<PAGE>
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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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TRANSIT GROUP, INC.
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(Exact name of registrant as specified in its charter)
2859 PACES FERRY ROAD
SUITE 1740
FLORIDA ATLANTA, GEORGIA 30339 59-2576629
- ---------------------------- ----------------------- ----------------------
(State or other jurisdiction (Address of principal (I.R.S. Employer
of incorporation or executive offices) Identification Number)
organization)
INCENTIVE STOCK OPTION PLAN
OF
TRANSIT GROUP, INC.
CERTAIN OPTION ARRANGEMENTS BETWEEN
TRANSIT GROUP, INC.
AND CERTAIN EMPLOYEES, DIRECTORS AND CONSULTANTS
(Full title of the plans)
-------------------------
PHILIP A. BELYEW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TRANSIT GROUP, INC.
2859 PACES FERRY ROAD, SUITE 1740
ATLANTA, GEORGIA 30339
(770) 444-0240
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE(1)
- -------------------------- ------------------ ------------------- -------------------- -------------------
Common Stock, par value
$.01 per share 1,755,850 shares $1.58-$6.00 $6,013,361 $1,773.94
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (h)(1) and based on the price at which the options may
be exercised.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- ------ ---------------------------------------
The following documents filed by Transit Group, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996, filed with the Commission on May 1, 1997.
(b) The Company's Current Reports on Form 8-K and Form 8-K/A dated
January 7, 1997, February 21, 1997, March 24, 1997, June 10, 1997, July 11,
1997, August 27, 1997, August 29, 1997, September 12, 1997, September 24,
1997, November 4, 1997, November 12, 1997, January 13, 1998, February 10,
1998 and March 16, 1998;
(c) The Company's Form 10-QSB for the quarter ended March 31, 1997,
filed with the Commission on May 20, 1997;
(d) The Company's Form 10-QSB for the quarter ended June 30, 1997,
filed with the Commission on August 14, 1997;
(e) The Company's Form 10-QSB for the quarter ended September 30,
1997, filed with the Commission on November 14, 1997, as amended by Form
10-QSB/A filed with the Commission on February 10, 1998;
(f) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the
end of the period referred to in (a), above.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
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The authorized capital stock of the Company consists of 30,000,000
shares of common stock, par value $.01 per share (the "Common Stock"), and
5,000,000 shares of preferred stock, no par value per share (the "Preferred
Stock"). The holders of Common Stock are entitled to one vote for each share
held of record on all matters submitted to the vote of shareholders. In
general, the affirmative vote of the majority of shares present in person or
represented by proxy at a shareholders= meeting entitled to vote on the subject
matter is required for approval of corporate actions. However, the affirmative
vote of the holders of 51% of the outstanding shares of all classes of stock
entitled to vote is required for (a) amendment, alteration, change or repeal of
any provision of the Articles of Incorporation of the Company; (b)
reorganization, merger or consolidation of the Company; (c) sale, lease or
exchange of a major portion of the property or assets of the Company; or (d)
dissolution of the Company. The holders of Common Stock do not have cumulative
voting rights. Subject to any preferential rights held by holders of the
Preferred Stock, the holders of Common Stock are entitled to receive ratably
such dividends as may be declared from time to time by the Company Board of
Directors out of funds legally available therefor. In the event of the
liquidation, dissolution or winding up of the Company, holders of Common Stock
will be entitled to share ratably in all assets remaining after payment of
liabilities and the liquidation preference of outstanding Preferred Stock, if
any. Holders of Common Stock do not have preemptive, conversion or redemption
rights.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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The legality of the securities offered hereby has been passed upon by
the firm of Womble Carlyle Sandridge & Rice, PLLC, counsel to the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 607.0850 of the Florida Business Corporation Act (the "Act")
permits, and in some cases requires, the Company as a Florida corporation to
indemnify a director, officer, employee, or agent of the Company, or any person
serving at the request of the Company in any such capacity with respect to
another entity, against certain expenses and liabilities incurred as a party to
any proceeding, including, among others, a proceeding under the Securities Act
of 1933, as amended (the "Securities Act"), brought against such person by
reason of the fact that such person is or was a director, officer, employee, or
agent of the Company or is or was serving in such capacity with respect to
another entity at the request of the Company. With respect to actions, other
than in the right of the Company, such indemnification is permitted if such
person acted in good faith and in a manner such person reasonably believed to be
in, or not opposed to, the best interests of the Company, and with respect to
any criminal action or proceeding, if such person had no reasonable cause to
believe his or her conduct was unlawful. Termination of any such action by
judgment, order, settlement or conviction or a plea of nolo contendere, or its
equivalent shall not, of itself, create a presumption that such person did not
act in good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Company, or with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
With respect to any action threatened, pending or completed in the right of
the Company to procure a judgment in its favor against any such person, the
Company may indemnify any such person against expenses actually and reasonably
incurred by him or her in connection with the defense or settlement of such
action or suit, including the appeal thereof, if he or she acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to, the
best interests of the Company, except that no indemnification shall be made in
respect of any claim, issue or matter as to which any such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his or her duties to the Company unless the court in which the action was
brought determines that despite the adjudication of liability, but in view of
all the circumstances in the case, such person is fairly and reasonably entitled
to indemnity for such expenses.
Section 607.0850 of the Act also provides that if any such person has been
successful on the merits or otherwise in defense of any action, suit or
proceeding, whether brought in the right of the Company or otherwise, such
person shall be indemnified against expenses actually and reasonably incurred by
him or her in connection therewith.
If any director or officer does not succeed upon the merits or otherwise in
defense of an action, suit or proceeding, then unless pursuant to a
determination made by a court, indemnification by the Company shall be made only
as authorized in the specific case upon a determination that indemnification of
the director or officer is proper because he or she has met the applicable
standard of conduct. Any such determination may be made:
(a) By the Board of Directors by a majority vote of a quorum consisting of
Directors who are not parties to such action, suit, or proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by a majority
vote of a committee duly designated by the Board of Directors (in which
Directors who are parties may participate) consisting solely of two or more
Directors not at the time parties to the proceeding;
(c) By independent legal counsel selected by the Board of Directors prescribed
in paragraph (a) or the committee prescribed in paragraph (b); or if a quorum
of the Directors cannot be obtained for paragraph (a) or the committee cannot
be designated under paragraph (b) selected by a majority vote of the full
Board of Directors (in which Directors who are parties may participate); or
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(d) By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to the proceeding or, if no such quorum
is obtainable, by a majority vote of shareholders who were not parties to
such proceedings.
The indemnification provisions of the Company's Articles of Incorporation
and Bylaws are essentially identical to those set forth above, except that the
Company's Articles of Incorporation and Bylaws require, rather than permit, the
Company to advance expenses under the circumstances for such payments described
above. In addition, the Company's Bylaws provide that if any expenses or other
amounts are paid by way of indemnification other than by court order or action
by the shareholders or by an insurance carrier pursuant to insurance maintained
by the Company, then the Company shall, not later than the time of delivery to
shareholders of a written notice of the next annual meeting of shareholders
(unless such meeting is held within three months from the date of such payment)
and, in any event, within fifteen (15) months from the date of such payment,
deliver either personally or by United States mail to each shareholder of record
entitled to vote for the election of Directors a statement specifying the
persons paid, the amounts paid, and the nature and status (at the time of such
payment) of the litigation or threatened litigation.
Section 607.0850 of the Act also contains a provision authorizing
corporations to purchase and maintain liability insurance on behalf of its
Directors and officers. For some years the Company has maintained an insurance
policy which insures directors and officers of the Company against amounts the
director or officer is obligated to pay in respect of his legal liability,
whether actual or asserted, for any negligent act, any error, any omission or
any breach of duty which, subject to the applicable limits and terms of the
policy, include damages, judgments, settlements, costs of investigation, and
costs, charges and expenses incurred in the defense of actions, suits, or
proceedings or appeals thereto, subject to the exceptions, limitations and
conditions set forth in the policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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The following exhibits are filed as a part of this Registration
Statement:
NUMBER DESCRIPTION
------ -----------
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as to the
legality of the Common Stock being registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC, which is
contained in its opinion filed as Exhibit 5.
23.2 Consent of Price Waterhouse, LLP.
23.3 Consent of Grenadier, Collins, Mencke & Howard, LLP
24 Power of Attorney. (See signature page to the Registration
Statement.)
99.1 Incentive Stock Option Plan of Transit Group, Inc.
(incorporated by reference from Exhibit 10.2 to the Company's
Registration Statement on Form S-18 (Registration No. 33-
30123A)).
II-3
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ITEM 9. UNDERTAKINGS.
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(a) The Company 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
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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 Company 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
II-4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Transit
Group, Inc. 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 unincorporated Cobb County, State of Georgia, on this 31st
day of March, 1998.
TRANSIT GROUP, INC.
By: /s/ Philip A. Belyew
----------------------
Philip A. Belyew
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears on the signature pages to this Registration Statement constitutes and
appoints Philip A. Belyew and Wayne N. Nellums and each of them, his or her true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned, and in his or her name, place and stead, in
any and all capacities to sign any and all amendments, including post-effective
amendments, to this Registration Statement, to make such changes in the
Registration Statement as such attorneys-in-fact deems appropriate to file the
same, with all exhibits thereto and other documents in connection therewith with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents and each of them, full power and authority to do so and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on March 31, 1998.
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<CAPTION>
<S> <C>
/s/ Philip A. Belyew /s/ Wayne N. Nellums
- ------------------------ ------------------------------
Name: Philip A. Belyew Name: Wayne N. Nellums
Title: President, Chief Executive Officer Title: Executive Vice President
(principal executive officer) and Director and Chief Financial Officer
/s/ T. Wayne Davis /s/ Derek E. Dewan
- ------------------------ -----------------------------------
Name: T. Wayne Davis Name: Derek E. Dewan
Title: Chairman Title: Director
/s/ Carroll L. Fulmer /s/ Ford G. Pearson
- ------------------------ -----------------------------------
Name: Carroll L. Fulmer Name: Ford G. Pearson
Title: Director Title: Director
</TABLE>
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8 OF
TRANSIT GROUP, INC.
NUMBER DESCRIPTION
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5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as to the
legality of the Common Stock being registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC, which is
contained in its opinion filed as Exhibit 5.
23.2 Consent of Price Waterhouse, LLP
23.3 Consent of Grenadier, Collins, Mencke & Howard, LLP
24 Power of Attorney. (See signature page to the Registration
Statement.)
99.1 Incentive Stock Option Plan of Transit Group, Inc. (incorporated by
reference from Exhibit 10.2 to the Company's Registration
Statement on Form S-18 (Registration No. 33-30123A)).
<PAGE>
EXHIBIT 5
March 31, 1998
Transit Group, Inc.
2859 Paces Ferry Road
Suite 1740
Atlanta, Georgia 30339
Re: Registration Statement on Form S-8 with respect to the Issuance
of Shares Pursuant to the Incentive Stock Option Plan of Transit
Group, Inc. and Certain Option Arrangements between Transit
Group, Inc. and Certain Employees, Directors and Consultants
Ladies and Gentlemen:
We have served as counsel for Transit Group, Inc. (the "Company") in
connection with its registration under the Securities Act of 1933, as amended,
of 1,755,850 shares of its common stock, $.01 par value (the "Shares"), which
are proposed to be offered and sold pursuant to the grants of certain options
under the Incentive Stock Option Plan of Transit Group, Inc., as amended, and
certain compensatory option arrangements between Transit Group, Inc. and certain
employees, directors and consultants (collectively, the "Options"), and pursuant
to the Company's Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission") with respect to the Shares.
As to various questions of fact material to our opinion, we have
relied solely upon (i) an Officer's Certificate delivered to us by a Company
officer, and (ii) the representations of the directors, officers and managers of
the Company and of public officials. We have made no other inquiries.
In connection with the preparation of this opinion, we have only
reviewed those laws of the United States of America and the State of Georgia.
We are licensed to practice law in the State of Georgia and do not render any
opinion on the laws of any other state. Further, we have assumed for purposes
of this opinion that the laws of the State of Florida are identical in substance
and effect to the laws of the State of Georgia. Accordingly, this opinion is
based solely upon such laws. In rendering opinions as to future events, we have
assumed the facts and law existing on the date hereof.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the Shares
have been duly authorized and, upon issuance pursuant to the terms of the
respective Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement.
WOMBLE CARLYLE SANDRIDGE & RICE
A Professional Limited Liability Company
/s/ Womble Carlyle Sandridge & Rice
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<PAGE>
EXHIBIT 23.2
[LOGO OF PRICE WATERHOUSE APPEARS HERE]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 14, 1997, which appears on page
24 of Form 10-KSB for Transit Group, Inc. for the year ended December 31, 1996.
/s/Price Waterhouse LLP
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Price Waterhouse LLP
Atlanta, Georgia
March 26, 1998
<PAGE>
EXHIBIT 23.3
[LETTERHEAD OF GRENADIER, APPLEBY, COLLINS & COMPANY APPEARS HERE]
ACCOUNTANTS CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 6, 1996, which appears on page
25 of Form 10-KSB for Transit Group, Inc. for the year ended December 31, 1995.
/s/ Grenadier, Appleby, Collins & Company
- -----------------------------------------
Grenadier, Appleby, Collins & Company
Jacksonville, Florida
March 26, 1998
