<PAGE>
As filed with the Securities and Exchange Commission on September 28, 1999.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________
FROZEN FOOD EXPRESS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Texas 75-1031831
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1145 Empire Central Place
Dallas, Texas 75247-4309
(Address, including zip code, of principal executive offices)
Frozen Food Express Industries, Inc. 401(k) Savings Plan
(Full title of the plan)
Stoney M. Stubbs, Jr.
Frozen Food Express Industries, Inc.
1145 Empire Central Place
Dallas, Texas 75247-4309
(214)-630-8090
(Name, address, and telephone number, including area code, of agent for service)
Copy To:
Alan G. Harvey
Baker & McKenzie
2001 Ross Avenue, Suite 4500
Dallas, Texas 75201
___________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Proposed
maximum
Proposed aggregate
Title of securities to be Amount to be maximum offering offering Amount of
registered (1) registered price per share(2) price(2) registration fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.50 par value 1,500,000 Shares $5.71875 $8,578,125 $2,385
=============================================================================================================
</TABLE>
(1) The shares of common stock of Frozen Food Express Industries, Inc. (the
"Company"), $1.50 par value per share (the "Common Stock"), being
registered hereby relate to the Company's 401(k) Savings Plan (the "Plan").
Pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), there are also being registered such
additional shares of Common Stock as may become issuable pursuant to the
anti-dilution provisions of the Plan. In addition, pursuant to Rule 416(c)
under the Securities Act, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) promulgated under the Securities Act on the
basis of the average of the high and low sale prices of the Common Stock on
September 24, 1999, as reported on the Nasdaq National Market System.
<PAGE>
PART I
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
The information specified by Items 1 and 2 of Part I of Form S-8 is omitted
from this Registration Statement in accordance with the provisions of Rule 428
under the Securities Act and the introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company and the Plan hereby incorporate by reference into this
registration statement the following documents filed with the Securities and
Exchange Commission (the "Commission"):
a. the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, as filed with the Commission on March 26, 1999 (File No. 001-
10006), and as amended on June 29, 1999 (File No. 001-10006);
b. the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, as filed with the Commission on May 14, 1999 (File No. 001-
10006);
c. the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1999, as filed with the Commission on August 13, 1999 (File No. 001-10006);
d. the description of the Common Stock contained in the Company's Form 8-
A filed on April 26, 1972 (SEC File No. 0-6200), for registration of the Common
Stock pursuant to Section 12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
In addition, all documents filed by the Company or the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act), after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which de-registers all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be part hereof from the date of
filing such documents.
Any statement contained herein or in a document 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
herein or in any subsequently filed document that 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 superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
The Company is empowered by Art. 2.02-1 of the Texas Business Corporation
Act, subject to the procedures and limitations stated therein, to indemnify any
person who was, is or is threatened to be made a named
II-1
<PAGE>
defendant or respondent in a proceeding because the person is or was a director
or officer against judgments, penalties (including excise and similar taxes),
fines, settlements and reasonable expenses (including court costs and attorneys'
fees) actually incurred by the person in connection with the proceeding. The
Company is required by Art. 2.02-1 to indemnify a director or officer against
reasonable expenses (including court costs and attorneys' fees) incurred by him
in connection with a proceeding in which he is a named defendant or respondent
because he is or was a director or officer if he has been wholly successful, on
the merits or otherwise, in the defense of the proceeding. The statute provides
that indemnification pursuant to its provisions is not exclusive of other rights
of indemnification to which a person may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise.
Article Twelve of the Company's Articles of Incorporation provides that, to
the full extent permitted by Texas law, the Company is required to indemnify any
director or officer against judgments, penalties (including excise and similar
taxes), fines, settlements and reasonable expenses (including court costs and
attorneys' fees) actually incurred by any such person who was, is or is
threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director or officer and is required to advance to such
person reasonable expenses incurred by him in connection therewith.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
In lieu of an opinion of counsel concerning compliance with the requirements of
ERISA or an Internal Revenue Service ("IRS") determination letter that the Plan
is qualified under Section 401 of the Internal Revenue Code, the registrant
hereby undertakes that it will submit or has submitted the Plan and any
amendment thereto to the IRS in a timely manner and has made or will make all
changes required by the IRS in order to qualify the Plan.
The following are filed as exhibits to this Registration Statement:
Exhibit No. Description
- ---------- -----------
4.1 Articles of Incorporation of the Company, as amended
(incorporated herein by reference from Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, SEC File No. 1-10006).
4.2 Bylaws of the Company, as amended (incorporated herein by
reference from Exhibit 3.2 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, SEC File No. 1-
10006).
4.3 Frozen Food Express Industries, Inc., 401(k) Savings Plan
(incorporated herein by reference from Exhibit 10.16 to the
Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1998, SEC File No. 1-10006).
5 Opinion of Baker & McKenzie*
23.1 Consent of Baker & McKenzie (See Exhibit 5)*
23.2 Consent of Arthur Andersen LLP*
24 Power of Attorney (included on the signature page of the
Registration Statement)*
* filed herewith
II-2
<PAGE>
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;
(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 this 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 this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) of this
section 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 this
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 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to 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
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.
(Signature Page Follows)
II-3
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, 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 Dallas, State of Texas, on September 24, 1999.
Frozen Food Express Industries, Inc.
By: /s/ F. DIXON MCELWEE, JR.
-------------------------------------
F. Dixon McElwee, Jr.
Senior Vice President
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Stoney M.
Stubbs, Jr. and F. Dixon McElwee, Jr. to file one or more amendments (including
post-effective amendments) to this registration statement, which amendments may
make such changes in this registration statement as either of them deems
appropriate, and each such person hereby appoints Stoney M. Stubbs, Jr. and F.
Dixon McElwee, Jr., and each of them, as attorney-in-fact to execute in the name
and on behalf of the Company and any such person, individually and in each
capacity stated below, any such amendments to this registration statement.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
Name Title Date
---- ----- ----
/s/ STONEY M. STUBBS, JR. Chairman of the Board September 24, 1999
- ----------------------------
Stoney M. Stubbs, Jr. and President (Principal
Executive Officer)
/s/ F. DIXON MCELWEE, JR. Senior Vice President September 24, 1999
- ----------------------------
F. Dixon McElwee, Jr. and Director (Principal
Financial and Accounting
Officer)
/s/ CHARLES G. ROBERTSON Executive Vice President September 24, 1999
- ----------------------------
Charles G. Robertson and Director
/s/ EDGAR O. WELLER Vice Chairman of the Board September 24, 1999
- ----------------------------
Edgar O. Weller of Directors
II-4
<PAGE>
/s/ W. MIKE BAGGETT Director September 24, 1999
- ----------------------------
W. Mike Baggett
/s/ BRIAN R. BLACKMARR Director September 24, 1999
- ----------------------------
Brian R. Blackmarr
/s/ LEROY HALLMAN Director September 24, 1999
- ----------------------------
Leroy Hallman
/s/ T. MICHAEL O'CONNOR Director September 24, 1999
- ----------------------------
T. Michael O'Connor
The Plan. Pursuant to the requirements of the Securities Act, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on September
24, 1999.
Frozen Food Express Industries, Inc.
401(k) Savings Plan
By: /s/ F. DIXON MCELWEE, JR.
-------------------------------------
F. Dixon McElwee, Jr
Senior Vice President and Director
(Principal Financial and Accounting
Officer)
II-5
<PAGE>
Exhibit Index
Exhibit No. Description
----------- -----------
4.1 Articles of Incorporation of the Company, as amended
(incorporated herein by reference from Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, SEC File No. 1-10006).
4.2 Bylaws of the Company, as amended (incorporated herein by
reference from Exhibit 3.2 to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998,
SEC File No. 1-10006).
4.3 Frozen Food Express Industries, Inc., 401(k) Savings Plan
(incorporated herein by reference from Exhibit 10.16 to
the Company's Annual Report on Form 10-K/A for the fiscal
year ended December 31, 1998, SEC File No. 1-10006).
5 Opinion of Baker & McKenzie*
23.1 Consent of Baker & McKenzie (See Exhibit 5)*
23.2 Consent of Arthur Andersen LLP*
24 Power of Attorney (included on the signature page of the
Registration Statement)*
* filed herewith
<PAGE>
EXHIBIT 5
September 27, 1999
Frozen Food Express Industries, Inc
1145 Empire Central Place
Dallas, Texas 75247
Gentlemen:
Frozen Food Express Industries, Inc., a Texas corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission") a
Registration Statement (the "Registration Statement") on Form S-8 under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
covers 1,500,000 shares of common stock, $1.50 par value per share ("Common
Stock"), of the Company, and such additional shares of Common Stock as may
become issuable pursuant to the anti-dilution provisions of the Plan (such
shares collectively referred to as the "Securities"). Such shares are to be
issued pursuant to the Company's 401(k) Savings Plan (the "Plan").
We have acted as counsel to the Company in connection with the preparation
and filing of the Registration Statement. In rendering this opinion we have
examined such corporate records, documents and instruments of the Company and
such certificates of public officials, have received such representations from
officers of the Company, and have reviewed such questions of law as in our
judgment are necessary, relevant or appropriate to enable us to render the
opinion expressed below. In such examination, we have assumed the genuineness of
all signatures, the authenticity of all corporate records, documents and
instruments submitted to us as originals, the conformity to original documents
of all documents submitted to us as conformed, certified or photostatic copies
thereof, and the authenticity of the originals of such photostatic, certified or
conformed copies.
Based upon such examination and review and upon representations made to us
by officers of the Company, we are of the opinion that upon issuance and
delivery in accordance with the terms and conditions of the Plan, and upon
receipt by the Company of the full consideration for the Securities as
determined pursuant to the Plan, the Securities will be legally issued, fully
paid and nonassessable shares of common stock, $1.50 par value per share, of the
Company.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Respectfully submitted,
/s/ BAKER & MCKENZIE
Baker & McKenzie
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 10,
1999, incorporated by reference from Frozen Food Express Industries, Inc.'s Form
10-K for the year ended December 31, 1998, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Dallas, Texas,
September 24, 1999
