As filed with the Securities and Exchange Commission on January 13, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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JEVIC TRANSPORTATION, INC.
(Exact Name of Registrant as Specified in Charter)
NEW JERSEY 23-2280922
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
P.O. Box 5157
Delanco, NJ 08075
(609) 461-7111
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN
1997 INCENTIVE PLAN
1994 STOCK OPTION PLAN
(Full title of the plans)
Mr. Harry J. Muhlschlegel
Chief Executive Officer
and Chairman of the Board
Jevic Transportation, Inc.
P.O. Box 5157
Delanco, NJ 08075
(Name and address of agent for service)
(609) 461-7111
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Proposed maximum Proposed maximum
Title of shares to be Amount to be offering price per aggregate offering Amount of
registered registered share (1) price (1) registration fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no 300,000 shares $15.625 $ 4,687,500.00 $1,382.82
par value) 764,700 shares $15.625 $11,948,437.50 $3,524.79
735,300 shares $15.00 $11,029,500.00 $3,253.71
685,820 shares $ 8.49 $ 5,822,611.80 $1,717.67
===============================================================================================================================
Total 2,485,820 shares $33,488,049.30 $9,878.99
===============================================================================================================================
</TABLE>
<PAGE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee. As to shares subject to outstanding but unexercised
options, the price and fee are computed based upon the price at which such
options may be exercised. As to the remaining shares, the price and fee are
computed based upon $15.625, the average of the high and low prices for the
common stock reported on the Nasdaq National Market on January 12, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Jevic Transportation,
Inc. ("registrant" or the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
(a) the Company's prospectus dated October 7, 1997 filed with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933.
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
(c) the description of the Company's Common Stock, no par value per
share (the "Common Stock"), of the Company contained in the Company's
Registration Statement on Form 8-A filed with the Commission, including any
amendments or reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
after the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered pursuant to this Registration
Statement 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.
Item 4. Description of Securities.
The Common Stock, which is the class of securities offered pursuant to
this Registration Statement, is registered under the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 14A:2-7(3) of the New Jersey Business Corporation Act (the
"NJBCA") permits New Jersey corporations to eliminate or limit the liability of
directors for breach of any duty owed to the Company or its shareholders, except
for any breach of duty based upon an act or omission (a) in breach of such
director's duty of loyalty to the corporation or its shareholders, (b) not in
good faith or involving a knowing violation of law or (c) resulting in receipt
by the director
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of an improper personal benefit. The last paragraph of Article FIFTH of the
Company's Restated Certificate of Incorporation and Section 14 of Article III of
the Company's By-laws eliminate liability of directors for breach of any duty to
the Company or its shareholders to the extent permitted by the NJBCA.
Section 14A:3-5 of the NJBCA permits each New Jersey business
corporation to indemnify a "corporate agent" against expenses and liability in
connection with any proceeding involving the corporate agent by reason of his
being or having been such a corporate agent, other than a proceeding by or in
the right of the corporation (unless the corporate agent shall have been
adjudged not liable to the corporation or shall have been adjudged liable, but
in view of all the circumstances in the case, the court in which such proceeding
was brought shall determine that such corporate agent is fairly and reasonably
entitled to indemnity), if such actions were taken in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal proceeding, if he
or she had no reasonable cause to believe his or her conduct was unlawful. Such
indemnification may only be made by the corporation as authorized in a specific
case upon a determination (by the board of directors of the corporation, a
committee thereof, independent legal counsel via a written opinion or by the
shareholders (if the board so directs)) that indemnification is proper because
the corporate agent has met the applicable standard of conduct. The NJBCA
defines a "corporate agent" as any person who is or was a director, officer,
employee or agent of the indemnifying corporation or of any constituent
corporation absorbed by the indemnifying corporation in a consolidation or
merger and any person who is or was a director, officer, trustee, employee or
agent of any other enterprise, serving as such at the request of the
indemnifying corporation, or of any such constituent corporation, or the legal
representative of any such director, officer, trustee, employee or agent.
Article X of the Company's By-laws provides that the Company shall indemnify any
director or officer of the Company and may indemnify any other corporate agent
to the full extent permitted by Section 14A:3-5 of the NJBCA. To the extent that
a corporate agent has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in NJBCA Section 14A:3-5(2) or (3),
or in defense of any claim, issue or matter therein, he or she shall be
indemnified by the Company against expenses in connection therewith. Such
expenses may be paid by the Company in advance of the final disposition of the
action, suit or proceedings as authorized by the Board of Directors upon receipt
of an undertaking to repay the advance if it is ultimately determined that such
person is not entitled to indemnification. The Appendix to Article X of the
Company's By-laws prescribes procedures for the submission and determination of
claims for indemnification, including procedures regarding the determination of
whether a corporate agent has met the applicable standard of conduct.
Section 14A:3-5(9) of the NJBCA permits, and Article X of the Company's
By-laws provides, that any corporate agent may be insured by insurance
purchased and maintained by the Company against any expenses incurred in any
proceeding and any liabilities asserted against him or her in his or her
capacity as a corporate agent, whether or not the Company would have the power
to indemnify him or her against any such liability. In this regard, the Company
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maintains a policy insuring it and its directors and officers against certain
liabilities, including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to this
Registration Statement.
Item 8. Exhibits.
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<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Employee Stock Purchase Plan (Incorporated herein by reference to
Exhibit 10.3 to the Company's Registration Statement No. 333-33469 on
Form S-1).
4.2 1997 Incentive Plan (Incorporated herein by reference to Exhibit 10.1 to
the Company's Registration Statement No. 333-33469 on Form S-1).
4.3 1994 Stock Option Plan (Incorporated herein by reference to Exhibit 10.2
to the Company's Registration Statement No. 333-33469 on Form S-1).
5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See Pages 6 and 7).
</TABLE>
Item 9. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that
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which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) 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;
provided, however, that paragraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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 that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this 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.
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 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Delanco, New Jersey, on January 13, 1998.
JEVIC TRANSPORTATION, INC.
By: /s/ Harry J. Muhlschlegel
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Harry J. Muhlschlegel
Chief Executive Office and
Chairman of the Board
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Harry J. Muhlschlegel and Karen B.
Muhlschlegel and each or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their, his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on January 13,
1998 in the capacities indicated:
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Harry J. Muhlschlegel
- -------------------------------------- Chairman of the Board and Chief
Harry J. Muhlschlegel Executive Officer
/s/ Karen B. Muhlschlegel
- -------------------------------------
Karen B. Muhlschlegel Vice President, Secretary and Director
/s/ Paul J. Karvois
- -------------------------------------- President, Chief Operating Officer and
Paul J. Karvois Director
/s/ Brian J. Fitzpatrick
- -------------------------------------- Senior Vice President - Finance and
Brian J. Fitzpatrick Chief Financial Officer (the chief
financial and accounting officer)
/s/ Gordon R. Bowker
- -------------------------------------
Gordon R. Bowker Director
/s/ Samuel H. Jones, Jr.
- -------------------------------------- Director
Samuel H. Jones, Jr.
</TABLE>
-8-
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EXHIBIT INDEX
Exhibit No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See Pages 6 and 7).
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Exhibit 5.1
Pepper Hamilton LLP
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Attorneys at Law
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
215.981.4000
Fax 215.981.4750
January 13, 1998
Jevic Transportation, Inc.
600 Creek Road
P.O. Box 5157
Delanco, New Jersey 08075
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Jevic Transportation, Inc., a New
Jersey corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") on or
about the date hereof of a registration statement (the "Registration Statement")
of the Company on Form S-8 under the Securities Act of 1933, as amended (the
"Act"), relating to shares of common stock, no par value per share, of the
Company (the "Common Stock") which may be issued pursuant to the Company's
Employee Stock Option Plan, 1997 Incentive Plan and 1994 Stock Option Plan
(collectively, the "Plans"), all as more fully described in the Registration
Statement.
In this connection, we have examined the Registration
Statement, including the exhibits thereto, the originals or copies, certified or
otherwise identified to our satisfaction, of the Restated Certificate of
Incorporation and the By-Laws of the Company, each as amended to date, and such
other documents and corporate records relating to the Company as we have deemed
appropriate for the purpose of rendering the opinion expressed herein. We
express no opinion concerning the laws of any jurisdiction other than the
federal law of the United States and the New Jersey Business Corporation Law.
In all examinations of documents, instruments and other
papers, we have assumed the genuineness of all signatures on original and
certified documents and the conformity with original and certified documents of
all copies submitted to us as conformed, photostatic or other copies. As to
matters of fact which have not been independently established, we have relied
upon representations of officers of the Company.
<PAGE>
On the basis of the foregoing, we are of the opinion that the
Common Stock, when issued pursuant to and in accordance with each of the Plans,
will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement on Form S-8 and to the references to our firm
therein. Such consent does not constitute a consent under Section 7 of the
Securities Act, since we have not certified any part of the Registration
Statement and do not otherwise come within the categories of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
PEPPER HAMILTON LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
and to all references to our Firm in or made a part of this Registration
Statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
January 13, 1998
