As
filed with the Securities and Exchange Commission on May 24,
2010
Registration No.
333-________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
USA
Truck, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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71-0556971
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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__________________
3200
Industrial Park Road, Van Buren, Arkansas 72956
(479)
471-2500
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
__________________
Clifton
R. Beckham
President
and Chief Executive Officer
USA
Truck, Inc.
3200
Industrial Park Road
Van
Buren, Arkansas 72956
(479)
471-2500
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
__________________
Copies
requested to:
Mark
A. Scudder, Esq.
Heidi
Hornung-Scherr, Esq.
Scudder
Law Firm, P.C., L.L.O.
411
South 13th
Street, Second Floor
Lincoln,
Nebraska 68508
__________________
Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box:
o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering: o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box: x
If this
Form is a post-effective amendment to a registration statement pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box: o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large
Accelerated Filer o Accelerated
Filer x Non-Accelerated
Filer o Smaller
Reporting Company o
(Do not check if a Smaller Reporting Company)
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities
To
Be Registered
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Amount
to be Registered (1)
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Proposed
Maximum
Offering
Price
Per
Share (2)
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Proposed
Maximum Aggregate Offering
Price
(1)(2)(3)
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Amount
of Registration Fee (3)
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Common
Stock, par value $0.01 per share
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$80,000,000
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$5,704.00
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(1) This
Registration Statement registers an indeterminate number of shares of common
stock as may be issued by the Registrant from time to time or at one time and at
such prices and in such amounts as determined by the Registrant. The
aggregate maximum offering price of all securities issued pursuant to this
Registration Statement shall not exceed $80,000,000. In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), the securities being registered hereunder include such
indeterminate number of shares of common stock as may be issuable with respect
to the registered securities as a result of stock splits, stock dividends,
recapitalizations or similar transactions.
(2)
Pursuant to Rule 457(o) under the Securities Act, which permits the registration
fee to be calculated on the basis of the maximum offering price, the table does
not specify the amount to be registered or the proposed maximum offering price
per share.
(3)
Estimated solely for purposes of calculating the registration fee in accordance
with Rule 457 under the Securities Act.
PROSPECTUS
USA
Truck, Inc.
Common
Stock
_____________________________
We, and
any selling stockholders, may offer and sell shares of common stock on a delayed
or continuous basis at indeterminate prices from time to time. We
will not receive any proceeds from the sale of shares of our common stock by the
selling stockholders. The maximum aggregate offering price that may
be issued under this prospectus will not exceed $80,000,000.
We and
the selling stockholders, if any, will provide the specific terms and offering
price of the common stock in supplements to this prospectus to the extent those
terms are not described in this prospectus or are different from the terms
described in this prospectus. The prospectus supplements also may add
to, update, or change information contained in this prospectus. In
addition, we may supplement, update, or change any of the information contained
in this prospectus by incorporating information by reference in this
prospectus.
You
should read this prospectus, the supplements to this prospectus, and any
incorporated documents carefully before you invest in any of our common
stock. This prospectus is not an offer to sell common stock and it is
not soliciting an offer to buy common stock in any state where the offer or sale
is not permitted.
We and
the selling stockholders, if any, may offer common stock directly to investors,
through agents, underwriters, or dealers on a delayed or continued
basis. Each prospectus supplement will provide the terms of the plan
of distribution relating to the common stock.
Our
common stock is listed on the NASDAQ Global Select Market under the symbol
“USAK.”
_____________________________
Investing in our
common stock involves a high degree of risk. Before buying any
shares, you should carefully consider the risk factors described in “Risk
Factors” beginning on page 4 of this prospectus.
_____________________________
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
_____________________________
The date
of this prospectus is ________,20__.
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TABLE
OF CONTENTS
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Description
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Page
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About
This Prospectus
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1
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Summary
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2
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Cautionary
Statement Regarding Forward-Looking Statements
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3
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Risk
Factors
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4
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Use
of Proceeds
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5
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Selling
Stockholders
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5
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Plan
of Distribution
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5
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Description
of Securities to be Registered
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6
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Legal
Matters
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8
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Experts
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8
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Where
You Can Obtain Additional Information
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9
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Incorporation
of Documents By Reference
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9
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we have filed with the
Securities and Exchange Commission (the “Commission”) utilizing a “shelf”
registration process. Under this shelf process, we and any selling
stockholders may from time to time sell the common stock described in this
prospectus in one or more offerings up to an unspecified dollar
amount.
This
prospectus provides you with a general description of the common stock that we
and any selling stockholders may offer. Each time we or any selling
stockholders sell common stock, we will provide a prospectus supplement that
will contain specific information about the terms of that
offering. The prospectus supplement may also add, update, or change
information contained in this prospectus. If there is any
inconsistency between the information in this prospectus and any applicable
prospectus supplement, you should rely on the information in the applicable
prospectus supplement. You should read both this prospectus and any
applicable prospectus supplement, together with additional information described
under the heading “WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION.”
You
should rely only on the information contained or incorporated by reference into
this prospectus, a prospectus supplement, free writing prospectus, or any
amendment filed with the Commission. We have not authorized any other
person to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on
it. This prospectus may be used only where it is legal to sell these
securities. We and any selling stockholders are offering to sell, and
seeking offers to buy, only the shares of common stock covered by this
prospectus, and only under the circumstances and in the jurisdictions where it
is lawful to do so. The information contained in this prospectus is
current only as of its date, regardless of the time of delivery of this
prospectus or of any sale of the shares of common stock. You should
assume that the information appearing in this prospectus, any prospectus
supplement, free writing prospectus, or amendment and the documents incorporated
by reference is accurate only as of the date of this prospectus, any prospectus
supplement, free writing prospectus, or amendment or the respective document
incorporated by reference, as the case may be. Our business,
financial condition, results of operations, and prospects may have changed since
those dates.
Unless
the context requires otherwise, references in this prospectus to “USA Truck,”
the “Company,” “we,” “us,” and “our” refer to USA Truck, Inc. and its
subsidiary.
You
should read carefully the entire prospectus, as well as the documents
incorporated by reference into the prospectus, before making an investment
decision.
1
SUMMARY
This summary highlights selected
information contained elsewhere or incorporated by reference in this prospectus
and does not contain all of the information that may be important to
you. This prospectus provides you with a general description of the
common stock we and any selling stockholders may offer. Each time we
or the selling stockholders, if any, offer to sell common stock, we will provide
you with a prospectus supplement that will describe the specific amounts,
prices, and other terms of the common stock being offered. The
prospectus supplement and the documents incorporated by reference herein also
may add, update, or change information contained in this
prospectus. To understand the terms of our common stock, you should
carefully read this document with the applicable prospectus supplement, as well
as the section entitled “Risk Factors” beginning on page 4 of this
prospectus, before making a decision to invest in our common
stock. Together, these documents will give the specific terms of the
common stock we and any selling stockholders may offer. You should
also read the documents we have incorporated by reference in this prospectus
described above under “Where You Can Obtain Additional
Information.”
USA
Truck
We are a
dry van truckload carrier providing transportation of general commodities
throughout the continental United States and into and out of Mexico and portions
of Canada. We generated approximately $382.4 million in total
revenue in 2009. Generally, we transport full trailer loads of
freight from origin to destination without intermediate stops or
handling. We concentrate primarily on short-to-medium lengths of
haul, which average less than 600 miles, because the majority of domestic
truckload freight (as measured by revenue) moves in these lanes. To
complement our general freight operations and pursue a greater return on our
assets, we provide dedicated, brokerage, and rail intermodal
services. Through our asset based and non-asset based capabilities,
we transport many types of freight for a diverse customer base in industries
such as industrial machinery and equipment, rubber and plastics, retail stores,
paper products, durable consumer goods, metals, electronics, and
chemicals.
We are
the 16th
largest truckload carrier in the United States, based on 2008 revenue data
published by Transport Topics, a publication of the American Trucking
Associations. At December 31, 2009, we had in service
approximately 2,328 tractors, including 165 owner-operator tractors, and 7,214
trailers. We concentrate our freight operations east of the Rocky
Mountains where there is greater density of population, freight lanes, and
drivers. We also provide truckload services into and out of Mexico
and portions of Canada.
Our
business has two segments: asset-intensive trucking services and asset-light
transportation services. The trucking segment of our operations
provides these services through three service offerings. Our General
Freight service offering transports freight over irregular routes as a short- to
medium-haul common carrier. Our Dedicated Freight service offering
provides similar transportation services, but does so pursuant to agreements
whereby we make our equipment available to a specific customer for shipments
over particular routes at specified times. Our Trailer-on-Flat-Car
rail intermodal service offering provides a rail transit option to transport
freight to the extent Company equipment is used in providing the
service.
The
asset-light segment, which we call Strategic Capacity Solutions, includes our
Freight Brokerage and our Container-on-Flat-Car rail intermodal service
offerings. These operations typically do not involve the use of our
equipment or owner-operator equipment. Instead, we arrange for the
transportation of our customers’ freight by other providers and retain a portion
of the compensation.
Other
Information
We were
incorporated in Delaware in September 1986 as a wholly owned subsidiary of ABF
Freight System, Inc. The Company was
purchased by management from ABF Freight System in December 1988. We
completed the initial public offering of our common stock in March
1992.
Our
principal executive office is located at 3200 Industrial Park Road, Van Buren,
Arkansas 72956. Our telephone number is (479)
471-2500. Our website is located at www.usa-truck.com. The
information contained on our website is not incorporated by reference and should
not be considered part of this prospectus.
2
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any prospectus supplement, and the documents incorporated herein by
reference contain certain statements that
may be considered forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended and Section 21E of the Securities
Exchange Act of 1934, as amended. We intend that those statements be
covered by the safe harbors created under those laws. All statements,
other than statements of historical fact, are statements that could be deemed
forward-looking statements, including without limitation: any projections of
earnings, revenues, or other financial items; any statement of plans,
strategies, and objectives of management for future operations; any statements
concerning proposed new services or developments; any statements regarding
future economic conditions or performance; and any statements of belief and any
statement of assumptions underlying any of the foregoing. Such
statements may be identified by the use of terms or phrases such as “expects,”
“estimates,” “projects,” “believes,” “anticipates,” “intends,” “plans,” “goals,”
“may,” “will,” “should,” “could,” “potential,” “continue,” “future,” and similar
terms and phrases. Forward-looking statements are inherently subject
to risks, uncertainties, and assumptions, including those described in our
periodic filings with the Commission, including those described under
“INCORPORATION OF CERTAIN INFORMATION BY REFERENCE.” Examples of
forward-looking statements include all statements that are not historical in
nature, including statements regarding:
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our
operations, competitive position, growth strategy, and
prospects;
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the
implementation of our strategic
plans;
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industry
conditions, including events in the general economy, the supply-demand
balance, rates, and driver
availability;
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the
effects of economic, political, or social
conditions;
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governmental
regulations affecting our operations, including laws and regulations
regarding hours-of-service, safety standards, operating authority,
emissions, and the environment;
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fuel,
insurance, driver pay, depreciation and amortization, salaries, wages and
benefits, purchased transportation, and other costs that impact our
operations and profitability; and
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our
funding needs, financing sources, and liquidity
constraints.
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All
forward-looking statements, including, without limitation, management’s
examination of historical operating trends and data, are based upon our current
expectations and various assumptions. Our expectations, beliefs, and projections
are expressed in good faith and we believe there is a reasonable basis for them.
However, we cannot assure you that management’s expectations, beliefs and
projections will be achieved. There are a number of risks, uncertainties and
other important factors that could cause our actual results to differ materially
from the forward-looking statements contained in this prospectus. Such risks,
uncertainties and other important factors which could cause our actual results
to differ materially from those suggested by our forward-looking statements are
set forth in our reports incorporated by reference into this prospectus, and
include, among other things:
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the
effects of economic, credit, political, and business factors affecting the
trucking industry;
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competition
from numerous sources, including other truckload carriers,
less-than-truckload carriers, railroads, and private
fleets;
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pricing
pressure, an imbalance of industry capacity and demand, a loss of or
volume reduction from major customers, and other factors impacting the
demand for our services and the price we receive for such
services;
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increases
or rapid fluctuations in fuel
costs;
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the
occurrence of losses or other liabilities that are not covered by
insurance or that exceed our insurance
limits;
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our
ability to meet our capital requirements, generate sufficient cash from
operations, and maintain compliance with the terms and conditions of
financing arrangements;
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the
proper functioning and availability of our information
systems;
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our
ability to retain key executives;
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legislative
and regulatory requirements and developments, such as hours-of-service,
the Comprehensive Safety Analysis 2010, emissions standards, and
environmental laws and regulations;
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the
availability, performance of new tractors and trailers, and the pricing of
new and used tractors and trailers;
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increases
in driver compensation or difficulty attracting or retaining qualified
drivers;
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the
reclassification of our owner-operators as
employees;
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seasonality
and the impact of weather;
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our
ability to reduce, or control increases in, operating
costs;
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strikes
or work stoppages at our facilities or those of our customers;
and
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our
susceptibility to various legal claims and
lawsuits.
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Because
our forward-looking statements are based on estimates and assumptions that are
subject to significant business, economic and competitive uncertainties, many of
which are beyond our control or are subject to change, actual results could be
materially different and any or all of our forward-looking statements may turn
out to be wrong. Forward-looking statements speak only as of the date made and
can be affected by assumptions we might make or by known or unknown risks and
uncertainties. Many factors mentioned in our discussion in this prospectus will
be important in determining future results. Consequently, we cannot assure you
that our expectations or forecasts expressed in such forward-looking statements
will be achieved. Actual future results may vary materially.
Except as
required by law, we undertake no obligation to publicly update any
forward-looking or other statements, whether as a result of new information,
future events, or otherwise. We provide a cautionary discussion of risks and
uncertainties under the “Risk Factors” section in this prospectus. These are
factors that we think could cause our actual results to differ materially from
expected results. Other factors besides those listed here could adversely affect
our business and results of operations. You should carefully consider the risks
described under “Risk Factors” in this prospectus, together with any risks
described in the accompanying prospectus supplement and the information
incorporated by reference.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You
should carefully consider the risk factors described under “Risk Factors” in
Item 1A of our Annual Report on Form 10-K for the year ended December 31,
2009, our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2010, and in other documents incorporated by reference into this
prospectus (which risk factors are incorporated by reference herein), as well as
other information contained in or incorporated by reference into this prospectus
or any prospectus supplement hereto before making a decision to invest in our
common stock. See “WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION” and
“CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS” above.
4
USE
OF PROCEEDS
To the
extent we sell shares, we intend to use the net proceeds from the sales of our
common stock as set forth in the applicable prospectus supplement. We will not
receive any proceeds from the sale of any shares of common stock offered by
selling stockholders, if any.
SELLING
STOCKHOLDERS
In
addition to the shares of common stock that the Company may offer, selling
stockholders may from time to time offer and sell any or all of the common stock
under this prospectus. We will supplement this prospectus with the
following information in regards to any selling stockholders: (i) the name of
each selling stockholder; (ii) the nature of any position, office or other
material relationship which the selling stockholder has had within the past
three years with the registrant or any of its predecessors or affiliates; (iii)
the amount of common stock owned by the selling stockholder prior to the
offering; (iv) the amount to be offered for the selling stockholder’s account;
and (v) the amount and, if one percent or more, the percentage of the class to
be owned by such selling stockholder after completion of the
offering.
PLAN
OF DISTRIBUTION
We may sell
the securities described in this prospectus from time to time in one or more of
the following ways:
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to
or through underwriters or dealers;
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directly
to one or more purchasers;
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through
agents; or
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through
a combination of any of such methods of
sale.
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The
prospectus supplement with respect to the offered securities will describe the
terms of the offering, including:
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the
name or names of any agents or
underwriters;
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the
purchase price of such securities and the proceeds to us from such
sale;
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any
underwriting discounts and other items constituting underwriters’ or
agents’ compensation;
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any
public offering price; and
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any
discounts or concessions allowed or reallowed or paid to
dealers.
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5
DESCRIPTION OF SECURITIES TO BE
REGISTERED
Authorized
Capital Stock
Under our
Restated and Amended Certificate of Incorporation, as amended (the “Certificate
of Incorporation”), our authorized capital stock consists of 30,000,000 shares
of common stock, par value $.01 per share, and 1,000,000 shares of preferred
stock, par value $.01 per share. As of the date of this
prospectus, 10,499,082 shares of our common stock were
outstanding.
Common
Stock
Our
common stock is listed on the NASDAQ Global Select Market under the symbol
“USAK.” Any additional common stock we issue will also be listed on
the NASDAQ Global Select Market. The holders of common stock are
entitled to receive dividends, or other distributions with respect to our
outstanding shares, as may be declared from time-to-time by the Board of
Directors. Holders of common stock are entitled to one vote per share
on all matters on which the holders of common stock are entitled to vote and do
not have cumulative voting rights in the election of directors. In
the event of our liquidation, dissolution, or winding up, holders of common
stock will be entitled to share ratably in the assets, if any, available for
distribution after payment of all creditors and the liquidation preferences on
any outstanding shares on preferred stock, if any such stock is
issued. Holders of common stock have no preemptive rights to
subscribe for any additional securities of any class we may issue, nor any
conversion, redemption, or sinking fund rights.
Preferred
Stock
Preferred
stock may be issued from time to time by approval of our board of directors
without stockholder approval in such series and with such preferences,
conversion, or other rights, voting powers, restrictions, limitations as to
dividends, qualifications or other provisions as may be fixed by the board of
directors in the resolution authorizing their issuance. The issuance
of preferred stock could adversely affect the rights of holders of common stock;
for example, the issuance of preferred stock could result in a class of
securities outstanding that would have certain preferences with respect to
dividends and in liquidation over the common stock and that could result in a
dilution of the voting rights, net income per share, and the net book value of
the common stock. There are no shares of preferred stock outstanding,
and we have no agreements or understandings for the issuance of any shares of
preferred stock.
Certain
Provisions of our Certificate of Incorporation and Bylaws
Advance Notice of Proposals and
Nominations. Our Bylaws provide that stockholders must provide timely
written notice to bring business before an annual meeting of stockholders or to
nominate candidates for election as directors at an annual meeting of
stockholders. Notice for a proposal or nomination is timely if it is
received at our principal executive offices not less than 120 days prior to the
date of our proxy statement released to stockholders in connection with the
previous year’s annual meeting. The Bylaws also specify the form and content of
a stockholder’s notice. These provisions may prevent stockholders from bringing
matters before an annual meeting of stockholders or from nominating candidates
for election as directors at an annual meeting of stockholders.
Indemnification of Directors,
Officers, and Employees. The Delaware General Corporation Law (the
“DGCL”) authorizes corporations to limit or eliminate the personal liability of
directors to corporations and their stockholders for monetary damages for
breaches of directors’ fiduciary duties. Our Certificate of Incorporation
includes a provision that eliminates the personal liability of directors for
monetary damages for actions taken as a director, except for
liability:
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for
breach of duty of loyalty;
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for
acts or omissions not in good faith or involving intentional misconduct or
knowing violation of law;
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under
Section 174 of the DGCL (unlawful dividends);
or
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for
transactions from which the director derived improper personal
benefit.
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Our
Certificate of Incorporation and Bylaws provide that we must indemnify our
directors and officers to the fullest extent authorized by the DGCL. We are also
expressly authorized to advance certain expenses (including attorneys fees and
disbursements and court costs) to our directors and officers and carry
directors’ and officers’ insurance providing insurance for our directors,
officers and certain employees for some liabilities. We believe that these
indemnification provisions and insurance are useful to attract and retain
qualified directors and executive officers.
6
The
limitation of liability and indemnification provisions in our Certificate of
Incorporation and Bylaws may discourage stockholders from bringing a lawsuit
against directors for breach of their fiduciary duty. These provisions may also
have the effect of reducing the likelihood of derivative litigation against
directors and officers, even though such an action, if successful, might
otherwise benefit us and our stockholders. In addition, your investment may be
adversely affected to the extent we pay the costs of settlement and damage
awards against directors and officers pursuant to these indemnification
provisions.
There is
currently no pending material litigation or proceeding involving any of our
directors, officers, or employees for which indemnification is
sought.
Anti-Takeover
Provisions of Delaware Law and Our Charter Provisions
We are a
Delaware corporation subject to Section 203 of the
DGCL. Section 203 provides that, subject to exceptions specified
in the law, a Delaware corporation shall not engage in “business combinations”
with any “interested stockholder” for a three-year period following the time
that the stockholder became an interested stockholder unless:
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the
corporation has elected in its certificate of incorporation to be excluded
from the restrictions of Section 203 (the lack of such an election in
our certificate of incorporation means that we are currently subject to
restrictions on such combinations and
transactions);
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the
board of directors of the corporation approved in advance the business
combination or the transaction which resulted in the stockholder becoming
an interested stockholder;
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upon
consummation of the transaction which resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding specified
shares; or
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the
business combination is approved at the time of consummation or thereafter
by the board of directors of the corporation and by the affirmative vote
of at least two-thirds of the outstanding voting stock which is not owned
by the interested
stockholder.
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The
three-year prohibition also does not apply to business combinations proposed by
an interested stockholder following the announcement or notification of
extraordinary transactions involving the corporation and a person who had not
been an interested stockholder during the previous three years or who became an
interested stockholder with the approval of a majority of the corporation’s
directors. The term “business combination” is defined generally to include
mergers or consolidations between a Delaware corporation and an “interested
stockholder,” transactions with an “interested stockholder” involving the assets
or stock of the corporation or its majority-owned subsidiaries and transactions
which increase an interested stockholder’s percentage ownership of
stock.
The term
“interested stockholder” is defined to include any person, other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation, that is the owner of 15% or more of the outstanding voting stock of
the corporation, or is an affiliate or associate of the corporation and was the
owner of 15% or more of the outstanding voting stock of the corporation, at any
time within three years immediately prior to the relevant date, or the
affiliates and associates of any such person.
Section 203
makes it more difficult for a person who would be an “interested stockholder” to
effect various business combinations with a corporation for a three-year period.
The provisions of Section 203 may encourage companies interested in
acquiring our company to negotiate in advance with our board of directors,
because the stockholder approval requirement would be avoided if our board of
directors approves either the business combination or the transaction which
results in the stockholder becoming an interested stockholder. These provisions
also may have the effect of preventing changes in our board of directors and may
make it more difficult to accomplish transactions which stockholders may
otherwise deem to be in their best interests.
7
Article V
of our Certificate of Incorporation and certain sections of our Bylaws also
contain provisions that could have anti-takeover effects, including the
following provisions:
|
●
|
requiring
a classified board of directors;
|
|
●
|
allowing
an increase in the number of directors only if at least 75% of the
directors then in office agree to the
increase;
|
|
●
|
reserving
to the board of directors the exclusive right to fill vacancies on the
board;
|
|
●
|
providing
that a director may be removed only for cause and only upon the
affirmative vote of the holders of a majority of the combined voting power
of the then outstanding shares of voting capital stock of the corporation,
voting together as a single class;
|
|
●
|
requiring
the affirmative vote or consent of the holders of two-thirds of the shares
of stock entitled to vote thereon (including the affirmative vote of the
holders of at least two-thirds of the shares of any class or series of
capital stock entitled to vote separately thereon) to authorize major
corporate transactions required to be authorized by the stockholders under
the DGCL, such as mergers, consolidations, and asset sales;
and
|
|
●
|
requiring
advance notice of all stockholder proposals, including nominations for
election as director.
|
In
addition, our Certificate of Incorporation grants our board of directors the
authority to amend and repeal our Bylaws without a stockholder vote in any
manner not inconsistent with the laws of the State of Delaware, our Certificate
of Incorporation, or Bylaws.
No
Cumulative Voting
The DGCL
provides that stockholders are not entitled to the right to cumulate votes in
the election of directors unless our amended and restated Certificate of
Incorporation provides otherwise. Our Certificate of Incorporation
does not expressly provide for cumulative voting.
Authorized
but Unissued Capital Stock
The DGCL
does not require stockholder approval for any issuance of authorized shares.
However, the listing requirements of the NASDAQ Global Select Market, which
would apply so long as our common stock is listed on the NASDAQ Global Select
Market, require stockholder approval of certain issuances. These
additional shares may be used for a variety of corporate purposes, including
future public offerings, to raise additional capital or to facilitate
acquisitions.
One of
the effects of the existence of unissued and unreserved common stock may be to
enable our board of directors to issue shares to persons friendly to current
management, which issuance could render more difficult or discourage an attempt
to obtain control of our company by means of a merger, tender offer, proxy
contest or otherwise, and thereby protect the continuity of our management and
possibly deprive the stockholders of opportunities to sell their shares of
common stock at prices higher than prevailing market prices.
LEGAL
MATTERS
Scudder
Law Firm, P.C., L.L.O., Lincoln, Nebraska, will provide an opinion for us
regarding the validity of our common stock.
EXPERTS
The financial
statements incorporated by reference in this prospectus and elsewhere in the
registration statement have been so incorporated by reference in reliance upon
the reports of Grant Thornton LLP, independent registered public accountants,
upon the authority of said firm as experts in giving said
reports.
8
WHERE
YOU CAN OBTAIN ADDITIONAL INFORMATION
We file
annual, quarterly, and special reports, proxy statements, and other information
with the Securities and Exchange Commission. The file number under
the Securities Exchange Act of 1934 for our Commission filings is No.
0-19858. You may read and copy materials that we have filed with the
Commission, including the registration statement of which this prospectus is a
part, at the Commission’s public reference room located at:
100 F
Street, N.W.
Washington,
D.C. 20549
Please
call the Commission at 1-800-SEC-0330 for further information on the public
reference room. Our Commission filings also are available to the
public on the Commission’s website at www.sec.gov, which contains reports, proxy
and information statements, and other information regarding issuers that file
electronically and our website at www.usa-truck.com. The information
contained on our website is not incorporated by reference and should not be
considered part of this prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
Commission allows us to “incorporate by reference” the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file later with the
Commission will automatically update and supersede this
information. We incorporate by reference into this prospectus the
documents and information we filed with the Commission that are identified below
and any future filings made with the Commission under Sections 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934 (except as otherwise provided in
the forms governing the documents we incorporate by reference, including, with
respect to Current Reports on Form 8-K, any information furnished under
Item 2.02 or Item 7.01 and related exhibits) until all of the
common stock to which this prospectus relates has been sold or the offering is
otherwise terminated. The documents we incorporate by reference
are:
|
(i)
|
Our Annual Report on Form 10-K for the year ended December 31,
2009;
|
|
(ii)
|
Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2010;
|
|
(iii)
|
Our Current Report on Form 8-K filed with the Commission on March 24,
2010;
|
|
(iv)
|
Our Current Report on Form 8-K filed with the Commission on April 12,
2010;
|
|
(v)
|
Our Current Report on Form 8-K filed with the Commission on April 23, 2010
(excluding Item 2.02 and related exhibit under
Item 9.01);
|
|
(vi)
|
Our Current Report on Form 8-K filed with the Commission on May 7, 2010;
|
(vii) Our Current Report on Form 8-K filed with the Commission on May 21,
2010; and
|
(viii)
|
The description of our common stock contained in the Registration
Statement on Form 8-A we filed with the Commission on
February 13, 1992, which was declared effective on March 19,
1992, including any amendment or report filed for the purpose of updating
such description.
|
Any
statements made in a document incorporated by reference into this prospectus is
deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement in this prospectus or in any other subsequently filed
document, which is also incorporated by reference, modifies or supersedes the
statement. Any statement made in this prospectus is deemed to be
modified or superseded to the extent any statement in any subsequently filed
document, which is incorporated by reference into this prospectus, modifies, or
supersedes such statement.
We will
provide to each person, including any beneficial owners, to whom a prospectus is
delivered a copy of any or all of the information that we have incorporated by
reference into this prospectus but not delivered with the
prospectus. You may request a copy of these filings, at no cost, by
writing us at the following address or telephoning us at (479) 471-2500 between
the hours of 9:00 a.m. and 5:00 p.m., Central Time: J. Rodney Mills,
Secretary, USA Truck, Inc., 3200 Industrial Park Road, Van Buren, Arkansas
72956.
We and
the selling stockholders, if any, have not authorized any dealer, salesperson,
or other person to give any information or represent anything not contained in
this prospectus. You must not rely on any unauthorized
information. This prospectus does not offer to sell or buy any
securities in any jurisdiction where it is unlawful.
9
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following sets forth the expenses in connection with the offering, all of which
will be borne by us:
|
Securities
and Exchange Commission registration fee
|
$
|
5,704.00
|
|
NASDAQ
listing fee
|
0.00*
|
|
|
Accounting
fees and expenses
|
10,000.00**
|
|
|
Legal
fees
|
10,000.00**
|
|
|
Printing
and engraving
|
3,000.00**
|
|
|
Miscellaneous
|
2,000.00**
|
|
|
Total
|
$
|
30,704.00**
|
|
|
*
|
We
have estimated NASDAQ listing fees at $0.00 on the basis that sales by our
selling stockholders will not cause any increase in listing
fees. To the extent we sell shares, we may incur additional
listing fees.
|
|
|
**
|
Estimated.
|
Item
15. Indemnification of Directors and Officers
Under
Section 145 of the DGCL, a corporation may indemnify its directors and officers
against expenses (including attorneys’ fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred by a director or officer in
connection with any threatened, pending or completed action (except settlements
or judgments in derivative suits), suit, or proceeding in which such person is
made a party by reason of his or her being or having been a director, officer,
employee, or agent of the company, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities
Act. The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
As
permitted by Sections 102 and145 of the DGCL, USA Truck’s Bylaws provide
for indemnification of USA Truck’s directors and officers to the full extent
permitted by the DGCL. In addition, USA Truck’s Certificate of
Incorporation eliminates the personal liability of directors to USA Truck or its
stockholders to the fullest extent permitted by the DGCL. USA Truck
has purchased directors’ and officers’ liability insurance covering certain
liabilities that may be incurred by its directors and officers in connection
with the performance of their duties.
II-1
Item 16. Exhibits
The
Exhibit Index filed herewith and appearing immediately before the exhibits
hereto is incorporated by reference in response to this Item.
Item 17. 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;
|
|
(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. 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 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration
statement;
|
|
(iii)
|
To
include, any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
|
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
|
|
|
(4)
|
That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
|
|
(i)
|
If
the registrant is relying on
Rule 430B:
|
|
|
(A)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
|
|
|
(B)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of
the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement
that was made in the registration or prospectus that was part of the
registration statement or made in any such document immediately prior to
such effective date.
|
II-2
|
|
(5)
|
That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities:
|
|
|
The
undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
|
|
(i)
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
(ii)
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
|
(b)
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
any employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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.
|
II-3
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-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Van
Buren, State of Arkansas, on May 24, 2010.
USA
TRUCK, INC.
By: /s/ Clifton R.
Beckham
Clifton R. Beckham
President and Chief Executive Officer
POWER
OF ATTORNEY
Know all
men by these presents, that the undersigned directors and officers of USA Truck,
Inc., a Delaware corporation, which is filing a Registration Statement on
Form S-3 with the Securities and Exchange Commission, Washington, D.C.
20549, under the provisions of the Securities Act of 1933, hereby constitute and
appoint Clifton R. Beckham and Darron R. Ming, and each of them, the
individual’s true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the person and in his name, place, and
stead, in any and all capacities, to sign such Registration Statement and any or
all amendments, including post-effective amendments, to the Registration
Statement, including a prospectus or an amended prospectus therein and all other
documents in connection therewith to be filed 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 and 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 said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
|
/s/
Robert M. Powell
Robert M. Powell
|
Chairman
of the Board
|
May 24,
2010
|
|
/s/
Clifton R. Beckham
Clifton R. Beckham
|
President,
Chief Executive Officer and Director
(Principal
Executive Officer)
|
May 24,
2010
|
|
/s/
Darron R. Ming
Darron R. Ming
|
Vice
President, Finance and Chief Financial Officer
(Principal
Financial and Accounting Officer)
|
May 24,
2010
|
|
/s/
James B. Speed
James B. Speed
|
Director
|
May 24,
2010
|
|
/s/
Terry A. Elliott
Terry A. Elliott
|
Director
|
May 24,
2010
|
|
/s/
William H. Hanna
William H. Hanna
|
Director
|
May 24,
2010
|
|
/s/
Richard B. Beauchamp
Richard B.
Beauchamp
|
Director
|
May 24,
2010
|
|
/s/
James D. Simpson, III
James D. Simpson,
III
|
Director
|
May 24,
2010
|
II-4
EXHIBIT
INDEX
|
Exhibit No.
|
Exhibit Description
|
|
1*
|
Form
of Underwriting Agreement
|
|
4.01
|
Restated
and Amended Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company’s Registration Statement on Form
S-1, Registration No. 33-45682, filed with the Securities and Exchange
Commission on February 13, 1992 [the “Form S-1”]).
|
|
4.02
|
Bylaws
of the Company as currently in effect (incorporated by reference to
Exhibit 3.2 to the Company’s annual report on Form 10-K for the year ended
December 31, 2001).
|
|
4.03
|
Certificate
of Amendment to Certificate of Incorporation of the Company filed March
17, 1992 (incorporated by reference to Exhibit 3.3 to Amendment No. 1 to
the Form S-1 filed with the Securities and Exchange Commission on March
19, 1992).
|
|
4.04
|
Specimen
certificate evidencing shares of the Common Stock, $.01 par value, of the
Company (incorporated by reference to Exhibit 4.1 to the Form
S-1).
|
|
5*
|
Opinion
of Scudder Law Firm, P.C., L.L.O.
|
|
23.01*
|
Consent
of Scudder Law Firm, P.C., L.L.O. (included as part of Exhibit 5.01 filed
herewith).
|
|
23.02**
|
Consent
of Grant Thornton LLP, Independent Registered Public Accounting
Firm.
|
|
24
|
Power
of Attorney (included on the signature pages
herein)
|
______________________________
*To be
filed by amendment or as an exhibit to a Current Report on Form 8-K and
incorporated by reference.
**Filed herewith.
II-5