consolidated financial statements. The Company historically has
not entered into hedging transactions with respect to its foreign currency
exposure, but may do so in the future. There can be no assurance that
fluctuations in foreign currency exchange rates will not have a material
adverse effect on the Company's business, financial condition or results of
operations.
PERMITS AND LICENSING
Although recent legislation has significantly deregulated certain
aspects of the transportation industry, the Company's delivery operations are
still subject to various federal, state, provincial and local laws, ordinances
and regulations that in many instances require certificates, permits and
licenses. Failure by the Company to maintain required certificates, permits or
licenses, or to comply with applicable laws, ordinances or regulations could
result in substantial fines or possible revocation of the Company's authority
to conduct certain of its operations. Delays in obtaining approvals for the
transfer or grant of certificates, permits or licenses, or failure to obtain
same, could impede the implementation of the Company's acquisition program.
DEPENDENCE ON KEY PERSONNEL
The Company's success is largely dependent on the skills, experience
and performance of certain key members of its management, including
particularly Richard K. McClelland, the Company's Chief Executive Officer. The
loss of the services of any of these key employees could have a material
adverse effect on the Company's business, financial condition and results of
operations. The Company has entered into an employment contract with Mr.
McClelland. The Company's future success and plans for growth also depend on
its ability to attract, train and retain skilled personnel in all areas of its
business. There is strong competition for skilled personnel in the same-day
delivery and logistics business.
EFFECTIVE CONTROL
James M. Hoak directly and indirectly owns an aggregate of 1,275,942
shares of Common Stock, or approximately 17.2% of the total voting power of the
Company. Accordingly, Hoak is in a position to exercise substantial influence
over actions that require consent of stockholders, including decisions relating
to the election of directors of the Company, mergers and consolidations.
TECHNOLOGY
Technological advances in the nature of facsimile and electronic mail
have affected the market for on-demand document delivery services. While these
technological developments have not had a significant adverse impact on the
Company's business to date, and although the Company has shifted its focus to
the distribution of non-faxable items and logistics services, there can be no
assurance that these or other technologies will not have a material
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adverse effect on the Company's business, financial condition and results of
operations in the future.
LIMITED TRADING HISTORY; POSSIBLE VOLATILITY OF STOCK PRICE
The Company's common stock began trading on August 13, 1996. Prices
for the Common Stock will be determined in the marketplace and may be
influenced by many factors, including the depth and liquidity of the market for
the Common Stock, investor perception of the Company, and general economic and
market conditions. Variations in the Company's operating results, general
trends in the industry and other factors could cause the market price of the
Common Stock to fluctuate significantly. In addition, general trends and
developments in the industry, government regulation and other factors could
have a significant impact on the price of the Common Stock. The stock market
has, on occasion, experienced extreme price and volume fluctuations that have
often particularly affected market prices for smaller companies and that often
have been unrelated or disproportionate to the operating performance of the
affected companies, and the price of the Common Stock could be affected by such
fluctuations.
ANTI-TAKEOVER PROVISIONS
Certain provisions of the Company's Restated Certificate of
Incorporation (the "Restated Certificate of Incorporation"), the Company's
Bylaws (the "Bylaws") and the Rights Agreement between the Company and Harris
Trust and Savings Bank (the "Rights Agreement") may delay, defer, discourage or
prevent a merger, proxy contest, tender offer or takeover attempt that a
stockholder might consider to be in such stockholder's best interest, including
attempts that might result in a premium over the market price for the shares
held by stockholders.
The Bylaws provide that the number of directors shall be fixed, from
time to time, by resolution of the Board of Directors of the Company. Neither
the Bylaws nor the Restated Certificate of Incorporation permit stockholders to
call special meetings or to take actions by written consent in lieu of a
meeting, unless such action and the taking of such action by written consent
have been approved in advance by the Board of Directors. The Restated
Certificate of Incorporation provides that the Board of Directors may amend the
Bylaws, subject to the rights of the stockholders to amend such Bylaws. An
amendment to the provision of the Restated Certificate of Incorporation which
prohibits action by stockholders by written consent in lieu of a meeting
requires the affirmative vote of two-thirds of the Company's capital stock then
outstanding. Pursuant to the Restated Certificate of Incorporation, additional
shares of Common Stock may be issued in the future without further stockholder
approval. Furthermore, the Restated Certificate of Incorporation permits the
Board of Directors to establish by resolution one or more series of preferred
stock ("Preferred Stock") and to establish the powers, designations,
preferences and relative, participating, optional or other special rights of
each series of Preferred Stock. The Preferred Stock could be issued on terms
that are unfavorable to the holders of Common Stock or that could make a
takeover or change in control of the Company more difficult.
In June 1996, the Board of Directors of the Company approved the
Rights Agreement which is designed to protect stockholders should the Company
become a target of coercive
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and unfair takeover tactics but may discourage takeover attempts that are not
approved by the Board of Directors. The Rights could cause substantial dilution
to a person or group that attempts to acquire the Company without conditioning
the offer on redemption of the Rights or on substantially all of the Rights
also being acquired. In addition, immediately following the Offering, the
Company will be subject to Section 203 of the Delaware General Corporation Law,
which places restrictions on certain business combinations with certain
stockholders that could render more difficult a change in control of the
Company.
NO DIVIDENDS
The Company has not declared or paid any cash dividends on its Common
Stock since its inception. The Company currently intends to retain all earnings
for the operation and expansion of its business and does not anticipate paying
any dividends in the foreseeable future. In addition, the Company's credit
agreement restricts the payment of dividends. See Note [6] of Notes to the
Consolidated Financial Statements.
SELLING STOCKHOLDERS
The table below sets forth the beneficial ownership of the Company's
Common Stock by the Selling Stockholders prior to the Offering. Each of the
Selling Stockholders acquired these shares pursuant to the acquisition by the
Company of the Acquired Company with which such Selling Stockholder was
affiliated, respectively. The Company is registering the shares of the Selling
Stockholders pursuant to registration rights granted to them under agreements
relating to the acquisition of their shares. Each of the persons named below
has sole voting and investment power with respect to the shares of Common Stock
beneficially owned by him (other than Charles and Mary Regina McLean and David
and Carol Higgins who own such shares jointly, respectively).
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<TABLE>
<CAPTION>
Shares Owned Before Shares Owned After Lock-Up
Acquired the Offering Shares the Offering Expiration
Name and Company ------------------- Being ------------------ ----------
Address Affiliation(1) Number Percent(2) Offered(3) Number(3) Percent Date(4)
----------- ----------- ------ ------- ------- ----- ------- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Robert Dobrient(5) . . . . Max America 33,500 * 33,500 -- -- 3/31/97
Charles H. McLean and
Mary Regina McLean(5) One Hour 100,000 1.3 100,000 -- -- 6/30/97
Frank Vicario(5) . . . . . Eagle Courier 10,032 * 10,032 -- -- 7/31/97
Eddie Hall(5) . . . . . . . Eagle Courier 2,870 * 2,870 -- -- 7/31/97
Joseph Kazeil . . . . . . . Regina Mail 8,960 * 8,960 -- -- 10/28/97
605757 Saskatchewan . . . . Regina Mail 8,960 * 8,960 -- -- 10/28/97
Randal Kazeil(6) . . . . . Regina Mail 4,480 * 4,480 -- -- 10/28/97
James C. Isaacson (5) . . . Road Runner 192,502 2.6 192,502 -- -- 11/16/97
James L. Isaacson . . . . . Road Runner 46,666 * 46,666 -- -- 11/16/97
Gordon J. Isaacson . . . . Road Runner 46,666 * 46,666 -- -- 11/16/97
Gretchen E. Larsen . . . . Road Runner 46,666 * 46,666 -- -- 11/16/97
Thomas W. Ingeman . . . . . Road Runner 17,500 * 17,500 -- -- 11/16/97
Charles M. Duncan, Jr.(5) . Road Management 18,190 * 18,190 -- -- 3/30/98
Robert W. Stribling(5) . . Road Management 14,914 * 14,914 -- -- 3/30/98
Walter Kelley, Jr.(5) . . . Road Management 10,416 * 10,416 -- -- 3/30/98
David & Carol Higgins(5) . Road Management 10,413 * 10,413 -- -- 3/30/98
Charles S. Davis(5) . . . . Road Management 9,005 * 9,005 -- -- 3/30/98
David L. Hawkins(5) . . . . Road Management 6,356 * 6,356 -- -- 3/30/98
H. Dennis Panter . . . . . Road Management 3,241 * 3,241 -- -- 3/30/98
Daryl L. Sudduth(5) . . . . Road Management 1,583 * 1,583 -- -- 3/30/98
------- -------
Total Shares 592,920 592,920
======= =======
</TABLE>
- --------------
* Indicates less than 1%.
(1) Selling Stockholder was a stockholder and, in certain cases, an
employee of the Acquired Company set forth next to his name
immediately prior to the Company's acquisition of such company.
(2) Percentage of the Company's Common Stock outstanding as of October 17,
1997.
(3) Because the Selling Stockholders may offer all or some of the
shares which they hold pursuant to this Prospectus and because there
are currently no agreements, arrangements or understandings with
respect to the sale of any shares, the amount of shares that will be
held by the Selling Stockholders after completion of any offering
hereunder is unknown. However, for the purposes of the above table, it
is assumed that all of the shares of Common Stock offered hereby are to
be sold.
(4) Selling Stockholder has agreed not to sell any Common Stock or
securities exercisable for or convertible into Common Stock until the
date set forth in this column without the prior written consent of the
Company.
(5) Selling Stockholder is currently engaged by the Company directly or
indirectly in connection with the operation of the business of the
Acquired Company with which he was previously affiliated or in
connection with other Company operations.
(6) Selling Stockholder was employed or engaged by the Company immediately
after the acquisition of the company with which he was affiliated but
is no longer employed or engaged by the Company.
LEGAL OPINIONS
The validity of the Common Stock offered hereby will be passed upon
for the Company by Crouch & Hallett, L.L.P., Dallas, Texas.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from the Company's Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
13
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses will be paid by the Company:
<TABLE>
<CAPTION>
Item Amount(1)
- ---- ------
<S> <C>
SEC registration fee $ 4,375
Legal fees and expenses 15,000
Accounting fees 5,000
Miscellaneous 5,625
-------
Total $30,000
=======
</TABLE>
- ---------
(1) All items other than SEC registration fee are estimated
Item 15. Indemnification of Directors and Officers.
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.
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 Agrin of its officers contractually requiring the Company
to provide such indemnification to the extent permitted by applicable law.
II-1
<PAGE> 15
Item 16. Exhibits.
3.1 Restated Certificate of Incorporation of Dynamex Inc.(3)
3.2 Bylaws, as amended and restated, of Dynamex Inc.(4)
4.1 Rights Agreement between Dynamex Inc. and Harris Trust and
Savings Bank, dated July 5, 1996.(3)
5.1 Opinion of Crouch & Hallett, L.L.P.(1)
23.1 Independent Auditors' Consent of Deloitte & Touche.(1)
23.2 Consent of Crouch & Hallett, L.L.P. (included in Exhibit
5.1).
24.1 Power of Attorney.(2)
- ----------
(1) Filed herewith.
(2) Previously filed on the signature page of the Registration Statement
on Form S-1 of Dynamex Inc., File No. 333- 15911.
(3) Filed as an exhibit to Registration Statement on Form S-1 of Dynamex
Inc. File No. 333-05293, and incorporated herein by reference.
(4) Filed as an exhibit to the registrant's annual report on Form 10-K for
the fiscal year ended July 31, 1997, and incorporated herein by
reference.
Item 17. Undertakings.
(a) Rule 415 Offering
The registrant hereby undertakes (1) to file, during any period in
which offers or sales are being made of the Shares registered hereby,
a post-effective amendment to this Registration Statement 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; (2) that,
for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and (3) to remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of
the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference
The registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
Company'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 herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Indemnification for Liability under the Securities Act of 1934
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed
II-2
<PAGE> 16
in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer, or controlling person of the registrant in the successful
defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 17
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the
Registrant has duly caused this post-effective amendment to registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas on the 31st day of October,
1997.
DYNAMEX INC.
BY: /s/ Robert P. Capps
----------------------------
Robert P. Capps, Vice
President-Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment to registration statement has been signed by the
following persons in the capacities on the 31st day of October, 1997.
NAME TITLE
/s/ Richard K. McClelland President, Chief Executive Officer
- ---------------------------- and Chairman of the Board
Richard K. McClelland (Principal Executive Officer)
/s/ Robert P. Capps Vice President-Chief Financial Officer
- ---------------------------- (Principal Financial Officer)
Robert P. Capps
* Vice President, Controller and Secretary
- ---------------------------- (Principal Accounting Officer)
Martin A. Piccolo
*
- ---------------------------- Director
James M. Hoak
*
- ---------------------------- Director
Wayne Kern
*
- ---------------------------- Director
Stephen P. Smiley
*
- ---------------------------- Director
Brian J. Hughes
*
- ---------------------------- Director
Kenneth H. Bishop
*
- ---------------------------- Director
E. T. Whalen
* By: /s/ Robert P. Capps
----------------------------
Robert P. Capps
Attorney-in-Fact
II-4
<PAGE> 18
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
3.1 Restated Certificate of Incorporation of Dynamex Inc.(3)
3.2 Bylaws, as amended and restated, of Dynamex Inc.(4)
4.1 Rights Agreement between Dynamex Inc. and Harris Trust and
Savings Bank, dated July 5, 1996.(3)
5.1 Opinion of Crouch & Hallett, L.L.P.(1)
23.1 Independent Auditors' Consent of Deloitte & Touche.(1)
23.2 Consent of Crouch & Hallett, L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney.(2)
</TABLE>
- ----------
(1) Filed herewith.
(2) Previously filed on the signature page of the Registration Statement
on Form S-1 of Dynamex Inc., File No. 333- 15911.
(3) Filed as an exhibit to Registration Statement on Form S-1 of Dynamex
Inc. File No. 333-05293, and incorporated herein by reference.
(4) Filed as an exhibit to the registrant's annual report on Form 10-K for
the fiscal year ended July 31, 1997, and incorporated herein by
reference.
<PAGE> 1
EXHIBIT 5.1
CROUCH & HALLETT, L.L.P. LETTERHEAD
(214) 953-0053
October 31, 1997
Dynamex Inc.
1431 Greenway Drive
Suite 345
Irving, Texas 75038
Gentlemen:
We have served as counsel for Dynamex Inc., a Delaware corporation
(the "Company"), in connection with the Post-Effective Amendment No. 1 on Form
S-3 to Registration Statement on Form S-1 (the "Amendment"), filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), covering an aggregate of 1,173,485 shares (the "Shares") of the
Company's Common Stock, $.01 par value (the "Common Stock"), to be offered from
time to time by certain of the Company's stockholders named in the Amendment.
With respect to the foregoing, we have examined such documents and
questions of law as we have deemed necessary to render the opinions expressed
below. Based upon the foregoing, we are of the opinion that the Shares to be
sold by the Selling Stockholders in the manner described in the Amendment are
duly authorized, validly issued and outstanding and are fully paid and
nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the Amendment
and to the use of our name in the Amendment and in the Prospectus included
therein under the heading "Legal Opinions."
Very truly yours,
/s/ Crouch & Hallett, L.L.P.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 on Form S-3 to Registration Statement No. 333-15911 of Dynamex Inc. on
Form S-1 of our report dated September 19, 1997 (except for Note 3(b) which is
as of September 29, 1997), appearing in the Annual Report on Form 10-K of
Dynamex Inc. for the year ended July 31, 1997, and to the reference to us under
the heading "Experts" in the Prospectus, which is part of such Registration
Statement.
DELOITTE & TOUCHE
/s/ Deloitte & Touche
Toronto, Canada
October 30, 1997
