As filed with the Securities and Exchange Registration
Commission on March ___, 1998 Statement No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
M.S. Carriers, Inc.
(Exact Name of Registrant as Specified in its Charter)
Tennessee 3171 Directors Row 62-1014070
(State or other Memphis, Tennessee 38116 (I.R.S. Employer
jurisdiction of (901) 332-2500 Identification
incorporation or (Address, including zip code, Number)
organization) and telephone number,
including area code, of registrant's
principal executive offices)
MICHAEL S. STARNES
Chairman of the Board
3171 Directors Row
Memphis, Tennessee 38116
(901) 332-2500
(Name, and address, including zip code, and telephone
number, including area code, of agent for service)
Copies to
W. THOMAS HUTTON, ESQUIRE
ROBERT E. ORIANS, ESQUIRE
Martin, Tate, Morrow & Marston, P.C.
22 North Front Street, Suite 1100
Memphis, Tennessee 38103
(901) 522-9000
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of the Registration Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
<S>
Title of each Amount Proposed Proposed maximum Amount of
class of to be registered maximum aggregate offering registration fee
securities to be offering price price (1)
registered per share (1)
<S> <C> <C> <C> <C>
Common
Stock, par 153,468 $29.0625 $4,460,164 $1,315.75
value
$.01 per share
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and (g), based upon the average of the
high and low reported prices of the Common Stock on March 5, 1998.
The Registrant hereby amends this Registration Statement
on such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
Subject to Completion
March 5, 1998
153,468 Shares
[M.S. CARRIERS LOGO HERE]
Common Stock
This Prospectus relates to the resale by Henson Investments #1,
LTD., a Texas limited partnership ("Henson Investments") and William
R. Henson, Sr. Family Trust ("Henson Family Trust"), collectively
"Selling Stockholders," of up to 119,133 shares and 34,335 shares,
respectively, or a total of 153,468 shares of Common Stock, $.01 par
value per share ("Common Stock"), of M.S. Carriers, Inc., a Tennessee
corporation ("M.S. Carriers" or "Company"). The distribution of the
Common Stock by the Selling Stockholders is not currently subject to
any underwriting agreement. None of the Common Stock offered pursuant
to this Prospectus has been registered prior to the filing of the
Registration Statement of which this Prospectus is a part. See "Plan
of Distribution."
The Common Stock registered for resale hereby has been
registered pursuant to the Company's obligation contained in a written
agreement with the Selling Stockholders. The Selling Stockholders may
elect to sell all, a portion or none of the Common Stock offered by
them hereunder.
The Common Stock is traded on the Nasdaq National Market
under the symbol "MSCA." On March 2, 1998, the average of high and low
reported prices of the Common Stock on the Nasdaq National Market was
$27.0625 per share.
The Common Stock may be sold by the Selling Stockholders
from time to time, either in underwritten public offerings, in
transactions pursuant to Rule 144 under the Securities Act of 1933, as
amended (the "Securities Act"), in privately negotiated transactions,
through the facilities of the Nasdaq National Market, or otherwise, at
market prices prevailing at the time of such sale, at prices relating
to such market prices, or at negotiated prices. The Company will not
receive any of the proceeds of the sale of Common Stock by the Selling
Stockholders. The net proceeds to the Selling Stockholders will be the
proceeds they receive upon such sales, less brokerage commissions. All
expenses of registration incurred in connection with the registration
of the Common Stock, other than any underwriting or brokerage
discounts, commissions and selling expenses with respect to the shares
of Common Stock being sold by the Selling Stockholders, will be borne
by the Company. See "Plan of Distribution."
THE SELLING STOCKHOLDERS AND ANY BROKER EXECUTING SELLING
ORDERS ON BEHALF OF THE SELLING STOCKHOLDERS MAY BE DEEMED TO BE AN
"UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT. COMMISSIONS
RECEIVED BY ANY SUCH BROKER MAY BE DEEMED TO BE UNDERWRITING
COMMISSIONS UNDER THE SECURITIES ACT.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 5, 1998.
[INFORMATION BELOW RUNS ALONG LEFT SIDE OF PAGE]
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
<PAGE>
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended, with the Securities
and Exchange Commission ("Commission") with respect to the shares
offered by this Prospectus. This Prospectus does not contain all of
the information set forth in the Registration Statement and the
exhibits and schedules thereto. Statements contained herein concerning
the provisions of any documents are not necessarily complete and, in
each instance, reference is made to the copy of such documents filed
as an exhibit to the Registration Statement, and each such statement
shall be deemed qualified in its entirety by such reference.
The Company is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended ("Exchange Act")
and, in accordance therewith, files reports and other information with
the Commission. A copy of the reports and other information filed by
the Company in accordance with the Exchange Act may be inspected
without charge at the offices of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, and will also be available for
inspection and copying at the Commission's Regional Offices located at
7 World Trade Center, Suite 1300, New York, New York 10048; Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511; The Curtis Center, Suite 1005E, 601 Walnut Street,
Philadelphia, PA 19106-3322; 1401 Brickell Avenue, Suite 200, Miami,
FL 33131; 1801 California Street, Suite 4800, Denver, CO 80200-2648;
and 5670 Wilshire Boulevard, 11th Floor, Los Angeles, CA 90036-3648.
Copies of such material may also be obtained at prescribed rates by
writing to the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Room 1024,Washington, D.C. 20549. The Commission
maintains a web site (http://www.sec.gov) that contains reports, proxy
and information statements and other information regarding
registrants, such as the Company, that file electronically with the
Commission. Information concerning the registrant is also available
for inspection at the offices of the Nasdaq National Market, Reports
Section, 1735 K. Street, N.W., Washington, D.C. 2006.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the
Commission are hereby incorporated herein by reference: (i) the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996; (ii) the Company's Quarterly Reports on Form 10-Q
for the fiscal quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997; and (iii) Form S-3 Registration Statement No.
33-63280 page 11 and Exhibits Nos. 3.1 and 3.4 thereto. All documents
filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the termination of the offering of the Common Stock
registered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the dates 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 superseded for purposes of the Registration Statement and
this Prospectus to the extent that a statement contained herein or in
any subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a
part of the Registration Statement or this Prospectus.
The Company will provide, without charge, to each person
to whom this Prospectus is delivered, upon written or telephonic
request of such person, a copy of any or all of the foregoing
documents incorporated by reference into this Prospectus (other than
exhibits to such documents unless such exhibits are specifically
incorporated by reference into this Prospectus). Requests should be
delivered in writing to M.J. Barrow, Secretary, M.S. Carriers, Inc.,
3171 Directors Row, Memphis, Tennessee 38116, or by telephone at (901)
332-2500.
ADDRESS AND TELEPHONE NUMBER OF THE COMPANY
The Company's executive offices are located at 3171 Directors
Row, Memphis, Tennessee 38116, and the telephone number is (901)
332-2500.
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from the
sale of Common Stock offered hereby.
SELLING STOCKHOLDERS
The shares to be sold by the Selling Stockholders were acquired
in connection with the Company's acquisition on September 18, 1997,
of substantially all of the operating assets of New Hi-Way Express,
Inc. of Fort Smith, Arkansas, and the Selling Stockholders had no
relationship with the Company prior to that time. As of March 5, 1998,
Henson Investments and the Henson Family Trust owned 119,133 shares
and 34,335 shares, respectively, of the Common Stock. It is expected
that each of the Selling Stockholders will dispose of all of their
shares of the Common Stock, and assuming neither acquires any
additional shares, the Selling Stockholders will not own any
shares of Common Stock.
PLAN OF DISTRIBUTION
This Prospectus relates to the resale of 153,468 shares of Common
Stock. The distribution of the Common Stock by the Selling
Stockholders contemplated hereby is not currently subject to any
underwriting agreement.
The Common Stock may be sold by the Selling Stockholders
from time to time, either in underwritten public offerings, in
transactions pursuant to Rule 144 under the Securities Act, in
privately negotiated transactions, through the facilities of the
Nasdaq National Market, or otherwise, at market prices prevailing at
the time of such sale, at prices relating to such market prices, or at
negotiated prices. The Company will not receive any of the proceeds of
the sale of Common Stock by the Selling Stockholders. The net proceeds
to the Selling Stockholders will be the proceeds they receive upon
such sales, less brokerage commissions.
In the case of sales of the shares of Common Stock effected to or
through broker-dealers, such broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Stockholders or the purchasers of the Common Stock sold by or through
such broker-dealers, or both. The Company has advised the Selling
Stockholders that the anti-manipulative Rules 10b-6 and 10b-7 under
the Exchange Act may apply to their sales in the market and has
informed them of the need for delivery of copies of this Prospectus.
The Company is not aware as of the date of this Prospectus of any
agreements between the Selling Stockholders and broker-dealers with
respect to the sale of the Common Stock offered by this Prospectus.
The Selling Stockholders and any broker-dealer or other agent
executing sell orders on behalf of the Selling Stockholders may
be deemed to be "underwriters" within the meaning of the Securities
Act, in which case the commissions received by any such broker-dealer
or agent and profit on any resale of the Common Stock may be deemed to
be underwriting commissions under the Securities Act. The commissions
received by a broker-dealer or agent may be in excess of customary
compensation.
The Selling Stockholders may elect to sell all, a portion
or none of the Common Stock offered by them hereunder.
The Company will pay all of the expenses incident to the
registration of the shares of Common Stock offered hereby, other than
underwriting or brokerage discounts, commissions and selling expenses
with respect to the Common Stock being sold by the Selling
Stockholders.
<PAGE>
LEGAL MATTERS
The validity of the Common Stock offered hereby will be
passed upon for the Company by Martin, Tate, Morrow & Marston, P.C.,
Memphis, Tennessee.
EXPERTS
The consolidated financial statements of M.S. Carriers,
Inc. appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, have been audited by Ernst & Young, LLP,
independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance
upon such reports given upon the authority of said firm as experts in
accounting and auditing.
<PAGE>
NO DEALER, SALESPERSON OR ANY
OTHER PERSON HAS BEEN 153,468 Shares
AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN
THIS PROSPECTUS IN CONNECTION
WITH THE OFFER MADE BY THIS
PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN [M.S. CARRIERS LOGO HERE]
AUTHORIZED BY THE COMPANY OR
THE SELLING STOCKHOLDERS.
NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE Common Stock
HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE
DATES AS OF WHICH INFORMATION PROSTECTUS
IS GIVEN IN THIS PROSPECTUS.
THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED March ____, 1998
TO DO SO OR TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE
SUCH SOLICITATION.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The table below sets forth estimated expenses in connection with the
issuance and distribution of the Common Stock being offered, other
than underwriting discounts and commissions.
Expense
SEC filing fee................................... $ 1,315.75
NASDAQ/NMS fees.................................. $ 3,069.36
Printing and engraving........................... $ 1,300
Legal............................................ $ 15,000
Accounting....................................... $ 6,000
Miscellaneous.................................... $ 100
Total...................................... $26,785.11
Item 15. Indemnification of Directors and Officers
Reference is made to Section 48-18-501 through 48-18-509
of the Tennessee Code Annotated, to Article X of the Company's
Restated Charter and to Article VII of the Amended and Restated
By-Laws of the Company.
Item 16. Exhibits
Exhibits numbered in accordance with Item 601 of Regulation S-K:
(4) - Instruments defining the rights of security
holders
(5) - Opinion of Martin, Tate, Morrow & Marston, P.C.
(23)A - Consent of Ernst & Young, LLP
(23)B - Consent of Martin, Tate, Morrow & Marston, P.C.
(included in opinion filed as Exhibit 5)
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the paym
ent 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.
(2) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of a registration statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the
registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
<PAGE>
(3) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
(4) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual
report to stockholders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim
financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated
by reference in the prospectus to provide such interim financial
information.
(5) For purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant
to Section 13(a) or 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.
(6) 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.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end 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
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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 (i) and (ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed 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.
(7) 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, M.S. Carriers, Inc. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3
and has duly caused this Registration Statement on Form S-3 to be
signed on its behalf by the undersigned thereunto duly authorized in
the City of Memphis, State of Tennessee, this 5th day of March, 1998.
M.S. CARRIERS, INC.
By: /s/ Michael S. Starnes
Michael S. Starnes,
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Capacity in Which Signed Date
/s/ Michael S. Starnes Principal Executive Officer March 5, 1998
Michael S. Starnes and Director
/s/ M. J. Barrow Principal Financial and March 5, 1998
M. J. Barrow Accounting Officer and
Director
/s/ James W. Welch Director March 5, 1998
James W. Welch
/s/ Carl S. Mungenast Director March 5, 1998
Carl S. Mungenast
/s/ Morris H. Fair Director March 5, 1998
Morris H. Fair
/s/ Jack H. Morris, III Director March 5, 1998
Jack H. Morris, III
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered Pages
(4) Instruments defining the rights of Incorporated by
security holders Reference from
Form S-3
Registration
Statement
No. 33-63280 and
Exhibits Nos. 3.1
and 3.4 thereto
(5) Opinion of Martin, Tate, Morrow
& Marston, P.C. III-2
(23) A Consent of Ernst & Young, LLP III-4
(23)B Consent of Martin, Tate, Morrow
& Marston, P.C. III-6
(included in opinion filed as Exhibit 5)
<PAGE>
EXHIBIT NO. 5
OPINION OF MARTIN, TATE, MORROW & MARSTON, P.C.
<PAGE>
March 5, 1998
M. S. Carriers, Inc.
3171 Directors Row
Memphis, Tennessee 38116
Re: M. S. Carriers, Inc. Form S-3 Registration
Statement Covering 153,468 Shares of Common Stock of
M. S. Carriers, Inc. ("Common Stock")
Gentlemen:
In our opinion, the Common Stock being registered under
the Registration Statement filed herewith constitutes legally issued,
fully paid and nonassessable shares of M.S. Carriers, Inc.
We consent to the inclusion of this opinion in the Registration
Statement and reference to us under the caption "Legal Matters"
in the Prospectus included in the Registration Statement.
Very truly yours,
MARTIN, TATE, MORROW & MARSTON, P.C.
T:\SIDESC\SSW\MCCNUTWY\MSCOPIN.FS3- \sjm
<PAGE>
EXHIBIT NO. 23A
CONSENT OF ERNST & YOUNG, LLP
<PAGE>
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-3 No. 33-________) and
the related Prospectus of M. S. Carriers, Inc. for the registration of
153,468 shares of its common stock and to the incorporation by
reference therein of our report dated January 17, 1997, with respect
to the consolidated financial statements and schedule of M. S.
Carriers, Inc. included in its Form 10-K for the year ended December
31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG, LLP
Memphis, Tennessee
March 6, 1998.
T:\WPROC1\LETTERS\MSCERNST.CON- \sjm
<PAGE>
EXHIBIT NO. 23B
CONSENT OF MARTIN, TATE, MORROW & MARSTON, P.C.
(included in opinion filed as Exhibit 5)
