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As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MOTOR CARGO INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
Utah 87-0406479
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
845 West Center Street
North Salt Lake, Utah 84054
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(Address of Principal Executive Offices)
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MOTOR CARGO INDUSTRIES, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
MARVIN L. FRIEDLAND, ESQ.
Vice President and General Counsel
Motor Cargo Industries, Inc.
845 West Center Street
North Salt Lake, Utah 84054
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(Name and address of agent for service)
(801) 292-1111
(Telephone number, including area code, of agent for service)
Copies to: REED W. TOPHAM, ESQ.
Stoel Rives LLP
One Utah Center, 201 South Main Street, Suite 1100
Salt Lake City, Utah 84111
(801) 328-3131
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of Proposed Maximum
Securities Maximum Aggregate
to be Amount to be Offering Price Offering Amount of
Registered Registered Per Share(1) Price(1) Registration Fee(1)
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<S> <C> <C> <C> <C>
Common Stock, 229,500 Shares $12.00 $2,754,000 $ 834.55
no par value 48,500 Shares $12.50 $ 606,250 $ 183.71
222,000 Shares $ 9.875 $2,192,250 $ 664.32
Total 500,000 Shares $5,552,500 $1,682.58
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(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 registration fee are calculated based upon
the price at which such options may be exercised. As to the remaining shares,
the price and registration fee are calculated based upon a price of $9.875 per
share, the average of the high and low sales prices for the Registrant's common
stock reported on the Nasdaq National Market on August 27, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1).
Such documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 ("Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Registrant's
document referred to in subparagraph (a), above; and
(c) Description of the Registrant's Common Stock, no par
value, contained in the registration statement on Form 8-A filed pursuant to
Section 12(g) of the Exchange Act, including any amendment thereto or report
filed under the Exchange Act for the purpose of updating such information.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement 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 supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable as the Registrant's stock is registered under
Section 12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 16-10a-902 ("Section 902") of the Utah Revised
Business Corporation Act (the "Revised Act") provides that a corporation may
indemnify any individual who was, is, or is threatened to be made a named
defendant or respondent (a "Party") in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal (a "Proceeding"), because he is or
was a director of the corporation or, while a director of the corporation, is or
was serving at its request as a director, officer, partner, trustee, employee,
fiduciary or agent of another corporation or other person or of an employee
benefit plan (an "Indemnified Director"), against any obligation incurred with
respect to a Proceeding, including any judgment, settlement, penalty, fine or
reasonable expenses (including attorneys' fees), incurred in the Proceeding if
his conduct was in good faith, he reasonably believed that his conduct was in,
or not opposed to, the best interests of the corporation, and, in the case of
any criminal Proceeding, he had no reasonable cause to believe his conduct was
unlawful; except that (i) indemnification under Section 902 in connection with a
Proceeding by or in the right of the corporation is limited to payment of
reasonable expenses (including attorneys' fees) incurred in connection with the
Proceeding and (ii) the corporation may not indemnify a director in connection
with a Proceeding by or in the right of the corporation in which the director
was adjudged liable to the corporation, or in connection with any other
Proceeding charging that the director derived an improper personal benefit,
whether or not involving action in his official capacity, in which Proceeding he
was adjudged liable on the basis that he derived an improper personal benefit.
Section 16-10a-903 ("Section 903") of the Revised Act provides
that, unless limited by its articles of incorporation, a corporation shall
indemnify a director who was successful, on the merits or otherwise, in the
defense of any Proceeding, or in the defense of any claim, issue or matter in
the proceeding, to which he was a Party because he is or was a director of the
corporation, against reasonable expenses (including attorneys' fees) incurred by
him in connection with the Proceeding or claim with respect to which he has been
successful.
In addition to the indemnification provided by Sections 902
and 903, Section 16-10a-905 ("Section 905") of the Revised Act provides that,
unless otherwise limited by a corporation's articles of incorporation, a
director may apply for indemnification to the court conducting the Proceeding or
to another court of competent jurisdiction. On receipt of an application and
after giving any notice the court considers necessary, (i) the court may order
mandatory indemnification under Section 903, in which case the court shall also
order the corporation to pay the director's reasonable expenses to obtain
court-ordered indemnification, or (ii) upon the court's determination that the
director is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances and regardless of whether the director met the applicable
standard of conduct set forth in Section 902, the court may order
indemnification as the court determines to be proper, except that
indemnification with respect to certain Proceedings resulting in a director
being found liable for certain actions against the corporation may be limited to
reasonable expenses (including attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides
that a corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or on
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 ("Section 907") of the Revised Act provides
that, unless a corporation's articles of incorporation provide otherwise, (i) an
officer of the corporation is entitled to mandatory indemnification under
Section 903 and is entitled to apply for court ordered indemnification under
Section 905, in each case to the same extent as a director, (ii) the corporation
may indemnify and advance expenses to an officer, employee, fiduciary or agent
of the corporation to the same extent as a director, and (iii) a corporation may
also indemnify and advance expenses to an officer, employee, fiduciary or agent
who is not a director to a greater extent
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than the right of indemnification granted to directors, if not inconsistent with
public policy, and if provided for by its articles of incorporation, bylaws,
general or specific action of its board of directors or contract.
The Company's Bylaws provide that the Company may indemnify an
individual made a party to a proceeding because he is or was a director of the
Company against liability if the Company has authorized the indemnification
pursuant to (i) the majority vote of the Board of Directors of the Company
present at a meeting at which a quorum is present, with only those directors not
party to the proceeding being counted to satisfy the quorum, (ii) the majority
vote of a committee of the Board of Directors of the Company consisting of two
or more directors not party to the proceeding, (iii) where the procedure set
forth in clauses (i) and (ii) above cannot be satisfied, the majority vote of
the full Board of Directors of the Company, including any directors who are
party to the proceeding, or (iv) the majority vote of the shareholders of the
Company. In addition, a determination must be made in the same manner as
described in the preceding sentence, or by special legal counsel selected by the
Board of Directors of the Company or its committee, to the effect that the
standard of conduct set forth in Section 902 has been met.
The Bylaws also provide that the Company may pay for or
reimburse in advance of final disposition of any proceeding the reasonable
expenses incurred by an individual made a party to a proceeding because he is or
was a director of the Company if authorization of such payment is made in the
same manner as described in the first sentence of the preceding paragraph and a
determination is made in the same manner as described in the last sentence of
the preceding paragraph that (i) the individual has furnished to the Company a
written affirmation of his good faith belief that he has met the standard of
conduct set forth in Section 902, (ii) the individual has furnished to the
Company a written undertaking to repay the advance if it is ultimately
determined that the individual did not meet the standard of conduct set forth in
Section 902, and (iii) the facts then known to those making the determination
would not preclude indemnification under the Bylaws of the Company or Section
904.
The Bylaws of the Company also provide that the Company may
indemnify and advance expenses to any individual made a party to a proceeding
because the individual is or was an officer, employee, fiduciary, or agent of
the Company to the same extent as to an individual made a party to a proceeding
because he is or was a director of the Company, or to a greater extent, if not
inconsistent with public policy, if provided for by general or specific action
of the Board of Directors of the Company.
The Company's Articles of Incorporation and Bylaws have
similar provisions providing that a director of the Company shall not be liable
to the Company or its shareholders for monetary damages for any action taken or
any failure to take any action as a director, except liability for (i) the
amount of a financial benefit received by a director to which he is not
entitled, (ii) an intentional infliction of harm on the Company or its
shareholders, (iii) a violation of Section 16-10a-842 of the Revised Act which
prohibits unlawful distributions by a corporation or its shareholders, or (iv)
an intentional violation of criminal law. Utah law permits director liability to
be eliminated to the extent liability for the items described in clauses (i)
through (iv) of the preceding sentence is preserved.
Indemnification may be granted pursuant to any other
agreement, bylaw, or vote of shareholders or directors. In addition to the
foregoing, the Company maintains insurance from commercial carriers against
certain liabilities which may be incurred by its directors and officers. The
foregoing description is necessarily general and does not describe all details
regarding the indemnification of officers, directors or controlling persons of
the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
4.1 Articles of Incorporation of the Company (incorporated by reference to Exhibit
3.1 to the Company's Registration Statement on Form S-1 (File No. 333-37211)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 (File No. 333-37211)).
4.3 Motor Cargo Industries, Inc. 1997 Stock Option Plan (incorporated by reference
to Exhibit 10.2 to the Company's Registration Statement on Form S-1 (File No.
333-37211)).
5 Opinion of Stoel Rives LLP*
23.1 Consent of Grant Thornton LLP.*
23.2 Consent of Stoel Rives LLP (included in Exhibit 5 to this Registration
Statement)
</TABLE>
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* Filed herewith
ITEM 9. UNDERTAKINGS.
(a) RULE 415 UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(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 the 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;
(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 (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the 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.
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(b) SUBSEQUENT EXCHANGE ACT FILINGS UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) INDEMNIFICATION UNDERTAKINGS.
Reference is made to the provisions of the Company's Articles
of Incorporation and the Utah Revised Business Corporations Act, described in
Item 6 hereof, which provide for certain rights of indemnification for officers
and directors of the Registrant.
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 Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the city of Salt Lake City, State of Utah on August 28,
1998.
Motor Cargo Industries, Inc.
By: /s/ Marvin L. Friedland
----------------------------------
Marvin L. Friedland
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated, on the date set forth above.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ Harold R. Tate Chairman of the Board
- -----------------------------------
Harold R. Tate
/s/ Marshall L. Tate President and Chief Executive
- ----------------------------------- Officer and Director
Marshall L. Tate (Principal Executive Officer)
/s/ Lynn H. Wheeler Vice President, Finance and
- ----------------------------------- Chief Financial Officer
Lynn H. Wheeler (Principal Financial and
Accounting Officer)
/s/ Marvin L. Friedland Director
- -----------------------------------
Marvin L. Friedland
/s/ Robert Anderson Director
- -----------------------------------
Robert Anderson
/s/ James Clayburn LaForce, Jr. Director
- -----------------------------------
James Clayburn LaForce, Jr.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Item No. Exhibit
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<S> <C>
4.1 Articles of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (File No. 333-37211)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1 (File No. 333-37211)).
4.3 Motor Cargo Industries, Inc. 1997 Stock Option Plan (incorporated by reference to Exhibit 10.2 to
the Company's Registration Statement on Form S-1 (File No. 333-37211)).
5 Opinion of Stoel Rives LLP*
23.1 Consent of Grant Thornton LLP.*
23.2 Consent of Stoel Rives LLP (included in Exhibit 5 to this Registration Statement)
</TABLE>
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* Filed herewith
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EXHIBIT 5
[LETTERHEAD OF STOEL RIVES LLP]
August 31, 1998
Motor Cargo Industries, Inc.
845 Center Street
North Salt Lake, Utah 84054
Re: Motor Cargo Industries, Inc.
Registration Statement on Form S-8 relating to the
Motor Cargo Industries, Inc. 1997 Stock Option Plan
Gentlemen:
In our capacity as counsel to Motor Cargo Industries, Inc., a
Utah corporation (the "Company"), you have requested our opinion in connection
with the filing of a registration statement on Form S-8 (the "Registration
Statement") by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the issuance of up to 500,000 shares of Common Stock, no
par value, of the Company (the "Shares") under the Company's 1997 Stock Option
Plan (the "Plan").
In connection with the preparation of this opinion letter, and
as the basis for the opinion set forth below, we have made such investigations
of the Utah Revised Business Corporations Act as we have deemed relevant and
necessary, and we have examined such documents and records as we have deemed
relevant and necessary. As to various questions of fact material to this opinion
letter, we have relied upon representations and/or certificates of officers of
the Company.
Based upon and subject to the foregoing examination, we are of
the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Utah;
2. The Shares have been duly authorized by all necessary
corporate action and, when issued in accordance with the terms and conditions of
the Plan and the resolutions of the Company's Board of Directors, the Shares
will be validly issued, fully paid and nonassessable.
<PAGE> 2
MOTOR CARGO INDUSTRIES, INC.
AUGUST 28, 1998
PAGE 2
We hereby consent to the filing of this opinion letter as
Exhibit 5 to the Registration Statement. In giving this consent, we do not admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the General Rules and Regulations of the
Commission.
Very truly yours,
Stoel Rives LLP
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Exhibit 23 .1
CONSENT
We have issued our report dated February 20, 1998 accompanying the consolidated
financial statements of Motor Cargo Industries, Inc. and Subsidiaries appearing
in the 1997 Annual Report of the Company to its shareholders and included in the
Annual Report on Form 10-K for the year ended December 31, 1997 which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration of the aforementioned report.
GRANT THORNTON LLP
Salt Lake City, Utah
August 27, 1998
