As filed with the Securities and Exchange Commission on February 25, 2000
Registration No. 33-
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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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CELADON GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3361050
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
One Celadon Drive
Indianapolis, Indiana 46236-4207
(317) 972-7000
(Address of principal executive offices) (Zip code)
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CELADON GROUP, INC. 1994 STOCK OPTION PLAN
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Corporation Service Corp. Copies to:
1013 Centre Road Arnold S. Jacobs, Esq.
Wilmington, Delaware 19805 Proskauer Rose LLP
(302) 636-5454 1585 Broadway
(Name, address, including zip code, New York, New York 10036-8299
and telephone number, including (212) 969-3000
area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate offering registration
to be registered registered(1) per share price fee
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Common Stock, par
value $.033 per share 150,000 shares $10.000(2) $1,500,000 $396.00
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TOTAL $396.00
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(1) Represents the maximum number of shares of common stock, par value
$.033 per share ("Common Stock"), issuable upon exercise of options
which may be or have been granted under the 1994 Stock Option Plan.
Pursuant to Rule 416, there are also being registered such additional
indeterminate number of shares as may be required to cover possible
adjustments in the number of shares issuable under the Plans pursuant
to the antidilution provisions thereof.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933 on the basis of the average of the high and
low selling prices per share of Common Stock on February 15, 2000 as
reported on the NASDAQ National Market.
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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 "Company" or the
"Registrant"), are incorporated herein by reference:
(1) The description of the Company'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.
(2) The Company's Current Report on Form 8-K, dated August
25, 1999, as amended October 25, 1999, filed pursuant to Sections 13 and 15(d)
of the Securities Exchange Act of 1934;
(3) The Company's Annual Report on Form 10-K, dated
September 28, 1999, filed pursuant to Sections 13 and 15(d) of the Securities
Exchange Act of 1934;
(4) The Company's Quarterly Report on Form 10-Q, dated
November 15, 1999, filed pursuant to Sections 13 and 15(d) of the Securities
Exchange Act of 1934.
(5) The Company's Quarterly Report on Form 10-Q, dated
February 14, 2000, filed pursuant to Sections 13 and 15(d) of the Securities
Exchange Act of 1934.
All documents subsequently filed by the Company pursuant to Section
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 part hereof 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article TENTH of the Company's Certificate of Incorporation provides
that the Corporation shall indemnify and hold harmless, to the fullest extent
authorized by the Delaware General Corporation Law, its officers and directors
against all expenses, liability and loss actually and reasonably incurred in
connection with any civil, criminal, administrative or investigative action,
suit or proceeding. Notwithstanding the foregoing, the indemnification provided
for in this Article Tenth shall not be deemed exclusive of any other rights to
which those entitled to receive indemnification or reimbursement hereunder may
be entitled under any By-Law of the Corporation, agreement, vote of stockholders
or disinterested directors or otherwise.
In addition Article ELEVENTH of the Company's Certificate of
Incorporation provides that no director of the Company shall not be personally
liable for any breach of fiduciary duty. Article ELEVENTH does not eliminate a
director's liability (i) for breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts of or
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omissions of such director not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
Section 145 of the General Corporation Law of the State of Delaware
permits a corporation to indemnify its directors and officers against expenses
(including attorney's fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties, if such directors or officers acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reason to believe their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be
made only for expenses actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant officers or directors are
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a corporation may eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware, the Company maintains directors' and officers' liability insurance
coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Proskauer Rose LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see 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
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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 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are 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 Form
F-3.
(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,
theregistrant 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on February 25,
2000.
CELADON GROUP, INC.
By: /s/ Stephen Russell
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Stephen Russell
Chairman of the Board,
Chief Executive Officer
and President
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Stephen Russell and Robert Goldberg and each 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. (the "Company") 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 Company to be issued pursuant to the Company's 1994 Stock Option
Plan, 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.
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SIGNATURES TITLE DATE
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/s/ Stephen Russell Chairman of the Board February 25, 2000
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Stephen Russell Chief Executive Officer,
President
(principal executive
officer)
/s/ Robert Goldberg Chief Operating Officer February 25 , 2000
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Robert Goldberg Executive Vice President
/s/ Paul A. Will Executive Vice President, Chief February 25, 2000
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Paul A. Will Chief Financial Officer and Secretary
(principal accounting officer).
/s/ Paul L. Biddelman Director February 25, 2000
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Paul L. Biddelman
/s/ Michael Miller Director February 25, 2000
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Michael Miller
/s/ Kilin To Director February 25, 2000
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Kilin To
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EXHIBIT INDEX
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EXHIBIT DESCRIPTION OF EXHIBIT PAGE NO.
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5.1 Opinion of Proskauer Rose LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Proskauer Rose LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (included in
page II-5 hereof)
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EXHIBIT 5.1
February 25, 2000
Celadon Group, Inc.
9503 E. 33rd Street
Indianapolis, Indiana 46235
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 (the
"Registration Statement") filed by the Company under the Securities Act of 1933
relating to 150,000 shares (the "Shares") of Common Stock, par value $.033 per
share, of the Company. The Shares may be issued by the Company pursuant to the
Company's 1994 Stock Option Plan (the "Plan").
We have participated in the preparation of the Registration Statement
and have reviewed the corporate proceedings in connection with the adoption of
the Plan. We have also examined and relied upon originals or copies, certified
or otherwise authenticated to our satisfaction, of all such public officials and
of representatives of the Company, and have made such investigation 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 this
opinion.
Based upon, and subject to, the foregoing, we are of the opinion that
the Shares are duly authorized and, upon issuance of the Shares in accordance
with the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 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 or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Proskauer Rose LLP
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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 1994 Stock Option Plan of Celadon Group, Inc. of our
report dated August 27, 1999, 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, 1999 filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
February 21, 2000
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