AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1999
REGISTRATION NO. 333-
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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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SWIFT TRANSPORTATION CO., INC.
(Exact name of registrant as specified in charter)
NEVADA 86-0666860
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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2200 SOUTH 75TH AVENUE, PHOENIX, ARIZONA 85043
(Address of Principal Executive Office) (Zip Code)
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SWIFT TRANSPORTATION CO., INC.
1999 STOCK OPTION PLAN
(Full title of plan)
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JERRY C. MOYES, PRESIDENT
SWIFT TRANSPORTATION CO., INC.
2200 SOUTH 75TH AVENUE
PHOENIX, ARIZONA 85043
(Name and address of agent for service)
(602) 269-9700
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE(2) FEE
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 750,000 $16.375 $12,281,250 $3,414.19
$0.001 par value
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</TABLE>
(1) In the event of a stock split, stock dividend, or similar transaction
involving the Registrant's Common Stock, in order to prevent dilution,
the number of shares registered shall be automatically increased to
cover the additional shares in accordance with Rule 416(a) under the
Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933, on the basis of the average of the high and low prices of
the Registrant's Common Stock on June 17, 1999.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to participants in accordance with Form S-8 and Rule
428 under the Securities Act of 1933 (the "Securities Act"). These documents and
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Swift Transportation Co.,
Inc. (the "Registrant") with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934 and are hereby incorporated by reference
into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999; and
(c) The description of the Registrant's capital stock contained in
the Registrant's Registration Statement on Form 8-A.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement 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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada General Corporation Law requires the Registrant to indemnify
officers and directors for any expenses incurred by any officer or director in
connection with any actions or proceedings, whether civil, criminal,
administrative, or investigative, brought against such officer or director
because of his or her status as an officer or director, to the extent that the
director or officer has been successful on the merits or otherwise in defense of
the action or proceeding. The Nevada General Corporation Law permits a
corporation to indemnify an officer or director, even in the absence of an
agreement to do so, for expenses incurred in connection with any action or
proceeding if such officer of director acted in good faith and in a manner in
which he or she reasonably believed to be in or not opposed to the best
interests of the corporation and such indemnification is authorized by the
stockholders, by a quorum of disinterested directors, by independent legal
counsel in a written opinion authorized by a majority vote of a quorum of
directors consisting of disinterested directors or by independent legal counsel
in a written opinion if a quorum of disinterested directors cannot be obtained.
The Nevada General Corporation Law prohibits indemnification of a director or
officer if a final adjudication establishes that the officer's or director's
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and were material to the cause of action. Despite the foregoing
limitations on indemnification, the Nevada General Corporation Law may permit an
officer or director to apply to the court for approval of indemnification even
if the officer or director is adjudged to have committed intentional misconduct,
fraud or a knowing violation of the law. The Nevada General Corporation Law also
provides that indemnification of directors is not permitted for the unlawful
payment of distributions, except for those directors registering their dissent
to the payment of the distribution.
The Registrant's Articles of Incorporation eliminate personal liability
of directors or officers for any expenses, claims, damages or liability incurred
by reason of their position in the Registrant to the fullest
extent allowed under the Nevada General Corporation Law.
The Registrant's Bylaws provide that the Registrant shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he or she was or is a director, officer, employee or agent of the
Registrant. In addition, the Registrant's Bylaws provide that the Registrant
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Registrant by reason of the fact that he or she was or is a director,
officer, employee or agent of the Registrant against expenses, actually and
reasonably incurred if he or she acted in good faith, unless adjudged liable to
the Registrant. Further, the Registrant's Bylaws provide that to the extent that
a director, officer, employee or agent of the Registrant has been successful on
the merits or otherwise, in defense of any action, suit or proceeding referred
to above or in defense of any claim, matter or issue therein, he or she shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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ITEM 8. EXHIBITS.
Exhibit No. Description
----------- -----------
4.1 Amended and Restated Articles of Incorporation of the
Registrant (Incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-8 (Registration
No. 333-85940)).
4.2 Bylaws of the Registrant (Incorporated by reference to Exhibit
3.2 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-66034)).
4.3 Swift Transportation Co., Inc. 1999 Stock Option Plan
(Incorporated by reference to the Registrant's Notice and
Proxy Statement for its 1999 Annual Meeting of Stockholders).
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of Snell & Wilmer L.L.P. (included as part of Exhibit
5).
24 Power of Attorney (included in signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(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 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
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aggregate, the changes in volume and price represent no
more than 20 percent 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 (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is
on Form S-3, 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
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
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 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 such Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Phoenix, State of Arizona, on June 23, 1999.
SWIFT TRANSPORTATION CO., INC., a Nevada
corporation
By: /s/ Jerry C. Moyes
------------------------------------
Jerry C. Moyes
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Swift Transportation Co.,
Inc., hereby severally constitute and appoint Jerry C. Moyes and William F.
Riley, III, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names and in the
capacities indicated below, all pre-effective and post-effective amendments to
this registration statement, and generally to do all things in our names and on
our behalf in such capacities to enable Swift Transportation Co., Inc. to comply
with the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission.
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.
Name and Signature Title Date
- ------------------ ----- ----
/s/ Jerry C. Moyes Chairman of the Board, President June 23, 1999
- ------------------------ and Chief Executive Officer
Jerry C. Moyes (Principal Executive Officer)
/s/ William F. Riley, III Executive Vice President, June 23, 1999
- ------------------------ Secretary, Chief Financial Officer
William F. Riley, III and Director (Principal Accounting
and Financial Officer)
/s/ Rodney K. Sartor Executive Vice President and June 23, 1999
- ------------------------ Director
Rodney K. Sartor
/s/ Alphonse E. Frei Director June 23, 1999
- ------------------------
Alphonse E. Frei
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/s/ Lou A. Edwards Director June 23, 1999
- ------------------------
Lou A. Edwards
/s/ Earl H. Scudder, Jr. Director June 23, 1999
- ------------------------
Earl H. Scudder, Jr.
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EXHIBIT INDEX
Exhibit Number Description Page or Method of Filing
- -------------- ----------- ------------------------
4.1 Amended and Restated Incorporated by reference to
Articles of Incorporation of Exhibit 4.1 of the
the Registrant Registrant's Registration
Statement on Form S-8
(Registration No. 333-85940)
4.2 Bylaws of the Registrant Incorporated by reference to
Exhibit 3.2 of the
Registrant's Registration
Statement on Form S-3
(Registration No. 33-66034)
4.3 Swift Transportation Co., Inc. Incorporated by reference to
1999 Stock Option Plan the Registrant's Notice and
Proxy Statement for its 1999
Annual Meeting of
Stockholders
5 Opinion of Snell & Wilmer Filed herewith
L.L.P.
23.1 Consent of KPMG LLP Filed herewith
23.2 Consent of Snell & Wilmer Included in Exhibit 5
L.L.P.
24 Power of Attorney Included in signature page
June 23, 1999
Swift Transportation Co., Inc.
2200 South 75th Avenue
Phoenix, Arizona 85043
RE: SWIFT TRANSPORTATION CO., INC. 1999 STOCK OPTION PLAN
Ladies and Gentlemen:
We have acted as counsel to Swift Transportation Co., Inc., a Nevada
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933,
relating to the registration of 750,000 shares of its Common Stock, $0.001 par
value (the "Shares"), issuable pursuant to the Company's 1999 Stock Option Plan
(the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Articles of Incorporation
and the Bylaws of the Company.
Based upon the foregoing, we are of the opinion that:
(1) The Company has been duly organized and is validly existing as
a corporation under the laws of the State of Nevada.
(2) The Shares, when issued and sold in accordance with the terms
of the Plan, will be validly issued, fully paid, and
nonassessable.
The opinions expressed herein are limited solely to the Nevada General
Corporation Law. We express no opinion on the laws of any other jurisdiction or
the applicability or effect of any such laws or
principles.
The opinions expressed herein are based upon the law and the other
matters in effect on this date hereof, and we assume no obligation to review or
supplement this opinion should such law be changed by legislative action,
judicial decision, or otherwise, or should any facts or other matters upon which
we have relied be changed.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Snell & Wilmer L.L.P.
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Swift Transportation Co., Inc.:
We consent to the use of our report dated February 12, 1999, except as to Note
18 which is as of March 15, 1999, incorporated herein by reference.
KPMG LLP
Phoenix, Arizona
June 23, 1999
