As filed with the Securities and Exchange Commission on October 23,
1996
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
CELADON GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
13-3276138
(I.R.S. Employer Identification Number)
9503 East 33rd Street,
One Celadon Drive
Indianapolis, Indiana 46236-4207
(317) 972-7000
(Address of Principal Executive Offices)
Celadon Group, Inc. Employee Stock Purchase Plan
(Full Title of the Plan)
Don S. Snyder
Celadon Group, Inc.
9503 East 33rd Street
One Celadon Drive
Indianapolis, Indiana 46236-4207
(Name and Address of Agent For Service)
(317) 972-7033
(Telephone Number, Including Area Code, of Agent For Service)
_________________________________
Copies of all communications to:
Arnold S. Jacobs, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
_________________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount maximum maximum Amount
securities to be offering aggregate of
to be registered price per offering Registration
registered (1) share (2) price(2) Fee(2)
Common 250,000 $7.70 $1,925,781.25 $583.57
Stock par shares
value $.033
per share
(1) The maximum number of shares which may be purchased under the
Celadon Group, Inc. Employee Stock Purchase Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) on the basis of 85% of the
average of the high and low prices of the Common Stock as reported
on the NASDAQ National Market on October 16, 1996. Under the Plan,
employees will purchase shares of Common Stock at a price equal to
85% of the actual purchase price of a share of Common Stock on a
particular date, net of commissions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange
Commission by Celadon Group, Inc., a Delaware corporation (the
"Corporation" or the "Registrant"), are incorporated herein by
reference:
(1) The Corporation's Annual Report filed on Form 10-K for the
fiscal year ended June 30, 1996.
(2) All documents subsequently filed by the Corporation pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicated that all remaining securities
offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in
the registration statement and to be part thereof from the date of
filing such documents. Any statement in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any
other 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.
(3) The description of the Corporation's Common Stock, par value
$.033 per share, contained in the Company's Registration Statement
filed on Form 8-A pursuant to Section 12 of the Securities Exchange
Act of 1934.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 1(d) of the Plan provides that the Compensation Committee
of the Corporation's board of directors or such other committee as
may be appointed by the Corporation's board of directors to
administer the Plan (the "Committee"), the Committee's members, and
any employee or professional advisor designated by the Committee to
assist in the administration of the Plan shall not be liable for
any action or determination of the Plan. Section 1(d) further
provides that the Corporation or a subsidiary of the Corporation
(as defined under Section 424(f) of the Internal Revenue Code of
1986, as amended (an "Affiliate"), as the case may be, will, to the
fullest extent permitted by law and the certificate of
incorporation and bylaws of the Company or Affiliate, and to the
extent not covered by insurance, indemnify each director, officer
or employee of the Corporation or an Affiliate (including the
heirs, executors, administrators and other personal representatives
of such person) and each member of the Committee against all
expenses, costs, liabilities and losses (including attorneys' fees,
judgments, fines, excise taxes or penalties, and amounts paid or to
be paid in settlement) actually and reasonably incurred by such
person in connection with any threatened, pending or actual suit,
action or proceeding (whether civil, criminal, administrative or
investigative in nature or otherwise) in which such person may be
involved by reason of the fact that he or she is or was serving the
Plan in any capacity at the request of the Corporation, except in
instances where any such person engages in willful neglect or
fraud. Such right of indemnification includes the right to be paid
by the Corporation for expenses incurred or reasonably anticipated
to be incurred in defending any such suit, action or proceeding in
advance of its disposition; provided, however, that the payment of
expenses in advance of the settlement or final disposition of a
suit, action or proceeding, will be made only upon delivery to the
Corporation of an undertaking by or on behalf of such person to
repay all amounts so advanced if it is ultimately determined that
such person is not entitled to be indemnified hereunder. Such
indemnification is in addition to any rights of indemnification the
person may have as a director, officer or employee or under the
certificate of incorporation or the bylaws of the Corporation.
Pursuant to Section 145 of the Delaware General Corporation Law,
the Corporation's certificate of incorporation provides that the
Corporation will, to the full extent permitted by law, indemnify
all directors, officers, incorporators, employees, or agents of the
Corporation against liability for certain of their acts. The
Corporation's certificate of incorporation provides that, with a
number of exceptions, no director of the Corporation will be liable
to the Corporation for damages for breach of his fiduciary duty as
a director.
Article TENTH of the Corporation's certificate of incorporation
provides that the Corporation will, to the full extent permitted by
law or to the full extent that a court of competent jurisdiction
shall deem proper or permissible under the circumstances, whichever
is greater, indemnify all directors, officers, incorporators,
employees, or agents of the Corporation. Article ELEVENTH of the
Corporation's certificate of incorporation provides that no
director of the Corporation shall be liable to the Corporation for
breach of fiduciary duty as a director except (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of the law, (iii) for
the unlawful payment of dividends on or redemption of the
Corporation's capital stock or (iv) for any transaction from which
the director derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Corporation (incorporated
by reference to Exhibit 3.1 to the Corporation's Registration
Statement on Form S-1 (Registration No. 33-72128))
4.2 Bylaws of the Corporation (incorporated by reference to
Exhibit 3.2 to the Corporation's Registration Statement on Form S-1
(Registration No. 33-72128))
4.3 Employee Stock Purchase Plan of the Registrant
5 Opinion of Proskauer Rose Goetz & Mendelsohn LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP (included in
Exhibit 5)
24 Powers of Attorney (included on page II-5)
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 and 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 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 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
the 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 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 the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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
Indianapolis, Indiana, on October 18, 1996.
CELADON GROUP, INC.
By: /s/ Stephen Russell
Name: Stephen Russell
Title: President and Chief
Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Stephen Russell and Don S.
Snyder, or either of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, to act,
without the other, for him and in his name, place, and stead, in
any and all capacities, to sign a Registration Statement on Form
S-8 of Celadon Group, Inc., and any or all amendments (including
post-effective amendments) thereto, relating to the registration,
under the Securities Act of 1933, as amended, of shares of Common
Stock of the Corporation to be issued pursuant to the Corporation's
Employee Stock Purchase Plan and 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 full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as full to all intents and purposes
as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, their
substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signatures Title Date
/s/ Stephen Russell Chairman of the Board, October 18, 1996
Stephen Russell President and Chief
Executive Officer
/s/ Don S. Snyder Executive Vice October 18, 1996
Don S. Snyder President/Chief
Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Paul A. Biddelman Director October 18, 1996
Paul A. Biddelman
/s/ Michael Miller Director October 18, 1996
Michael Miller
/s/ Kilin To Director October 18, 1996
Kilin To
Exhibit 4.3
CELADON GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
Effective November 1, 1996
CELADON GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
Effective November 1, 1996
Table of Contents
Section Title Page
1. Administration . . . . . . . . . . . . . . . . . . .1
2. Eligibility. . . . . . . . . . . . . . . . . . . . 3
3. Participation. . . . . . . . . . . . . . . . . . . 3
4. Deductions . . . . . . . . . . . . . . . . . . . . 3
5. Deduction Changes and Plan Withdrawals . . . . . . 4
6. Purchase of Shares . . . . . . . . . . . . . . . . 5
7. Dividends. . . . . . . . . . . . . . . . . . . . . 5
8. Stock. . . . . . . . . . . . . . . . . . . . . . . 5
9. Issuance of Certificates. . . . . . . . . . . . . 6
10. Registration of Certificates.. . . . . . . . . . . 6
11. Rights as a Stockholder. . . . . . . . . . . . . . 6
12. Retirement, Death, Disability, Section 16
Applicability, Leave of Absence or Other
Termination of Employment. . . . . . . . . . . . .6
13. Withholding. . . . . . . . . . . . . . . . . . . . 8
14. Rights Not Transferable. . . . . . . . . . . . . . 8
15. Application of Funds . . . . . . . . . . . . . . . 8
16. Adjustment in Case of Changes Affecting
Common Stock . . . . . . . . . . . . . . . . . . 8
17. Amendment of the Plan . . . . . . . . .. . . . . . 8
18. Termination of the Plan . . . . . . . . . . . . . 8
19. Governmental Regulations. . . . . . . . . . . . . .9
20. Plan Share Purchases . . . . . . . . . . . . . . . 9
21. No Employment Rights. . . . . . . . . . . . . . . 9
22. Notices . . . . . . . . . . . . . . . . . . . . . . 9
23. Severability of Provisions. . . . . . . . . . . . . 9
24. Headings and Captions . . . . . . . . . . . . . . 9
25. Approval of Board . . . . . . . . . . . . . . . . 10
26. Controlling Law . . . . . . . . . . . . . . . . . . 10
CELADON GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
Effective November 1, 1996
The purpose of the Celadon Group, Inc. Employee Stock Purchase
Plan (the "Plan") is to encourage and facilitate employee stock
ownership by providing a continuing opportunity to purchase the
common stock, par value $.033, (the "Common Stock") of Celadon
Group, Inc. (the "Company") at a discount through payroll
deductions. The Plan is not intended to be qualified under Section
423 of the Internal Revenue Code of 1986, as amended (the "Code").
1. Administration
(a) The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (the "Board") or
such other committee consisting of directors or other persons as
may be appointed by the Board (the "Committee").
(b) The Committee shall have full authority to interpret the
Plan; to establish, amend, and rescind rules for carrying out the
Plan; to administer the Plan; and to make all other determinations
and to take such steps in connection with the Plan as the
Committee, in its sole discretion, deems necessary or desirable for
administering the Plan.
(c) The Committee may designate other employees of the
Company and professional advisors to assist the Committee in the
administration of the Plan and may grant authority to such other
employees to execute agreements or other documents on behalf of the
Committee.
(d) The Committee may employ such legal counsel, consultants,
brokers and agents as it may deem desirable for the administration
of the Plan and may rely upon any opinion received from any such
counsel or consultant and any computation received from any such
consultant, broker or agent. The Committee, its members and any
person designated pursuant to paragraph (c) above shall not be
liable for any action or determination made in good faith with
respect to the Plan. The Company or an Affiliate (as defined in
section 2), as the case may be, shall, to the fullest extent
permitted by law and the certificate of incorporation and bylaws of
the Company or Affiliate and, to the extent not covered by
insurance, indemnify each director, officer or employee of the
Company or an Affiliate (including the heirs, executors,
administrators and other personal representatives of such person)
and each member of the Committee against all expenses, costs,
liabilities and losses (including attorneys' fees, judgments,
fines, excise taxes or penalties, and amounts paid or to be paid in
settlement) actually and reasonably incurred by such person in
connection with any threatened, pending or actual suit, action or
proceeding (whether civil, criminal, administrative or
investigative in nature or otherwise) in which such person may be
involved by reason of the fact that he or she is or was serving
this Plan in any capacity at the request of the Company, except in
instances where any such person engages in willful neglect or
fraud. Such right of indemnification shall include the right to be
paid by the Company for expenses incurred or reasonably anticipated
to be incurred in defending any such suit, action or proceeding in
advance of its disposition; provided, however, that the payment of
expenses in advance of the settlement or final disposition of a
suit, action or proceeding, shall be made only upon delivery to the
Company of an undertaking by or on behalf of such person to repay
all amounts so advanced if it is ultimately determined that such
person is not entitled to be indemnified hereunder. Such
indemnification shall be in addition to any rights of
indemnification the person may have as a director, officer or
employee or under the certificate of incorporation or the bylaws of
the Company. Expenses incurred by the Committee or the Board in
the engagement of any such counsel, consultant or agent shall be
paid by the Company.
(e) Except with respect to brokerage fees and commissions
charged for the sale of shares of Common Stock and any fees charged
for certificates of shares of Common Stock, all other costs, fees
and expenses involved in administering the Plan as provided herein,
or incident thereto, including without limitation, brokerage fees
and commissions charged for the purchase of shares of Common Stock,
shall be borne by the Company. Employees shall be fully
responsible for (i) any brokerage fees and commissions charged for
the sale of shares of Common Stock (ii) any fees for certificates
of shares of Common Stock and (iii) any taxes owed by them as a
result of participation in the Plan, including without limitation,
taxes owed on the discount given hereunder.
(f) All determinations by the Committee with respect to the
administration of the Plan shall be in the sole discretion of the
Committee based on this Plan document and other relevant documents,
and all such determinations shall be final and binding upon all
interested parties, including the employee, the employee's
executor, administrator or other personal representative or
designated beneficiary, and the Company.
(g) The Committee shall designate an agent (the "Agent") to
administer the Plan, purchase and sell shares of Common Stock in
accordance with the Plan, keep records, send statements of account
to employees and to perform other duties relating to the Plan, as
the Committee may request from time to time. The initial Agent for
the Plan is Furman Selz Incorporated.
2. Eligibility
All employees of the Company and all employees of any
Affiliate designated by the Board to participate in the Plan, who
are employed within the United States and who are normally and
regularly scheduled to work at least thirty (30) hours per week
shall be eligible to participate in the Plan after completing 120
days of continuous service with the Company or Affiliate in
accordance with the terms hereof and such rules as may be
prescribed from time to time ("Eligible Employees"). Temporary
employees, seasonal employees, employees employed by the Company or
Affiliate outside of the United States, persons subject to Section
16 of the Securities Exchange Act of 1934 (the "Exchange Act"), and
employees whose employment is governed by the terms of a collective
bargaining agreement between employee representatives (within the
meaning of Code Section 7701(a)(46)) and the Company or an
Affiliate (except to the extent that the collective bargaining
agreement expressly provides for the inclusion of such employees)
are not eligible to participate in the Plan. "Affiliate" shall
mean a subsidiary corporation as defined under Code Section 424(f).
3. Participation
An Eligible Employee may participate in the Plan by completing
and forwarding a payroll deduction authorization form to the
Company's Human Resources Department. The form shall authorize a
payroll deduction from the Eligible Employee's compensation each
payroll period, which shall become effective on the payroll date
coincident with or next following the first Enrollment Date
following the ten (10) day period (or such other time period as the
Human Resources Department may from time to time set) after the
Human Resources Department receives the form from the Eligible
Employee. Notwithstanding the foregoing, any employee who is an
Eligible Employee on the Effective Date and who elects to
participate in the Plan commencing on the Effective Date, may
participate in the Plan as soon as practicable without regard to
the ten (10) day notice period. "Enrollment Date" shall mean
January 1 and July 1 of each calendar year.
4. Deductions
The Company shall maintain payroll deduction accounts for all
participating employees. An Eligible Employee may authorize a
payroll deduction in a designated percentage of the Eligible
Employee's Compensation that he or she receives each payroll
period, up to a maximum of the lesser of ten percent (10%) of
Compensation or twenty-five thousand dollars ($25,000) per year.
Amounts deducted shall equal at least one percent (1%) of
Compensation for each payroll period. In no event shall interest
be credited to employees' accounts.
"Compensation" means all cash wages paid to an employee by the
Company or an Affiliate, including salary, overtime, bonuses, and
other lump sum payments. Compensation shall not include any
imputed income or contributions by the Company or an Affiliate to,
or benefits paid under, any pension, profit-sharing, fringe
benefit, group insurance or other employee welfare plan heretofore
or hereafter adopted or any deferred compensation arrangement or
amounts paid or accrued as severance pay.
5. Deduction Changes and Plan Withdrawals
(a) Change of Election. An Eligible Employee may increase or
decrease his or her payroll deduction, effective as of the payroll
date following the next Enrollment Date, by timely filing a new
payroll deduction authorization form with the Human Resources
Department at least ten (10) days (or such other period of time as
the Human Resources Department may from time to time prescribe)
prior to such Enrollment Date.
(b) Hardship Withdrawals. In the event an Eligible Employee
makes a hardship withdrawal of employee deferral (401(k))
contributions under the Company's or an Affiliate's 401(k) Profit
Sharing Plan or any other plan qualified under Section 401(a) of
the Code that contains a Section 401(k) feature, such Eligible
Employee's payroll deductions and the purchase of shares of Common
Stock shall be suspended until the first payroll period following
the Enrollment Date commencing after the twelve (12) month period
after such hardship withdrawal. If an Eligible Employee who elects
a hardship withdrawal under the Company's or Affiliate's 401(k)
Profit Sharing Plan or such other plan has a cash balance
accumulated in his or her account at the time of withdrawal that
has not already been applied to purchase shares of Common Stock,
such cash balance shall be returned to the employee as soon as
administratively practicable.
(c) Voluntary Suspension. An Eligible Employee may at any
time upon ten (10) days' notice to the Human Resources Department
(or such other period of time as the Human Resources Department may
from time to time prescribe), and for any reason, suspend
participation in the Plan, which shall become effective on the
first payroll date coincident with or next following the ten (10)
day period (or such other period of time as the Human Resources
Department may from time to time prescribe). Any cash balance
accumulated in his or her account that has not already been applied
to purchase shares shall be returned to the Eligible Employee as
soon as administratively feasible. An Eligible Employee who
suspends participation may thereafter begin participation again on
any Enrollment Date following the date of suspension.
(d) Automatic Suspension. An Eligible Employee's
participation in the Plan with regard to future payroll deductions
shall be automatically suspended upon any of the following events:
(i) the employee is no longer an Eligible Employee;
(ii) the employee becomes Disabled;
(iii) the employee is on a Leave of Absence;
(iv) the employee retires;
(v) the employee dies;
(vi) the employee terminates employment for any other
reason, or
(vii) the employee (or any other person whose stock
would be attributed to such employee pursuant to Section 424(d) of
the Code) would own stock and/or hold outstanding options to
purchase stock possessing five percent (5%) or more of the total
combined voting power of value of all classes of stock of the
Company or an Affiliate or a parent corporation, as defined under
Section 424(e) of the Code.
"Disability" or "Disabled" shall mean a permanent and total
disability as defined under Section 22(e)(3) of the Code. A "Leave
of Absence" shall be determined by the usual policies of the
Company or Affiliate.
6. Purchase of Shares
Amounts credited to an Eligible Employee's account as of the
last trading day of each calendar quarter shall be applied to
purchase fully paid and non-assessable whole and/or fractional
shares of Common Stock for the account of that Eligible Employee at
a purchase price equal to eighty-five percent (85%) of Fair Market
Value as of the day of purchase. If all or any portion of the
shares cannot reasonably be purchased on the last trading day of
any calendar quarter in the sole discretion of the Committee
because of availability or any other reason, such purchase shall be
made as soon thereafter as feasible. The Eligible Employee's
account shall be charged for the amount of the purchase, and the
ownership of such share or shares shall be appropriately evidenced
on the books of the Company. "Fair Market Value" shall mean the
actual purchase price of a share of Common Stock on a particular
date, net of commissions.
7. Dividends
Cash dividends, if any, on shares of Common Stock acquired
through the Plan for which certificates have not been issued will
be automatically paid by check directly to the Eligible Employee by
the Company's transfer agent. Cash dividends on shares of Common
Stock acquired through the Plan for which certificates have been
issued will not be administered by the Plan.
8. Stock
The maximum number of shares of Common Stock which shall be
reserved for sale under the Plan shall be 250,000. Purchases of
Common Stock under the Plan shall be made by the Agent on the open
market, or in the sole discretion of the Committee, may be made by
the Company's delivery of treasury shares or newly-issued and
authorized shares to the Plan, upon such terms as the Committee may
approve.
9. Issuance of Certificates
Certificates for whole shares of Common Stock shall not be
issued to Eligible Employees unless and until requested. A fee
fixed by the Agent shall be charged for certificates of shares of
Common Stock and for the replacement of lost certificates.
Certificates for a fractional share shall not be issued under any
circumstance. If an Eligible Employee requests certificates for
whole shares of Common Stock, any fractional share of Common Stock
shall remain in the Eligible Employee's account during his or her
employment, unless he or she requests cash in lieu of the
fractional share.
10. Registration of Certificates
Certificates may be registered upon initial issuance only in
the name of the Eligible Employee.
11. Rights as a Stockholder
None of the rights or privileges of a stockholder of the
Company shall exist with respect to shares of Common Stock
purchased under the Plan unless and until such shares shall have
been appropriately evidenced on the books of the Company.
12. Retirement, Death, Disability, Section 16 Applicability, Leave
of Absence or Other Termination of Employment
(a) Termination of Employment or Application of Section 16 of
the Exchange Act (Other Than Disability or Leave or Absence Prior
to Termination of Employment). Subject to such notice requirements
as the Committee may from time to time prescribe, in the event of
an Eligible Employee's retirement, death, or other termination of
employment or in the event an Eligible Employee becomes subject to
the requirements of Section 16 of the Exchange Act: (i) no further
payroll deductions shall be taken from any payroll checks paid to
such Eligible Employee on or after his or her retirement, death or
other termination of employment or date upon which he or she became
subject to the requirements of Section 16 of the Exchange Act; (ii)
no further shares of Common Stock shall be purchased for the
account of the Eligible Employee; (iii) any cash balance
accumulated in the Eligible Employee's account shall be paid to the
Eligible Employee or, in the event of the Eligible Employee's
death, to the Eligible Employee's estate; and (iv) any dividends
paid on shares of Common Stock on or after such Eligible Employee's
retirement, death, other termination of employment or date upon
which he or she became subject to the requirements of Section 16 of
the Exchange Act shall be distributed to such Eligible Employee as
a cash dividend. Nothing in this paragraph shall be deemed to
prevent an Eligible Employee who becomes ineligible due to
retirement, other termination of employment or applicability of
Section 16 of the Exchange Act from becoming eligible again under
Section 2 after returning to work.
(b) Disability or Leave of Absence Prior to Termination of
Employment. Subject to such notice requirements as the Committee
may from time to time prescribe, in the event of an Eligible
Employee's Disability or Leave of Absence, payroll deductions shall
only be taken from pay that is due and owing to the Eligible
Employee. To the extent that any cash balance has accumulated in
the Eligible Employee's account, such balance shall be used to
purchase shares of Common Stock on the last trading day of the
calendar quarter or such other day as the Committee determines.
With respect to an Eligible Employee who becomes ineligible to
participate due to a Disability or Leave of Absence, shares of
Common Stock held in such Eligible Employee's accounts shall
continue to be held in the Eligible Employee's account unless he or
she elects otherwise under paragraph (c) below. In the event that
such employee's Disability or Leave of Absence ends and such
employee returns to work as an Eligible Employee, payroll
deductions shall resume automatically in accordance with his or her
most recent authorization form in effect prior to the Disability or
Leave of Absence, unless he or she elects otherwise. Paragraph (a)
above shall apply to any termination of employment following an
Eligible Employee's Disability or Leave of Absence.
(c) Treatment of Common Stock Upon Termination of Employment.
With respect to Eligible Employees who are not persons subject to
Section 16 of the Exchange Act, such Eligible Employees shall elect
one (or a combination) of the following alternatives upon
termination of employment (other than Disability or Leave of
Absence):
(i) the Eligible Employee may request the Agent to sell
all or a portion of shares of Common Stock for which certificates
have not been issued and receive cash for such shares, subject to
any brokerage fees or commissions; or
(ii) receive certificates, without charge, for all or a
portion of the whole shares of Common Stock and cash in lieu of any
fractional shares of Common Stock.
If such Eligible Employee does not make an election
regarding the treatment of his or her shares within the time period
prescribed by the Committee, such Eligible Employee shall
automatically receive certificates, without charge, for all whole
shares of Common Stock and cash in lieu of any fractional shares of
Common Stock.
An Eligible Employee who becomes ineligible to
participate due to Disability or Leave of Absence may elect one (or
a combination) of the above alternatives at any time on or after
his or her Disability or Leave of Absence.
(d) Treatment of Common Stock Upon Application of Section 16
of the Exchange Act or Section 5(d)(vii) of the Plan. If an
Eligible Employee becomes subject to Section 16 of the Exchange Act
or Section 5(d)(vii) of the Plan, the employee shall receive, at
such time he or she becomes subject to Section 16 of the Exchange
Act or Section 5(d)(vii) of the Plan, certificates, without charge,
for all or a portion of the whole shares of Common Stock and cash
in lieu of any fractional shares of Common Stock.
13. Withholding
The Company shall have the right to make such provisions as it
deems necessary or appropriate to satisfy any obligations to
withhold federal, state or local income or other taxes incurred by
reason of the issuance of shares of Common Stock pursuant to the
Plan.
14. Rights Not Transferable
Rights under the Plan are not transferable by an Eligible
Employee other than by will or the laws of descent and
distribution, and are exercisable during the Eligible Employee's
lifetime only by the Eligible Employee or his or her guardian or
legal representative.
15. Application of Funds
All funds received or held by the Company under the Plan may
be used for any corporate purpose.
16. Adjustment in Case of Changes Affecting Common Stock
In the event of any change affecting Common Stock, such as
stock splits or stock dividends, such adjustment shall be made as
may be deemed equitable by the Board to give proper effect to such
event and as required by applicable law.
17. Amendment of the Plan
The Board may at any time, or from time to time, amend the
Plan in any respect.
18. Termination of the Plan
The Plan and all rights of employees under the Plan shall
terminate at any time at the discretion of the Board. Upon
termination of the Plan, (a) certificates for whole shares of
Common Stock held in an Eligible Employee's account under the Plan
shall be issued, without charge; (b) a cash payment shall be made
in lieu of any fractional shares of Common Stock; and (c) all cash
balances accumulated in the accounts of Eligible Employees shall be
promptly refunded.
19. Governmental Regulations
The Company's obligation to sell and deliver Common Stock
under the Plan is subject to all applicable laws and regulations,
including the receipt of any approval of any governmental authority
required in connection with the authorization, issuance, or sale of
such shares of Common Stock.
20. Plan Share Purchases
Purchases of outstanding shares of Common Stock may be made
pursuant to and on behalf of the Plan, upon such terms as the
Committee may approve, for delivery under the Plan. Shares
delivered under the Plan may also be treasury shares or newly
issued shares.
21. No Employment Rights
The establishment and operation of this Plan shall not confer
any legal rights upon any employee or other person for a
continuation of employment, nor shall it interfere with the rights
of the Company or an Affiliate to discharge any employee and to
treat him or her without regard to the effect which that treatment
might have upon him or her as an Eligible Employee or potential
Eligible Employee under the Plan.
22. Notices
Each Eligible Employee shall be responsible for furnishing the
Agent and the Human Resources Department with the current and
proper address for the mailing of notices and the delivery of other
information. Any notice required or permitted to be given shall be
deemed given if directed to the person to whom addressed at such
address and mailed by regular United States mail, first-class and
prepaid. If any item mailed to such address is returned as
undeliverable to the addressee, mailing will be suspended until the
Eligible Employee furnishes the proper address.
23. Severability of Provisions
If any provision of the Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof, and the Plan shall be construed and
enforced as if such provisions had not been included.
24. Headings and Captions
The headings and captions herein are provided for reference
and convenience only, shall not be considered part of the Plan, and
shall not be employed in the construction of the Plan.
25. Approval of Board
The Plan shall not be effective unless and until approved by
the Board.
26. Controlling Law
This Plan shall be construed and enforced according to the
laws of the State of Delaware (without giving effect to conflict of
law rules).
Exhibit 5
October 21, 1996
Board of Directors of Celadon Group, Inc.
One Celadon Drive
Indianapolis, Indiana 46236-4207
Dear Sirs:
We are acting as counsel to Celadon Group, Inc., a Delaware
corporation (the "Company"), in connection with the Registration
Statement on Form S-8 with exhibits thereto (the "Registration
Statement") filed by the Company under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, relating to
the registration of 250,000 shares (the "Shares") of Common Stock,
par value $.01 per share, of the Company. The Shares are to be
issued by the Company in connection with purchases to be made by
certain employees of the Company pursuant to the Company's Employee
Stock Purchase Plan (the "Plan").
As such counsel, we have participated in the preparation of the
Registration Statement, and have reviewed the corporate proceedings
in connection with the adoption of the Plan and have also examined
and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of all such corporate records,
documents, agreements, and instruments relating to the Company, and
have made such investigations of law, and have discussed with
representatives of the Company and such other persons such
questions of fact, as we have deemed proper and necessary as a
basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion
that the Shares are duly authorized and, upon issuance in
accordance with the terms of the Plan, will be, assuming no change
in the applicable law or pertinent facts, validly issued, fully
paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not
admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
/s/ PROSKAUER ROSE GOETZ & MENDELSOHN LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Employee Stock Purchase
Plan of Celadon Group, Inc. of our report dated September 26, 1996,
with respect to the consolidated financial statements and schedule
of Celadon Group, Inc. included in the Annual Report on Form 10-K
for the year ended June 30, 1996.
/s/ Ernst & Young LLP
Indianapolis, Indiana
October 21, 1996
