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As filed with the Securities and Exchange Commission
on October 14, 1997
Registration No. _________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
U.S. XPRESS ENTERPRISES, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
NEVADA 62-1378182
- ------------------------ ------------------------------------
(State of incorporation) (I.R.S. Employer Identification No.)
_______________________
2931 SOUTH MARKET STREET, CHATTANOOGA, TENNESSEE 37410
------------------------------------------------------------
(Address of principal executive offices, including zip code)
U.S. XPRESS ENTERPRISES, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
________________________
RAY M. HARLIN A. ALEXANDER TAYLOR II, ESQ.
CHIEF FINANCIAL OFFICER MILLER & MARTIN
U.S. XPRESS ENTERPRISES, INC. 1000 VOLUNTEER BUILDING
2931 SOUTH MARKET STREET CHATTANOOGA, TENNESSEE 37402
CHATTANOOGA, TN 37410 (423) 756-6600
(423) 697-7377
(Name, address and telephone number, including zip code,
of agents for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================
Proposed Proposed
TITLE OF Amount Maximum Maximum Amount of
SECURITIES TO to be Offering Price Aggregate Registration
BE REGISTERED Registered Per Unit(1) Offering Price(1) Fee(1)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01
par value per share 300,000 $21.81 $6,543,750 $1,982.95
=============================================================================================
</TABLE>
(1) Pursuant to Rule 457(c) and (h), the proposed offering price per share, the
proposed aggregate offering price and amount of registration fee for the
Class A Common Stock have been computed with respect to the aggregate
contribution of employees as if all plan participants invested in the
300,000 shares of Class A Common Stock of the Registrant to be purchased,
computed and based upon $21.81, the average of the high and low price of
Registrant's common stock on October 7, 1997, as reported on the NASDAQ
National Market System.
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PART I
------
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
Pursuant to Part I of Form S-8, the information required by Items 1
and 2 of Form S-8 are not filed as a part of this Registration Statement. This
information will be sent or given to participants in the U.S. Xpress
Enterprises, Inc. Employee Stock Purchase Plan (the "Plan") as specified by Rule
428(b)(1) as promulgated under the Securities Act of 1933, as amended.
2
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PART II
-------
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents previously filed by U.S. Xpress Enterprises,
Inc. (the "Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1997; and
(b) All reports and registration statements filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, since March 31, 1997.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the completion or termination of this offering shall be deemed
to be incorporated by reference in the registration statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
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 this registration statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The legality of the shares of Class A Common Stock issuable under the
Plan has been passed upon for the Registrant by the law firm of Miller & Martin.
A. Alexander Taylor, II is a partner in Miller & Martin and is also a director
of the Registrant.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article 12 of the Registrant's Restated Articles of Incorporation
("Restated Articles") provides as follows:
To the fullest extent permitted by the Nevada General Corporation
Law, as the same exists or may hereafter be amended, a director or
officer of this corporation shall not be personally liable to the
3
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corporation or its shareholders for monetary damages for breach of his
or her fiduciary duty as a director or officer.
To the fullest extent permitted by the Nevada General Corporation
Law, as the same exists or may hereafter be amended, the corporation
shall indemnify any person who is made or threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal, by reason of the fact that such person
is or was a director or officer of the corporation or of any of its
subsidiaries, or is or was serving at the direction of the corporation
in any such capacity with any other entity whatsoever.
The requirement that the corporation shall provide
indemnification pursuant to this Article 12 shall not preclude any
other or additional provision of indemnification, whether provided by
law, by insurance, by agreement between this corporation and the
parties to be indemnified or otherwise.
In addition to the rights of indemnification granted herein, this
corporation shall, to the fullest extent now or hereafter permitted by
the Nevada General Corporation Law, provide for the advancement of
expenses as they are incurred by any director or officer of the
corporation in the defense of any proceeding of the type described
above, in advance of the final disposition of such proceeding.
Article 11 of the Registrant's Bylaws provides as follows: "[a]ny
director or officer, or the executor or administrator of any director or
officer, is entitled to indemnification to the fullest extent permissible under
the laws of this state."
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The exhibits to the registration statement are listed in the Exhibit
Index included elsewhere herein.
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
4
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the 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 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 suc cessful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person
connected 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 and will be governed by the final adjudication of such issue.
5
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POWER OF ATTORNEY
-----------------
The Registrant and each person whose signature appears below hereby
appoints Max L. Fuller, Patrick E. Quinn and Ray M. Harlin, and each of them, as
attorneys-in-fact with full power of substitution, to execute in their
respective names and on behalf of the Registrant and each such person,
individually and in each capacity stated below, any and all amendments
(including post-effective amendments) to this registration statement as the
attorneys-in-fact and to file any such amendment to the registration statement
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and their substitutes, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and their substitutes may lawfully do or cause to be
done by virtue hereof.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chattanooga, State of Tennessee, on October 9, 1997.
U.S. XPRESS ENTERPRISES, INC.
By: /s/ Patrick E. Quinn
-----------------------------
Patrick E. Quinn, President
and Co-Chairman of the Board
6
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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 dates indicated.
Signature Title Date
- -------------------------- -------------------- ---------------
/s/ Max L. Fuller Co-Chairman of the October 9, 1997
- -------------------------- Board; Director
Max L. Fuller (principal
executive officer)
/s/ Patrick E. Quinn Co-Chairman of the October 9, 1997
- -------------------------- Board; President
Patrick E. Quinn and Treasurer;
Director (principal
executive officer)
/s/ Ray M. Harlin Chief Financial October 9, 1997
- -------------------------- Officer (principal
Ray M. Harlin financial and
accounting
officer); Director
/s/ E. William Lusk, Jr Executive Vice October 9, 1997
- -------------------------- President of
E. William Lusk, Jr. Marketing; Director
/s/ William K. Farris Executive Vice October 9, 1997
- -------------------------- President of
William K. Farris Operations;
Director
/s/ James B. Baker Director October 9, 1997
- --------------------------
James B. Baker
/s/ A. Alexander Taylor II Director October 9, 1997
- --------------------------
A. Alexander Taylor II
7
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EXHIBIT INDEX
-------------
No. Description
--- -----------
4.1 Amended and Restated Articles of Incorporation of U.S. Xpress
Enterprises, Inc.(1)
4.2 Amended and Restated By-laws of U.S. Xpress Enterprises, Inc.(1)
5 Opinion of Miller & Martin
24.1 Consent of Miller & Martin (included in Exhibit 5)
24.2 Consent of Arthur Andersen LLP
25 Power of Attorney (reference is made to the signature page of
this registration statement)
- ---------------
(1) Incorporated by reference from the Registrant's registration
statement on Form S-1, SEC File No. 33-79208.
8
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Exhibit 5
MILLER & MARTIN ---------
ATTORNEYS AT LAW
SUITE 1000 VOLUNTEER BUILDING
832 GEORGIA AVENUE
CHATTANOOGA, TENNESSEE 37402-2289
423/756-6600
FAX 423/785-8480
NASHVILLE OFFICE:
SUITE 1225 SUNTRUST CENTER
424 CHURCH STREET
NASHVILLE, TENNESSEE 37219-2301
615/244-3119
FAX 615/244-1423
October 9, 1997
U.S. Xpress Enterprises, Inc.
2931 South Market St.
Chattanooga, TN 37410
Re: U.S. Xpress Enterprises, Inc.
Employee Stock Purchase Plan
Gentlemen:
This opinion is furnished in connection with the Registration
Statement on Form S-8 (the "Registration Statement") to be filed under the
Securities Act of 1933, as amended (the "Act") with respect to 300,000 shares of
the Class A Common Stock, $.01 par value (the "Common Stock") of U.S. Xpress
Enterprises, Inc. (the "Company") in connection with its Employee Stock Purchase
Plan.
In rendering this opinion, we have conducted such investigation, have
reviewed such matters of law, and have examined such corporate books, records
and other documents (including the Registration Statement) as we have deemed
necessary or relevant to this opinion.
Based on the foregoing, we are of the opinion that when the
Registration Statement has become effective under the Act, the Common Stock
which may be issued in accordance with the Registration Statement will, when
issued, be legally issued, fully paid and non-assessable.
As you are aware, A. Alexander Taylor II, a director of the Company,
is a partner in the law firm of Miller & Martin.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
MILLER & MARTIN
By: /s/ Hugh F. Sharber
--------------------
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EXHIBIT 24.2
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated May 7,
1997 included in U.S. Xpress Enterprises, Inc.'s Form 10-K for the year
ended March 31, 1997 and to all references to our Firm included in this
registration statement.
Chattanooga, Tennessee
October 9, 1997
