FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
JEVIC TRANSPORTATION, INC.
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(Exact name of registrant as specified in its charter)
New Jersey 22-237402
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
P.O. Box 5157, Delanco, NJ 08075
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(Address of principal executive offices) (zip code)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X}
Securities Act registration statement file number to which this form
relates: 333-33469 (if applicable)
Securities to be registered pursuant to Section 12(b) of the Act: None.
Securities to be registered pursuant to Section 12(g) of the
Act:
Common Stock, no par value
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(Title of class)
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Item 1. Description of Registrant's Securities To Be
Registered.
Registrant incorporates by reference the description of Registrant's
Common Stock, no par value, set forth in Registrant's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission under the Securities
Act of 1933 on August 13, 1997, as amended (the "Registration Statement") under
the caption "Description of Capital Stock" at pages 44-47.
Item 2. Exhibits.
Exhibit No. Description of Exhibit
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1 Restated Certificate of Incorporation
of Registrant. (Incorporated by
reference to Exhibit 3.1 of the
Registration Statement.)
2 By-laws of Registrant, as amended.
(Incorporated by reference to Exhibit
3.2 of the Registration Statement.)
3 Specimen Common Stock Certificate of
Registrant.
4 Description of Registrant's Common
Stock.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
JEVIC TRANSPORTATION, INC.
Date: September 16, 1997 By: /s/ Harry J. Muhlschlegel
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Harry J. Muhlschlegel
Chairman of the Board and
Chief Executive Officer
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EXHIBIT INDEX
Exhibit Number and Description of Exhibit
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1 Specimen Common Stock Certificate of
Registrant.
2 Description of Registrant's Common
Stock.
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JEVIC TRANSPORTATION, INC.
COMMON STOCK
This Corporation is authorized to issue 50,000,000 shares of Common Equity
without par value, of which 40,000,000 shares are of a series designated
Common Stock and 10,000,000 shares are of a series designated
Class A Common Stock.
THIS CERTIFIES THAT _____________________________ is the owner of _____________
__________________ fully paid and non-assessable Shares of the Common Stock
of the above named Corporation transferable only on the books of the
Corporation by the holder hereof in person or by duly authorized Attorney
upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate
to be signed by its duly authorized officers and its Corporate Seal to be
hereunto affixed this __________________ day of _________________ A.D. 19______.
_______________________________ [SEAL] _______________________________
Secretary/Treasurer Chairman of the Board
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The Corporation will furnish to any shareholder upon request and
without charge a full or summary statement of the designations, voting
rights, preferences, limitations and special rights of the shares of each
class and series authorized to be issued so far as they have been fixed and
determined, and the authority of the Board of Directors to fix and determine
the designations, voting rights, preferences, limitations and special rights
of each class and series of shares of the Corporation.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT --....... Custodian ......... under
TEN ENT -- as tenants by the entireties (Cust) ( Minor)
JT TEN -- as joint tenants with right of survivorship Uniform Gifts to Minors Act .......
and not as tenants in common (State)
Additional abbreviations may also be used though not in the above list.
</TABLE>
For value received, ______ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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Shares represented by the within Certificate, and do hereby irrevocably
constitute and appoint __________________________________________, Attorney to
transfer the said Shares on the books of the within named Corporation with full
power of substitution in the premises.
Dated ____________ 19__
In presence of
______________________________________
_________________________________________
NOTICE. The signature of this assignment must correspond with the name as
written upon the face of the certificate in every particular without alteration
or enlargement, or any change whatever.
EXHIBIT 2
DESCRIPTION OF CAPITAL STOCK
GENERAL
As of the date of this Prospectus, the Company's authorized capital stock
consists of 50,000,000 shares of Common Equity, no par value and 10,000,000
shares of preferred stock, no par value. The Common Equity is divided into two
series, consisting of 40,000,000 shares of Common Stock, no par value and
10,000,000 shares of Class A Common Stock, no par value. As of September 15,
1997, 548,656 shares of Common Stock and 6,309,544 shares of Class A Common
Stock were issued and outstanding. No shares of preferred stock have ever been
issued. Upon completion of the offering, there will be 4,348,656 shares of
Common Stock outstanding and 2,485,820 shares of Common Stock will be reserved
for issuance under the Company's employee benefit plans, including 1,285,820
shares issuable upon exercise of options which will be outstanding upon the
completion of the offering.
COMMON EQUITY (COMMON STOCK AND CLASS A COMMON STOCK)
Voting. Holders of Common Stock are entitled to one vote per share. Holders
of Class A Common Stock are entitled to two votes per share. All actions
submitted to a vote of shareholders are voted on by holders of Common Stock and
Class A Common Stock voting together as a single class, except as otherwise
provided in the Restated Certificate or by law. No holder of Common Equity may
cumulate such holder's votes in voting for directors.
Limitations on Transfer of Class A Common Stock. No holder of Class A
Common Stock may transfer such holder's shares or any interest therein except to
certain "permitted transferees," including such holder's spouse, certain other
relatives of such holder, certain trusts established for the benefit of,
partnerships comprised solely of, or corporations wholly owned by, the holder or
such relatives, and charitable organizations controlled by the holder or such
holder's family members.
Conversion. The Common Stock has no conversion rights. Class A Common Stock
may be converted into Common Stock, in whole or in part, at any time and from
time to time on the basis of one share of Common Stock for each share of Class A
Common Stock. If at any time any shares of Class A Common Stock are transferred
or otherwise become beneficially owned by any person other than a permitted
transferee (as described above), or upon the occurrence of certain events
specified in the Restated Certificate, such shares shall automatically be
converted into an equal number of shares of Common Stock.
Dividends. Holders of Common Stock and Class A Common Stock are entitled to
receive dividends or distributions as may be declared by the Board of Directors
of the Company from funds legally available therefor. All such dividends or
distributions are to be paid or made in equal amounts, share for share, to
holders of Common Stock and Class A Common Stock as if a single class. In the
case of any dividend paid in stock, holders of Common Stock and Class A Common
Stock are entitled to receive such dividend at the same rate per share, but the
dividend payable on shares of Common Stock shall be payable in shares of Common
Stock, and the dividend payable on shares of Class A Common Stock shall be
payable in shares of Class A Common Stock.
Liquidation. Holders of Common Stock and Class A Common Stock share with
each other on a ratable basis as a single class in the net assets of the Company
available for distribution in respect of Common Stock and Class A Common Stock
in the event of liquidation.
Other Terms. Neither the Common Stock nor the Class A Common Stock may be
subdivided, consolidated, reclassified or otherwise changed unless
contemporaneously therewith the other class of shares is subdivided,
consolidated, reclassified or otherwise changed in the same proportion and in
the same manner. In any distribution of stock of any other corporation or any
merger, consolidation or business combination involving the Company, the
consideration to be received per share by holders of either Common Stock or
Class A Common Stock must be identical to that received by holders of the other
class of Common Equity. If the holders of Common Stock are granted options or
rights to subscribe for shares of Common Stock or any other security, the
holders of Class A Common Stock shall be granted the same options or rights on
an as-if-converted basis.
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The rights, preferences and privileges of holders of both classes of Common
Equity are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock which the Company may
designate and issue in the future.
The Company has no present plans to issue any additional shares of Class A
Common Stock.
PREFERRED STOCK
The Board of Directors of the Company is authorized, without further action
of the shareholders of the Company, to issue up to 10,000,000 shares of
preferred stock in classes or series and to fix the designations, powers,
preferences or other rights of the shares of each such class or series and the
qualifications, limitations and restrictions thereon. Such preferred stock may
rank prior to the Common Stock as to dividend rights, liquidation preferences or
both, may have full or limited voting rights, may be redeemable and may be
convertible into shares of either class of the Company's Common Equity.
The purpose of authorizing the Board of Directors to issue preferred stock
is, in part, to eliminate delays associated with a shareholder vote in specific
instances. The issuance of preferred stock, for example in connection with a
shareholder rights plan, could have the effect of making it more difficult for a
third party to acquire, or of discouraging a third party from acquiring, a
majority of the outstanding existing stock of the Company.
The Company has no present plans to issue any shares of preferred stock.
LIMITATION OF DIRECTORS' LIABILITY
The Company's Restated Certificate provides that no director shall be
liable to the Company or its shareholders for damages for breach of any duty as
a director, except for liability based upon an act or omission (i) in breach of
the director's duty of loyalty to the Company or its shareholders, (ii) not in
good faith or involving a knowing violation of law or (iii) resulting in receipt
by the director of an improper personal benefit. The Company believes that this
provision will assist it in securing and maintaining the services of qualified
directors who are not employees of the Company.
CERTAIN PROVISIONS OF RESTATED CERTIFICATE OF INCORPORATION AND BY-LAWS
Other than those items previously discussed with respect to the relative
rights and preferences of the Common Stock and the Class A Common Stock, Jevic's
Restated Certificate of Incorporation (the "Restated Certificate") and By-laws
(the "By-laws") contain various other provisions intended to (i) promote
stability of Jevic's shareholder base and (ii) render more difficult certain
unsolicited or hostile attempts to take over Jevic which could disrupt Jevic,
divert the attention of Jevic's directors, officers and employees and adversely
affect the independence and integrity of Jevic's business. A summary of these
provisions of the Certificate and By-laws is set forth below.
Classified Board; Vacancies; Removal of Directors. Pursuant to the Restated
Certificate, the number of directors of Jevic will be fixed by the Company's
Board of Directors. The directors will be divided into three classes, each class
to consist as nearly as possible of one-third of the directors. Directors
elected by shareholders at an annual meeting of shareholders will be elected by
a plurality of all votes cast at such annual meeting. Initially, the terms of
office of the three classes of directors will expire, respectively, at the
annual meeting of shareholders in 1998, 1999 and 2000. The term of the
successors of each such class of directors expires three years from the year of
election. No decrease in the number of directors constituting the Board of
Directors of Jevic will shorten the term of any incumbent director.
The Restated Certificate provides that except as otherwise provided for or
fixed by or pursuant to an amendment to the Restated Certificate setting forth
the rights of the holders of any class or series of preferred stock, newly
created directorships resulting from any increase in the number of directors and
any vacancies on the Board of Directors of Jevic resulting from death,
resignation, disqualification, removal or other cause will be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board, or by a sole remaining director, and not
by the shareholders unless there are no directors remaining on the Board. Any
director elected in accordance with the preceding sentence will be a director of
the same class in which the new directorship was created or in which the vacancy
occurred, and shall hold office until the next annual meeting of shareholders
and until such director's successor shall have been duly elected and qualified.
Subject to the rights of holders of any preferred stock, any director may be
removed from office only for cause by the affirmative vote of the holders of at
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least 80 percent of the voting power of all the outstanding capital stock of
Jevic entitled to vote generally in the election of directors (the "Voting
Power").
These provisions of the Restated Certificate would preclude a third party
from removing incumbent directors and simultaneously gaining control of the
Board of Directors of Jevic by filling the vacancies created by removal with its
own nominees. Under the classified board provisions described above, it would
take at least two elections of directors for any individual or group to gain
control of the Board of Directors of Jevic, unless a sufficient number of
vacancies in the Board arise prior to the first election of directors by reason
of death, resignation, disqualification, removal or other cause. Accordingly,
these provisions could discourage a third party from initiating a proxy contest,
making a tender offer or otherwise attempting to gain control of the Company.
Special Shareholders' Meetings and Right to Act by Written Consent. The
Restated Certificate and the By-laws provide that special meetings of the
shareholders may be called only by the Chairman of the Board or the President of
the Company or upon a resolution adopted by a majority of the entire Board of
Directors. Shareholders are not generally permitted to call, or to require that
the Board of Directors call, a special meeting of shareholders. Moreover, the
business permitted to be conducted at any special meeting of shareholders is
limited to the business brought before the meeting pursuant to the notice of the
meeting given by Jevic. In addition, the Restated Certificate provides that any
action taken by the shareholders of Jevic must be effected at an annual or
special meeting of shareholders or by unanimous written consent, and
specifically may not be effected by written consent of less than all
shareholders.
The provision of the Restated Certificate prohibiting shareholder action by
written consent of less than all shareholders may have the effect of delaying
consideration of a shareholder proposal until the next annual meeting. This
provision would also prevent the holders of a majority of the Voting Power from
unilaterally using the written consent procedure to take shareholder action.
Moreover, the provisions of the Restated Certificate and By-laws prevent a
shareholder from forcing shareholder consideration of a proposal over the
opposition of the Board of Directors of Jevic by calling a special meeting of
shareholders prior to the time the Board believes such consideration to be
appropriate.
Procedures for Shareholder Nominations and Proposals. The By-laws establish
an advance notice procedure for shareholders to nominate candidates for election
as directors or to bring other business before meetings of shareholders of Jevic
(the "Shareholder Notice Procedure"). Only those shareholder nominees who are
nominated in accordance with the Shareholder Notice Procedure will be eligible
for election as directors of Jevic. Under the Shareholder Notice Procedure,
notice of shareholder nominations to be made at an annual meeting (or of any
other business to be brought before such meeting) must be received by Jevic not
less than 60 days nor more than 90 days prior to the first anniversary of the
previous year's annual meeting. Moreover, the Shareholder Notice Procedure
provides that if the Board of Directors of Jevic has determined that directors
will be elected at a special meeting, a shareholder must give written notice to
the Secretary of Jevic of any nominations to be brought before a special
meeting, not earlier than the 90th day prior to the special meeting and not
later than the later of the 60th day prior to the special meeting or the 10th
day following the first public announcement by Jevic of the date of the special
meeting.
The By-laws provide that only such business may be conducted at a special
meeting as is specified in the notice of meeting. The Shareholder Notice
Procedure provides that at an annual meeting only such business may be conducted
as has been brought before the meeting (i) pursuant to the Company's notice of
meeting, (ii) by, or at the direction of, the Board of Directors or (iii) by a
shareholder who has given timely written notice (as set forth above) to the
Secretary of Jevic of such shareholder's intention to bring such business before
such meeting.
By requiring advance notice of nominations by shareholders, the Shareholder
Notice Procedure will afford the Board of Directors an opportunity to consider
the qualifications of the proposed nominees and, to the extent deemed necessary
or desirable by the Board of Directors, to inform shareholders about such
qualifications. By requiring advance notice of other proposed business, the
Shareholder Notice Procedure will provide a more orderly procedure for
conducting annual meetings of shareholders and, to the extent deemed necessary
or desirable by the Board of Directors, will provide the Board of Directors with
an opportunity to inform shareholders, prior to such meetings, of any business
proposed to be conducted at such meetings, together with the Board of Directors'
position regarding action to be taken with respect to such business, so that
shareholders can better decide whether to attend such a meeting or to grant a
proxy regarding the disposition of any such business.
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Although the By-laws do not give the Board of Directors any power to
approve or disapprove shareholder nominations for the election of directors or
proposals for action, they may have the effect of precluding a contest for the
election of directors or the consideration of shareholder proposals if the
proper procedures are not followed, and of discouraging or deterring a third
party from conducting a solicitation of proxies to elect its own slate of
directors or to approve its own proposal, without regard to whether
consideration of such nominees or proposals might be harmful or beneficial to
Jevic and its shareholders.
Amendment of Jevic Certificate and By-laws. The Restated Certificate
provides that the affirmative vote of at least 80 percent of the Voting Power
would be required to (i) amend or repeal the provisions of the Restated
Certificate with respect to (A) the election of directors and (B) the right to
call a special shareholders' meeting and (C) the right to act by written
consent, (ii) adopt any provision inconsistent with such provisions and (iii)
amend or repeal the provisions of the Restated Certificate with respect to
amendments to the Restated Certificate or the By-laws. In addition, the By-laws
provide that the amendment or repeal by shareholders of any By-laws made by the
Board of Directors of Jevic would require the affirmative vote of at least 80
percent of the Voting Power.
NEW JERSEY SHAREHOLDERS PROTECTION ACT
The New Jersey Shareholders Protection Act, NJSA 14:10A-1 et seq. (the "New
Jersey Act"), prohibits certain New Jersey corporations, such as the Company
following this Offering, from entering into certain "business combinations" with
an "interested stockholder" (any person who is the beneficial owner of 10% or
more of such corporation's outstanding voting securities) for five years after
such person became an interested stockholder, unless the business combination or
the interested stockholder's acquisition of stock was approved by the
corporation's board of directors prior to such interested stockholder's stock
acquisition date. After the five-year waiting period has elapsed, a business
combination between such corporation and an interested stockholder will be
prohibited unless the business combination is approved by the holders of at
least two-thirds of the voting stock not beneficially owned by the interested
stockholder, or unless the business combination satisfies the New Jersey Act's
fair price provision intended to provide that all stockholders (other than the
interested stockholders) receive a fair price for their shares.
The New Jersey Act defines "business combination" to include, among other
things, (1) a merger or consolidation between certain corporations and an
interested stockholder or such interested stockholder's affiliates; (2) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition to or
with the interested stockholder, which has an aggregate market value equal to
10% or more of the aggregate market value of all of the assets, outstanding
stock or income of the corporation or its subsidiaries; (3) the issuance or
transfer to the interested stockholder of any stock of the corporation having an
aggregate market value equal to or greater than 5% of the corporation's
outstanding stock; (4) the adoption of a plan or proposal for the liquidation or
dissolution of the corporation proposed by the interested stockholder; (5) any
reclassification of securities proposed by the interested stockholder, that has
the effect, directly or indirectly, of increasing any class or series of stock
that is owned by the interested stockholder; and (6) the receipt by the
interested stockholder of any loans or other financial assistance from the
corporation.
The New Jersey Act does not apply to certain business combinations,
including those with persons who acquired 10% or more of the voting power of the
corporation prior to the time the corporation was required to file periodic
reports pursuant to the Securities Exchange Act of 1934 or prior to the time the
corporation's securities began to trade on a national securities exchange.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is First
Union National Bank, N.A., Charlotte, North Carolina.
