<PAGE> 1
As filed with the Securities and Exchange Commission on May 20, 1999
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Registration No. 333-________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BOYD BROS. TRANSPORTATION INC.
(Exact name of issuer as specified in its charter)
DELAWARE 63-6006515
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3275 Highway 30
Clayton, Alabama 36016
(Address of principal executive offices)
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BOYD BROS. TRANSPORTATION INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
----------
Richard C. Bailey
Boyd Bros. Transportation Inc.
3275 Highway 30
Clayton, Alabama 36016
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Lizanne Thomas, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share(1) offering price(1) registration fee(2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 175,000 shares $10.25 $1,793,750.00 $498.66
===========================================================================================================================
</TABLE>
(1) The proposed maximum offering price has been estimated pursuant to
Rule 457(h), solely for the purpose of calculating the amount of the
registration fee. It is not known how many shares will be purchased under the
Plan or at what price such shares will be purchased. The estimate of the
proposed maximum aggregate offering price has been calculated based on the
offering of 175,000 shares, being the aggregate number of shares of common
stock, par value $.001 per share ("Common Stock"), available for issuance upon
exercise of options to be granted under the Plan, at an exercise price of $10.25
which is the average of the reported high and low sales prices of a share of
Common Stock of Boyd Bros. Transportation Inc. on the NASDAQ National Market
("NASDAQ") on May 18, 1999.
(2) The registration fee of $498.66 is calculated by multiplying the
product of $10.25, the weighted average exercise price per share, and 175,000,
the number of shares subject to option, by .000278.
================================================================================
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EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified in
Part I of Form S-8 has been omitted from this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Boyd Bros. Transportation 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-K for the fiscal year
ended December 31, 1998;
(b) All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act, as
amended (the "Exchange Act"), since December 31, 1998.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission
on April 27, 1994.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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 contained in any document incorporated or deemed to be
incorporated by reference into the Prospectus shall be deemed to be modified or
superseded for purposes thereof to the extent that a statement contained therein
or in any other subsequently filed document that is also incorporated or deemed
to be incorporated therein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of the Prospectus.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisions of the
Certificate of Incorporation (the "Certificate") of the Company, the By-Laws
(the "By-Laws") of the Company and Section 145 ("Section 145") of the Delaware
General Corporation Law (the "DGCL"), as such provisions relate to the
indemnification of the directors and officers of the company. This description
is intended only as a summary and is qualified in its entirety by reference to
the Certificate, the By-Laws and the DGCL.
Article VII of the Certificate provides that to the fullest extent
provided by the DGCL or any other applicable laws, a director will not be
personally liable to the Company or its stockholders for or with respect to any
acts or omissions in the performance of his or her duties as a director of the
Company. Article VIII of the Certificate provides that each person who is or was
or has agreed to become a director or officer of the Company (or was serving or
had agreed to serve, at the request of the Board of Directors or an officer of
the Company, as an employee or agent of the Company or as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust or
other entity, whether for profit or not-for-profit, including the heirs,
executors, administrators, or estate of such person), will
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be indemnified by the Company to the fullest extent permitted by the DGCL or any
other applicable law. It also provides that without limiting the generality or
the effect of the foregoing, the Company may enter into one or more agreements
with any person, which provide for indemnification greater or different than
that provided in Article VIII of the Certificate.
While Article VII of the Certificate provides directors with protection
from awards for monetary damages for breaches of the duty of care, it does not
eliminate the directors' duty of care. Accordingly, the Certificate will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of the duty of care. The provisions of
Article VII as described above apply to officers of the Company only if they are
directors of the Company and are acting in their capacity as directors, and does
not apply to officers of the Company who are not directors.
With respect to indemnification of officers and directors, Section 145
of the DGCL provides that a corporation shall have the power to 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, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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
reasonable cause to believe his conduct was unlawful. Under this provision of
the DGCL, the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he 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 reasonable cause to believe that his conduct was unlawful.
Furthermore, the DGCL provides that a corporation shall have power to
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 corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees), actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability, but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
In addition, the DGCL was amended in 1986 to enable a Delaware
corporation to include in its certificate of incorporation a provision
eliminating or limiting a director's liability to the corporation or its
stockholders for monetary damages for breaches of a director's fiduciary duty of
care. The statutory amendment provides, however, that (a) liability for duty or
loyalty, (b) acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, (c) the unlawful purchase or redemption
of stock or unlawful dividends or (d) the right of improper personal benefits
could not be eliminated or limited in this manner.
Item 7. Exemption from Registration Claimed.
Inapplicable.
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Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
4 Boyd Bros. Transportation Inc. 1999 Employee Stock
Purchase Plan
5 Opinion of Jones, Day, Reavis & Pogue, as to the
legality of the securities being registered
23.1 Consent of Jones, Day, Reavis & Pogue (included in
Exhibit 5)
23.2 Consent of Deloitte & Touche LLP, independent auditors
24 Power of Attorney (included in the signature page)
</TABLE>
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;
(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 sub-paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed 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
or 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
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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 the Securities Act of 1933 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 Securities Act of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURES
THE REGISTRANT. 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 Clayton, State of Alabama, on the 18th day of
May, 1999.
BOYD BROS. TRANSPORTATION INC.
By: /s/ W. Miller Welborn
--------------------------------------------
W. Miller Welborn
President and Chief Executive Officer
/s/ Richard C. Bailey
--------------------------------------------
Richard C. Bailey
Executive Vice President and Chief Financial
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, W. Miller Welborn and Richard C. Bailey,
jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
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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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Dempsey Boyd Chairman of the Board and Director May 18, 1999
- ----------------------------------
Dempsey Boyd
/s/ W. Miller Welborn President, Chief Executive Officer and May 18, 1999
- ---------------------------------- Director (Principal Executive Officer)
W. Miller Welborn
/s/ Richard C. Bailey Executive Vice President, Chief Financial May 18, 1999
- ---------------------------------- Officer and Director (Principal Financial
Richard C. Bailey and Accounting Officer)
/s/ Stephen J. Silverman Director May 18, 1999
- ----------------------------------
Stephen J. Silverman
/s/ Boyd Whigham Director May 18, 1999
- ----------------------------------
Boyd Whigham
/s/ W. Wyatt Shorter Director May 18, 1999
- ----------------------------------
W. Wyatt Shorter
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Clayton, State of
Alabama, on this 18th day of May, 1999.
BOYD BROS. TRANSPORTATION INC.
EMPLOYEE STOCK PURCHASE PLAN
By Boyd Bros. Transportation Inc.
As Administrator
By: /s/ W. Miller Welborn
-----------------------------------------
W. Miller Welborn
President and Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------- ----------- ------
<S> <C> <C>
4 Boyd Bros. Transportation Inc. 1999 Employee Stock Purchase Plan Page 8
5 Opinion of Jones, Day, Reavis & Pogue as to the legality of the securities being Page 23
registered
23.1 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5) Page 23
23.2 Consent of Deloitte & Touche, independent public accountants Page 24
24 Power of Attorney (included in signature page) Page 5
</TABLE>
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EXHIBIT 4
BOYD BROS. TRANSPORTATION INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE
This 1999 Employee Stock Purchase Plan (the "Plan") is
intended to advance the interests of Boyd Bros. Transportation Inc. (the
"Company") and its stockholders by strengthening the Company's ability to
attract and retain employees who have the training, experience and ability to
enhance the profitability of the Company and to reward employees of the Company
and its subsidiaries upon whose judgment, initiative and effort the successful
conduct and development of their business largely depend. It is further intended
that options issued pursuant to this Plan shall constitute options issued
pursuant to an "employee stock purchase plan" within the meaning of Section 423
of the Internal Revenue Code of 1986, as amended from time to time (the "Code").
SECTION 2. DEFINITIONS
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the Compensation Committee of the
Board of Directors or such other committee of not less than two members of the
Board of Directors appointed by the Board of Directors to administer this Plan.
(d) "Common Stock" shall mean the common stock of the Company
described in the Company's Certificate of Incorporation, as amended from time to
time.
(e) "Company" shall mean Boyd Bros. Transportation Inc., a
Delaware corporation.
(f) "Compensation" shall mean all basic straight time wages
and salary, including payments for overtime, commissions and bonuses, but
excluding Company contributions to profit sharing plans, and other extraordinary
compensation. Notwithstanding the foregoing, the Committee shall, in its
discretion, have the authority to exclude, with respect to all employees, any
other form of compensation from the definition of "Compensation," provided such
exclusion shall comply with Section 423(b)(5) of the Code.
(g) "Designated Subsidiary" shall mean a Subsidiary which has
been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
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(h) "Employee" shall mean any individual who is an employee of
the Company for purposes of tax withholding under Section 3401 of the Code whose
customary employment with the Company or any designated Subsidiary is at least
twenty (20) hours per week and more than five (5) months in any calendar year.
For purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds ninety (90)
days and the individual's right to reemployment is not guaranteed either by
statute or by contract, the employment relationship will be deemed to have
terminated on the 91st day of such leave.
(i) "Enrollment Date" shall mean the first day of each
Offering Period.
(j) "Exercise Date" shall mean the last Trading Day of each
Offering Period.
(k) "Offering Period" shall mean (i) the seven-month exercise
period commencing on June 1, 1999, and (ii) six-month exercise periods
commencing on January 1, 2000, and on each July 1 and January 1 thereafter while
the Plan is in effect, during which options granted pursuant to the Plan may be
exercised. The last Offering Period shall begin on January 1, 2009, unless the
Plan is sooner terminated in accordance with Section 22.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
(m) "Subsidiary" shall mean a corporation, domestic or
foreign, of which not less than fifty percent (50%) of the combined total voting
power of all issues of stock of such corporation are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(n) "Trading Day" shall mean a day on which national stock
exchanges and the National Association of Securities Dealers Automated Quotation
(NASDAQ) System are open for trading.
SECTION 3. ADMINISTRATION
(a) The Plan shall be administered by the Compensation
Committee of the Board of Directors or such other committee of not less than two
members of the Board of Directors appointed by the Board of Directors (the
"Committee") for said purpose. The majority of the Committee shall constitute a
quorum, and the action of a majority of the members of the Committee present at
any meeting at which a quorum is present, or acts unanimously approved in
writing, shall be the acts of the Committee.
(b) The interpretation and construction by the Committee of
any provision of the Plan or of any option granted under it shall be final. The
Committee may establish any policies or procedures which in the discretion of
the Committee are relevant to the operation and administration of the Plan and
may adopt rules for the administration of the Plan. No member of the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted under it.
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SECTION 4. ELIGIBILITY
All employees (as defined in Section 2(h)) of the Company or
of any Designated Subsidiary (as defined in Section 2(g)) of the Company who
have been employed for a period of one year shall be offered options under the
Plan to purchase the Company's common stock, $.001 par value per share ("Common
Stock"), except that no employee shall be granted an option under the Plan if,
immediately after the option was granted, such employee would own stock
possessing 5 percent or more of the total combined voting power or value of all
classes of stock of the Company or of any subsidiary of the Company. For
purposes of this paragraph, stock ownership of an individual shall be determined
under the rules of Section 424(d) of the Code, and stock which the employee may
purchase under outstanding options shall be treated as owned by the employee.
SECTION 5. STOCK
The stock subject to the options granted under the Plan shall
be shares of authorized but unissued or reacquired Common Stock. The aggregate
number of shares which may be purchased under the Plan shall not exceed 175,000
shares of Common Stock. In the event that the number of shares with respect to
which options are to be exercised exceeds the number of shares available under
the Plan, the Committee shall make a pro rata allocation of the shares remaining
available for purchase in as uniform a manner as shall be practicable and as it
shall determine to be equitable.
SECTION 6. OFFERING PERIODS
The Plan shall be implemented by consecutive Offering Periods,
the first of which shall begin on June 1, 1999 and end on December 31, 1999 with
new Offering Periods commencing on the first Trading Day of January and July of
each year beginning with the year 2000, or on such other date as the Board shall
determine, and continuing thereafter until the Offering Period beginning on
January 1, 2009 and ending on June 30, 2009, unless the Plan is terminated
sooner in accordance with Section 21 or 22 hereof. The Board shall have the
power to change the duration of Offering Periods with respect to future
offerings without stockholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the first Offering Period
to be affected.
SECTION 7. PARTICIPATION
(a) An eligible Employee may become a participant in the Plan
by completing a subscription agreement authorizing payroll deductions in the
form of Exhibit "A" to this Plan and filing it with the Company's payroll office
at such time as is specified by the Committee or the Company and is prior to the
applicable Enrollment Date (unless a later time for filing the subscription
agreement is set by the Board for all eligible Employees with respect to a given
Offering Period). Once properly made, an eligible Employee's election to
participate shall be
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automatically renewed for each subsequent offering period, subject to any
termination or withdrawal as provided in Section 12.
(b) Payroll deductions for a participant shall commence on the
first payroll disbursement date following the Enrollment Date and shall end on
the last payroll disbursement date in the Offering Period to which such
authorization is applicable, unless sooner terminated by the participant as
provided in Section 12.
SECTION 8. PAYROLL DEDUCTIONS
(a) At the time a participant files his subscription
agreement, he shall elect to have payroll deductions from his Compensation made
on each payday during the Offering Period in a whole dollar amount not exceeding
$75 per week during the payroll period. The aggregate of such payroll deductions
during the Offering Period shall not exceed $1,950 of the participant's
Compensation during said Offering Period.
(b) All payroll deductions made for a participant shall be
credited to his account under the Plan and will be withheld in whole dollar
amounts only. A participant may not make any additional payments into such
account.
(c) A participant may discontinue his participation in the
Plan as provided in Section 12, or may decrease (but not increase) the dollar
amount of his payroll deductions during the offering period by completing or
filing with the Company a new authorization for payroll deduction. The change in
dollar amount shall be effective with the first payroll period beginning after
fifteen (15) days following the Company's receipt of the new authorization.
(d) At the time the option is exercised, in whole or in part,
or at the time some or all of the Company's Common Stock issued under the Plan
is disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the option or the disposition of the Common Stock. At any time,
the Company may, but will not be obligated to, withhold from the participant's
Compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
SECTION 9. GRANT OF OPTION
(a) On the Enrollment Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date for such Offering Period (at the per
share option price) up to a number of shares of the Company's Common Stock
determined by dividing such Employee's payroll deductions accumulated prior to
such Exercise Date and retained in the Participant's account as of the Exercise
Date by the option price per share defined in paragraph (b) below; provided that
in no event shall an Employee be permitted to purchase during each Offering
Period more than a number of shares determined by
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<PAGE> 5
dividing $1,950 by the option price per share of the Company's Common Stock
defined in paragraph (b) below, and provided further that such purchase shall be
subject to the limitations set forth in Sections 4, 8 and 14. Exercise of the
option shall occur as provided in Section 10, unless the participant has
withdrawn pursuant to Section 12, and shall expire on the last day of the
Offering Period. Fair market value of a share of the Company's Common Stock
shall be determined as provided in Section 9(b) herein.
(b) The option price per share of the shares offered in a
given Offering Period shall be the lower of: (i) ninety percent (90%) of the
fair market value of a share of the Company's Common Stock on the Enrollment
Date for the applicable Offering Period or (ii) ninety percent (90%) of the fair
market value of a share of the Company's Common Stock on the Exercise Date. The
fair market value shall be the closing bid price of the Common Stock for the
applicable Enrollment Date or Exercise Date, as reported by the NASDAQ National
Market System, or, in the event the Common Stock is listed on a stock exchange,
the fair market value per share shall be the closing price on such exchange on
such date, as reported in the Wall Street Journal. In the event the Enrollment
Date or the Exercise Date occurs on a weekend or legal holiday, the fair market
value shall be based on the closing bid price on the next Trading Day.
SECTION 10. EXERCISE OF OPTION
Unless a participant withdraws from the Plan as provided in
Section 12 below, his option for the purchase of shares will be exercised
automatically on the Exercise Date, and the maximum number of full shares
subject to option shall be purchased for such participant at the applicable
option price with the accumulated payroll deductions in his account. In no event
can an option be exercised after the expiration of twenty-seven (27) months from
the date such option is granted. No fractional shares will be purchased. During
a participant's lifetime, a participant's option to purchase shares hereunder is
exercisable only by him or her, except as provided in Section 15 hereof.
SECTION 11. DELIVERY
As promptly as practicable after the Exercise Date of each
Offering Period, the Company shall arrange the delivery to each participant, as
appropriate, a certificate representing the shares purchased upon exercise of
his option. Any cash remaining to the credit of a participant's account under
the Plan after a purchase by him of shares at the termination of each Offering
Period, or which is insufficient to purchase a full share of Common Stock of the
Company, shall be carried over and credited to that participant's account for
the purchase of Common Stock in the next Offering Period, unless the participant
withdraws from the Plan as provided in Section 12 below in which case such cash
shall be returned to said participant.
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<PAGE> 6
SECTION 12. WITHDRAWAL; TERMINATION OF EMPLOYMENT
(a) A participant may withdraw all, but not less than all, of
the payroll deductions credited to his account and not yet used to exercise his
option under the Plan at any time by giving written notice to the Company in the
form of Exhibit "B" to this Plan. All of the participant's payroll deductions
credited to his account will be paid to such participant promptly after receipt
of notice of withdrawal and such participant's option for the Offering Period
will be automatically terminated, and no further payroll deductions for the
purchase of shares will be made during the Offering Period. If a participant
withdraws from an Offering Period, payroll deductions will not resume at the
beginning of the succeeding Offering Period unless the participant delivers to
the Company a new subscription agreement in accordance with Section 7 hereof.
(b) Upon a participant's ceasing to be an Employee for any
reason or upon termination of a participant's employment relationship (as
described in Section 2(h)), the payroll deductions credited to such
participant's account during the Offering Period but not yet used to exercise
the option will be returned to such participant or, in the case of his death, to
the person or persons entitled thereto under Section 14, and such participant's
options will be automatically terminated.
(c) In the event an Employee fails to remain an Employee of
the Company for at least twenty (20) hours per week during an Offering Period in
which the Employee is a participant, he will be deemed to have elected to
withdraw from the Plan and the payroll deductions credited to his account will
be returned to such participant and such participant's options terminated.
(d) A participant's withdrawal from an Offering Period will
not have any effect upon his eligibility to participate in any similar plan
which may hereafter be adopted by the Company or in succeeding Offering Periods
which commence after the termination of the Offering Period from which the
participant withdraws.
SECTION 13. INTEREST
No interest shall accrue on the payroll deductions of a
participant in the Plan.
SECTION 14. DESIGNATION OF BENEFICIARY
(a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's death
subsequent to an Exercise Date on which the option is exercised but prior to
delivery to such participant of such shares and cash. In addition, a participant
may file a written designation of a beneficiary who is to receive any cash from
the participant's account under the Plan in the event of such participant's
death prior to exercise of the option.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such shares and/or cash to the executor or administrator of the estate
of the participant,
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<PAGE> 7
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may deliver such shares and/or
cash to (i) participant's spouse, or (ii) if no spouse is then living, the
participant's children (who shall share the amounts payable equally), or (iii)
if no such children are then living, then the participant's grandchildren (who
shall share the amounts payable equally), or (iv) if no such grandchildren are
then living, then the participant's siblings (who shall share the amounts
payable equally), or (v) if no such sibling is then living, then the
participant's parents (who shall share the amounts payable equally).
SECTION 15. TRANSFERABILITY
Neither payroll deductions credited to a participant's account
nor any rights with regard to the exercise of an option or to receive shares
under the Plan may be assigned, transferred, pledged or otherwise disposed of in
any way (other than by will or the laws of descent and distribution, or as
provided in Section 12 hereof) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds from
an Offering Period in accordance with Section 12.
SECTION 16. USE OF FUNDS
All payroll deductions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such payroll deductions.
SECTION 17. REPORTS
Individual accounts will be maintained for each participant in
the Plan. Statements of account will be given to participating Employees at
least annually, which statements will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and the
remaining cash balance, if any.
SECTION 18. ADJUSTMENTS
(a) The Committee may make or provide for such adjustments in
the option price and in the number or kind of shares of the Common Stock or
other securities covered by outstanding options as the Committee in its sole
discretion, exercised in good faith, may determine is equitably required to
prevent dilution or enlargement of the rights of optionees that would
otherwise result from (i) any stock dividend, stock split, combination of
shares, recapitalization or other change in the capital structure of the
Company, (ii) any merger, consolidation, spin-off, split-off, spin-out,
split-up, separation, reorganization, partial or complete liquidation, or other
distribution of assets, issuance of rights or warrants to purchase stock, or
(iii) any other corporate transaction or event having an effect similar to any
of the foregoing. Moreover, in the event of any such transaction or event, the
Committee, in its discretion, may provide in substitution for any or all
outstanding awards
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<PAGE> 8
under this Plan such alternative consideration as it, in good faith, may
determine to be equitable in the circumstances and may require in connection
therewith the surrender of all awards so replaced, except that in no event shall
the Committee substitute such alternative consideration that would disqualify
this Plan as an "employee stock purchase plan" within the meaning of Section 423
of the Code. The Committee may also make or provide for such adjustments in the
number or kind of shares of the Common Stock or other securities which may be
sold under the Plan as the Committee in its sole discretion, exercised in good
faith, may determine is appropriate to reflect any transaction or event
described in clause (i) of the preceding sentence.
(b) The grant of an option pursuant to the Plan shall not
affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes in its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell or
transfer all or any part of its business or assets.
SECTION 19. RIGHTS AS A STOCKHOLDER
An optionee shall have no rights as a stockholder with respect
to any Common Stock covered by his option until the exercise date following
payment in full. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date of such exercise,
except as provided in Section 18 of the Plan.
SECTION 20. CONDITIONS UPON ISSUANCE OF SHARES; NONDISTRIBUTION PURPOSE
(a) Shares will not be issued with respect to an option unless
the exercise of such option and the issuance and delivery of such shares
pursuant thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act of 1933, as amended
(the "Securities Act"), the Securities Exchange Act of 1934, as amended, the
rules and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
(b) Unless the Common Stock subject to options under the Plan
is registered under the Securities Act, each option under the Plan shall be
granted on the condition that the purchases of stock thereunder shall not be
made with a view to resale or distribution or any participation therein. Resales
of such stock without registration under the Securities Act may not be made
unless, in the opinion of counsel for the Company, such resale is permissible
under the Securities Act and any other applicable law, regulation or rule of any
governmental agency.
(c) The Company shall have the right to pay (or to retain in a
participant's account) cash in lieu of any fractional shares of Common Stock
under the Plan.
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<PAGE> 9
(d) The option agreements authorized under the Plan shall
contain such other provisions as the Committee may deem advisable, provided that
no such provisions may in any way be in conflict with the terms of the Plan.
SECTION 21. TERM OF PLAN
Options granted pursuant to the Plan shall be granted within a
period of 10 years from the date the Plan is adopted by the Board of Directors.
SECTION 22. AMENDMENT OR TERMINATION OF THE PLAN
(a) The Plan may be amended from time to time by the Board of
Directors of the Company, but without further approval of the stockholders, no
such amendment shall increase the aggregate number of shares of Common Stock
that may be issued and sold under the Plan (except that adjustments authorized
by the last sentence of Section 18(a) of the Plan shall not be limited by this
provision) or change the designation in Section 4 of the class of employees
eligible to receive options. Furthermore, the Plan may not, without further
approval of the stockholders, be amended in any manner that would cause options
issued under it to fail to meet the requirements applicable to "employee stock
purchase plans" as defined in Section 423 of the Code. The Plan may be
terminated at any time by the Board of Directors of the Company, subject to the
rights of outstanding optionees.
(b) Without stockholder consent and without regard to whether
any participant rights may be considered to have been "adversely affected," the
Board (or the Committee) shall be entitled to change the Offering Periods,
change the purchase price in order to avoid a charge to the Company's earnings
under applicable financial accounting standards or principles, limit the number
of shares available for purchase during an Offering Period, limit the frequency
and/or number of changes in the amount withheld during an Offering Period,
permit withholding in excess of the amount designated in order to adjust for
delays or mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or accounting
and crediting procedures to ensure that amounts applied toward the purchase of
Common Stock for each participant properly correspond with amounts withheld from
the participant's Compensation, and establish such other limitations or
procedures as the Committee determines in its sole discretion advisable which
are not inconsistent with the Company's compensation policies.
SECTION 23. COORDINATION WITH SECTION 401(K) PLAN
In the case of any Employee who is a participant in this Plan,
who is also a participant in the Boyd Bros. Transportation Inc. 401(k) Profit
Sharing Plan ("Profit Sharing Plan") and who withdraws an amount from his
account under the Profit Sharing Plan in order to satisfy an "immediate and
heavy financial need" of the participant or otherwise withdraws an amount from
the Profit Sharing Plan on account of the "hardship of the employee" (determined
in accordance with
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<PAGE> 10
the standards of Section 401(k)(2)(B)(i) of the Code), then such Employee shall
have his payroll deductions under this Plan suspended until the first payroll
period that begins after the first anniversary of the date of payment of the
withdrawal.
SECTION 24. NOTICES
All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
SECTION 25. GENDER
For purposes of this Plan, words used in the masculine gender
shall include the feminine and neuter, and the singular shall include the plural
and vice versa, as appropriate.
SECTION 26. NO CONTRACT OF EMPLOYMENT
Nothing contained in the Plan or the payment of any benefits
under the Plan shall give any Employee, whether or not a participant, any rights
to continued employment. All employees remain subject to termination, layoff, or
discipline as if the Plan had not been put into effect.
SECTION 27. APPROVAL OF STOCKHOLDERS
The Plan shall not take effect until adopted by the unanimous
written consent of the holders of all of the shares of Common Stock, or the
affirmative vote of the holders of a majority of the shares of Common Stock
actually voting on the Plan in person or by proxy at a meeting at which a quorum
representing a majority of the outstanding Common Stock is present in person or
by proxy, which approval must occur within the period of 12 months before and 12
months after the date the Plan is adopted by the Board of Directors.
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<PAGE> 11
EXHIBIT "A"
BOYD BROS. TRANSPORTATION INC.
EMPLOYEE STOCK PURCHASE PLAN
ENROLLMENT FORM
Date of enrollment: __________________
1. I hereby elect to participate in the Boyd Bros. Transportation Inc.
Employee Stock Purchase Plan (the "Stock Purchase Plan") and subscribe
to purchase shares of the Company's Common Stock, $.001 par value, in
accordance with this enrollment form and the Stock Purchase Plan.
2. I hereby authorize the Company to deduct from each paycheck $______
(not to exceed $75.00 per week) of my _____________________________ for
each payday during this Offering Period, and each subsequent offering
period during which I am eligible to participate, in accordance with
the provisions of the Stock Purchase Plan.
3. I understand that these payroll deductions shall be accumulated for the
purchase of shares of Common Stock, $.001 par value, at the applicable
purchase price determined in accordance with the Stock Purchase Plan. I
further understand that, except as otherwise set forth in the Stock
Purchase Plan, unless I withdraw from the Stock Purchase Plan by giving
written notice to the Company, shares will be purchased for me
automatically on the Exercise Date of each offering period subsequent
to my filing of this enrollment form.
4. I understand that, before the Exercise Date for this Offering Period,
the Company will provide me with a copy of the Company's most recent
prospectus describing the Stock Purchase Plan, and thereafter will
provide me with annual updates and copies of any revised versions of
the prospectus. Therefore, before my options received under the Plan
are exercised to purchase Shares, I will have the opportunity (after
receiving the prospectus and before the Exercise Date) to withdraw
from the Plan and have returned to me all the money that was deducted
from my pay for the purpose of purchasing shares. I acknowledge that I
have received a copy of the complete "Boyd Bros. Transportation Inc.
Employee Stock Purchase Plan." I understand that my participation in
the Stock Purchase Plan is in all respects subject to the terms of the
Plan.
5. Shares purchased for me under the Stock Purchase Plan should be issued
in the name(s) of:
Your name _________________________________________________
As you wish it to appear on the stock certificate
6. I understand that if I dispose of any shares received by me pursuant to
the Plan, either (1) within two (2) years after the offering date (the
first day of the offering period during which I purchased such shares)
or (2) within one (1) year after the date on which such shares were
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<PAGE> 12
transferred to me, I will be treated for federal income tax purposes
as having received ordinary income at the time of such disposition in
an amount equal to the excess of the fair market value of the shares
at the time such shares were transferred to me over the price which I
paid for the shares.
I hereby agree to notify the Company in writing within thirty (30) days
after the date of any such disposition and I will make adequate
provision for federal, state or other tax withholding obligations, if
any, which arise upon the disposition of the Common Stock. Boyd Bros.
Transportation Inc. may, but will not be obligated to, withhold from my
compensation the amount necessary to meet any applicable withholding
obligation.
However, if I dispose of such shares at any time after the expiration
of the two-year and one-year holding periods, I understand that, under
current tax laws, I will be treated for federal income tax purposes as
having received income only at the time of such disposition, and that
such income will be treated as ordinary income only to the extent of an
amount equal to the lesser of (1) the excess of the fair market value
of the shares at the time of such disposition over the purchase price
which I paid for the shares under the option or (2) the excess of the
fair market value of the shares over the option price, measured as if
the option had been exercised on the Offering Date. The remainder of
the gain or loss, if any, recognized on such disposition will be
treated as a capital gain or loss.
7. I hereby agree to be bound by the terms of the Stock Purchase Plan. I
understand that my enrollment is dependent upon my eligibility to
participate in the Stock Purchase Plan.
8. I further acknowledge and understand that the Company's obligation to
sell shares to me is conditional upon compliance with all applicable
federal and state securities laws, and specifically conditional upon
the existence of an effective registration statement regarding the
shares which I will purchase on the date of that purchase.
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9. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Stock Purchase Plan:
_______________________________________________________________________
NAME: (Please print) (First) (Middle) (Last)
_______________________________________________________________________
(Relationship)
_______________________________________________________________________
(Address)
_______________________________________________________________________
NAME: (Please print) (First) (Middle) (Last)
_______________________________________________________________________
(Relationship)
_______________________________________________________________________
(Address)
_______________________________________________________________________
NAME: (Please print) (First) (Middle) (Last)
_______________________________________________________________________
(Relationship)
_______________________________________________________________________
(Address)
Note: You may use the back side of this form to list any additional
beneficiary(ies) than those above or attach a list of your own.
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<PAGE> 14
*********
Employee's Name
(Please print clearly) ________________________________________
Employee's Social
Security Number: ________________________________________
Employee's Address: ________________________________________
________________________________________
________________________________________
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN
IN EFFECT THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS
TERMINATED BY ME. I CERTIFY THAT THE INFORMATION ON THIS
FORM IS ACCURATE AND COMPLETE.
DATED: __________________________
______________________________
Signature of Employee
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<PAGE> 15
EXHIBIT "B"
BOYD BROS. TRANSPORTATION INC.
EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned, a participant in the Boyd Bros. Transportation Inc.
Employee Stock Purchase Plan for the Offering Period which began on ____________
________________, 19____ (the "Enrollment Date"), hereby notifies the Company
that he or she hereby withdraws from the offering. The undersigned hereby
directs the Company to pay him or her, as promptly as practicable, all the
payroll deductions credited to his or her account with respect to such Offering
Period. The undersigned understands and agrees that his or her option for such
Offering Period will be automatically terminated. The undersigned understands
further that no further payroll deductions will be made for the purchase of
shares in the current Offering Period and the undersigned shall be eligible to
participate in succeeding Offering Periods only by delivering to the Company a
new subscription agreement.
Name and Address of Participant:
______________________________________
______________________________________
______________________________________
______________________________________
Participant's Social
Security Number:______________________
_____________________________________
Signature
Date: _______________________________
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<PAGE> 1
Exhibit 5
JONES, DAY, REAVIS & POGUE
3500 SunTrust Plaza
303 Peachtree Street
Atlanta, Georgia 30308
(404) 521-3939
May 20, 1999
Boyd Bros. Transportation Inc.
3275 Highway 30
Clayton, Alabama 36016
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Boyd Bros. Transportation Inc., a
Delaware corporation (the "Company"), in connection with the registration of
175,000 shares of Common Stock, $.001 par value per share, of the Company (the
"Shares"), to be issued by the Company in accordance with Boyd Bros.
Transportation Inc. 1999 Employee Stock Purchase Plan (the "Plan") pursuant to a
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Registration Statement") to which this opinion appears as
Exhibit 5.
We have examined originals or certified or photostatic copies
of such records of the Company, certificates of officers of the Company and
public officials and such other documents as we have deemed relevant or
necessary as the basis of the opinion set forth below in this letter. In such
examination, we have assumed the genuineness of all signatures, the conformity
to original documents submitted as certified or photostatic copies, and the
authenticity of originals of such latter documents. Based on the foregoing, we
are of the following opinion:
The Shares, when issued in the manner contemplated by the
Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Sincerely,
/s/ Jones, Day, Reavis & Pogue
---------------------------------------
JONES, DAY, REAVIS & POGUE
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
As independent auditors, we hereby consent to the incorporation by reference in
this Registration Statement on Form S-8 of our report dated February 10, 1999
included in Boyd Bros. Transportation Inc.'s Annual Report on Form 10-K for the
fiscal year ended December 31, 1998.
/s/ Deloitte & Touche LLP
- ----------------------------------
DELOITTE & TOUCHE LLP
May 20, 1999
