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As Filed With the Securities and Exchange Commission
on December 21, 1998
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
LANDAIR CORPORATION
(Exact name of Registrant as Specified in its Charter)
TENNESSEE 62-1743549
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
430 AIRPORT ROAD 37745
GREENEVILLE, TENNESSEE (Zip Code)
(Address of Principal Executive Offices)
LANDAIR CORPORATION STOCK OPTION AND INCENTIVE PLAN
LANDAIR CORPORATION NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
LANDAIR CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
RICHARD H. ROBERTS
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
430 AIRPORT ROAD
GREENEVILLE, TENNESSEE 37745
(Name and Address of Agent for Service)
(423) 636-7000
(Telephone Number, including Area Code, of Agent for Service)
Copy to:
LEIGH WALTON
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to offering price aggregate offering Amount of
to be registered be registered per share (1) price (1) registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 900,000 $ 5.3905 $ 4,851,450 $ 1,348.70
====================================================================================================================
</TABLE>
(1) The offering price is estimated solely for the purpose of determining the
amount of the registration fee in accordance with Rule 457(h) under the
Securities Act of 1933, as amended, and is based on the average of the high
and low prices per share of the Common Stock as reported on The Nasdaq
National Market on December 17, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Landair Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated herein by reference:
(a) The Registrant's Registration Statement on Form 10 dated July 13,
1998 filed pursuant to Section 12(g) of the Exchange Act, as
amended (the "Form 10");
(b) The description of the Registrant's Common Stock, $.01 par value
per share (the "Common Stock"), contained in the Form 10,
including all amendments and reports filed for the purpose of
updating such description prior to the termination of the
offering of the Common Stock offered hereby; and
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1998.
All documents and reports subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all shares covered hereby have been sold or which
deregisters all such shares then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of 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 hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein) modifies
or replaces such statement. Any statement so modified or replaced shall not be
deemed, except as so modified or replaced, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if (a) such person acted in good faith;
(b) in the case of conduct in an official capacity with the corporation, he
reasonably believed such conduct was in the corporation's best interests; (c) in
all other cases, he reasonably believed that his conduct was at least not
opposed to the best interests of the corporation; and (d) in connection with any
criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In actions brought by or in the right of the corporation, however,
the TBCA provides that no indemnification may be made if the director or officer
was adjudged to be liable to the corporation. The TBCA also provides that in
connection with any proceeding charging improper personal benefit to an officer
or director, no indemnification may be made if such officer or director is
adjudged liable on the basis that such personal benefit was improperly received.
In cases where the director or officer is wholly successful, on the
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merits or otherwise, in the defense of any proceeding instigated because of his
or her status as a director or officer of a corporation, the TBCA mandates that
the corporation indemnify the director or officer against reasonable expenses
incurred in the proceeding. The TBCA provides that a court of competent
jurisdiction, unless the corporation's charter provides otherwise, upon
application, may order that an officer or director be indemnified for reasonable
expenses if, in consideration of all relevant circumstances, the court
determines that such individual is fairly and reasonably entitled to
indemnification, notwithstanding the fact that (a) such officer or director was
adjudged liable to the corporation in a proceeding by or in the right of the
corporation; (b) such officer or director was adjudged liable on the basis that
personal benefit was improperly received by him; or (c) such officer or director
breached his duty of care to the corporation.
The Registrant's Charter and Bylaws provide that the Registrant shall
indemnify its directors and officers to the fullest extent permitted by
applicable law. The Registrant's Bylaws provide further that the Registrant
shall advance expenses to each director and officer of the Registrant to the
full extent allowed by the laws of the state of Tennessee, both as now in effect
and as hereafter adopted. Under the Registrant's Charter and Bylaws, such
indemnification and advancement of expenses provisions are not exclusive of any
other right that a director or officer may have or acquire both as to action in
his or her official capacity and as to action in another capacity.
The Registrant believes that its Charter and Bylaw provisions are
necessary to attract and retain qualified persons as directors and officers.
The Registrant has in effect a directors' and officers' liability
insurance policy which provides coverage for its directors and officers. Under
this policy, the insurer agrees to pay, subject to certain exclusions, for any
claim made against a director or officer of the Registrant for a wrongful act by
such director or officer, but only if and to the extent such director or officer
becomes legally obligated to pay such claim.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
See Exhibit Index (Page II-5)
ITEM 9. UNDERTAKINGS
A. 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, as amended (the "Securities
Act");
(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. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities would not exceed that 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
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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 (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 Exchange Act, that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act 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. Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such
indemnification is against public policy as expressed in the Securities
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 of whether such indemnification
by it is against public policy as expressed in the Securities 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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greeneville, State of Tennessee, on the 17th day
of December, 1998.
LANDAIR CORPORATION
By: /s/ Richard H. Roberts
----------------------------------------------------
Richard H. Roberts
Senior Vice President, General Counsel and Secretary
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Scott M. Niswonger and Richard H. Roberts
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Scott M. Niswonger Chairman and Chief Executive December 17, 1998
- ----------------------------------- Officer (Principal Executive
Scott M. Niswonger Officer)
/s/ Edward W. Cook Chief Financial Officer, Senior December 17, 1998
- ----------------------------------- Vice President and Treasurer
Edward W. Cook (Principal Financial and
Accounting Officer)
/s/ Eddie R. Brown President, Chief Operating December 17, 1998
- ----------------------------------- Officer and Director
Eddie R. Brown
/s/ Richard H. Roberts Senior Vice President, General December 17, 1998
- ----------------------------------- Counsel, Secretary and Director
Richard H. Roberts
/s/ Jerry T. Armstrong Director December 17, 1998
- -----------------------------------
Jerry T. Armstrong
/s/ Duane H. Cassidy Director December 17, 1998
- -----------------------------------
Gen. Duane H. Cassidy
/s/ C. John Langley, Jr. Director December 17, 1998
- -----------------------------------
Dr. C. John Langley, Jr.
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
Exhibit
No. Exhibit Description
------- -------------------
<S> <C>
4.1 Charter of Landair Corporation (incorporated by reference to
Exhibit 3.1 of the Registrant's Registration Statement on Form 10,
as amended (filed with the Commission on July 13, 1998))
4.2 Bylaws of Landair Corporation (incorporated by reference to
Exhibit 3.1 of the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1998 (filed with the
Commission on November 16, 1998))
4.3 Landair Corporation Stock Option and Incentive Plan (incorporated by
reference to Exhibit 10.4 of the Registrant's Registration Statement
on Form 10, as amended (filed with the Commission on July 13, 1998))
4.4 Landair Corporation Non-Employee Director Stock Option Plan (incorporated
by reference to Exhibit 10.5 of the Registrant's Registration Statement
on Form 10, as amended (filed with the Commission on July 13, 1998))
4.5 First Amendment to the Landair Corporation Non-Employee Director Stock
Option Plan (incorporated by reference to Exhibit 10.4 of the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1998
(filed with the Commission on November 16, 1998)
4.6 Landair Corporation Employee Stock Purchase Plan (incorporated by reference
to Exhibit 10.6 of the Registrant's Registration Statement on Form 10, as
amended (filed with the Commission on July 13, 1998))
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included on page II-4)
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EXHIBIT 5
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
December 17, 1998
Landair Corporation
430 Airport Road
Greeneville, Tennessee 37745
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a
registration statement on Form S-8 (the "Registration Statement") relating to
the Company's Stock Option and Incentive Plan, Non-Employee Director Stock
Option Plan and Employee Stock Purchase Plan (the "Plans"), filed by you with
the Securities and Exchange Commission covering 900,000 shares (the "Shares") of
Common Stock issuable pursuant to the Plans.
In so acting, we have examined and relied upon such records,
documents and other instruments as in our judgment are necessary or
appropriate in order to express the opinion hereinafter set forth and have
assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to the original
documents of all documents submitted to us as certified or photostatic
copies.
Based on the foregoing, we are of the opinion that the Shares,
when issued pursuant to and in accordance with the Plans, will be validly
issued, fully paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BASS, BERRY & SIMS PLC
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Landair Corporation Stock Option and Incentive
Plan, the Landair Corporation Non-Employee Director Stock Option Plan, and the
Landair Corporation Employee Stock Purchase Plan, of our report dated July 9,
1998 with respect to the combined financial statements and schedule of the
Truckload Business of Landair Services, Inc. included in the Registration
Statement on Form 10/A of Landair Corporation dated August 19, 1998.
/s/ ERNST & YOUNG LLP
Nashville, Tennessee
December 17, 1998
