Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CANNON EXPRESS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 71-0650141
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1457 East Robinson
Springdale, Arkansas 72765
(501) 751-9209
(Address, including zip code, and telephone number of
principal executive offices)
CANNON EXPRESS, INC.
2001 EQUITY INCENTIVE PLAN
(Full title of the plan)
Dean G. Cannon
Chairman of the Board and President
Cannon Express, Inc.
1457 Robinson
Springdale, Arkansas 72765
(501) 751-9209
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all correspondence to:
Goodloe M. Partee
Kutak Rock LLP
425 West Capitol Avenue
Suite 1100
Little Rock, Arkansas 72201
(501) 975-3000
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum
to be to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
Common Stock,
$.01 Par Value 1,000,000(1) $1.18 $1,180,000 $295.00(2)
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate number of additional
shares that may become subject to the Cannon Express, Inc. 2001 Equity
Incentive Plan as a result of anti-dilution provisions of the plan.
(2) The registration fee has been computed in accordance with
paragraphs (c) and (h) of Rule 457, based upon the average of the reported
high and low sales prices of shares of Cannon Express Common Stock on the
American Stock Exchange on November 13, 2001.
PART I
EXPLANATORY NOTE
The information called for by Part I of Form S-8 is included in the
description of the Cannon Express, Inc. 2001 Equity Incentive Plan (the
"Plan") to be delivered to persons purchasing shares pursuant to the Plan.
Pursuant to the Note to Part I of Form S-8, that information is not being
filed with or included in this Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Cannon Express, Inc. ("Cannon
Express") with the Securities and Exchange Commission are incorporated
herein by reference as of their respective dates of filing:
(1) Cannon Express's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001; and
(2) The description of Cannon Express's common stock contained in the
registration statement on Form 8-A of Cannon Express, Inc., dated March 2,
1998, and any amendments or updates to that form.
In addition, all documents subsequently filed by Cannon Express
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates
that all securities offered hereunder have been sold or which deregisters all
shares then remaining unsold, shall be deemed to be incorporated by reference
herein 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Indemnification. Article Thirteenth of the Cannon Express Charter
states that any person who, by reason of the fact he is or was a director,
officer, employee or agent of Cannon Express, is or was 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, shall be indemnified by Cannon Express; provided, such
person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of Cannon Express, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Article Thirteenth further provides that such
indemnification shall be provided against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding; provided, however, that with respect to an action or suit by or
in the right of Cannon Express, such indemnification shall be only against
expenses (including attorneys' fees) and in such cases 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, unless, and only to the
extent that, the court in which the action or suit was brought determines,
upon application, that despite the adjudication of liability and in view of
all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
Insurance. Article Thirteenth of the Cannon Express Charter states
that Cannon Express may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of Cannon
Express, or is or was serving at the request of Cannon Express as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
statue as such, whether or not Cannon Express would have the power to
indemnify him against such liability under the provisions herein.
Exculpation. Article Fourteenth of the Cannon Express Charter
provides that no director shall have any personal liability to Cannon
Express or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided such breach does not (i) constitute a breach
of such director's duty of loyalty to Cannon Express or its stockholders,
(ii) consist of acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) give rise
to liability under Section 174 of the General Corporation Law of the State
of Delaware, or (iv) involve any transaction from which such director
derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation, as amended (1)
4.2 Amended Bylaws(1)
5.1 Opinion of Kutak Rock LLP as to the legality of the shares being
registered (filed herewith)
23.1 Consent of Kutak Rock LLP (included in the opinion filed as
Exhibit 5.1 herewith)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (filed herewith)
(1) Incorporated by reference from the Registrant's Registration Statement on
Form S-18, dated February 26, 1987.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424 (b), if in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement.
Provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above do not apply if 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 Securities Exchange Act of 1934, as
amended (the "Exchange Act") that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under 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 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Springdale, State of Arkansas, on
November 20, 2001.
CANNON EXPRESS, INC.
By: /s/ Dean G. Cannon
Dean G. Cannon
President and Chairman
of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
Signature Title Date
/s/ Dean G. Cannon Director November 20, 2001
Dean G. Cannon
/s/ Rose Marie Cannon Director November 20, 2001
Rose Marie Cannon
/s/ Sam F. Fiser Director November 20, 2001
Sam F. Fiser
/s/ Glenn E. Kelley Director November 20, 2001
Glenn E. Kelley
/s/ Len Bennett Director November 20, 2001
Len Bennett
INDEX TO EXHIBITS
Number Exhibit
4.1 Certificate of Incorporation, as amended (1)
4.2 Amended Bylaws(1)
5.1 Opinion of Kutak Rock LLP as to the legality of the shares being
registered (filed herewith)
23.1 Consent of Kutak Rock LLP (included in the opinion in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (filed herewith)
(1) Incorporated by reference from the Registrant's Registration Statement
on Form S-18, dated February 26, 1987.
Exhibit 5.1
November 19, 2001
Cannon Express, Inc.
1457 Robinson
Springdale, Arkansas 72765
Re: REGISTRATION ON FORM S-8 OF SHARES OF COMMON STOCK PAR VALUE
$.01 PER SHARE, OFFERED PURSUANT TO THE CANNON EXPRESS, INC.
2001 EQUITY INCENTIVE PLAN
Ladies and Gentlemen:
We are acting as counsel to Cannon Express, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of up to 1,000,000 shares (the "Shares")
of common stock, par value $.01 per share, of the Company issuable under the
Cannon Express, Inc. 2001 Equity Incentive Plan (the "Plan").
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and
on the assumptions set forth below, we are of the opinion that the Shares to
be offered and sold, when issued and delivered in accordance with the terms
and provisions of the Plan, against receipt of the consideration provided for
therein, will be validly issued, fully paid, and nonassessable.
In rendering this opinion, we have (i) assumed and have not
independently verified (a) the due authorization, execution and delivery of
the Plan, (b) that all signatures on all certificates and other documents
examined by us are genuine, and that, where any such signature purports to
have been made in a corporate, governmental or other capacity, the person who
affixed such signature to such certificate or other document had authority to
do so, and (c) the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies and (ii) as to certain factual matters, relied upon certificates of
public officials and of the Company and its officers and have not
independently checked or verified the accuracy of the factual statements
contained therein. In addition, our examination of matters of law has been
limited to the General Corporation Law of the State of Delaware and the
federal laws of the United States of America, in each case in effect on the
date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Kutak Rock LLP
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated August 3, 2001, included in Cannon's Annual Report on Form 10-K for
the year ended June 30, 2001, and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen, LLP
Fayetteville, AR
November 19, 2001
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a director or
officer, or both, of Cannon Express, Inc. ("Cannon Express"), acting
pursuant to authorization of the Board of Directors of Cannon Express, hereby
appoints Dean G. Cannon, attorney-in-fact and agent for me and in my name
and on my behalf, individually and as a director or officer, or both, of
Cannon Express, to sign a Registration Statement on Form S-8, together with
all necessary exhibits, and any amendments (including post effective
amendments) and supplements thereto, to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, with
respect to the issuance and sale of shares of common stock, $.01 par value,
of Cannon Express to be issued or delivered in accordance with the Cannon
Express, Inc. 2001 Equity Incentive Plan, and generally to do and perform all
things necessary to be done in connection with the foregoing as fully in all
respects as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand as of this 20th day of
November, 2001.
Signed: /s/ Rose Marie Cannon
Name: ROSE MARIE CANNON
Signed: /s/ Len Bennett
Name: LEN BENNETT
Signed: /s/ Sam F. Fiser
Name SAM F. FISER
Signed: /s/ Glenn E. Kelley
Name: GLENN E. KELLEY