Registration No. 33-_____
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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Carolina Freight Corporation
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1349996
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
NORTH CAROLINA HIGHWAY #150 EAST
POST OFFICE BOX 1000
CHERRYVILLE, NORTH CAROLINA 28021
(Address of Principal Executive Offices) (Zip Code)
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CAROLINA FREIGHT CORPORATION 1994 NONQUALIFIED STOCK OPTION PLAN
(Full title of the Plan)
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JOHN B. YORKE
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
CAROLINA FREIGHT CORPORATION
NORTH CAROLINA HIGHWAY # 150 EAST
POST OFFICE BOX 1000
CHERRYVILLE, NORTH CAROLINA 28021
(Name and address of agent for service)
(704) 435-6811
(Telephone number, including area code, of agent for service)
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Copy To:
ANNE F. TEAM
SMITH HELMS MULLISS & MOORE, L.L.P.
227 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28202
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Approximate date of commencement of the proposed sale to the
public: From time to time after the effective date of this
Registration Statement
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
each Class Amount Offering Aggregate Amount of
of Securities to be Price Per Offering Registration
to be Registered Registered Share (1) Price (1) Fee
- ---------------- -------------- --------- ---------- ------------
Common Stock.... 200,000 shares $9 5/8 $1,925,000 $664
(1) Pursuant to Rules 457(h) and 457(c), based on the price of
the Common Stock with respect to which options granted may be
exercised.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting the Prospectus of Carolina
Freight Corporation (the "Registrant") with respect to this
Registration Statement in accordance with Rule 428 promulgated
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), are kept on file at the offices of the
Registrant. The Registrant will provide without charge to
employees, on the written or oral request of any such person, a
copy of any or all of the documents constituting the Prospectus.
Written requests for such copies should be directed to the
Secretary, Carolina Freight Corporation, Post Office Box 1000,
Cherryville, North Carolina 28021. Telephone requests may be
directed to (704) 435-6811.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are
incorporated by reference herein and in the Prospectus
constituting a part of this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993;
(b) The Registrant's Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1994, June 30, 1994 and
September 30, 1994; and
(c) The description of the Common Stock, $.50 par
value per share, to which this Registration Statement relates
contained in the Registrant's Registration Statement filed under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as amended by all subsequent amendments and reports filed
for the purposes of updating such description.
Any document filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act subsequent to the effectiveness of this Registration
Statement and prior to the filing of a post-effective amendment
hereto, which either indicates that all securities offered hereto
have been sold or deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and the Prospectus and to be a part hereof
or thereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein or therein shall be deemed to be
modified or superseded for purposes of this Registration
Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein or therein 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 and the Prospectus.
The Registrant will provide without charge to each person to
whom the Prospectus constituting a part of this Registration
Statement is delivered, on the written or oral request of any
such person, a copy of any or all of the documents incorporated
herein and in the Prospectus by reference (other than exhibits to
such documents which are not specifically incorporated by
reference in such documents). Written requests for such copies
should be directed to the Secretary, Carolina Freight
Corporation, Post Office Box 1000, Cherryville, North Carolina
28021. Telephone requests may be directed to (704) 435-6811.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Registrant's Common Stock
to be issued pursuant to this Registration Statement were passed
upon by John B. Yorke, Vice President, Secretary and General
Counsel of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Registrant's Articles of
Incorporation, as amended, and no contracts between the
Registrant and its directors and officers and no resolutions
adopted by the Registrant, relating to indemnification of
directors and officers. However, the Registrant's Bylaws provide
that any person who at any time serves or has served as a
director, officer, employee or agent of the Registrant, or in
such capacity at the request of the Registrant for any other
corporation, partnership, joint venture, trust or other
enterprise, or as a trustee or administrator under an employee
benefit plan, shall have the right to be indemnified by the
Registrant to the fullest extent permitted by law against (a)
reasonable expenses, including attorneys' fees, incurred by him
in connection with any threatened, pending or completed action,
suit or proceedings, whether civil, criminal, administrative or
investigative and whether or not brought by or on behalf of the
Registrant, seeking to hold him liable by reason of the fact that
he is or was acting in such capacity, and (b) reasonable payments
made by him in satisfaction of any judgment, money, decree, fine,
penalty or settlement for which he may have become liable in any
such action, suit or proceeding. As authorized by statute, the
Registrant maintains insurance on behalf of its directors and
officers against liability asserted against such persons in such
capacity whether or not such directors or officers have the right
to indemnification pursuant to the bylaw or otherwise. In
addition, the Registrant's Articles of Incorporation, as amended,
prevent the recovery by the Registrant or any of its shareholders
of monetary damages against its directors.
Sections 55-8-50 through 55-8-58 of the North Carolina
Business Corporation Act (the "Act") contain provisions
prescribing the extent to which directors and officers shall or
may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a present or
former director against liability if (i) he conducted himself in
good faith, (ii) he reasonably believed (x) that his conduct in
his official capacity with the corporation was in its best
interests and (y) in all other cases his conduct was at least not
opposed to the corporation's best interest and (iii) in the case
of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful. A 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 a proceeding charging improper
personal benefit to him. The above standard of conduct is
determined by the Board of Directors, or a committee or special
legal counsel or the shareholders as prescribed in Section
55-8-55 of the Act.
Sections 55-8-52 and 55-8-56 of the Act require a
corporation to indemnify a director or officer in the defense of
any proceeding to which he was a party against reasonable
expenses when he is wholly successful in his defense, unless the
articles of incorporation provide otherwise. Upon application,
the court may order indemnification of the director or officer if
he is adjudged fairly and reasonably so entitled under Section
55-8-54 of the Act.
In addition, Section 55-8-57 of the Act permits a
corporation to provide for indemnification of directors,
officers, employees or agents, in its articles of incorporation
or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance
policies on behalf of these individuals.
THE FOREGOING IS ONLY A GENERAL SUMMARY OF CERTAIN ASPECTS
OF NORTH CAROLINA LAW DEALING WITH INDEMNIFICATION OF DIRECTORS
AND OFFICERS AND DOES NOT PURPORT TO BE COMPLETE. IT IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE RELEVANT STATUTES
WHICH CONTAIN DETAILED SPECIFIC PROVISIONS REGARDING THE
CIRCUMSTANCES UNDER WHICH AND THE PERSON FOR WHOSE BENEFIT
INDEMNIFICATION SHALL OR MAY BE MADE AND ACCORDINGLY ARE SET
FORTH IN EXHIBIT 99.2 HERETO AND INCORPORATED HEREIN BY
REFERENCE.
ITEM 8. EXHIBITS.
The following exhibits are filed with or are incorporated by
reference in this Registration Statement.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
5.1 Opinion of John B. Yorke as to legality of
securities
23.1 Consent of John B. Yorke (included in
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney
24.2 Certified Resolution authorizing signature
of Registration Statement
99.1 Carolina Freight Corporation 1994
Nonqualified Stock Option Plan
99.2 Provisions of North Carolina law relating
to indemnification
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 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 Registration Statement is on Form S-3 or Form
S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission 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 (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 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 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.<PAGE>
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 Cherryville, State of
North Carolina, on January 4, 1995.
CAROLINA FREIGHT CORPORATION
By: /s/ LARY R. SCOTT
Lary R. Scott
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registration Statement has been signed by the
following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
/S/ LARY R. SCOTT
Lary R. Scott Chairman, Chief January 4, 1995
Executive Officer
and Director
(Principal Executive
Officer)
/S/ SHAWN W. POOLE
Shawn W. Poole Treasurer and Chief January 4, 1995
Financial Officer
(Principal Financial
and Accounting Officer)
*J.M. CARSTARPHEN
J.M. Carstarphen Director January 4, 1995
*CHARLES L. GRACE
Charles L. Grace Director January 4, 1995
*WILLIAM M. R. MAPEL
William M. R. Mapel Director January 4, 1995
*DR. JAMES G. MARTIN
Dr. James G. Martin Director January 4, 1995
*PAUL F. RICHARDSON
Paul F. Richardson Director January 4, 1995
*KENNETH G. YOUNGER
Kenneth G. Younger Director January 4, 1995
*By: /S/ JOHN B. YORKE
John B. Yorke, Attorney-in-fact
CAROLINA FREIGHT CORPORATION
Cherryville, North Carolina 28021
JOHN B. YORKE
Vice President, Secretary
and General Counsel
January 4, 1995
Carolina Freight Corporation
Post Office Box 1000
Cherryville, North Carolina 28021
Re: Registration Statement on Form S-8
200,000 Shares of Common Stock
Gentlemen:
In connection with the possible offering and sale from time
to time of up to 200,000 shares (the "Shares") of the Common
Stock, $.50 par value per share, of Carolina Freight Corporation
(the "Corporation"), upon the terms and conditions set forth in
the Registration Statement on Form S-8 (the "Registration
Statement"), filed on January 4, 1995 by the Corporation with the
Securities and Exchange Commission under the Securities Act of
1933, as amended, I am of the opinion that when (a) the
Registration Statement shall become effective and (b) the Shares
have been sold upon the terms and conditions set forth in the
Registration Statement and the prospectus constituting a part
thereof, the Shares will be validly authorized and legally
issued, fully paid and non-assessable.
I hereby consent (1) to be named in the Registration
Statement and in the Prospectus which constitutes a part thereof
as the attorney who will pass upon the legality of the Shares and
(2) to the filing of a copy of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
JOHN B. YORKE
ARTHUR ANDERSEN LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form
S-8 of our reports dated January 31, 1994 (except with respect to
the matter discussed in the Subsequent Event footnote, as to
which the date is March 17, 1994), included in Carolina Freight
Corporation and subsidiaries' Form 10-K for the year ended
December 31, 1993.
ARTHUR ANDERSEN LLP
Charlotte, North Carolina,
January 4, 1995.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Carolina
Freight Corporation (the "Corporation") and the several
undersigned Officers and Directors thereof whose signatures
appear below hereby makes, constitutes and appoints John B.
Yorke, Richard E. F. Valitutto and Robert S. McLean and each of
them acting individually, its and his true and lawful attorneys,
with full power to act without the other and with full power of
substitution, to execute, deliver and file in its and his name
and on its and his behalf, and in each of the undersigned
Officer's and Director's capacity or capacities as shown below,
(a) a Registration Statement on Form S-8 (or other appropriate
form) with respect to the registration under the Securities Act
of 1933, as amended (the "Securities Act"), of 200,000 shares of
the Common Stock, $.50 par value per share, of the Corporation
for sale from time to time by the Corporation to various of its
key employees pursuant to the exercise of options granted under
the Carolina Freight Corporation 1994 Nonqualified Stock Option
Plan, and any and all amendments, including any and all
post-effective amendments, to the foregoing and any and all
documents in support thereof or supplemental thereto, and (b)
such registration statements, petitions, applications, consents
to service of process or other instruments, and any and all
amendments or supplements to the foregoing and any and all
documents in support thereof or supplemental thereto, as may be
necessary or advisable to qualify or register the securities
covered by said Registration Statement under such state or other
securities laws, regulations and requirements as may be
applicable; and each of the Corporation and said Officers and
Directors hereby grants to said attorneys, and to each of them,
full power and authority to do and perform each and every act and
thing whatsoever as said attorneys or attorney may deem necessary
or advisable to carry out fully the intent of this power of
attorney to the same extent and with the same effect as the
Corporation might or could do, and as each of said Officers and
Directors might or could do personally in his capacity or
capacities as aforesaid, and each of the Corporation and said
Officers and Directors hereby ratifies and confirms all acts and
things which said attorneys or attorney might do or cause to be
done by virtue of this power of attorney and its or his signature
as the same may be signed by said attorneys or attorney, or
either of them, to any or all of the following (and/or any and
all amendments and supplements to any or all thereof): such
Registration Statement under the Securities Act, and all such
registration statements, petitions, applications, consents to
service of process and other instruments, and any and all
amendments to the foregoing and any and all documents in support
thereof or supplemental thereto, under such securities laws,
regulations and requirements as may be applicable.
IN WITNESS WHEREOF, Carolina Freight Corporation has caused
this power of attorney to be signed on its behalf, and each of
the undersigned Officers and Directors of the Corporation in the
capacity or capacities noted has hereunto set his hand on the
date indicated.
CAROLINA FREIGHT CORPORATION
By: /S/ LARY R. SCOTT
Lary R. Scott
Chairman and Chief Executive
Officer
Dated: December 5, 1994
SIGNATURE TITLE DATE
/S/ LARY R. SCOTT
Lary R. Scott Chairman, Chief December 5, 1994
Executive Officer
and Director
(Principal Executive
Officer)
/S/ SHAWN W. POOLE
Shawn W. Poole Vice President and December 5, 1994
Chief Financial
Officer (Principal
Financial and
Accounting Officer)
/S/ J. M. CARSTARPHEN
J.M. Carstarphen Director December 5, 1994
/S/ CHARLES L. GRACE
Charles L. Grace Director December 5, 1994
/S/ HOWARD H. HAWORTH
Howard H. Haworth Director December 5, 1994
/S/ PALMER E. HUFFSTETLER
Palmer E. Huffstetler Director December 5, 1994
/S/ WILLIAM M. R. MAPEL
William M. R. Mapel Director December 5, 1994
/S/ DR. JAMES G. MARTIN
Dr. James G. Martin Director December 5, 1994
/S/ PAUL F. RICHARDSON
Paul F. Richardson Director December 5, 1994
/S/ KENNETH G. YOUNGER
Kenneth G. Younger Director December 5, 1994
CERTIFICATE OF SECRETARY
I, JOHN B. YORKE, Secretary of Carolina Freight Corporation,
a corporation duly organized and existing under the laws of the
State of North Carolina, do hereby certify that attached hereto
is a true and correct copy of resolutions duly adopted by the
Board of Directors of said corporation at a meeting of said Board
of Directors duly called and held on December 5, 1994, and that
such resolutions are in full force and effect and have not been
amended or rescinded as of the date hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed
the seal of the corporation this 4th day of January, 1995.
JOHN B. YORKE
John B. Yorke
Secretary
(CORPORATE SEAL)
<PAGE>
BOARD OF DIRECTORS
CAROLINA FREIGHT CORPORATION
_______
RESOLUTIONS
_______
December 5, 1994
REGISTRATION STATEMENT ON FORM S-8
WHEREAS, the Board of Directors and shareholders of the
Corporation have previously authorized and adopted the Carolina
Freight Corporation 1994 Nonqualified Stock Option Plan (the
"Plan"); and
WHEREAS, the Board of Directors has authorized the issuance
of 200,000 shares of its Common Stock (the "Common Stock")
pursuant to the exercise of options granted under the Plan (the
"Shares"); and
WHEREAS, to facilitate resale of any of the Shares issued
pursuant to the exercise of options granted under the Plan, the
Board of Directors has determined to register the Shares with the
Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), for
sale under the Plan so that such Shares will not be treated as
restricted securities pursuant to Rule 144 of the Securities Act;
NOW, THEREFORE, BE IT RESOLVED, that the Corporation hereby
reserves 200,000 shares of its Common Stock for issuance pursuant
to the exercise of options granted under the Plan; and
FURTHER RESOLVED, that the proper officers of the
Corporation be, and they hereby are, authorized, empowered and
directed (a) to execute and file with the SEC a Registration
Statement on Form S-8 (or other applicable form as counsel may
advise) under the Securities Act with respect to the possible
sale from time to time of up to 200,000 shares of Common Stock to
various of its key employees pursuant to the exercise of options
granted under the Plan, with such terms therein as the officers
executing the same may approve, their execution to be conclusive
evidence of such approval, and (b) to execute and file all such
other instruments and documents, to make all such payments, to do
all such other acts and things in connection with said
Registration Statement, including the execution and filing of
such amendment or amendments (including any post-effective
amendments) thereto, as they may deem necessary or advisable in
order to effect such filing and to procure the effectiveness of
said Registration Statement (and any such post-effective
amendments thereto) and to make such supplements to the
Prospectus forming a part of said Registration Statement as may
be required or otherwise as they may deem advisable; and
FURTHER RESOLVED, that John B. Yorke, Richard E.F. Valitutto
and Robert S. McLean and each of them with full power to act
without the other, be, and they hereby are, authorized and
empowered to sign the aforesaid Registration Statement and any
amendment or amendments (including post-effective amendments)
thereto on behalf of and as attorneys for the Corporation and on
behalf of and as attorneys for any of the following, to wit: the
principal executive officer, the principal financial officer, the
principal accounting officer, and any other officer of the
Corporation, including the Chairman and Chief Executive Officer
of the Corporation; and
FURTHER RESOLVED, that John B. Yorke be, and he hereby is,
appointed and designated as the Agent for Service of the
Corporation to be named in the aforesaid Registration Statement,
with all such powers and functions as are provided upon such
designation under the General Rules and Regulations under the
Securities Act and the Securities Exchange Act of 1934, as
amended; and
FURTHER RESOLVED, that it is desirable and in the best
interest of the Corporation that the Shares be qualified or
registered for distribution in various states where appropriate,
that the Chairman, the President and the Secretary of the
Corporation hereby are authorized, empowered and directed to
determine the states in which appropriate action shall be taken
to qualify or register for distribution the Shares as said
officers may deem advisable; that said officers are hereby
authorized, empowered and directed to perform on behalf of the
Corporation any and all such acts as they may deem necessary or
advisable in order to comply with the applicable laws of any such
states, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to,
resolutions, applications, reports, surety bonds, irrevocable
consents and appointments of attorneys for service of process;
and the execution by such officers of any such paper or document
or the doing by them of any act in connection with the foregoing
matters shall conclusively establish their authority therefor
from the Corporation and the approval and ratification by the
Corporation of the papers and documents so executed and the
action so taken; and
FURTHER RESOLVED, that such officers be, and they hereby
are, authorized, empowered and directed to do any and all things
which in their judgment may be necessary or appropriate in order
to obtain a permit, exemption, registration or qualification for,
and a dealer's license with respect to, the distribution of the
Shares in accordance with and under the securities laws of any
one or more of the states as such officers may deem advisable and
in connection therewith to execute, acknowledge, verify, deliver,
file and publish all applications, reports, resolutions,
consents, consents to service of process, powers of attorney,
commitments and other papers and instruments as may be required
under such laws and to take any and all further action which they
may deem necessary or appropriate in order to secure and to
maintain such permits, exemptions, registrations and
qualifications in effect for so long as they shall deem in the
best interest of the Corporation; and
FURTHER RESOLVED, that upon the issuance thereof pursuant to
the exercise of options granted under the Plan, the Shares shall
be deemed to be fully paid and nonassessable and the holders of
such Shares shall be subject to no further call or liability with
respect thereto; and
FURTHER RESOLVED, that the listing of the Shares on the New
York Stock Exchange, Inc. ("NYSE") be, and it hereby is,
approved, and that the officers of the Corporation hereby are
authorized, empowered and directed, with the assistance of
counsel, to prepare, execute and file a listing application with
the NYSE and to take all actions necessary or appropriate to
effect such listing; and
FURTHER RESOLVED, that First Union National Bank of North
Carolina be, and it hereby is, appointed Transfer Agent and
Registrar for such Shares; and it is hereby vested with all the
power and authority as Transfer Agent and Registrar with respect
to said Shares as it has heretofore been vested with for the
shares of the Corporation's Common Stock currently issued and
outstanding; and
FURTHER RESOLVED, that the Board of Directors hereby adopts,
as if expressly set forth herein, the form of any resolution
required by any authority to be filed in connection with any
applications, consents to service, issuer's covenants or other
documents, applications, reports or filings relating to the
foregoing resolutions if (i) in the opinion of the officers of
the Corporation executing same, the adoption of such resolutions
is necessary or desirable and (ii) the Secretary of the
Corporation evidences such adoption by inserting in the minutes
of this meeting copies of such resolutions, which will thereupon
be deemed to be adopted by the Board of Directors with the same
force and effect as if presented at this meeting; and
FURTHER RESOLVED, that the officers of the Corporation be,
and they hereby are, authorized, empowered and directed to do any
and all things of any and every nature whatsoever and execute all
instruments, certificates and documents which they in their
discretion deem necessary, appropriate or convenient to carry
into effect the foregoing resolutions and the purpose and intent
thereof.
CAROLINA FREIGHT CORPORATION AND SUBSIDIARIES
1994 NONQUALIFIED STOCK OPTION PLAN
1. Purpose. This 1994 Nonqualified Stock Option Plan (the
"Plan") is intended to advance the interests of Carolina Freight
Corporation (the "Company"), its subsidiaries and its
shareholders by providing certain key employees an added sense of
proprietorship and personal involvement in the development and
financial success of the Company and to encourage such employees
to remain with and devote their best efforts to the Company. It
is also intended that options issued pursuant to the Plan (the
"Options") shall satisfy the requirements of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. Administration. The Plan shall be administered by the
Compensation Committee of the Board of Directors of the Company
(the "Committee") except that no member of the Committee may
exercise discretion with respect to, or participate in, the
administration of the Plan if, at any time during the
twelve-month period prior to any exercise or participation, he or
she has been granted or awarded stock, restricted stock, stock
options, stock appreciation rights or any other derivative
security of the Company or an affiliate thereof under this Plan
or any similar plan of the Company, except as permitted in Rule
16b-3(c)(2)(i)(A) through (D) under the Exchange Act. Members of
the Committee shall be subject to any additional restrictions
necessary to satisfy the requirements for disinterested
administration of the Plan as set forth in Rule 16b-3, as it may
be amended from time to time. Subject to the express provisions
of the Plan, the Committee may interpret the Plan, prescribe,
amend and rescind rules and regulations relating to it, determine
the terms and provisions of awards under the Plan (which need not
be identical) and make such other determinations as it deems
necessary or advisable for the administration of the Plan. The
decisions of the Committee under the Plan shall be conclusive and
binding. No member of the Board of Directors of the Company or
the Committee shall be liable for any action taken, or
determination made, hereunder in good faith.
3. Eligibility. Options to purchase shares of Company
stock shall be made available under this Plan to those employees
who are designated by the Committee from time to time as "key
employees" of the Company or its subsidiaries.
4. Stock Subject to Option. As of the effective date
hereof, there shall be authorized and reserved for issuance upon
the exercise of Options granted under the Plan such number of
shares of the Company's common stock as is determined from time
to time in the discretion of the Committee, provided that no more
than 200,000 shares of such stock shall be subject to the Plan
subject to adjustment as provided in Section 8 below. If any
Option granted under the Plan shall expire or terminate for any
reason, without having been exercised in full, the unpurchased
shares covered by the Option shall be added to the shares
otherwise available for issuance upon the exercise of Options
unless the Plan shall then be terminated. Shares subject to
option may consist of authorized but unissued shares of the
Company.
5. Terms and Conditions of Options. Options granted under
this Plan shall be subject to the following terms and conditions,
and such other terms and conditions not inconsistent with the
Plan as the Committee shall determine to be appropriate.
(a) Number of Shares. Each Option shall specify the
number of shares that may be purchased upon exercise of the
Option, subject to adjustment as provided in Section 8 below,
except that the number of shares in respective Options
extended any one employee shall not exceed 50,000 shares of
Company stock.
(b) Exercise Price. The exercise price shall be the
fair market value of the stock subject to the Option as of the
date of grant. Fair market value for purposes of this paragraph
shall be the closing price of the Company stock on the day of the
grant of the Option.
(c) Right to Exercise and Term. Any Option granted
under this Plan shall be exercisable in accordance with the
following terms and conditions:
(i) An Option granted hereunder shall not be
exercisable prior to the day which is two years after the date of
the grant of the Option (except that in the event of the death or
permanent disability of the person receiving such Option, this
condition shall be deemed automatically waived.) The Option
granted to any employee under this Plan shall vest according to
the following schedule:
Years After Date of Grant Percent Vested
less than 1 0%
1 but less than 2 25%
2 but less than 3 50%
3 but less than 4 75%
4 or more 100%
The nonvested portion of an employee's Options shall be
considered forfeited upon termination of his or her employment
with the Company for whatever reason. No Option granted
hereunder shall be exercisable more than ten years from the date
that the Option is granted.
(ii) In the event the employment of an employee
then holding Options hereunder shall terminate by reason of
death, retirement (as defined below), permanent and total
disability (as determined by the long-term disability plan
applicable to such employee), or under such other circumstances
as may be determined by the Committee, the vested portion of said
Options shall be exercisable by the former employee or
his or her successor in interest only during the period of one
year immediately following said termination of employment.
"Retirement" for the purposes of this paragraph is limited to the
voluntary termination of employment occurring at or after
the employee either attains age 65 or attains age 55 with fifteen
years of service. In the event of termination of employment under
circumstances other than as stated above, all Options then held
shall terminate, and shall no longer be exercisable, as of the
date of termination of employment.
(d) Terms of Exercise. Any Option granted under the
Plan may be exercised by the employee, by a legatee or legatees
of such Option under the employee's last will, or by his or her
executors, personal representatives or distributees (the
"Optionee"), (i) by delivering to the Secretary of the
Company written notice of the number of shares of common stock
with respect to which the Option is being exercised, or (ii) by
delivering such notice to a broker-dealer with a copy to the
Secretary of the Company. The purchase price of common stock upon
exercise of any Option shall be paid in full (i) in cash or
certified check by the Optionee, (ii) by a broker-dealer to whom
the Optionee has submitted an exercise notice consisting of a
fully endorsed Option, (iii) in common stock valued at its fair
market value on the date of exercise, (iv) by agreeing to
surrender Options then exercisable by the Optionee valued at the
excess of the aggregate fair market value of the common stock
subject to such Options on the date of exercise over the
aggregate option exercise price of such common stock, (v) by
directing the Company to withhold such number of shares of common
stock otherwise issuable upon exercise of such Option having an
aggregate fair market value on the date of exercise equal to the
exercise price of the Option, or (vi) by such other medium of
payment as the Committee, in its discretion, shall authorize, or
by any combination of (i), (ii), (iii), (iv), (v) and (vi), at
the discretion of the Committee. In the case of payment pursuant
to (ii), (iii), (iv), (v) or (vi) above, the employee's election
must be made on or prior to the date of exercise of the Option
and must be irrevocable. The Company shall issue, in the name of
the employee, stock certificates representing the total number of
shares of common stock issuable pursuant to the exercise of any
Option as soon as reasonably practicable after such exercise.
(e) Withholding Taxes. Upon the exercise of an Option,
the Committee shall have the right to require the Optionee to
remit to the Company in any such manner or combination of manners
as it determines in its sole discretion, an amount sufficient to
satisfy all federal, state and local withholding tax requirements
prior to the delivery by the Company of any certificate for
shares of Common Stock.
6. Transferability Limited. No Option granted under the
Plan shall be transferable by the employee other than by will,
or, if he or she dies intestate, by the laws of descent and
distribution of the state of his domicile at the time of his
death. During the Optionee's lifetime, the Option shall be
exercised only by the Optionee.
7. Termination or Amendment of Plan. The Board of
Directors of the Company expressly retains the right to at any
time terminate, suspend, or amend the Plan, in any respect and as
the Board of Directors deems advisable under circumstances then
prevailing, provided, however, that no amendment hereto shall
expand the number of shares of Company stock subject to the Plan,
nor permit the grant of Options to members of the Committee. The
Board of Directors shall submit any amendments to the
shareholders of the Company for approval to the extent necessary
to maintain compliance with the requirements of Rule 16b-3 of the
Exchange Act.
8. Adjustments Upon Changes in Capitalization;
Acceleration of Exercise Rights. The total amount of shares on
which Options may be granted under the Plan and option rights
(both as to the number of shares and the option exercise price
per share) shall be appropriately adjusted for any increase or
decrease in the number of outstanding shares of common stock of
the Company resulting from payment of a stock dividend on the
common stock, a subdivision or combination of shares of the
common stock or from a reclassification of the common stock, and
(in accordance with the provisions contained in the next
following paragraph) in the event of a merger or consolidation.
After any merger of one or more corporations into the
Company or any subsidiary, any merger of the Company or any
subsidiary into another corporation, any consolidation of the
Company or any subsidiary and one or more other corporations, or
any other corporate reorganization of any form involving the
Company or any subsidiary as a party thereto, which corporate
reorganization involves any exchange, conversion, adjustment or
other modification of the outstanding shares of common stock of
the Company, each employee holding Options at the time of such
corporate reorganization shall, at no additional cost, be
entitled, upon any exercise of his or her Option, to receive, in
lieu of the number of shares as to which such Option shall then
be so exercised, the number and class of shares of stock or other
securities or such other property to which such employee would
have been entitled to pursuant to the terms of the agreement of
merger or consolidation if at the time of such merger or
consolidation such optionee had been a holder of record of a
number of shares of common stock of the Company equal to the
number of shares which then remain exercisable under such Option.
Comparable rights shall accrue to such employee in the event of
successive mergers or consolidations of the character described
above.
The adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its
sole discretion. Any such adjustment may provide for the
elimination of any fractional share that might otherwise become
subject to an Option.
9. Change in Control. In the event of (i) the adoption of
a plan of merger or consolidation of the Company with any other
corporation as a result of which the holders of the voting
capital stock of the Company as a group would receive less than
50% of the voting capital stock of the surviving or resulting
corporation, (ii) the approval by the Board of Directors of the
Company of an agreement providing for the sale or transfer (other
than as security for obligations of the Company) of substantially
all the assets of the Company, or (iii) in the absence of a prior
expression of approval by the Board of Directors of the Company,
the acquisition of more than 20% of the Company's voting capital
stock by any person within the meaning of Section 13(d)(3) of the
Exchange Act; then any Option granted hereunder shall become
immediately exercisable in full, subject to any appropriate
adjustments in the number of shares subject to the Option and the
option exercise price per share, and shall remain exercisable for
the remaining term of such Option, regardless of whether such
Option has been outstanding for six months or of any provision
contained in the individually executed Nonqualified Stock Option
Agreement with respect thereto requiring that the Option or any
portion thereof be outstanding for a minimum amount of time prior
to exercise, subject to all of the terms hereof and the Option
Agreement with respect thereto not inconsistent with this
paragraph.
10. Restrictions on Option Repricing. Except as set forth
in Sections 8 or 9 hereof, in no event shall the Board of
Directors or the Committee authorize any adjustment in the
exercise or purchase price of or the number of shares subject to
an outstanding Option under this Plan, whether by cancellation of
an outstanding Option and a subsequent regranting of an Option,
by amendment or substitution of outstanding Option or by other
means.
11. Applicable Law. This stock option plan is adopted by
the Company in the State of North Carolina and is to be construed
and interpreted in accordance with the laws of North Carolina.
PROVISIONS OF NORTH CAROLINA BUSINESS CORPORATION ACT
REGARDING INDEMNIFICATION
"55-8-50. Policy statement and definitions.
(a) It is the public policy of this State to enable
corporations organized under this Chapter to attract and maintain
responsible, qualified directors, officers, employees and agents,
and, to that end, to permit corporations organized under this
Chapter to allocate the risk of personal liability of directors,
officers, employees and agents through indemnification and
insurance as authorized in this Part.
(b) Definitions in this Part:
(1) 'Corporation' includes any domestic or foreign
corporation absorbed in a merger which, if its
separate existence had continued, would have had
the obligation or power to indemnify its
directors, officers, employees, or agents, so that
a person who would have been entitled to receive
or request indemnification from such corporation
if its separate existence had continued shall
stand in the same position under this Part with
respect to the surviving corporation.
(2) 'Director' means an individual who is or was a
director of a corporation or an individual who,
while a director of a corporation, is or was
serving at the corporation's request as a
director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee
benefit plan, or other enterprise. A director is
considered to be serving an employee benefit plan
at the corporation's request if his duties to the
corporation also impose duties on, or otherwise
involve services by, him to the plan or to
participants in or beneficiaries of the plan.
'Director' includes, unless the context requires
otherwise, the estate or personal representative
of a director.
(3) 'Expenses' means expenses of every kind incurred
in defending a proceeding, including counsel fees.
(4) 'Liability' means the obligation to pay a
judgment, settlement, penalty, fine (including an
excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(4a) 'Officer', 'employee', or 'agent' includes, unless
context requires otherwise, the estate or personal
representative of a person who acted in that
capacity.
(5) 'Official capacity' means: (i) when used with
respect to a director, the office of director in a
corporation; and (ii) when used with respect to an
individual other than a director, as contemplated
in G.S. 55-8-56, the office in a corporation held
by the officer or the employment or agency
relationship undertaken by the employee or agent
on behalf of the corporation. 'Official capacity'
does not include service for any other foreign or
domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other
enterprise.
(6) 'Party' includes an individual who was, is, or is
threatened to be made a named defendant or
respondent in a proceeding.
(7) 'Proceeding' means any threatened, pending, or
completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative
and whether formal or informal.
55-8-51. Authority to indemnify.
(a) Except as provided in subsection (d), a corporation may
indemnify an individual made a party to a proceeding because he
is or was a director against liability incurred in the proceeding
if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of conduct
in his official capacity with the corporation,
that his conduct was in its best interests; and
(ii) in all other cases, that his conduct was at
least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was
unlawful.
(b) A director's conduct with respect to an employee
benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of no contest or its
equivalent is not, of itself, determinative that the director did
not meet the standard of conduct described in this section.
(d) A corporation may not indemnify a director under this
section:
(1) In connection with a proceeding by or in the right
of the corporation in which the director was
adjudged liable to the corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him, whether or not
involving action in his official capacity, in
which he was adjudged liable on the basis that
personal benefit was improperly received by him.
(e) Indemnification permitted under this section in
connection with a proceeding by or in the right of the
corporation that is concluded without a final adjudication on the
issue of liability is limited to reasonable expenses incurred in
connection with the proceeding.
(f) The authorization, approval or favorable recommendation
by the board of directors of a corporation of indemnification, as
permitted by this section, shall not be deemed an act or
corporate transaction in which a director has a conflict of
interest, and no such indemnification shall be void or voidable
on such ground.
55-8-52. Mandatory indemnification.
Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director of the
corporation against reasonable expenses incurred by him in
connection with the proceeding.
55-8-53. Advance for expenses.
Expenses incurred by a director in defending a proceeding
may be paid by the corporation in advance of the final
disposition of such proceeding as authorized by the board of
directors in the specific case or as authorized or required under
any provision in the articles of incorporation or bylaws or by
any applicable resolution or contract upon receipt of an
undertaking by or on behalf of the director to repay such amount
unless it shall ultimately be determined that he is entitled to
be indemnified by the corporation against such expenses.
55-8-54. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide
otherwise, a director of the corporation who is a party to a
proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the
court considers necessary may order indemnification if it
determines:
(1) The director is entitled to mandatory
indemnification under G.S. 55-8-52, in which case
the court shall also order the corporation to pay
the director's reasonable expenses incurred to
obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant
circumstances, whether or not he met the standard
of conduct set forth in G.S. 55-8-51 or was
adjudged liable as described in G.S. 55-8-51(d),
but if he was adjudged so liable his
indemnification is limited to reasonable expenses
incurred.
55-8-55. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under
G.S. 55-8-51 unless authorized in the specific case after a
determination has been made that indemnification of the director
is permissible in the circumstances because he has met the
standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a
quorum consisting of directors not at the time
parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision
(1), by majority vote of a committee duly
designated by the board of directors (in which
designation directors who are parties may
participate), consisting solely of two or more
directors not at the time parties to the
proceeding;
(3) By special legal counsel (i) selected by the board
of directors or its committee in the manner
prescribed in subdivision (1) or (2); or (ii) if a
quorum of the board of directors cannot be
obtained under subdivision (1) and a committee
cannot be designated under subdivision (2),
selected by majority vote of the full board of
directors (in which selection directors who are
parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time
parties to the proceeding may not be voted on the
determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection (b)(3) to select counsel.
55-8-56. Indemnification of officers, employees, and agents.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation is entitled to
mandatory indemnification under G.S. 55-8-52, and
is entitled to apply for court-ordered
indemnification under G.S. 55-8-54, in each case
to the same extent as a director;
(2) The corporation may indemnify and advance expenses
under this Part to an officer, employee, or agent
of the corporation to the same extent as to a
director; and
(3) A corporation may also indemnify and advance
expenses to an officer, employee, or agent who is
not a director to the extent, consistent with
public policy, that may be provided by its
articles of incorporation, bylaws, general or
specific action of its board of directors, or
contract.
55-8-57. Additional indemnification and insurance.
(a) In addition to and separate and apart from the
indemnification provided for in G.S. 55-8-51, 55-8-52, 55-8-54,
55-8-55 and 55-8-56, a corporation may in its articles of
incorporation or bylaws or by contract or resolution indemnify or
agree to indemnify any one or more of its directors, officers,
employees, or agents against liability and expenses in any
proceeding (including without limitation a proceeding brought by
or on behalf of the corporation itself) arising out of their
status as such or their activities in any of the foregoing
capacities; provided, however, that a corporation may not
indemnify or agree to indemnify a person against liability or
expenses he may incur on account of his activities which were at
the time taken known or believed by him to be clearly in conflict
with the best interests of the corporation. A corporation may
likewise and to the same extent indemnify or agree to indemnify
any person who, at the request of the corporation, is or was
serving as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise or as trustee or
administrator under an employee benefit plan. Any provision in
any articles of incorporation, bylaw, contract, or resolution
permitted under this section may include provisions for recovery
from the corporation of reasonable costs, expenses, and
attorneys' fees in connection with the enforcement of rights to
indemnification granted therein and may further include
provisions establishing reasonable procedures for determining and
enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable
recommendation by the board of directors of a public corporation
of any provision in any articles of incorporation, bylaw,
contract or resolution, as permitted in this section, shall not
be deemed an act or corporate transaction in which a director has
a conflict of interest, and no such articles of incorporation or
bylaw provision or contract or resolution shall be void or
voidable on such grounds. The authorization, adoption, approval,
or favorable recommendation by the board of directors of a
nonpublic corporation of any provision in any articles of
incorporation, bylaw, contract or resolution, as permitted in
this section, which occurred on or prior to July 1, 1990, shall
not be deemed an act or corporate transaction in which a director
has a conflict of interest, and no such articles of
incorporation, bylaw provision, contract or resolution shall be
void or voidable on such grounds. Except as permitted in
G.S. 55-8-31, no such bylaw, contract, or resolution not adopted,
authorized, approved or ratified by shareholders shall be
effective as to claims made or liabilities asserted against any
director prior to its adoption, authorization, or approval by the
board of directors.
(c) A corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer,
employee, or agent of the corporation, or who, while a director,
officer, employee, or agent of the corporation, is or was serving
at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by him in that capacity or arising from his
status as a director, officer, employee, or agent, whether or not
the corporation would have power to indemnify him against the
same liability under any provision of this act.
55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or
advance for expenses, indemnification and advance for expenses
are valid only to the extent consistent with the articles.
(b) This Part does not limit a corporation's power to pay
or reimburse expenses incurred by a director in connection with
his appearance as a witness in a proceeding at a time when he has
not been made a named defendant or respondent to the proceeding.
(c) This Part shall not affect rights or liabilities
arising out of acts or omissions occurring before July 1, 1990."
