As filed with the Securities and Exchange Commission on June 5, 2003
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Covenant Transport, Inc.
(Exact name of registrant as specified in its charter)
Nevada 88-0320154
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
400 Birmingham Highway
Chattanooga, Tennessee 37419
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(Address of Principal Executive (Zip Code)
Offices)
Covenant Transport, Inc. 2003 Incentive Stock Plan
(Full title of the plan)
David R. Parker
Chairman, President, and Chief Executive Officer
Covenant Transport, Inc.
400 Birmingham Highway
Chattanooga, Tennessee 37419
(Name and address of agent for service)
(423) 821-1212
(Telephone number, including area code, of agent for service)
Copy to:
Mark A. Scudder, Esq.
Scudder Law Firm, P.C., L.L.O.
411 South 13th Street, Suite 200
Lincoln, Nebraska 68508
(402) 435-3223
CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum Amount of
Amount to be maximum offering aggregate offering registration
Title of each class of securities to be registered Registered (1) price per share (2) price (2) fee (3)
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Class A Common Stock, ($.01 par value) .......... 1,250,000 shares $18.55 $23,187,500 $842.27
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(1) Shares to be offered and sold under the Company's 2003 Stock Option Plan
include 651,801 shares not previously registered, 5,000 shares previously
registered for offer or sale under the Covenant Transport, Inc. Outside
Director Stock Option Plan (the "Outside Director Plan"), 56,433 shares
previously registered for offer or sale under the Covenant Transport, Inc.
1998 Non-Officer Incentive Stock Plan (the "1998 Non-Officer Plan") and
536,766 shares previously registered for offer or sale under the Covenant
Transport, Inc. Incentive Stock Plan (the "1994 Plan") (collectively with
the Outside Director Plan, and the 1998 Non-Officer Plan, the "Prior
Plans") that were not issued under the Prior Plans and that may be offered
and sold under the 2003 Stock Option Plan (the "Carried Forward Shares").
5,000 of the Carried Forward Shares were registered on Form S-8 filed on
November 17, 2000 (File No. 333-50174), and the Company paid a total fee of
$121.00, $11.14 of which related to 5,000 of the Carried Forward Shares.
56,433 of the Carried Forward
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Shares were registered on Form S-8 filed on November 19, 1998 (File No.
333-67559), and the Company paid a total fee of $907, $255.92 of which
related to 56,433 of the Carried Forward Shares. 536,766 of the Carried
Forward Shares were registered on Form S-8 filed on May 16, 2002 (File No.
333-88486), and the Company paid a total fee of $1,468.03, $766.54 of which
related to 536,766 of the Carried Forward Shares. Pursuant to
Interpretation 89 under Section G of the Division of Corporation Finance's
Manual of Publicly Available Telephone Interpretations dated July 1997,
Instruction E to the General Instructions of Form S-8, and Rule 457(p), the
Company has carried forward the registration fee for the Carried Forward
Shares. There are also registered an undetermined number of additional
shares of the Company's Common Stock that may become issuable under the
Company's 2003 Stock Option Plan in the event of certain changes in the
outstanding shares of the Company's Common Stock or in the capital
structure of the Company, including any stock dividend, stock split,
recapitalization or similar transaction.
(2) Estimated pursuant to Rule 457(c) and Rule 457(h) of the Securities Act of
1933, as amended, solely for purposes of calculating the registration fee.
The price is based upon the average of high and low prices ($18.55) of
Covenant Transport Inc. Class A common stock on May 30, 2003, as reported
on the Nasdaq National Market.
(3) The registration fee was calculated as the difference between the total
computed fee of $1,875.87 less the sum of $11.14 that was previously paid
in connection with Form S-8 Registration Statement File No. 333-50174, and
less the sum of $255.92 that was previously paid in connection with Form
S-8 Registration Statement File No. 333-67559, and less the sum of $766.54
that was previously paid in connection with Form S-8 Registration Statement
No. 333-88486. The Company has filed a post-effective amendment to its Form
S-8 Registration Statement File No. 333-50174, a post-effective amendment
to its Form S-8 Registration Statement File No. 333-67559, and a
post-effective amendment to its Form S-8 Registration Statement File No.
333-88486, to deregister shares of the Company's Common Stock that are not
subject to outstanding option grants under its 1998 Non-Officer Plan, its
Outside Director Plan and its 1994 Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting the prospectus under Part I of this Registration
Statement will be delivered to employees in compliance with Form S-8 and Rule
428(b)(1) under the Securities Act of 1933, as amended (the "1933 Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") by Covenant Transport, Inc. (the "Registrant", or
the "Company") are hereby incorporated by reference into this registration
statement.
a. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002;
b. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since December 31, 2002;
and
c. The description of the Company's Class A Common Stock contained under
the caption "Description of Registrant's Securities to be Registered"
in the Company's registration statement on Form 8-A filed September
30, 1994, which incorporates by reference the information under the
heading "Description of Capital Stock" in the prospectus dated October
28, 1994, included in the Company's Registration Statement on Form S-1
(No. 33-82978, effective October 28, 1994), including any amendment or
report filed for the purpose of updating such description.
In addition, 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 (the "Exchange Act"), prior to the filing of a post effective amendment
to this registration statement which indicates that all shares of Common Stock
offered hereunder have been sold or which deregisters all shares of Common Stock
then remaining unsold shall be deemed to be incorporated herein by reference and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Mark A. Scudder serves on the Registrant's Board of Directors, and is
President of Scudder Law Firm P.C., L.L.O., the Registrant's outside corporate
and securities counsel.
Item 6. Indemnification of Directors and Officers.
The Nevada General Corporation Law provides for the indemnification of
officers and directors (and others) under certain circumstances against expenses
incurred in successfully defending against a claim and authorizes Nevada
corporations to indemnify their officers and directors under certain
circumstance against expenses and liabilities incurred in legal proceedings
involving such persons because of their being or having been an officer or
director.
Article VII of the Registrant's Articles of Incorporation and Article X of
the Registrant's Bylaws provide that the Registrant's directors and officers
shall be indemnified against liabilities they may incur while serving in such
capacities to the fullest extent allowed by the Nevada General Corporation Law.
Under these indemnification provisions, the Registrant is required to indemnify
its directors and officers against any reasonable expenses (including attorneys'
fees) incurred by them in the defense of any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, to which they were
made a party, or in defense of any claim, issue, or matter therein, by reason of
the fact that they are or were a director or officer of the Registrant or while
a director or officer of the Registrant are or were serving at the Registrant's
request as a director, officer, partner, trustee, employee, or agent of another
corporation, partnership, joint
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venture, trust, employee benefit plan, or other enterprise unless it is
ultimately determined by a court of competent jurisdiction that they failed to
act in a manner they believed in good faith to be in, or not opposed to, the
best interests of the Registrant, and with respect to any criminal proceeding,
had reasonable cause to believe their conduct was lawful. The Registrant will
advance expenses incurred by directors or officers in defending any such action,
suit, or proceeding upon receipt of written confirmation from such officers or
directors that they have met certain standards of conduct and an undertaking by
or on behalf of such officers or directors to repay such advances if it is
ultimately determined that they are not entitled to indemnification by the
Registrant. The Registrant may, through indemnification agreements, insurance,
or otherwise, provide additional indemnification. The Registrant has entered
into indemnification agreements with each of its directors and executive
officers.
Article VI of the Registrant's Articles of Incorporation eliminates, to the
fullest extent permitted by law, the liability of directors and officers for
monetary or other damages for breach of fiduciary duties to the Registrant and
its stockholders as a director or officer.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to officers, directors, or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is therefore unenforceable.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
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Exhibit No. Exhibit
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4.1 Restated Articles of Incorporation of Covenant Transport, Inc. (incorporated by reference to
Exhibit 3.1 to the Registration Statement on Form S-1, File No. 33-82978 (the "Form S-1")).
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4.2 Bylaws of Covenant Transport, Inc. (incorporated by reference to Exhibit 3.2 to the Form S-1).
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5 Opinion of Scudder Law Firm, P.C., L.L.O.
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23.1 Independent Auditors' Consent - KPMG LLP
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23.2 Independent Auditors' Consent - PricewaterhouseCoopers LLP
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23.3 Consent of Scudder Law Firm, P.C., L.L.O. (contained in Exhibit 5 hereto)
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24 Power of Attorney (contained in the signature page to this Registration Statement)
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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 1933
Act;
(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.
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the 1933 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 1933 Act, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of 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 1933 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 Commission such indemnification is against
public policy as expressed in the 1933 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 1933 Act
and will be governed by the final adjudication of such issue.
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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 Chattanooga, State of Tennessee on June 5, 2003.
COVENANT TRANSPORT, INC.
By: /s/ David R. Parker
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David R. Parker,
Chairman of the Board, President, and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints David R. Parker,
Mark A. Scudder, and Joey B. Hogan, and each of them, as attorneys-in-fact with
full power of substitution, to execute in their respective names, individually
and in each capacity stated below, any and all amendments (including
post-effective amendments) to this Registration Statement as the
attorney-in-fact and to file any such amendment to the Registration Statement,
exhibits thereto, and documents required in connection therewith 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.
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 and Title Date
/s/ David R. Parker June 5, 2003
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David R. Parker
Chairman of the Board, President, and Chief Executive
Officer; Director (principal executive officer)
/s/ Joey B. Hogan June 5, 2003
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Joey B. Hogan
Executive Vice President and Chief Financial Officer
(principal financial and accounting officer)
/s/ Michael W. Miller June 5, 2003
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Michael W. Miller
Director
June 5, 2003
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William T. Alt
Director
/s/ Robert E. Bosworth June 5, 2003
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Robert E. Bosworth
Director
June 5, 2003
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Hugh O. Maclellan, Jr.
Director
/s/ Bradley A. Moline June 5, 2003
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Bradley A. Moline
Director
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/s/ Niel B. Nielson June 5, 2003
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Niel B. Nielson
Director
/s/ Mark A. Scudder June 5, 2003
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Mark A. Scudder
Director
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Exhibit No. Exhibit
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4.1 Restated Articles of Incorporation of Covenant Transport, Inc. (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-1, File No. 33-82978
(the "Form S-1")).
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4.2 Bylaws of Covenant Transport, Inc. (incorporated by reference to Exhibit 3.2 to the
Form S-1).
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5 Opinion of Scudder Law Firm, P.C., L.L.O.
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23.1 Independent Auditors' Consent - KPMG LLP
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23.2 Independent Auditors' Consent - PricewaterhouseCoopers LLP
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23.3 Consent of Scudder Law Firm, P.C., L.L.O. (contained in Exhibit 5 hereto)
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24 Power of Attorney (contained in the signature page to this Registration Statement)
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