SCHEDULE 14A
(Rule 14A-101)
INFORMATION REQUIRED IN CONSENT STATEMENT
SCHEDULE 14A INFORMATION
Consent Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant [_]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[_]Confidential, for use of the
[X]Preliminary Consent Statement Commission only (as permitted by
Rule 14a-6(e)(2))
[_]Definitive Consent Statement
[_]Definitive Additional Materials
[_]Soliciting Material Pursuant to Rule 14a-12
SIMON TRANSPORTATION SERVICES INC.
(Name of Registrant as Specified In Its Charter)
Jerry Moyes
(Name of Person(s) Filing Consent Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X]No fee required.
[_]Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[_]Fee paid previously with preliminary materials.
[_]Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
Jerry Moyes
2200 S. 75th Avenue
Phoenix, Arizona 85043
, 2000
Dear Fellow Stockholders of Simon Transportation Services Inc.:
I am writing to urge you to assist me in my effort to gain control of the
board of directors of Simon Transportation. The proposals designed to
accomplish this are described in the attached Consent Statement. Please
express your consent to the proposals by marking, signing, and dating the
enclosed WHITE consent card and returning it in the enclosed, postage-paid
envelope, to my solicitor, MacKenzie Partners, Inc., as set forth in the
Consent Statement.
The persons I propose to nominate to the Simon Transportation board of
directors and I together control approximately 848,550 of the company's Class
A common shares. I wish to gain control of the Simon Transportation board of
directors so that I may complete a tender offer I commenced on May 23, 2000,
for all of the company's Class A and Class B common shares for a price of
$7.00 net cash per share. My offer is subject to the terms and conditions set
forth in the offer to purchase dated May 23, 2000 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together with any amendments
or supplements thereto, collectively constitute the "Offer").
The Simon Transportation board of directors and I attempted for many months
to negotiate an agreement for me to purchase all or a majority of the
company's stock. I believe the relationship between us remains cordial, but we
were unable to agree on all of the terms of a transaction. In the end, the
Simon Transportation board of directors decided they would leave the decision
to the stockholders. In a letter dated May 5, 2000, the Simon Transportation
board of directors informed me that they had decided to remain neutral toward
my offer and had waived the restrictions of all anti-takeover statutes. They
have delivered stockholder records to help me with mailings to the
stockholders. Subject to any action required by their fiduciary obligations,
they indicated that their actions would remain effective if persons affiliated
with me and I obtain shares representing a majority of the total voting power
prior to August 31, 2000. The rest is up to you.
If you believe all stockholders should have the opportunity to either sell
their shares for $7.00 net cash per share or, if I gain control and sufficient
shares also remain in public hands, to retain their investment under the
leadership of a new majority on the board of directors, please join me in
supporting the proposals.
If the Offer is completed, the stockholders who tender their shares will
receive $7.00 net cash per share and will have no further interest in the
company. Stockholders who do not tender face two likely alternatives. My
preference is to keep Simon Transportation public. I believe publicly traded
stock will motivate employees who hold stock options. The stock also could be
used in acquisitions, although I have no present plans or proposals concerning
any acquisitions. If sufficient shares remain outstanding in the hands of a
large enough number of stockholders, I intend to keep the company public. One
of the factors I will consider is whether the company would continue to meet
the listing requirements for the Nasdaq National Market. If it appears that
the untendered shares will not support continued listing with Nasdaq as well
as public trading that I deem significant, I may propose a merger or other
going private transaction in which stockholders who are not affiliated with me
would receive cash for their shares. If such a transaction would occur
promptly following the consummation of the Offer, I believe the consideration
to be received by the non-tendering stockholders would be $7.00 net cash per
share. In that event all stockholders other than myself and persons affiliated
with me would cease to own stock in the company.
If the Offer is not completed, but the proposals are adopted, my nominees
and I would comprise a majority of the company's board of directors.
Thereafter, I expect that the other nominees and I would, subject to our
fiduciary duties to all of the stockholders, propose one or more transactions
designed to acquire shares representing at least a majority of the total
voting power of the company's outstanding common stock.
There are a number of conditions that must be satisfied for me to complete
the Offer. Among other things, I must obtain enough shares in the Offer which,
together with the shares persons affiliated with me and I already control,
would represent at least a majority of the total voting power of Simon
Transportation's common stock. My nominees and I must be elected or appointed
to a majority of seats of the company's entire board of directors. The
company's waiver of all anti-takeover laws must continue to be in effect, and
I must have been given due diligence access to information concerning the
company and have been satisfied with the results. Please review the Offer to
Purchase for a more complete discussion of these and the other conditions to
the Offer. My Offer is not conditioned upon obtaining financing.
I believe that adopting the proposals will further my efforts to complete
the Offer. If adopted, the proposals would satisfy the condition that my
nominees and I gain control of the board of directors. In addition, adopting
the proposals would facilitate gaining access to conduct a due diligence
review and ensuring the continuing effectiveness of the company's waiver of
all applicable anti-takeover laws.
Only stockholders of record at the close of business on May 23, 2000, are
entitled to consent in connection with this consent solicitation. If you were
a stockholder of record on May 23, 2000, but subsequently sold your shares,
you still retain your voting and consent rights.
Please note that although the proposals are stated separately as required
by SEC rules, all of Proposals 1, 2, and 3 must be adopted to accomplish my
objectives. The failure to sign and return a consent will have the same effect
as a vote against the proposals.
Please sign and return your consent card today. In any case, your consent
must be received by July 19, 2000. If you have questions please feel free to
call Lawrence Dennedy of MacKenzie Partners, Inc. at (800) 322-2885.
Sincerely,
Jerry Moyes
IMPORTANT
1. If your Simon Transportation shares are held in your name, please sign,
date, and mail the enclosed WHITE consent card to MacKenzie Partners, Inc.
in the postage-paid envelope provided.
2. If your Simon Transportation shares are held in a "street name," only your
broker or bank can execute a consent with respect to your shares and only
upon receipt of your specific instructions. Accordingly, you should deliver
the enclosed WHITE consent card to your broker or bank, contact the person
responsible for your account, and give instructions for the WHITE consent
card to be signed representing your shares. Please confirm in writing your
instructions to the person responsible for your account and provide a copy
of those instructions to Jerry Moyes in care of MacKenzie Partners, Inc. so
that Mr. Moyes will be aware of all instructions given and can attempt to
ensure that such instructions are followed.
If you have any questions or require any assistance in executing your
consent, please call:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
PRELIMINARY COPY--SUBJECT TO COMPLETION, DATED MAY 23, 2000
CONSENT STATEMENT
OF
JERRY MOYES
GENERAL
Jerry Moyes ("Moyes") is furnishing this Consent Statement and form of
written consent in connection with his solicitation of written consents from
the holders of Class A Common Stock, par value $0.01 per share ("Class A
Common Shares") and Class B Common Stock, par value $0.01 per share ("Class B
Common Shares" and, collectively with Class A Common Shares, the "Shares") of
Simon Transportation Services Inc. (the "Company"). This Consent Statement and
the enclosed WHITE consent card are first being furnished to holders of the
Shares on , 2000. This Consent Statement proposes the following
actions, in the order set forth below, without the necessity of a meeting of
the Company's stockholders, as authorized by Nevada law:
1. Repeal the Company's current bylaws (the "Current Bylaws"), as
previously amended and in effect at the time that written stockholder
consents representing a sufficient number of votes to effect the repeal are
delivered to the Company by Moyes (the "Repeal of Current Bylaws
Proposal").
2. Adopt new bylaws of the Company in the form attached as Exhibit A
(the "New Bylaws"), which, among other things, would (i) retain the
directors actually serving as directors of the Company immediately prior to
the adoption of the New Bylaws (the "Incumbent Directors") for their
remaining terms; (ii) increase the number of directors constituting the
entire board of directors by thirteen (13); (iii) provide a method whereby
the stockholders can remove directors and fill vacancies on the board of
directors; (iv) provide for annual terms for all directors (except the
present terms of the Incumbent Directors shall continue until their
scheduled expiration); (v) empower the stockholders holding more than one-
third of the total number of shares of the Company's common stock to call
special meetings of the stockholders; (vi) change the requirement for a
quorum to be based upon total voting power rather than number of shares;
(vii) create the office of "Chief Executive Officer" and change certain
duties of the other officers; and (viii) provide that the Acquisition of
Controlling Interest Statute does not apply to the Company (the "New Bylaws
Proposal").
3. Elect the following thirteen (13) persons (the "Nominees") to fill
the new director seats created by the adoption of the New Bylaws and to
serve as directors until the next annual meeting of the Company's
stockholders or until their respective successors are duly elected and
qualified: Jerry Moyes, Earl H. Scudder, Gordon K. Holladay, Jon Isaacson,
Vickie L. Moyes, Craig P. Moyes, Jeff L. Archibald, Patrice Archibald,
Ronald G. Moyes, Krista B. Moyes, Michael J. Moyes, Buddy Favero, and Laura
Favero (the "Director Election Proposal").
All of the foregoing actions (collectively, the "Proposals") are designed
to permit Moyes to acquire control of the Company's board of directors. It is
a condition to the Offer (as described below) by Moyes to purchase up to all
of the Shares for $7.00 in cash, net to the seller, that Moyes obtains control
over the Company's board of directors. Moyes asks that you express your
consent to the Proposals by marking, signing, and dating the enclosed WHITE
consent card and returning it in the enclosed, postage-paid envelope to Moyes'
solicitor, MacKenzie Partners, Inc., in accordance with the instructions set
forth below.
A Proposal will become effective when properly completed, unrevoked
consents are signed by the holders of record on the Record Date (as defined
below) of a number of Shares representing a majority of the total voting power
of all outstanding Shares and such consents are delivered to the Company on or
before July 19, 2000. See "Consent Procedure." The effectiveness of the
consents is conditioned on the approval of Proposals 1, 2, and 3. If all of
such Proposals are not approved as indicated, none of the Proposals will be
enacted even though sufficient consents may have been received to approve a
particular Proposal.
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The record date for this Consent Statement is May 23, 2000 (the "Record
Date"). Stockholders who sold Shares subsequent to May 23, 2000, still retain
their voting and consent rights with respect to such Shares. Stockholders of
record on the Record Date are urged to execute and return a consent to
MacKenzie Partners, Inc. no later than June 21, 2000, to ensure timely
delivery of the consents. Certain information regarding consent procedures is
found beginning on page 8.
Moyes recommends that you consent to each of the Proposals. The failure to
execute and timely return a consent will have the same effect as voting
against the Proposals.
THIS CONSENT STATEMENT IS BEING MADE BY MOYES AND NOT ON BEHALF OF THE
COMPANY'S CURRENT BOARD OF DIRECTORS.
On May 23, 2000, Moyes commenced an offer to purchase up to all of the
outstanding Shares at a price of $7.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set
forth in the offer to purchase dated May 23, 2000 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together with any amendments
or supplements thereto, collectively constitute the "Offer"). The purpose of
the Offer is to enable Moyes to acquire control of the Company.
The Offer is conditioned upon, among other things: (i) there being validly
tendered prior to the expiration of the Offer and not withdrawn, a number of
Shares that, together with the Shares deemed to be beneficially owned by Moyes
and the other Nominees, will represent at least a majority of the total voting
power of the outstanding Shares as of the date the Shares are accepted for
payment pursuant to the Offer (the "Minimum Tender Condition"); (ii) there
being validly tendered and not withdrawn at least 450,000 Class B Common
Shares deemed to be beneficially owned, directly or indirectly through any
trust or otherwise, by Richard D. Simon (the "Simon Tender Condition"); (iii)
Moyes and his designees being elected or appointed to fill a majority of the
directorships comprising the entire Board of Directors of the Company (the
"Board of Directors Condition"); (iv) the Company giving Moyes access to
perform a due diligence examination of the Company's assets, liabilities,
facilities, business operations, personnel, customers, and other matters and
Moyes' satisfaction, in his sole discretion, with the results of such
examination (the "Due Diligence Condition"); (v) the continuing effectiveness
of the Company's waiver of all applicable anti-takeover statutes, including
Sections 78.411, et seq. and 78.378, et seq. of the Nevada General Corporation
Law (the "Anti-Takeover Statute Condition"); and (vi) the expiration or
termination of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the regulations
thereunder, as well as compliance with any other applicable antitrust laws
(the "Antitrust Condition"). The Offer also is conditioned upon certain other
conditions described in Section 14 of the Offer to Purchase.
All conditions to the Offer must be satisfied or waived prior to the
expiration of the Offer. There can be no assurance as to whether the
conditions to the Offer will be satisfied and, if so, as to the timing of
satisfaction of such conditions.
Complete information about the Offer is contained in the Offer to Purchase,
which is available upon request from MacKenzie Partners, Inc., the Information
Agent for the Offer, by calling (800) 322-2885. Information also is available
in the Tender Offer Statement on Schedule TO, which has been filed with the
Securities and Exchange Commission (the "Commission"). The Tender Offer
Statement on Schedule TO and any amendments thereto, including exhibits, are
available for inspection and copies are obtainable in the manner set forth
under "Additional Information."
THIS CONSENT STATEMENT IS NEITHER A REQUEST FOR THE TENDER OF SHARES NOR AN
OFFER WITH RESPECT THERETO. THE OFFER IS BEING MADE ONLY BY MEANS OF THE OFFER
TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL.
Moyes urges you to read this entire Consent Statement carefully. The
information contained in this Consent Statement includes forward-looking
statements within the meaning of Section 21E of the Securities Exchange
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Act of 1934, as amended (the "Exchange Act"). While Section 21E of the
Exchange Act is not applicable to forward-looking statements made in
connection with a tender offer, it has not been finally determined whether the
safe harbor provided by Section 21E of the Exchange Act applies to forward-
looking statements in a consent solicitation conducted in connection with a
tender offer. Such statements are indicated by words or phrases such as
"anticipates," "estimates," "projects," "believes," "intends," "expects," and
similar words and phrases. Forward-looking statements are subject to risks,
uncertainties, and other factors which could cause actual results to differ
materially from future results expressed or implied by such forward-looking
statements. Such factors include, among others, the following: (i)
consummation of the proposed transactions; and (ii) new or different
circumstances resulting in a change in the current intentions of the Nominees.
Given these uncertainties, prospective investors are cautioned not to
attribute undue certainty to such forward-looking statements. Moyes disclaims
any obligation to update any such factors or to publicly announce the results
of any revisions to any of the forward-looking statements contained herein to
reflect future events or developments.
REASONS FOR THE CONSENT STATEMENT
Moyes is soliciting consents to the Proposals in order to permit the
consummation of the Offer. The purpose of the Offer is to enable Moyes to
acquire control of the Company.
The consideration that stockholders would receive in the Offer reflects a
premium over the closing price of the Class A Common Shares on the Nasdaq
National Market of $5.66 on May 22, 2000, the last full day of trading prior
to the commencement and first public announcement of the Offer. In the last
twelve months, the closing price of the Class A Common Shares has ranged from
a high of $6.25 on December 29, 1999, to a low of $4.125 on July 28, 1999.
Upon election, the Nominees are expected to consider whether to take any
actions required to permit the prompt consummation of the Offer. Moyes expects
that, subject to their fiduciary duties under applicable law, the Nominees
would take such actions as may be required to permit the prompt consummation
of the Offer. Therefore, adoption of the Proposals is expected to permit the
prompt consummation of the Offer.
THE PROPOSALS
This Consent Statement and the accompanying form of written consent are
being furnished to the Company's stockholders in connection with Moyes'
solicitation from such stockholders of written consents to take the following
actions without the necessity of a stockholders' meeting, as permitted by
Nevada law:
Proposal No. 1. The Repeal of Current Bylaws Proposal.
Proposal No. 1, the Repeal of Current Bylaws Proposal, is worded as
follows: "Resolved, that the bylaws of Simon Transportation Services Inc., as
previously amended and in effect immediately prior to the adoption of this
resolution, are hereby repealed in their entirety."
Adopting the Repeal of Current Bylaws Proposal would result in the Current
Bylaws being repealed in their entirety and no longer being used by the
Company. If the Repeal of Current Bylaws Proposal is adopted, among other
things, the Company would no longer have a classified board of directors
whereby directors are elected for three-year terms and approximately one-third
(but no less than one-fourth) of the directors stand for election each year. A
more complete description of the principal differences between the Current
Bylaws and the New Bylaws follows Proposal No. 2.
The Nevada General Corporation Law (the "NGCL") empowers the stockholders
of a corporation to adopt the corporation's bylaws. Article XI of the Current
Bylaws provides: "These Bylaws may also be repealed, altered, or amended, or
new bylaws may be adopted, by the affirmative vote of not less than a majority
of the
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combined voting power of the then outstanding capital stock of the
Corporation." Based on the foregoing, Moyes believes that consents signed and
delivered by holders of a majority of the total voting power of the
outstanding Shares in favor of Proposal No. 1 will be sufficient to repeal the
Current Bylaws. For additional information concerning the required consents,
see "Consent Procedure--How Many Shares Must Consent to the Proposals?"
Proposal No. 2. The New Bylaws Proposal.
Proposal No. 2, the New Bylaws Proposal, is worded as follows: "Resolved,
that the New Bylaws of Simon Transportation Services Inc., in the form
attached as Exhibit A to the Consent Statement of Jerry Moyes, are hereby
adopted as the bylaws of Simon Transportation Services Inc., effective
immediately."
Adopting the New Bylaws Proposal would implement the New Bylaws as the
bylaws to govern the Company. There are several differences between the
Current Bylaws and the New Bylaws. The discussion of the principal differences
herein is a summary only and is qualified by reference to the entire text of
Exhibit B, which reflects the deletions from the Current Bylaws with a strike-
through and additions to the Current Bylaws with underlining (the "Blacklined
Bylaws"). A summary of several of the principal differences between the
Current Bylaws and the New Bylaws follows.
The New Bylaws would permit the holders of more than one-third of the
Company's outstanding shares of all classes of common stock to call a special
meeting of stockholders. The Current Bylaws do not permit the stockholders to
call a special meeting of stockholders. See Article II, Section 2 of the
Blacklined Bylaws.
The New Bylaws would change the requirement for a quorum to more than a
majority of the total voting power of the outstanding common stock entitled to
vote in the election of directors. The Current Bylaws require a majority of
the outstanding common stock (not voting power) to constitute a quorum. See
Article II, Section 7 of the Blacklined Bylaws.
The New Bylaws would create the office of Chief Executive Officer and amend
the duties of certain other officers. See Article IV, Sections 1, 7, 8, and 9
of the Blacklined Bylaws.
The New Bylaws would provide a method whereby stockholders can remove
directors and fill vacancies on the board of directors. The Current Bylaws
lack provisions that address these points. See Article III, Sections 2, 11,
and 13 of the Blacklined Bylaws.
The New Bylaws would provide that Section 78.378 et seq. of the NGCL (the
"Acquisition of Controlling Interest Statute") does not apply to the Company.
This is an anti-takeover statute. The statute prohibits an acquiror, under
certain circumstances, from voting shares of a target corporation's stock
after crossing certain threshold ownership percentages, unless the acquiror
obtains the approval of the target corporation's disinterested stockholders.
The Acquisition of Controlling Interest Statute specified three thresholds:
one-fifth or more but less than one-third, one-third but less than a majority,
and a majority or more, of the outstanding voting power. Once an acquiror
crosses one of the above thresholds in an offer or acquisition, those shares
acquired within 90 days immediately preceding his becoming an Acquiring Person
become "Control Shares." The Acquiring Person is prohibited from voting the
Control Shares until disinterested stockholders restore the right. The
Acquisition of Controlling Interest Statute also provides that in the event
Control Shares are accorded full voting rights and the Acquiring Person has
acquired a majority or more of all voting power, all other stockholders who do
not vote in favor of authorizing voting rights to the Control Shares are
entitled to demand payment for the fair value of their shares. The board of
directors is to notify the stockholders as soon as practicable after such an
event has occurred that they have the right to receive the fair value of their
shares in accordance with statutory procedures established generally for
dissenters' rights. Opting out of the statute would permit Moyes, or any other
acquiror of Control Shares, to purchase without the voting rights of such
shares being denied or being forced to seek the approval of the disinterested
stockholders to restore the voting rights. The Current Bylaws do not contain
this provision.
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The New Bylaws would change the Company's board of directors in several
ways:
. The number of directors comprising the entire board of directors would be
increased by thirteen (13) directors. Based on the nine directors
currently serving, Moyes anticipates that the number of directors would
be twenty-two (22). The Current Bylaws provide for a board of directors
comprised of three to twelve directors.
. The terms of the Incumbent Directors would extend for their full original
term.
. The directors appointed pursuant to the New Bylaws would serve annual
terms, and all directors elected thereafter would serve until the next
annual meeting of stockholders following their election or appointment.
The Current Bylaws provide for a classified board of directors with
three-year terms and the election of approximately one-third of the
directors each year.
. The number and terms of directors established by Article III, Section 2
of the New Bylaws could be amended by a majority of the board of
directors or by stockholders holding a majority of the total voting power
of all of the Company's outstanding capital stock. By its terms, Article
III, Section 2 of the Current Bylaws may be amended only by (a) the
affirmative vote of two-thirds of the continuing directors, (i.e. the
Incumbent Directors), or (b) the affirmative vote of stockholders holding
at least two-thirds of the voting power of all outstanding voting stock.
See Article III, Section 2 and Article XI of the Blacklined Bylaws.
The NGCL empowers the stockholders of a corporation to adopt the
corporation's bylaws. Article XI of the Current Bylaws provides that new
bylaws may be adopted, by the affirmative vote of not less than a majority of
the combined voting power of the then outstanding capital stock of the
Company. Based on the foregoing, Moyes believes that consents signed and
delivered by holders of a majority of the total voting power of the
outstanding Shares in favor of Proposal No. 2 will be sufficient to adopt the
New Bylaws. For additional information concerning the required consents, see
"Consent Procedure--How Many Shares Must Consent to the Proposals?"
Proposal No. 3. The Director Election Proposal.
Proposal No. 3, the Director Election Proposal is worded as follows:
"Resolved, that the following persons are hereby elected, effective
immediately upon the adoption of the New Bylaws, as directors of Simon
Transportation Services Inc. to serve until the next annual meeting of the
stockholders of Simon Transportation Services Inc. or until their successors
are duly elected and qualified:
Jerry Moyes Jeff L. Archibald
Jon Isaacson Patrice Archibald
Earl H. Scudder Ronald G. Moyes
Gordon K. Holladay Krista B. Moyes
Vickie L. Moyes Michael J. Moyes
Craig P. Moyes Buddy Favero
Laura Favero"
Adopting the Director Election Proposal would elect the Nominees as
directors of the Company to fill the new director seats created by the
adoption of the New Bylaws. Each of the thirteen (13) Nominees named above has
consented to being named herein to serve as a director, if elected. Although
Moyes has no reason to believe that any of the Nominees will be unable or
unwilling to serve as directors, it is anticipated that if any of the Nominees
is not available for election, the remaining Nominees will vote for the
election of a replacement proposed by Moyes.
Moyes' primary purpose in seeking to elect the Nominees to the Company's
board of directors is to obtain control of the board of directors. Upon their
election, Moyes believes the Nominees would, subject to their fiduciary duties
to the Company and its stockholders, consider and take any actions required to
permit the prompt consummation of the Offer. If elected, the Nominees would be
responsible for managing the business and affairs of the Company. Each
director has an obligation under Nevada law to discharge his or her duties as
a director on an informed basis, in good faith, with the care an ordinarily
careful and prudent person in a like position would
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exercise under similar circumstances and in a manner the director honestly
believes to be in the best interests of the Company. In this connection,
circumstances may arise in which the interests of Moyes and his affiliates, on
the one hand, and the interests of other stockholders of the Company, on the
other hand, may differ. Such circumstances could include, among other things,
taking action with regard to the Offer, considering other takeover proposals
or offers for the Company made by third parties, or considering any action to
take the Company private. In any such case, the Nominees intend to discharge
fully the obligations owing to the Company and its stockholders under Nevada
law.
The NGCL permits the stockholders of a corporation to elect directors by
the written consent of stockholders holding a majority of the total voting
power without a meeting unless otherwise provided in the corporation's
articles of incorporation or bylaws. The Current Bylaws permit such action by
written consent. Therefore, assuming that Proposals 1 and 2 are adopted, Moyes
believes that consents signed and delivered by holders of a majority of the
total voting power of the outstanding Shares in favor of Proposal No. 3 will
be sufficient to adopt the Director Election Proposal. For additional
information concerning the required consents, see "Consent Procedure--How Many
Shares Must Consent to the Proposals?"
If the Nominees are elected to fill a majority of the seats on the entire
board of directors, Moyes expects that, at or before the next annual meeting
of stockholders, the Nominees will consider methods by which the overall
number of directors could be reduced with some of the Nominees remaining as a
majority of the entire board of directors. Any action would be taken
consistent with the Nominees' fiduciary duties to all of the stockholders and
applicable law. It is anticipated that, following any reduction in the number
of directors, the Nominees who would continue to serve as directors would
include at least Jerry Moyes, Jon Isaacson, Earl H. Scudder, and Gordon K.
Holladay.
The following sets forth information concerning the Nominees:
Jerry Moyes. Jerry Moyes has served as the Chairman of the Board,
President, and Chief Executive Officer of Swift Transportation Co., Inc.
("Swift") since 1984. If the Proposals are adopted, the Nominees are
expected to vote to appoint Jerry Moyes Chairman of the Board of the
Company. Jerry Moyes is the husband of Vickie L. Moyes and is 56 years old.
Jon Isaacson. Jon Isaacson is, and for more than the past five years has
been, the Vice President of East Coast Operations of Swift. If the
Proposals are adopted, the Nominees are expected to vote to appoint Mr.
Isaacson as Chief Executive Officer of the Company. Mr. Isaacson is 37
years old.
Earl H. Scudder. Earl Scudder has served as a director of Swift since
May 1993. Mr. Scudder has been President of Scudder Law Firm, P.C. in
Lincoln, Nebraska since February 1990, and has engaged in the private
practice of law since 1966. Mr. Scudder is 57 years old.
Gordon K. Holladay. Gordon Holladay is, and for more than the past five
years has been, the Chief Financial Officer of SME Industries, Inc., the
parent company of SME Steel Contractors, Inc., a steel erection and
fabrication company located in West Jordan, Utah (together referred to as
"SME"). SME is controlled by Mr. Moyes. Mr. Holladay is 45 years old.
Vickie L. Moyes. Vickie Moyes is the wife of Jerry Moyes. She is a
homemaker and is 55 years old.
Craig P. Moyes. Craig Moyes is, and for more than the past five years
has been, the President of SME. He is the cousin of Jerry Moyes and is 55
years old.
Jeff L. Archibald. Jeff Archibald is, and for more than the past five
years has been, the Human Resources Director for SME. Mr. Archibald is the
brother-in-law of Jerry Moyes and the husband of Patrice Archibald. He is
51 years old.
Patrice Archibald. Patrice Archibald is, and for more than the past five
years has been, a general partner of Home to Home International, a company
offering retail sales and business opportunities for home businesses. Mrs.
Archibald is the sister of Jerry Moyes and the wife of Jeff L. Archibald.
She is 51 years old.
Ronald G. Moyes. Ronald Moyes has been the Chief Executive Officer of
Central Freight Lines, Inc., a less-than-truckload trucking company, since
February 2000. Ronald Moyes has served as the President of Total Auto Pros,
Moments Salon, and Sleekcraft Powerboats for more than the past five years.
He is the brother of Jerry Moyes and is 51 years old.
6
Krista B. Moyes. Krista Moyes is the sister-in-law of Jerry Moyes and
the spouse of Ronald Moyes. From 1991 to 1998, Krista was employed by
Moments Salon. She is currently a homemaker and is 39 years old.
Michael J. Moyes. Michael Moyes has been employed by Swift as a Market
Analyst since 1996. Prior to his employment with Swift, Michael Moyes was a
student. Michael Moyes is the son of Jerry and Vickie L. Moyes and is 23
years old.
Buddy Favero. Buddy Favero has served as a Regional Vice President for
the Western Region at Swift for more than the past five years. Mr. Favero
is the brother of Vickie L. Moyes and the husband of Laura Favero. He is 47
years old.
Laura Favero. Laura Favero is a homemaker. Mrs. Favero is the wife of
Buddy Favero and the sister-in-law of Vickie L. Moyes. She is 46 years old.
APPROVAL OF THE PROPOSALS
The Proposals will become effective only if properly completed, unrevoked
consents representing a majority of the total voting power of the outstanding
Shares are signed by the holders of record on the Record Date, and such
consents are delivered to the Company on or prior to July 19, 2000. The
effectiveness of the consents is conditioned upon the approval of Proposals 1,
2, and 3. If all of such Proposals are not approved as indicated, none of the
Proposals will be enacted even though sufficient consents may have been
received to approve that particular Proposal. The failure to execute and return
a consent will have the same effect as voting against the Proposals.
ADOPTION OF THE PROPOSALS IS AN IMPORTANT STEP TOWARD PROMPT CONSUMMATION OF
THE OFFER. ACCORDINGLY, YOU ARE URGED TO PROMPTLY SIGN, DATE, AND MAIL THE
ENCLOSED WHITE CONSENT CARD. YOU MUST SEPARATELY TENDER YOUR SHARES PURSUANT TO
THE OFFER IF YOU WISH TO PARTICIPATE IN THE OFFER. EXECUTING A CONSENT DOES NOT
OBLIGATE YOU TO TENDER YOUR SHARES PURSUANT TO THE OFFER, AND YOUR FAILURE TO
EXECUTE A CONSENT DOES NOT PREVENT YOU FROM TENDERING YOUR SHARES PURSUANT TO
THE OFFER.
THE OFFER
General
On May 23, 2000, Moyes commenced the Offer to purchase up to all of the
Shares at a price of $7.00 per Share, net to the seller in cash. The Offer is
subject to the terms and conditions set forth in the Offer to Purchase and the
related Letter of Transmittal, and this summary is qualified by reference to
such documents. The Offer expires at 5:00 p.m., Eastern time, on Wednesday,
June 21, 2000, unless and until Moyes, in his sole discretion, extends the
period for which the Offer is open, in which event the Offer shall expire at
the latest time and date to which the Offer is so extended by Moyes. The
purpose of the Offer is to enable Moyes to acquire control of the Company.
Certain Conditions of the Offer
The Offer is not conditioned upon Moyes obtaining financing. The Offer is
conditioned, among other things, upon the Minimum Tender Condition, the Simon
Tender Condition, the Board of Directors Condition, the Due Diligence
Condition, the Anti-Takeover Statute Condition, the Antitrust Condition, and
certain other conditions as described in Section 14 of the Offer to Purchase.
Moyes reserves the right (but shall not be obligated) to waive any or all such
conditions.
Certain Other Information About the Offer
Stockholders are not being asked to and should not tender their Shares
pursuant to this Consent Statement.
7
Moyes has reserved the right to amend the terms of the Offer in light of
future developments or to terminate the Offer. Such developments could
include, without limitation, actions that the Company or its board of
directors may take and any materially adverse change in the Company's
business.
The Company's board of directors must take certain actions necessary to
satisfy the conditions of the Offer. To date, the Incumbent Directors have not
agreed to take all actions required to satisfy the conditions. In particular,
the Incumbent Directors have not agreed to appoint Moyes and his designees as
a majority of the entire board of directors and have denied Moyes certain due
diligence access. Moyes does not know whether the Incumbent Directors will
agree to take these actions in the future. Because of this uncertainty, Moyes
is seeking to take control of the board of directors through this consent
solicitation. If this consent solicitation is successful, Moyes expects that
the Nominees would take all actions required to satisfy the conditions of the
Offer. In considering any such actions, the Nominees would act consistently
with their fiduciary obligations.
Until the conditions to the Offer are satisfied or waived, Moyes will not
purchase any Shares pursuant to the Offer. Accordingly, the failure to sign
and deliver the enclosed consent could leave the Company's stockholders
without the ability to participate in the Offer or to gain any actual or
perceived benefits from a change in control of the board of directors.
The purpose of the Offer is to enable Moyes to acquire control of the
Company. During the pendency of, and initially following the consummation of
the Offer, Moyes intends to seek additional information about the Company and
to evaluate the Company's business and operations. Moyes intends to review
such information as part of a comprehensive review of the Company's business,
operations, capitalization, and management with a view toward improving the
Company's potential.
Following the consummation of the Offer, Moyes intends to cause the Company
to appoint Jon Isaacson as Chief Executive Officer. Mr. Isaacson currently
serves as Vice President of East Coast Operations for Swift. He formerly lived
in Salt Lake City, where the Company's headquarters are located, and has
expressed a desire to return. Moyes presently does not have any other plans
for changes in management.
From time-to-time after consummation of the Offer, Moyes may seek to
increase the Company's growth, including through one or more mergers,
acquisitions, or other business combinations. However, except as stated
herein, Moyes has no present plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, consolidation,
reorganization, liquidation, or sale or transfer of a material amount of
assets, involving the Company or any of its subsidiaries, or any material
changes in the Company's present capitalization, dividend policy, employee
benefit plans, corporate structure, or business or any material changes or
reductions in the composition of its management or personnel.
Following the consummation of the Offer, it is Moyes' preference that the
Class A Common Shares continue to be listed on the Nasdaq National Market.
However, if the number of Shares held by stockholders, other than stockholders
affiliated with Moyes and those who are part of the current management of the
Company, are less than the requirements necessary to be traded on the Nasdaq
National Market or are not sufficient, as determined by Moyes in his sole
discretion, to provide sufficient justification for the Company to continue to
meet the reporting and disclosure obligations of the Nasdaq National Market
and the Commission, Moyes may propose corporate action to take the Company
private. In that instance, holders of Shares other than Moyes and persons
affiliated with him would receive cash for their shares and no longer be
stockholders.
CONSENT PROCEDURE
What Provisions of Law Govern the Company in Connection with the Consent
Statement?
Section 78.320 of the NGCL states that, unless otherwise provided in a
corporation's articles of incorporation or bylaws, any action required or
permitted to be taken at a meeting of stockholders may be taken
8
without a meeting if, before or after the action, a written consent thereto is
signed by stockholders holding at least a majority of the voting power, except
that if a different proportion of voting power is required for such an action
at a meeting, then that proportion of written consents is required.
Article II, Section 13 of the Company's bylaws permits stockholder action
by written consent. The written, unrevoked consents of holders as of the
Record Date of the required voting power of the outstanding Shares discussed
above must be delivered to the Company to effect the actions described in this
Consent Statement.
Who is Entitled to Sign and Deliver Consents?
Consents may be executed by stockholders of record at the close of business
on the Record Date. All stockholders who owned Shares at the close of business
on the Record Date have the right to consent to the Proposals, even if they
have disposed of their Shares after the Record Date. As soon as Moyes has
received valid and unrevoked consents representing a majority of the total
voting power of the outstanding Shares from holders of Shares as of the Record
Date, Moyes will deliver the consents to the Company. After Moyes makes that
delivery, stockholders will be unable to revoke a consent. Moyes will notify
all stockholders who have not consented to the actions at such time as Moyes
has been able to secure a sufficient number of consents to adopt the
Proposals.
What is the Record Date for the Consent Statement?
May 23, 2000, is the Record Date for this Consent Statement. Under Section
78.350 of the NGCL, the board of directors of a corporation may fix a record
date to determine the stockholders entitled to consent in writing to corporate
action without a meeting. According to Article II, Section 5 of the Current
Bylaws, if no record date has been fixed by the board, the record date shall
be the day on which the first written consent is expressed by any stockholder.
The Company's board of directors did not fix a record date in connection with
the consents subject to this Consent Statement. On May 23, 2000, Moyes
delivered the first written consent to the Company. Accordingly, the Record
Date in connection with the consents subject to this Consent Statement is May
23, 2000.
How Many Shares Must Consent to the Proposals?
Consents representing at least a majority of the total voting power of the
outstanding Shares are required to adopt Proposals 1, 2, and 3.
According to the Company's Form 10-Q filed with the Commission for the
quarter ended March 31, 2000 (the "Second Quarter 10-Q"), as of March 31,
2000, there were 5,196,358 Class A Common Shares and 913,751 Class B Common
Shares outstanding. Holders of Class A Common Shares are entitled to one (1)
vote for each share held. Holders of Class B Common Shares are entitled to two
(2) votes for each share held on all matters submitted to a vote of the common
stockholders so long as the holder is Richard D. Simon, Valene Simon, Kelle A.
Simon, Lyn Simon, Sherry L. Bokovoy, or Richard D. Simon, Jr. (the
"Founders"), any trust for the benefit of one or more of the Founders or any
other entity which is 100% owned by the Founders. Holders of Class B Common
Shares may convert such shares into Class A Common Shares, at any time and
from time-to-time, on the basis of one Class A Common Share for each Class B
Common Share. If any Class B Common Shares cease to be owned by the Founders,
or any trust for the benefit of one or more of the Founders or by any other
entity which is 100% owned by one or more of the Founders, such shares that
are no longer so owned are converted automatically into Class A Common Shares
and are entitled to one (1) vote per share.
According to the Company's Proxy Statement filed with the Commission on
January 6, 2000 (the "Most Recent Proxy"), there were, as of December 15,
1999, approximately 1,415,500 Class A Common Shares reserved for issuance to
employees under the Company's stock option plans. Of the shares reserved,
options had been granted covering approximately 1,008,000 shares, and
approximately 275,000 shares were, at December 15, 1999, subject to vested but
unexercised options. Based on the information in the Annual Report on Form 10-
K for the fiscal year ended September 30, 1999, filed by the Company with the
Commission, at such time,
9
there were no vested options with an exercise price equal to or less than the
offer price. Based on the foregoing and assuming, from December 15, 1999,
through the expiration or consummation of the Offer, that no new options were
granted, no additional options become exercisable or are exercised, canceled,
or expire, and no Shares are issued or reacquired, there would be outstanding
5,196,358 Class A Common Shares, having one vote per share, and 913,751 Class
B Common Shares, having two votes per share. Accordingly, there would be
7,023,860 votes comprising the total voting power of the Company's outstanding
stock.
Based on the foregoing assumptions, the number of votes required for a
majority of the total voting power of the outstanding Shares would be
3,511,931 if none of the Class B Common Shares are converted to Class A Common
Shares or tendered in the Offer. The actual number of votes required will
depend on the facts as they exist on the date consents are delivered to the
Company.
How Many Consents Must Moyes Receive?
Moyes and the other Nominees intend to execute consents for the 848,550
Shares controlled by them in favor of all of the Proposals. Based upon the
information known to Moyes and the assumptions discussed above, for the
Proposals to receive a majority of the total voting power of all outstanding
Shares, the maximum number of additional Shares for which consents must be
received is 2,663,381 if none of the Class B Common Shares consent to the
Proposals. This would represent approximately 61% of the 4,347,808 Class A
Common Shares that Moyes and the other Nominees do not already control. If
Class B Common Shares are converted into Class A Common Shares, are purchased
by Moyes in the Offer, or if holders of Class B Common Shares consent to the
Proposals, the number of Shares for which Moyes must receive consents would be
reduced. The actual number of votes necessary to effect the Proposal will
depend on the actual facts as they existed on the Record Date and as they
exist on the date the consents are submitted to the Company.
When Must I Return the Consent?
Moyes urges you to sign, date, and return your consent as soon as possible,
preferably by June 21, 2000, which is the initial expiration date of the
Offer. You must send your signed consent by July 19, 2000. If Moyes does not
receive timely a consent from you, it will be the same as a "no" vote. Moyes,
therefore, urges you to mark, sign, date, and return the enclosed consent as
soon as possible.
What Must I do to Consent and How do I Complete the Consent Card?
To participate in this consent solicitation, you should mark the "consent",
"consent withheld," or "abstain" box, as applicable, underneath each Proposal
on the accompanying WHITE consent card. You must then sign, date, and return
the WHITE consent card promptly in the enclosed postage-paid envelope. If you
execute and return the WHITE consent card but fail to check a box marked
"Consent," "Consent Withheld," or "Abstain" for any or all of the Proposals,
such consent card will be treated as a consent to such Proposal or Proposals.
You may withhold consent to the election of any individual Nominee under
Proposal 3 by writing such person's name in the appropriate space on the
consent card. However, the effectiveness the Offer is conditioned upon Moyes
and his designees being elected or appointed to fill a majority of the
directorships comprising the Company's entire board of directors. Accordingly,
Moyes recommends that you consent to the election of each Nominee.
If your Shares are held in the name of a brokerage firm, bank nominee, or
other institution, only that entity can execute a consent with respect to your
Shares. They will do so only upon receipt of your specific instructions.
Accordingly, you should contact the person responsible for your account and
instruct him or her to vote a WHITE consent card on your behalf today. Moyes
urges you to confirm in writing your instructions to the person responsible
for your account and provide a copy of those instructions to Moyes in care of
MacKenzie Partners, Inc. at the address set forth on the back cover of this
Consent Statement so that Moyes will be aware of all instructions given and
can attempt to ensure that such instructions are followed.
10
Your consent is important. Please mark, sign, and date the enclosed WHITE
consent card and return it in the enclosed postage-paid envelope promptly.
Failure to timely return your consent will have the same effect as voting
against the Proposals.
If you have any questions or require any assistance in executing or
delivering your consent, please contact:
MacKenzie Partners, Inc
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
Can I Revoke My Consent?
You can revoke your consent at any time before it becomes effective by
submitting a written, dated revocation of such consent or a later dated
consent covering the same Shares. Your revocation may be in any written form
validly signed by the record holder and should clearly state that the consent
previously given is no longer effective. You must execute and deliver your
revocation before the time that the action authorized by the executed consent
is taken. You may deliver the revocation to MacKenzie Partners, Inc. at the
address set forth above.
Do I Have Appraisal Rights?
You do not have dissenters' rights of appraisal as a result of this
solicitation of consents or the Offer. However, if Moyes pursues corporate
action to take the Company private and you (i) hold Shares that are affected
in such corporate action and (ii) (a) neither voted in favor of such corporate
action nor consented thereto in writing, and (b) 1% or greater of the
outstanding shares of a class of common stock are affected by such corporate
action, you may be entitled to dissenters' rights of appraisal, subject to and
in accordance with Sections 92A.300 to 92A.500 to the NGCL.
COSTS AND METHOD OF CONSENT STATEMENT AND REIMBURSEMENT OF COSTS
Written consents may be solicited in person, or by mail, advertisement,
telephone, facsimile, or other form of communication. Moyes has retained
MacKenzie Partners, Inc. to solicit consents pursuant to this Consent
Statement. Approximately 30 employees of MacKenzie Partners, Inc. will engage
in the solicitation. Moyes has agreed to pay MacKenzie Partners, Inc. a fee of
$15,000 plus reasonable out-of-pocket expenses. MacKenzie Partners, Inc. has
also agreed to provide consulting and analytical services and act as consent
solicitor with respect to banks, brokers, institutional investors, and
individual stockholders.
Banks, brokerage houses, and other custodians, nominees, and fiduciaries
may be requested to forward Moyes' solicitation materials to the beneficial
owners of the Shares they hold of record, and Moyes will reimburse them for
their reasonable out-of-pocket expenses. If your Shares are registered in your
own name, you may mail or fax both sides of your consent card to MacKenzie
Partners, Inc. at the address or fax number listed on the back cover of this
Consent Statement.
The entire expense of preparing, assembling, printing, and mailing this
Consent Statement and any other consent soliciting materials and the cost of
soliciting consents will be borne by Moyes. If the Proposals are approved,
Moyes will request reimbursement from the Company for these expenses.
PARTICIPANTS
Moyes may be deemed to be a participant in the solicitation of consents
described herein. Additionally, the following individuals, each of whom is a
Nominee, may be deemed to be participants in this solicitation: Earl H.
Scudder, Gordon K. Holladay, Jon Isaacson, Vickie L. Moyes, Craig P. Moyes,
Jeff L. Archibald, Patrice Archibald, Ronald G. Moyes, Krista B. Moyes,
Michael J. Moyes, Buddy Favero, and Laura Favero.
11
INTERESTS OF CERTAIN PERSONS
Except as otherwise set forth in this Consent Statement, no Nominee, nor
any associate of, or immediate family member sharing the same household as
such Nominee, is or within the past year has been a party to, any contract,
arrangement, or understanding with respect to any securities of the Company.
To the knowledge of Moyes, neither he, nor any of his associates or other
representatives, nor any other person who may be deemed to be a participant in
this solicitation of consents, since the beginning of the Company's last
fiscal year, (i) has engaged in or has a direct or indirect interest in any
transaction or series of similar transactions in which the Company or any of
its subsidiaries was or is to be a party where the amount involved was in
excess of $60,000, (ii) is or was an executive officer of, or owns or owned an
equity interest in excess of 10% in any business or professional entity that
made payment to or received payments from the Company for property or services
or that was indebted to the Company, (iii) is or has been a member, partner or
executive officer of, or of counsel to, a law firm or investment banking firm
that the Company has retained or that has performed services to the Company,
or (iv) has been indebted to the Company or its subsidiaries; provided, that
Scudder Law Firm, P.C., the law firm of which Earl H. Scudder is president,
was counsel to the Company until January 5, 2000. During the Company's fiscal
year ended September 30, 1999, the law firm received approximately $112,200
from the Company, and between October 1, 1999, and January 5, 2000, the law
firm received approximately $15,300 in compensation for its services to the
Company. The Company has consented to the representation of Moyes by Scudder
Law Firm, P.C. and has waived any conflict of interest.
The information contained in "Ownership of Common Stock" sets forth
information regarding Shares owned of record and beneficially by the Nominees,
and, to Moyes' best knowledge, by those participating in this solicitation on
Moyes' behalf, or any associate of or immediate family member sharing the same
household as the foregoing persons. Other than as set forth in this Consent
Statement, to the knowledge of Moyes, neither he, nor any of his associates or
other representatives, nor any other person who may be deemed to be a
participant in this solicitation of consents, is the beneficial or record
owner of any securities of the Company or any parent or subsidiary thereof or
is the record owner of any securities of the Company of which it may not be
deemed to be the beneficial owner.
If the Nominees are elected to the board of directors, it is anticipated
that they will receive their pro rata portion of directors' fees on a basis
consistent with the payments to other non-employee directors of the Company.
According to the Most Recent Proxy, the Company's non-employee directors
receive an annual retainer of $5,000, an annual grant of an option to purchase
1,000 Class A Common Shares at the closing price on the date of the annual
meeting of stockholders, and an attendance fee of $1,000 per board meeting, or
committee meeting (if held on a day other than the day of the board meeting).
The non-employee directors also are reimbursed for their expenses of attending
such meetings.
CERTAIN OTHER INFORMATION REGARDING THE COMPANY
The information concerning the Company contained herein has been taken
from, or based upon, and is qualified in its entirety by, publicly available
documents on file with the Commission and other publicly available
information. Moyes does not take any responsibility for the accuracy or
completeness of such information or for any failure by the Company or persons
other than himself to disclose events that may have occurred and may affect
the significance or accuracy of any such information.
The Most Recent Proxy states that the deadline for stockholders to have
submitted proposals to be considered for inclusion in the Company's proxy
statement for this year's annual meeting of stockholders was on or before
September 8, 2000.
CERTAIN EFFECTS OF THE PROPOSALS
Credit Agreements
The Company's $20 million revolving credit and security agreement with U.S.
Bank, n.a. filed with the Commission contains an event of default if there is
a substantial change in the senior management of the
12
Company. It is also a condition to advances that the Company's representation
concerning stock ownership (which was made as of September 28, 1999) continues
to be correct. The Company's headquarters loan with U.S. Bank is cross-
defaulted with the credit and security agreement. Moyes does not know whether
U.S. Bank would deem either completing the Offer or any change in management
an event of default. Moyes will seek to have U.S. Bank waive any potential
events of default or will seek replacement financing. There can be no
assurance of the success or timing of these efforts.
Change-in-Control Payments; Stock Options
According to the Most Recent Proxy, the Company does not have any
employment agreements, severance agreements, or change-in-control agreements
with its executive officers. However, under certain circumstances involving a
change-in-control, the stock options held by executive officers and other
personnel may become immediately vested and exercisable, either with or
without further action of the board of directors.
OWNERSHIP OF COMMON STOCK
The following table sets forth information regarding the beneficial
ownership of Shares held by Moyes and the other Nominees.
SHARES HELD BY MOYES AND
OTHER PERSONS NOMINATED AS DIRECTORS
BY THIS CONSENT STATEMENT
Amount and
Nature of Percent
Name of Beneficial Beneficial of
Owner Ownership Title of Class Class Percent of Total Shares (1)
- ---------------------- ---------- --------------------- ------- ---------------------------
Jerry Moyes (2) 657,650 (3) Class A Common Shares 12.7% 10.8%
SME Steel Contractors,
Inc. (2) 300,000 Class A Common Shares 5.8% 4.9%
Earl H. Scudder 30,000 (4) Class A Common Shares * *
Gordon K. Holladay 0 Class A Common Shares -- --
Jon Isaacson 0 Class A Common Shares -- --
Vickie L. Moyes (2) 297,150 (5) Class A Common Shares 5.7% 4.9%
Craig P. Moyes 160,800 (6) Class A Common Shares 3.1% 2.6%
Jeff L. Archibald 0 Class A Common Shares -- --
Patrice Archibald 0 Class A Common Shares -- --
Ronald G. Moyes 0 Class A Common Shares -- --
Krista B. Moyes 0 Class A Common Shares -- --
Michael J. Moyes 0 Class A Common Shares -- --
Buddy Favero (7) 100 Class A Common Shares * *
Laura Favero (7) 100 Class A Common Shares * *
Nominees, as a group 848,550 Class A Common Shares 16.3% 13.9%
- --------
* Less than one percent.
13
(1) Based upon 5,196,358 outstanding Class A Common Shares and 913,751
outstanding Class B Common Shares.
(2) The business address of Jerry and Vickie Moyes is 2200 South 75th Avenue,
Phoenix, Arizona 85043. The address of SME is 5955 West Wells Park Road,
West Jordan, Utah 84088.
(3) Includes 60,500 Class A Common Shares held by Jerry Moyes; 297,150 Class A
Common Shares held by The Jerry & Vickie Moyes Family Trust Dated
12/11/87, of which Jerry Moyes and his wife, Vickie L. Moyes are co-
trustees; and 300,000 Class A Common Shares held by SME, the beneficial
ownership of which may be attributable to him under applicable rules of
the Commission.
(4) Includes 29,500 Class A Common Shares held in an IRA account.
(5) Includes 297,150 Class A Common Shares held by The Jerry & Vickie Moyes
Family Trust Dated 12/11/87.
(6) Craig Moyes owns 5% of the outstanding voting stock of the parent of SME
and disclaims beneficial ownership of all Shares owned by SME.
(7) Owned as joint tenants with rights of survivorship.
The following table sets forth certain other information regarding the
beneficial ownership of the Company.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS, DIRECTORS, AND MANAGEMENT OF THE COMPANY
The following table indicates beneficial ownership of the Shares as
reflected in the Most Recent Proxy by each Incumbent Director, the Chief
Executive Officer, the four most highly compensated executive officers other
than the Chief Executive Officer, each person then known by the Company to be
the beneficial owner of more than 5% of the Company's outstanding Class A
Common Shares, and by all current directors and executive officers of the
Company as a group. This table also indicates any change of beneficial
ownership of the Shares as reported on Form 13G filed with the Commission
subsequent to the Most Recent Proxy. Percentages are based on the number of
outstanding Shares as reported in the Second Quarter 10-Q.
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT
Amount & Nature of Percent of
Name of Beneficial Owner Beneficial Total
(1) Ownership (2) Title of Class Percent of Class Shares (3)
- ------------------------ ------------------ ------------------------ ---------------- ----------
Richard D. Simon 48,819 Class A Common * *
Richard D. Simon (4) 913,751 Class B Common 100% 15.0%
Alban B. Lang 117,896 Class A Common 2.3% 1.9%
Kelle A. Simon 139,808 Class A Common 2.7% 2.3%
Lyn Simon 126,896 Class A Common 2.4% 2.0%
Richard D. Simon, Jr. 126,395 Class A Common 2.4% 2.0%
Sherry L. Bokovoy 118,738 Class A Common 2.3% 1.9%
Gus E. Paulos -- Class A Common -- --
Don L. Skaggs 55,000 Class A Common 1.1% *
Irene Warr 4,700 Class A Common * *
Jerry Moyes (5) 657,650 Class A Common 12.7% 10.8%
SME Steel Contractors,
Inc. (5) 300,000 Class A Common 5.8% 4.9%
Dimensional Fund
Advisors Inc. 337,600 Class A Common 6.5% 5.5%
Wynnefield Capital
Management 330,500 Class A Common 6.4% 5.4%
Capital Research and
Management Company 300,000 Class A Common 5.8% 4.9%
All directors and
executive officers as a
group (9 persons) 1,652,003 (6) Class A & Class B Common N/A 25.7%
14
- --------
* Less than one percent.
(1) The business address of Richard D. Simon, Alban B. Lang, Kelle A. Simon,
Lyn Simon, Richard D. Simon, Jr., Sherry L. Bokovoy, and Irene Warr is
P.O. Box 26297, Salt Lake City, Utah 84126-0297. The business address of
Gus E. Paulos is 4050 West 3500 South, West Valley City, Utah 84120. The
business address of Don L. Skaggs is 3828 South Main Street, Salt Lake
City, Utah 84115. The business address of Jerry Moyes is 2200 South 75th
Avenue, Phoenix, Arizona 85043. The address of SME Steel Contractors, Inc.
is 5955 West Wells Park Road, West Jordan, Utah 84088. The address of
Dimensional Fund Advisors Inc. is 1299 Ocean Avenue, 11th Floor, Santa
Monica, California 90401-1038. The address of Wynnefield Capital
Management is One Penn Plaza, Suite 4720, New York, New York 10119. The
address of Capital Research and Management Company is 333 South Hope
Street, Los Angeles, California 90071.
(2) In accordance with applicable rules under the Securities Exchange Act of
1934, as amended, the number of shares beneficially owned includes 64,600
Class A Common Shares underlying options to purchase granted to each of
Alban B. Lang, Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., and
Sherry L. Bokovoy (the "Optionees") that were, at December 15, 1999,
either currently exercisable or were scheduled to become exercisable
within 60 days of December 15, 1999. The 60,400 remaining shares
underlying options granted to the Optionees that were not scheduled to
become exercisable within 60 days of December 15, 1999 are excluded. The
options have exercise prices ranging from $9.00 to $23.00 per share. The
shares owned also include an aggregate 67,119 shares of Class A Common
Shares held in the Company's 401(k) Plan on behalf of Richard D. Simon
(38,425 shares), Alban B. Lang (9,037 shares), Kelle A. Simon (6,631
shares), Lyn Simon (10,453 shares), and Sherry L. Bokovoy (2,573 shares).
The total shares include 3,000 Class A Common Shares underlying stock
options granted to Irene Warr that are currently exercisable or were
scheduled to become exercisable within 60 days of December 15, 1999.
Unless otherwise indicated all shares are owned directly.
(3) Percentage based on both Class A and Class B Common Shares and includes
for purposes of this chart only the vested portion of options granted
under the Company's Incentive Stock Plan and Outside Director Stock Plan.
(4) All shares are held by Richard D. Simon, Trustee of the Richard D. Simon
Revocable Trust, UTAD 2/12/93, of which the four children of Richard D.
Simon are the beneficiaries, subject to a life estate in favor of Valene
Simon, wife of Richard D. Simon. Because the Class B Common Shares are
entitled to two votes per share, Mr. Simon, as Trustee, controls 25.5% of
the combined voting power of the Shares. Richard D. Simon filed a Form 13G
with the Commission on February 10, 2000.
(5) Includes 300,000 Class A Common Shares owned by SME Steel Contractors,
Inc., the beneficial ownership of which may be attributable to him under
applicable rules of the Commission. Mr. Moyes owns approximately 75% of
the outstanding voting stock of the parent corporation of SME Steel
Contractors, Inc.
(6) Includes approximately 323,000 shares underlying exercisable stock options
with exercise prices ranging from $9.00 to $23.00 per share.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act, as amended, requires officers,
directors, and owners of more than 10% of a registered class of securities, to
file reports of ownership and changes in ownership with the Commission. As an
owner of more than 10% of the Company's Class A Common Shares, Moyes is
required by regulations promulgated by the Commission to furnish the Company
with copies of all Section 16(a) forms he files. As of the date of this
Consent Statement, Moyes has complied with all Section 16(a) filing
requirements applicable to him with respect to transactions in the Company's
Class A Common Shares. The other Nominees are not officers, directors, or
owners of more than 10% of a registered class of the Company's securities and
are therefore not required to make any filings in accordance with Section
16(a).
15
CERTAIN INFORMATION ABOUT MOYES
Moyes, an individual residing in Phoenix, Arizona, is the Chairman,
President, and Chief Executive Officer of Swift. Swift is an interstate
truckload carrier providing freight transportation services for customers
throughout the United States. Swift generated over $1 billion in revenue
during 1999 and is the third largest publicly traded truckload carrier in the
United States, measured by revenue. The principal office of Moyes is located
at 2200 S. 75th Avenue, Phoenix, Arizona 85031.
ADDITIONAL INFORMATION
Your consent is important. No matter how many or how few Shares you own,
please submit your consent to the Proposals contained in this Consent
Statement. Moyes must receive the consents by July 19, 2000, to ensure timely
delivery to the Company. Only your latest dated consent counts.
If you have any questions, would like to request copies of Schedule TO, the
Offer to Purchase, or the Letter of Transmittal, or require any assistance in
executing or delivering your consent, please contact Moyes' solicitors:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
Copies of the Schedule TO, Offer to Purchase, and Letter of Transmittal
also may be obtained by mail, upon payment of the Commission's customary
charges, by writing to its principal office at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and can be obtained electronically on
the Commission's World Wide Web site at http://www.sec.gov.
16
EXHIBIT A
NEW BYLAWS
OF
SIMON TRANSPORTATION SERVICES INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be in
Washoe County, Nevada, which initially shall be its known place of business.
2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting. The annual meeting of the Stockholders shall be held at
such date and time as the Board of Directors shall determine, for the purpose
of electing Directors and for the transaction of such other business as may
properly come before the meeting.
2. Special Meetings. Special meetings of the Stockholders may be called for
any purpose or purposes at any time by a majority of the Board of Directors,
the Chairman of the Board, the Chief Executive Officer, or a Stockholder or a
group of Stockholders holding more than one-third of the number of shares of
all classes of common stock.
3. Place of Meetings. Annual and special meetings of the Stockholders may
be held at such time and place within or without the State of Nevada as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
4. Notice of Meeting. Written notice stating the place, date and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered to each Stockholder of record
entitled to vote at such meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting. Notice may be delivered either
personally or by first class, certified or registered mail, postage prepaid,
and signed by an officer of the Corporation at the direction of the person or
persons calling the meeting. If mailed, notice shall be deemed to be delivered
when mailed to the Stockholder at his or her address as it appears on the
stock transfer books of the Corporation. Delivery of any such notice to any
officer of a corporation or association, or to any member of a partnership
shall constitute delivery of such notice to such corporation, association or
partnership. In the event of the transfer of stock after delivery or mailing
of the notice of and prior to the holding of the meeting it shall not be
necessary to deliver or mail notice of the meeting to the transferee. Notice
need not be given of an adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, provided that such
adjournment is for less than thirty (30) days and further provided that a new
record date is not fixed for the adjourned meeting, in either of which events,
written notice of the adjourned meeting shall be given to each Stockholder of
record entitled to vote at such meeting. At any adjourned meeting, any
business may be transacted which might have been transacted at the meeting as
originally noticed. A written waiver of notice, whether given before or after
the meeting to which it relates, shall be equivalent to the giving of notice
of such meeting to the Stockholder or Stockholders signing such waiver.
Attendance of a Stockholder at a meeting shall constitute a waiver of notice
of such meeting, except when the
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Stockholder attends for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record. In order that the
Corporation may determine the Stockholders entitled to notice of and to vote
at any meeting of Stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or to receive
payment of any dividend or other distribution or allotment of any rights, or
to exercise any rights in respect of any other change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix in advance a record date, which shall not be more than sixty (60) nor
less than ten (10) days prior to the date of such meeting or such action, as
the case may be. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to notice of and to vote at a meeting of
Stockholders, the record date shall be at the close of business on the day
next preceding the day on which the notice is given, or if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to express consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors
is necessary, the record date shall be the day on which the first written
consent is expressed by any Stockholder. If the Board of Directors has not
fixed a record date for determining Stockholders for any other purpose, the
record date shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
Stockholders of record entitled to notice of or to vote at a meeting of
Stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
6. Record of Stockholders. The Secretary or other officer having charge of
the stock transfer books of the Corporation shall make, or cause to be made,
at least ten (10) days before every meeting of Stockholders, a complete record
of the Stockholders entitled to vote at a meeting of Stockholders or any
adjournment thereof, arranged in alphabetical order, with the address of and
the number of shares registered in the name of each Stockholder. Such list
shall be open to the examination of any Stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, either at a place specified in the notice of
the meeting or if not so specified, at the Corporation's principal place of
business. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
Stockholder who is present.
7. Quorum and Manner of Acting. At any meeting of the Stockholders, the
presence, in person or by proxy, of a majority of the total voting power of
the outstanding common stock entitled to vote in the election of directors
shall constitute a quorum for the transaction of business except as otherwise
provided by the Nevada General Corporation Law or by the Articles of
Incorporation of the Corporation, as amended form time to time (the "Articles
of Incorporation"). All shares represented and entitled to vote on any single
subject matter which may be brought before the meeting shall be counted for
quorum purposes. Only those shares entitled to vote on a particular subject
matter shall be counted for the purpose of voting on that subject matter.
Business may be conducted once a quorum is present and may continue to be
conducted until adjournment sine die, notwithstanding the withdrawal or
temporary absence of Stockholders leaving less than a quorum. Except as
otherwise provided in the Nevada General Corporation Law or the Articles of
Incorporation, the affirmative vote of the holders of a majority of the shares
of stock then represented at the meeting and entitled to vote thereat shall be
the act of the Stockholders; provided, however, that if the shares of stock so
represented are less than the number required to constitute a quorum, the
affirmative vote must be such as would constitute a majority if a quorum were
present, except that the affirmative vote of the holders of a majority of the
shares of stock then present is sufficient in all cases to adjourn a meeting.
8. Voting of Shares of Stock. Each Stockholder shall be entitled to the
number of votes (or corresponding fraction thereof) authorized for shares of
such class or series in the Corporation's Articles of Incorporation or any
certificate of designation for such class or series for each share of stock
(or fraction thereof) standing in his, her or its name on the books of the
Corporation on the record date. A Stockholder may vote either in person or by
valid proxy, as defined in Section 12 of this Article II, executed in writing
by the Stockholder or by his, her
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or its duly authorized attorney in fact. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other corporation is
held, directly or indirectly, by the Corporation, shall neither be entitled to
vote nor counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of any corporation to vote stock, including but not
limited to its own stock, when held by it in a fiduciary capacity. Shares of
stock standing in the name of another corporation may be voted by such
officer, agent or proxy as the bylaws of such other corporation may prescribe
or, in the absence of such provision, as the Board of Directors of such other
corporation may determine. Unless demanded by a Stockholder present in person
or by proxy at any meeting of the Stockholders and entitled to vote thereat,
or unless so directed by the chairman of the meeting, the vote thereat on any
question need not be by ballot. If such demand or direction is made, a vote by
ballot shall be taken, and each ballot shall be signed by the Stockholder
voting, or by his or her proxy, and shall state the number of shares voted.
9. Organization. At each meeting of the Stockholders, the Chairman of the
Board, or, if he or she is absent therefrom or if no Chairman is appointed,
the Chief Executive Officer, or if he or she is absent therefrom, the
President, one of the Vice Presidents or, if all are absent therefrom, another
officer of the Corporation chosen as chairman of such meeting by Stockholders
holding a majority of the shares present in person or by proxy and entitled to
vote thereat, or, if all the officers of the Corporation are absent therefrom,
a Stockholder of record so chosen, shall act as chairman of the meeting and
preside thereat. The Secretary, or, if he or she is absent from the meeting or
is required pursuant to the provisions of this Section 9 to act as chairman of
such meeting, the person (who shall be an Assistant Secretary, if any and if
present) whom the chairman of the meeting shall appoint shall act as secretary
of the meeting and keep the minutes thereof.
10. Order of Business. The order of business at each meeting of the
Stockholders shall be determined by the chairman of such meeting, but the
order of business may be changed by the vote of Stockholders holding a
majority of the shares present in person or by proxy at such meeting and
entitled to vote thereat.
11. Voting. At all meetings of Stockholders, each Stockholder entitled to
vote thereat shall have the right to vote, in person or by proxy, and shall
have, for each share of stock registered in his, her or its name, the number
of votes provided by the Articles of Incorporation or any certificate of
designation in respect of stock of such class or series. Stockholders shall
not have cumulative voting rights with respect to the election of Directors or
for any other purpose.
12. Voting by Proxy. At any meeting of the Stockholders, any Stockholder
may be represented and vote by a proxy or proxies appointed by an instrument
in writing. In the event that any such instrument in writing shall designate
two (2) or more persons to act as proxies, a majority of such persons present
at the meeting, or, if only one shall be present, then that one shall have and
may exercise all of the powers conferred by such written instrument upon all
of the persons so designated unless the instrument shall otherwise provide. No
such proxy shall be valid after the expiration of six (6) months from the date
of its execution, unless coupled with an interest or unless the person
executing it specifies therein the length of time for which it is to continue
in force, which in no case shall exceed seven (7) years from the date of its
execution. Subject to the above, any proxy duly executed is not revoked and
continues in full force and effect until an instrument revoking it or a duly
executed proxy bearing a later date is filed with the Secretary of the
Corporation.
13. Action by Stockholders Without a Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by Stockholders holding at least
a majority of the voting power (except that if a different proportion of
voting power is required for such an action at a meeting, then that proportion
of written consents is required). Any such consent shall be filed with the
minutes of the proceedings of the Stockholders.
14. Irregularities. All information and/or irregularities in calls, notices
of meetings and in the manner of voting, form of proxies, credentials, and
method of ascertaining those present, shall be deemed waived if no objection
is made at the meeting or if waived in writing.
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ARTICLE III
BOARD OF DIRECTORS
1. General Powers. The property, business and affairs of the Corporation
shall be managed by the Board of Directors.
2. Number, Term of Office, and Qualifications. Upon the adoption of the
Bylaws, the number of directors constituting the entire Board of Directors
shall be increased to that number of directors equal to thirteen (13) more
than the number of directors actually serving as directors of the Company
immediately prior to the adoption of these Bylaws. The thirteen (13) new
director positions created by these Bylaws shall be filled by the Stockholders
if they act contemporaneously with the adoption of these Bylaws to fill such
seats. If such director seats are not filled on or prior to the next business
day after the date these Bylaws are adopted, by the action of holders of a
majority of the total voting power of all outstanding shares of common stock
entitled to vote in the election of directors, by written consent or at a
meeting duly noticed and held, then such seats shall be deemed vacant and
shall be filled by the Stockholders or the Board of Directors pursuant to
Article III, Section 11 of these Bylaws. The terms of the directors elected to
fill the thirteen (13) new seats shall extend until the next annual meeting of
Stockholders. The terms of all directors serving immediately prior to the
adoption of these Bylaws shall continue for their original duration. Following
the expiration of such terms, the seats held by such directors shall be
elected annually at the annual meeting of Stockholders. The terms of all
directors elected to fill vacancies on the Board of Directors (including
vacancies resulting from the increase in directorships effected by these
Bylaws) shall extend until the next annual meeting of Stockholders, and the
seats held by such directors shall thereafter be elected annually at the
annual meeting of Stockholders. Directors need not be Stockholders.
3. Place of Meeting. The Board of Directors may hold its meetings, either
within or without the State of Nevada, at such place or places as it may from
time to time by resolution determine or as shall be designated in any notices
or waivers of notice thereof. Any such meeting, whether regular or special,
may be held by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
4. Annual Meetings. As soon as practicable after each annual election of
Directors and on the same day, the Board of Directors shall meet for the
purpose of organization and the transaction of other business at the place
where regular meetings of the Board of Directors are held, and no notice of
such meeting shall be necessary in order to legally hold the meeting, provided
that a quorum is present. If such meeting is not held as provided above, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for a special meeting of the Board of Directors,
or in the event of waiver of notice as specified in the written waiver of
notice.
5. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such times as the Board of Directors shall from time to time
by resolution determine.
6. Special Meetings; Notice. Special meetings of the Board of Directors
shall be held, either within or without the State of Nevada, whenever called
by the Chairman of the Board, or by the Chief Executive Officer, or a majority
of the Directors at the time in office. Notice shall be given, in the manner
hereinafter provided, of each such special meeting, which notice shall state
the time and place of such meeting, but need not state the purposes thereof.
Except as otherwise provided in Section 9 of this Article III, notice of each
such meeting shall be mailed to each Director, addressed to him or her at his
or her residence or usual place of business, at least two (2) days before the
day on which such meeting is to be held, or shall be sent addressed to him or
her at such place by telegraph, cable, wireless or other form of recorded
communication or delivered personally or by telephone not later than the day
before the day on which such meeting is to be held. A written waiver of
notice, whether given before or after the meeting to which it relates, shall
be equivalent to the giving of notice of such meeting to the Director or
Directors signing such waiver. Attendance of a Director at a special meeting
of the
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Board of Directors shall constitute a waiver of notice of such meeting, except
when he or she attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
7. Quorum and Manner of Acting. A majority of the whole Board of Directors
shall be present in person at any meeting of the Board of Directors in order
to constitute a quorum for the transaction of business at such meeting, and
except as otherwise specified in these Bylaws, and except also as otherwise
expressly provided by the Nevada General Corporation Law, the vote of a
majority of the Directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors. In the absence of a quorum
from any such meeting, a majority of the Directors present thereat may adjourn
such meeting from time to time to another time or place, without notice other
than announcement at the meeting, until a quorum shall be present thereat. The
Directors shall act only as a Board of Directors and the individual Directors
shall have no power as such.
8. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, or, if he or she is absent therefrom or if no Chairman is
appointed, the Chief Executive Officer, or if he or she is absent therefrom, a
Director chosen by a majority of the Directors present thereat, shall act as
chairman of such meeting and preside thereat. The Secretary, or if he or she
is absent, the person (who shall be an Assistant Secretary, if any and if
present) whom the chairman of such meeting shall appoint, shall act as
Secretary of such meeting and keep the minutes thereof.
9. Action by Directors Without a Meeting. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by all Directors and
such consent is filed with the minutes of the proceedings of the Board of
Directors.
10. Resignations. Any Director may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation
shall take effect at the time specified therein, or if the time when it shall
become effective is not specified therein, it shall take effect immediately
upon its receipt by the Chairman of the Board, the Chief Executive Officer, or
the Secretary; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
11. Vacancies. Subject to Article III, Section 2 of these Bylaws, all
vacancies on the Board of Directors may be filled either by (i) the action of
Stockholders holding at least a majority of the total voting power of the
issued and outstanding stock entitled to vote in the election of such
Directors, acting by written consent or at a meeting duly noticed and held, or
(ii) a majority of the Directors then in office, although less than a quorum,
or by a sole remaining Director. If at any time, by reason of death or
resignation or other cause, the Corporation has no Directors in office, then
any officer or any Stockholder or an executor, administrator, trustee, or
guardian of a Stockholder, may call a special meeting of Stockholders for the
purpose of filling vacancies in the Board of Directors. If one or more
Directors shall resign from the Board of Directors, effective at a future
date, a majority of the Directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided in this
section in the filling of other vacancies.
12. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that the Directors may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director or both, in either case payable in cash, the Corporation's stock, or
such other form designated by the Board of Directors. In addition, the Board
of Directors may at any time and from time to time by resolution provide that
Directors shall be paid their actual expenses, if any, of attendance at each
meeting of the Board of Directors. Nothing in this section shall be construed
as precluding any Director from serving the Corporation in any other capacity
and receiving compensation therefor, but the Board of Directors may by
resolution provide that any Director receiving compensation for his or her
services to the Corporation in any other capacity shall not receive additional
compensation for his or her services as a Director.
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13. Removal. Any one or more Directors may be removed from office with or
without cause by the vote of Stockholders representing not less than two-
thirds of the total voting power of the issued and outstanding stock entitled
to vote in the election of such directors.
ARTICLE IV
OFFICERS
1. Number. The Corporation shall have the following officers: a Chairman of
the Board, a Chief Executive Officer, a President, a Vice President, a
Secretary and a Treasurer. At the discretion of the Board of Directors, the
Corporation may also have additional Vice Presidents, one or more Assistant
Vice Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers.
2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors or at a special meeting of the
Board of Directors called for that purpose. Each such officer shall hold
office until his or her successor is duly elected or until his or her earlier
death or resignation or removal in the manner hereinafter provided.
3. Agents. In addition to the officers mentioned in Section 1 of this
Article IV, the Board of Directors may appoint such agents as the Board of
Directors may deem necessary or advisable, each of which agents shall have
such authority and perform such duties as are provided in these Bylaws or as
the Board of Directors may from time to time determine. The Board of Directors
may delegate to any officer or to any committee the power to appoint or remove
any such agents.
4. Removal. Any officer may be removed, with or without cause, at any time
by resolution adopted by a majority of the entire Board of Directors.
5. Resignations. Any officer may resign at any time by giving written
notice of his or her resignation to the Board of Directors, the Chairman of
the Board, the Chief Executive Officer, or the Secretary. Any such resignation
shall take effect at the times specified therein, or, if the time when it
shall become effective is not specified therein, it shall take effect
immediately upon its receipt by the Board of Directors, the Chairman of the
Board, the Chief Executive Officer, or the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
6. Vacancies. A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Stockholders and at all meetings of the Board of Directors. In
general, the Chairman of the Board shall perform all duties incident to the
office of the Chairman of the Board and such other duties as from time to time
may be assigned to him or her by the Board of Directors.
8. Chief Executive Officer. The Chief Executive Officer shall be the chief
executive officer of the Corporation and shall have, subject to the control of
the Board of Directors, general and active supervision and direction over the
business and affairs of the Corporation and over its several officers. If at
any time the Corporation has no Chief Executive Officer, the duties and
responsibilities designated for such position shall be performed by the
Chairman of the Board, or by an officer of the Corporation designated by the
Chairman of the Board or, in the absence of such designation, designated by
the Board of Directors. The Chief Executive Officer shall: (a) make a report
of the state of the business of the Corporation at each annual meeting of the
Stockholders; (b) see that all orders and resolutions of the Board of
Directors are carried into effect; (c) sign, with the Secretary or an
Assistant Secretary, certificates for stock of the Corporation; (d) have the
right to sign, execute, and deliver in the name of the Corporation all deeds,
mortgages, bonds, contracts, or other instruments authorized by the Board of
Directors, except in cases where the signing, execution or delivery thereof is
expressly delegated by
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the Board of Directors or by these Bylaws to some other officer or agent of
the Corporation or where any of them are required by law otherwise to be
signed, executed or delivered; and (e) have the right to cause the corporate
seal, if any, to be affixed to any instrument which requires it.
9. President. The President shall perform such duties as from time to time
may be assigned to him or her by the Board of Directors, the Chairman of the
Board, or the Chief Executive Officer.
10. Vice President. The Vice President and any additional Vice Presidents
shall have such powers and perform such duties as the Chairman of the Board,
the Chief Executive Officer or the Board of Directors may from time to time
prescribe and shall perform such other duties as may be prescribed by these
Bylaws.
11. Secretary. The Secretary shall: (a) record all the proceedings of the
meetings of the Stockholders, the Board of Directors and the committees of the
Board of Directors, if any, in one or more books kept for that purpose; (b)
see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be the custodian of all contracts, deeds,
documents, all other indicia of title to properties owned by the Corporation
and of its other corporate records (except accounting records) and of the
corporate seal, if any, and affix such seal to all documents the execution of
which on behalf of the Corporation under its seal is authorized and required;
(d) sign, if directed by the Board of Directors, with another authorized
officer, certificates for stock of the Corporation; (e) have charge, directly
or through the transfer clerk or transfer clerks, transfer agent or transfer
agents and registrar or registrars appointed as provided in Section 3 of
Article VII of these Bylaws, of the issue, transfer and registration of
certificates for stock of the Corporation and of the records thereof, such
records to be kept in such manner as to show at any time the amount of the
stock of the Corporation issued and outstanding, the manner in which and the
time when such stock was paid for, the names, alphabetically arranged, and the
addresses of the holders of record thereof, the number of shares held by each,
and the time when each became a holder of record; (f) upon request, exhibit or
cause to be exhibited at all reasonable times to any director such records of
the issue, transfer and registration of the certificates for stock of the
Corporation; (g) see that the books, reports, statements, certificates and all
other documents and records required by law are properly kept and filed; and
(h) see that the duties prescribed by Section 6 of Article II of these Bylaws
are performed. In general, the Secretary shall perform all duties incident to
the office of Secretary and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the Chief Executive
Officer or the Board of Directors.
12. Treasurer. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum and
with such surety or sureties as the Board of Directors shall determine. The
Treasurer shall: (a) have charge and custody of, and be responsible for, all
funds, securities, notes and valuable effects of the Corporation; (b) receive
and give receipt for monies due and payable to the Corporation from any
sources whatsoever; (c) deposit all such monies to the credit of the
Corporation or otherwise as the Board of Directors, the Chairman of the Board,
or the Chief Executive Officer shall direct in such banks, trust companies or
other depositories as shall be selected in accordance with the provisions of
Article VI of these Bylaws; (d) cause such funds to be disbursed by checks or
drafts on the authorized depositories of the Corporation signed as provided in
Article VI of these Bylaws; (e) be responsible for the accuracy of the amounts
of, and cause to be preserved proper vouchers for, all monies so disbursed;
(f) have the right to require from time to time reports or statements giving
such information as he or she may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; (g) render to the Chairman of the Board, the Chief Executive Officer, or
the Board of Directors, whenever they, respectively, shall request him or her
so to do, an account of the financial condition of the Corporation and of all
his or her transactions as Treasurer; (h) sign, if directed by the Board of
Directors, with another authorized officer, certificates for stock of the
Corporation; and (i) upon request, exhibit or cause to be exhibited at all
reasonable times the cash books and other records to the Chairman of the
Board, the Chief Executive Officer, or any of the Directors of the
Corporation. In general, the Treasurer shall perform all duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the Chief Executive
Officer or the Board of Directors.
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13. Assistant Officers. Any persons elected as assistant officers shall
assist in the performance of the duties of the designated office and such
other duties as shall be assigned to them by any Vice President, the Secretary
or the Treasurer, as the case may be, or by the Board of Directors, the
Chairman of the Board, or the Chief Executive Officer.
14. Combination of Offices. Any two of the offices hereinabove enumerated
may be held by one and the same person, if such person is so elected or
appointed.
15. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers. The Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, may
designate one or more of the Directors then in office, who shall include the
Chairman of the Board, to constitute an Executive Committee, which shall have
and may exercise between meetings of the Board of Directors all the delegable
powers of the Board of Directors to the extent not expressly prohibited by the
Nevada General Corporation Law or by resolution of the Board of Directors. The
Board of Directors may designate one or more Directors as alternate members of
the Committee who may replace any absent or disqualified member at any meeting
of the Committee. Each member of the Executive Committee shall continue to be
a member thereof only during the pleasure of a majority of the whole Board of
Directors.
2. Executive Committee; Organization. The Chairman of the Board shall act
as chairman at all meetings of the Executive Committee and the Secretary shall
act as secretary thereof. In case of the absence from any meeting of the
Chairman of the Board or the Secretary, the Committee may appoint a chairman
or secretary, as the case may be, of the meeting.
3. Executive Committee; Meetings. Regular meetings of the Executive
Committee may be held without notice on such days and at such places as shall
be fixed by resolution adopted by a majority of the Committee and communicated
to all its members. Special meetings of the Committee shall be held whenever
called by the Chairman of the Board or a majority of the members thereof then
in office. Notice of each special meeting of the Committee shall be given in
the manner provided in Section 6 of Article III of these Bylaws for special
meetings of the Board of Directors. Notice of any such meeting of the
Executive Committee, however, need not be given to any member of the Committee
if waived by him or her in writing or by telegraph, cable, wireless or other
form of recorded communication either before or after the meeting, or if he or
she is present at such meeting, except when he or she attends for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Subject to the provisions of this Article V,
the Committee, by resolution adopted by a majority of the whole Committee,
shall fix its own rules of procedure and it shall keep a record of its
proceedings and report them to the Board of Directors at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board of Directors;
provided, however, that third parties shall not be prejudiced by any such
revision or alteration.
4. Executive Committee; Quorum and Manner of Acting. A majority of the
Executive Committee shall constitute a quorum for the transaction of business,
and, except as specified in Section 3 of this Article V, the act of a majority
of those present at a meeting thereof at which a quorum is present shall be
the act of the Committee. The members of the Committee shall act only as a
committee, and the individual members shall have no power as such.
5. Other Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may constitute other committees, which shall in
each case consist of one or more of the Directors and, at the discretion
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of the Board of Directors, such officers who are not Directors. The Board of
Directors may designate one or more Directors or officers who are not
Directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee. Each such committee shall
have and may exercise such powers as the Board of Directors may determine and
specify in the respective resolutions appointing them; provided, however, that
(a) unless all of the members of any committee shall be Directors, such
committee shall not have authority to exercise any of the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and (b) if any committee shall have the power to determine the amounts of the
respective fixed salaries of the officers of the Corporation or any of them,
such committee shall consist of not less than three (3) members and none of
its members shall have any vote in the determination of the amount that shall
be paid to him or her as a fixed salary. A majority of all the members of any
such committee may fix its rules of procedure, determine its action and fix
the time and place of its meetings and specify what notice thereof, if any,
shall be given, unless the Board of Directors shall otherwise by resolution
provide.
6. Committee Minutes. The Executive Committee and any other committee shall
keep regular minutes of their proceedings and report the same to the Board of
Directors when required.
7. Action by Committees Without a Meeting. Any action required or permitted
to be taken at a meeting of the Executive Committee or any other committee of
the Board of Directors may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, is signed by all members of the committee and such consent is filed
with the minutes of the proceedings of the committee.
8. Resignations. Any member of the Executive Committee or any other
committee may resign therefrom at any time by giving written notice of his or
her resignation to the Chairman of the Board, the Chief Executive Officer, or
the Secretary. Any such resignation shall take effect at the time specified
therein, or if the time when it shall become effective is not specified
therein, it shall take effect immediately upon its receipt by the Chairman of
the Board, the Chief Executive Officer, or the Secretary; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
9. Vacancies. Any vacancy in the Executive Committee or any other committee
shall be filled by the vote of a majority of the whole Board of Directors.
10. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that committee members shall be paid a fixed sum
for attendance at each committee meeting or a stated salary as a committee
member in either case payable in cash, the Corporation stock, or such other
form designated by the Board of Directors. In addition, the Board of Directors
may at any time and from time to time by resolution provide that such
committee members shall be paid their actual expenses, if any, of attendance
at each committee meeting. Nothing in this section shall be construed as
precluding any committee member from serving the Corporation in any other
capacity and receiving compensation therefor, but the Board of Directors may
by resolution provide that any committee member receiving compensation for his
or her services to the Corporation in any other capacity shall not receive
additional compensation for his or her services as a committee member.
11. Dissolution of Committees; Removal of Committee Members. The Board of
Directors, by resolution adopted by a majority of the whole Board, may, with
or without cause, dissolve the Executive Committee or any other committee,
and, with or without cause, remove any member thereof.
ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts. Except as otherwise required by law or by these
Bylaws, any contract or other instrument may be executed and delivered in the
name of the Corporation and on its behalf by the Chairman of the Board, the
Chief Executive Officer, the President, or any Vice President. In addition,
the Board of Directors may authorize any other officer or officers or agent or
agents to execute and deliver any contract or other instrument in the name of
the Corporation and on its behalf, and such authority may be general or
confined to specific instances as the Board of Directors may by resolution
determine.
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2. Attestation. The President, any Vice President, the Secretary, or any
Assistant Secretary may attest the execution of any instrument or document by
the Chairman of the Board, the Chief Executive Officer, or any other duly
authorized officer or agent of the Corporation and may affix the corporate
seal, if any, in witness thereof, but neither such attestation nor the
affixing of a corporate seal shall be requisite to the validity of any such
document or instrument.
3. Checks, Drafts. All checks, drafts, orders for the payment of money,
bills of lading, warehouse receipts, obligations, bills of exchange, and
insurance certificates shall be signed or endorsed (except endorsements for
collection for the account of the Corporation or for deposit to its credit,
which shall be governed by the provisions of Section 4 of this Article VI) by
such officer or officers or agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as
the Board of Directors, the Chairman of the Board, or the Chief Executive
Officer shall direct in general or special accounts at such banks, trust
companies, savings and loan associations, or other depositories as the Board
of Directors may select or as may be selected by any officer or officers or
agent or agents of the Corporation to whom power in that respect has been
delegated by the Board of Directors. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation. The Board of Directors may make such special rules and
regulations with respect to such accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
Chairman of the Board, or the Chief Executive Officer may exercise in the name
and on behalf of the Corporation the powers and rights which the Corporation
may have as the holder of stock or other securities in any other corporation,
including without limitation the right to vote or consent with respect to such
stock or other securities.
6. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors, and may thereafter be changed from time
to time by action of the Board of Directors. Initially, the fiscal year shall
begin on October 1 and end on September 30.
7. Applicability of the Acquisition of Controlling Interest Statute. The
provisions of the Nevada Revised Statutes, Sections 78.378 to 78.3793,
inclusive, shall not apply to the Corporation or to the acquisition of a
controlling interest of the Corporation by existing or future stockholders.
ARTICLE VII
STOCK
1. Certificates. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman of the Board, the Chief Executive Officer, the President, or a Vice
President and by the Treasurer, Secretary, or an Assistant Treasurer or
Assistant Secretary. The signatures of such officers upon such certificate may
be facsimiles if the certificate is manually signed by a transfer agent or
registered by a registrar, other than the Corporation itself or one of its
employees. If any officer who has signed or whose facsimile signature has been
placed upon a certificate has ceased for any reason to be such officer prior
to issuance of the certificate, the certificate may be issued with the same
effect as if that person were such officer at the date of issue. All
certificates for stock of the Corporation shall be consecutively numbered,
shall state the number of shares represented thereby and shall otherwise be in
such form as shall be determined by the Board of Directors, subject to such
requirements as are imposed by the Nevada General Corporation Law. The names
and addresses of the persons to whom the shares represented by certificates
are issued shall be entered on the
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stock transfer books of the Corporation, together with the number of shares
and the date of issue, and in the case of cancellation, the date of
cancellation. Certificates surrendered to the Corporation for transfer shall
be cancelled, and no new certificate shall be issued in exchange for such
shares until the original certificate has been cancelled; except that in the
case of a lost, stolen, destroyed or mutilated certificate, a new certificate
may be issued therefor upon such terms and indemnity to the Corporation as the
Board of Directors may prescribe.
2. Transfer of Stock. Transfers of shares of stock of the Corporation shall
be made only on the stock transfer books of the Corporation by the holder of
record thereof or by his or her legal representative or attorney in fact, who
shall furnish proper evidence of authority to transfer to the Secretary, or a
transfer clerk or a transfer agent, and upon surrender of the certificate or
certificates for such shares properly endorsed and payment of all taxes
thereon. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
3. Regulations. The Board of Directors may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers or
any committee to appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all certificates for stock
to bear the signature or signatures of any of them.
4. Lost Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of the fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
5. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of stock in the manner and upon
the terms and conditions provided in the Articles of Incorporation and the
Nevada General Corporation Law.
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance
a corporate seal is used, the same shall bear the full name of the Corporation
and the year and state of incorporation, or words or figures of similar
import.
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ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify its directors and officers to the maximum
extent permitted by the Nevada General Corporation Law. Indemnification shall
be provided unless it is ultimately determined by a court of competent
jurisdiction that (i) the indemnified party did not act in a manner he or she
believed in good faith to be in, or not opposed to, the best interests of the
Corporation and, (ii) with respect to any criminal action or proceeding, the
indemnified party had no reasonable cause to believe his or her conduct was
lawful. Expenses shall be advanced to an indemnified party upon written
confirmation that he or she has not acted in a manner that would preclude
indemnification above and an undertaking to return any advances if it is
ultimately determined by a court of competent jurisdiction that the party is
not entitled to indemnification under the standard set forth herein.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered, or amended, or new bylaws may be
adopted, by (i) the affirmative vote of a majority of the total voting power
of the outstanding common stock of the Corporation, or (ii) the affirmative
vote of a majority of the entire Board of Directors; provided, that no repeal,
alteration, amendment, or adoption of new bylaws by the directors shall be
effective to override any provision adopted by the Stockholders.
The undersigned Secretary of Simon Transportation Services Inc. hereby
certifies the foregoing to be the Bylaws of the Corporation, as adopted by the
Board of Directors on the day of , 2000.
_____________________________________
, Secretary
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EXHIBIT B
AMENDED NEW BYLAWS
OF
SIMON TRANSPORTATION SERVICES INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be in
Washoe County, Nevada, which initially shall be its known place of business.
2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting. The annual meeting of the Stockholders shall be held at
such date and time as the Board of Directors shall determine, for the purpose
of electing Directors and for the transaction of such other business as may
properly come before the meeting.
2. Special Meetings. Special meetings of the Stockholders may be called for
any purpose or purposes at any time by a majority of the Board of Directors,
the Chairman of the Board, or the President, the Chief Executive Officer, or a
Stockholder or a group of Stockholders holding more than one-third of the
number of shares of all classes of common stock.
3. Place of Meetings. Annual and special meetings of the Stockholders may
be held at such time and place within or without the State of Nevada as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
4. Notice of Meeting. Written notice stating the place, date and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered to each Stockholder of record
entitled to vote at such meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting. Notice may be delivered either
personally or by first class, certified or registered mail, postage prepaid,
and signed by an officer of the Corporation at the direction of the person or
persons calling the meeting. If mailed, notice shall be deemed to be delivered
when mailed to the Stockholder at his or her address as it appears on the
stock transfer books of the Corporation. Delivery of any such notice to any
officer of a corporation or association, or to any member of a partnership
shall constitute delivery of such notice to such corporation, association or
partnership. In the event of the transfer of stock after delivery or mailing
of the notice of and prior to the holding of the meeting it shall not be
necessary to deliver or mail notice of the meeting to the transferee. Notice
need not be given of an adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, provided that such
adjournment is for less than thirty (30) days and further provided that a new
record date is not fixed for the adjourned meeting, in either of which events,
written notice of the adjourned meeting shall be given to each Stockholder of
record entitled to vote at such meeting. At any adjourned meeting, any
business may be transacted which might have been transacted at the meeting as
originally noticed. A written waiver of notice, whether given before or after
the meeting to which it relates, shall be equivalent to the giving of notice
of such meeting to the Stockholder or Stockholders signing such waiver.
Attendance of a Stockholder at a meeting shall constitute a waiver of notice
of such meeting, except when the
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Stockholder attends for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record. In order that the
Corporation may determine the Stockholders entitled to notice of and to vote
at any meeting of Stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or to receive
payment of any dividend or other distribution or allotment of any rights, or
to exercise any rights in respect of any other change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix in advance a record date, which shall not be more than sixty (60) nor
less than ten (10) days prior to the date of such meeting or such action, as
the case may be. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to notice of and to vote at a meeting of
Stockholders, the record date shall be at the close of business on the day
next preceding the day on which the notice is given, or if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to express consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors
is necessary, the record date shall be the day on which the first written
consent is expressed by any Stockholder. If the Board of Directors has not
fixed a record date for determining Stockholders for any other purpose, the
record date shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
Stockholders of record entitled to notice of or to vote at a meeting of
Stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
6. Record of Stockholders. The Secretary or other officer having charge of
the stock transfer books of the Corporation shall make, or cause to be made,
at least ten (10) days before every meeting of Stockholders, a complete record
of the Stockholders entitled to vote at a meeting of Stockholders or any
adjournment thereof, arranged in alphabetical order, with the address of and
the number of shares registered in the name of each Stockholder. Such list
shall be open to the examination of any Stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, either at a place specified in the notice of
the meeting or if not so specified, at the Corporation's principal place of
business. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
Stockholder who is present.
7. Quorum and Manner of Acting. At any meeting of the Stockholders, the
presence, in person or by proxy, of the holders of a majority of the total
voting power of the outstanding common stock entitled to vote in the election
of directors shall constitute a quorum for the transaction of business except
as otherwise provided by the Nevada General Corporation Law or by the Articles
of Incorporation of the Corporation, as amended form time to time (the
"Articles of Incorporation"). All shares represented and entitled to vote on
any single subject matter which may be brought before the meeting shall be
counted for quorum purposes. Only those shares entitled to vote on a
particular subject matter shall be counted for the purpose of voting on that
subject matter. Business may be conducted once a quorum is present and may
continue to be conducted until adjournment sine die, notwithstanding the
withdrawal or temporary absence of Stockholders leaving less than a quorum.
Except as otherwise provided in the Nevada General Corporation Law or the
Articles of Incorporation, the affirmative vote of the holders of a majority
of the shares of stock then represented at the meeting and entitled to vote
thereat shall be the act of the Stockholders; provided, however, that if the
shares of stock so represented are less than the number required to constitute
a quorum, the affirmative vote must be such as would constitute a majority if
a quorum were present, except that the affirmative vote of the holders of a
majority of the shares of stock then present is sufficient in all cases to
adjourn a meeting.
8. Voting of Shares of Stock. Each Stockholder shall be entitled to the
number of votes (or corresponding fraction thereof) authorized for shares of
such class or series in the Corporation's Articles of Incorporation or any
certificate of designation for such class or series for each share of stock
(or fraction thereof) standing in his, her or its name on the books of the
Corporation on the record date. A Stockholder may vote either in person or by
valid proxy, as defined in Section 12 of this Article II, executed in writing
by the Stockholder or by his, her or its duly authorized attorney in fact.
Shares of its own stock belonging to the Corporation or to another
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corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of
any corporation to vote stock, including but not limited to its own stock,
when held by it in a fiduciary capacity. Shares of stock standing in the name
of another corporation may be voted by such officer, agent or proxy as the
bylaws of such other corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such other corporation may determine.
Unless demanded by a Stockholder present in person or by proxy at any meeting
of the Stockholders and entitled to vote thereat, or unless so directed by the
chairman of the meeting, the vote thereat on any question need not be by
ballot. If such demand or direction is made, a vote by ballot shall be taken,
and each ballot shall be signed by the Stockholder voting, or by his or her
proxy, and shall state the number of shares voted.
9. Organization. At each meeting of the Stockholders, the Chairman of the
Board, or, if he or she is absent therefrom or if no Chairman is appointed,
the President Chief Executive Officer, or if he or she is absent therefrom,
the President, one of the Vice Presidents or, if all are absent therefrom,
another officer of the Corporation chosen as chairman of such meeting by
Stockholders holding a majority of the shares present in person or by proxy
and entitled to vote thereat, or, if all the officers of the Corporation are
absent therefrom, a Stockholder of record so chosen, shall act as chairman of
the meeting and preside thereat. The Secretary, or, if he or she is absent
from the meeting or is required pursuant to the provisions of this Section 9
to act as chairman of such meeting, the person (who shall be an Assistant
Secretary, if any and if present) whom the chairman of the meeting shall
appoint shall act as secretary of the meeting and keep the minutes thereof.
10. Order of Business. The order of business at each meeting of the
Stockholders shall be determined by the chairman of such meeting, but the
order of business may be changed by the vote of Stockholders holding a
majority of the shares present in person or by proxy at such meeting and
entitled to vote thereat.
11. Voting. At all meetings of Stockholders, each Stockholder entitled to
vote thereat shall have the right to vote, in person or by proxy, and shall
have, for each share of stock registered in his, her or its name, the number
of votes provided by the Articles of Incorporation or any certificate of
designation in respect of stock of such class or series. Stockholders shall
not have cumulative voting rights with respect to the election of Directors or
for any other purpose.
12. Voting by Proxy. At any meeting of the Stockholders, any Stockholder
may be represented and vote by a proxy or proxies appointed by an instrument
in writing. In the event that any such instrument in writing shall designate
two (2) or more persons to act as proxies, a majority of such persons present
at the meeting, or, if only one shall be present, then that one shall have and
may exercise all of the powers conferred by such written instrument upon all
of the persons so designated unless the instrument shall otherwise provide. No
such proxy shall be valid after the expiration of six (6) months from the date
of its execution, unless coupled with an interest or unless the person
executing it specifies therein the length of time for which it is to continue
in force, which in no case shall exceed seven (7) years from the date of its
execution. Subject to the above, any proxy duly executed is not revoked and
continues in full force and effect until an instrument revoking it or a duly
executed proxy bearing a later date is filed with the Secretary of the
Corporation.
13. Action by Stockholders Without a Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by Stockholders holding at least
a majority of the voting power (except that if a different proportion of
voting power is required for such an action at a meeting, then that proportion
of written consents is required). andAny such consent isshall be filed with
the minutes of the proceedings of the Stockholders.
14. Irregularities. All information and/or irregularities in calls, notices
of meetings and in the manner of voting, form of proxies, credentials, and
method of ascertaining those present, shall be deemed waived if no objection
is made at the meeting or if waived in writing.
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ARTICLE III
BOARD OF DIRECTORS
1. General Powers. The property, business and affairs of the Corporation
shall be managed by the Board of Directors.
2. Number, Term of Office, and Qualifications. Upon the adoption of the
Bylaws, the number of directors constituting the entire Board of Directors
shall be increased to that number of directors equal to thirteen (13) more
than the number of directors actually serving as directors of the Company
immediately prior to the adoption of these Bylaws. The thirteen (13) new
director positions created by these Bylaws shall be filled by the Stockholders
if they act contemporaneously with the adoption of these Bylaws to fill such
seats. If such director seats are not filled on or prior to the next business
day after the date these Bylaws are adopted, by the action of holders of a
majority of the total voting power of all outstanding shares of common stock
entitled to vote in the election of directors, by written consent or at a
meeting duly noticed and held, then such seats shall be deemed vacant and
shall be filled by the Stockholders or the Board of Directors pursuant to
Article III, Section 12 of these Bylaws. The terms of the directors elected to
fill the thirteen (13) new seats shall extend until the next annual meeting of
Stockholders. The terms of all directors serving immediately prior to the
adoption of these Bylaws shall continue for their original duration. Following
the expiration of such terms, the seats held by such directors shall be
elected annually at the annual meeting of Stockholders. The terms of all
directors elected to fill vacancies on the Board of Directors (including
vacancies resulting from the increase in directorships effected by these
Bylaws) shall extend until the next annual meeting of Stockholders, and the
seats held by such directors shall thereafter be elected annually at the
annual meeting of Stockholders. Directors need not be Stockholders.
2. Number, Term of Office, and Classification. The Board of Directors shall
consist of not less than 3 nor more than 12 directors, the exact number of
directors to be determined from time to time solely by a resolution adopted by
an affirmative vote of a majority of the entire Board of Directors. The
directors shall be divided into three classes, designated Class I, Class II,
and Class III. Each class shall consist, as nearly as possible, of one-third
of the total number of directors constituting the entire Board of Directors,
and in any event at least one-fourth of the number of directors shall be in
each class. At the 1997 annual meeting of stockholders, Class I directors
shall be elected for a one-year term, Class II directors for a two-year term,
and Class III directors for a three-year term. At each succeeding annual
meeting of stockholders, commencing in 1998, successors to the class of
directors whose term expires at that annual meeting shall be elected or
reelected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes of directors so as
to maintain the number of directors in each class as nearly equal as possible,
but in no case will a decrease in the number of directors shorten the term of
any incumbent director. When the number of directors is increased by the Board
of Directors and any newly created directorships are filled by the Board,
there shall be no classification of the additional directors until the next
annual meeting of stockholders. A director shall hold office until the meeting
for the year in which his or her term expires and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification, or removal from office. A director
elected by the Board of Directors to fill a vacancy not resulting from an
increase in the number of directors shall hold office until the expiration of
the term he or she was elected to fill and until his or her successor shall be
elected and shall qualify. Notwithstanding any other provision of these
Bylaws, this Article III, Section 2 of the Bylaws may be amended only by (a)
the affirmative vote of two-thirds of the continuing directors, or (b) the
affirmative vote of stockholders holding at least two-thirds of the voting
power of all outstanding voting stock. For purposes of this section a
continuing director is any director who was a member of the Board of Directors
prior to any person or group becoming an interested stockholder, as well as
any director who subsequently became a director or subsequently whose
nomination or election was approved by a majority of the continuing directors
then in office. An interested stockholder is any person or group acting in
concert who hereafter (a) becomes the beneficial owner of stock representing
25% or more of the outstanding votes entitled to be cast any election of
directors. Stock shall be deemed to be beneficially owned if any person or its
affiliates or associates (as such terms are defined under the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended)
directly or indirectly (a) owns such securities (regardless of whether they
would be
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determined to beneficially own such securities under Section 13(d) under the
Exchange Act); (b) has the right to acquire such securities (immediately or
with the passage of time) pursuant to any offer to purchase, exercise of
exchange, conversion or similar rights, exercise of warrants or options, or
otherwise; or (c) has the right to vote such securities pursuant to any
agreement, arrangement, or understanding other than under a revocable proxy
solicited in accordance with the General Rules and Regulations under the
Exchange Act and not reportable on Schedule 13(d) (or any successor to such
act or form). No person or member of a group that presently owns over 25% of
the company's voting stock, nor any transferee or successive transferee shall
be deemed an interested stockholder.
3. Place of Meeting. The Board of Directors may hold its meetings, either
within or without the State of Nevada, at such place or places as it may from
time to time by resolution determine or as shall be designated in any notices
or waivers of notice thereof. Any such meeting, whether regular or special,
may be held by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
4. Annual Meetings. As soon as practicable after each annual election of
Directors and on the same day, the Board of Directors shall meet for the
purpose of organization and the transaction of other business at the place
where regular meetings of the Board of Directors are held, and no notice of
such meeting shall be necessary in order to legally hold the meeting, provided
that a quorum is present. If such meeting is not held as provided above, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for a special meeting of the Board of Directors,
or in the event of waiver of notice as specified in the written waiver of
notice.
5. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such times as the Board of Directors shall from time to time
by resolution determine.
6. Special Meetings; Notice. Special meetings of the Board of Directors
shall be held, either within or without the State of Nevada, whenever called
by the Chairman of the Board, or by the President Chief Executive Officer, or
a majority of the Directors at the time in office. Notice shall be given, in
the manner hereinafter provided, of each such special meeting, which notice
shall state the time and place of such meeting, but need not state the
purposes thereof. Except as otherwise provided in Section 9 of this Article
III, notice of each such meeting shall be mailed to each Director, addressed
to him or her at his or her residence or usual place of business, at least two
(2) days before the day on which such meeting is to be held, or shall be sent
addressed to him or her at such place by telegraph, cable, wireless or other
form of recorded communication or delivered personally or by telephone not
later than the day before the day on which such meeting is to be held. A
written waiver of notice, whether given before or after the meeting to which
it relates, shall be equivalent to the giving of notice of such meeting to the
Director or Directors signing such waiver. Attendance of a Director at a
special meeting of the Board of Directors shall constitute a waiver of notice
of such meeting, except when he or she attends the meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened.
7. Quorum and Manner of Acting. A majority of the whole Board of Directors
shall be present in person at any meeting of the Board of Directors in order
to constitute a quorum for the transaction of business at such meeting, and
except as otherwise specified in these Bylaws, and except also as otherwise
expressly provided by the Nevada General Corporation Law, the vote of a
majority of the Directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors. In the absence of a quorum
from any such meeting, a majority of the Directors present thereat may adjourn
such meeting from time to time to another time or place, without notice other
than announcement at the meeting, until a quorum shall be present thereat. The
Directors shall act only as a Board of Directors and the individual Directors
shall have no power as such.
8. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, or, if he or she is absent therefrom or if no Chairman is
appointed, the President Chief Executive Officer, or if he or she is absent
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therefrom, a Director chosen by a majority of the Directors present thereat,
shall act as chairman of such meeting and preside thereat. The Secretary, or
if he or she is absent, the person (who shall be an Assistant Secretary, if
any and if present) whom the chairman of such meeting shall appoint, shall act
as Secretary of such meeting and keep the minutes thereof.
9. Action by Directors Without a Meeting. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by all Directors and
such consent is filed with the minutes of the proceedings of the Board of
Directors.
10. Resignations. Any Director may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation
shall take effect at the time specified therein, or if the time when it shall
become effective is not specified therein, it shall take effect immediately
upon its receipt by the Chairman of the Board, the President Chief Executive
Officer, or the Secretary; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
11. Vacancies. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors elected by all of the
Stockholders having the right to vote as a single class Subject to Article
III, Section 2 of these Bylaws, all vacancies on the Board of Directors may be
filled by a either by (i) the action of Stockholders holding at least a
majority of the total voting power of the issued and outstanding stock
entitled to vote in the election of such Directors, acting by written consent
or at a meeting duly noticed and held, or (ii) a majority of the Directors
then in office, although less than a quorum, or by a sole remaining Director.
If at any time, by reason of death or resignation or other cause, the
Corporation has no Directors in office, then any officer or any Stockholder or
an executor, administrator, trustee, or guardian of a Stockholder, may call a
special meeting of Stockholders for the purpose of filling vacancies in the
Board of Directors. If one or more Directors shall resign from the Board of
Directors, effective at a future date, a majority of the Directors then in
office, including those who have so resigned, shall have the power to fill
such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each Director so
chosen shall hold office as provided in this section in the filling of other
vacancies.
12. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that the Directors may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director or both, in either case payable in cash, the Corporation's stock, or
such other form designated by the Board of Directors. In addition, the Board
of Directors may at any time and from time to time by resolution provide that
Directors shall be paid their actual expenses, if any, of attendance at each
meeting of the Board of Directors. Nothing in this section shall be construed
as precluding any Director from serving the Corporation in any other capacity
and receiving compensation therefor, but the Board of Directors may by
resolution provide that any Director receiving compensation for his or her
services to the Corporation in any other capacity shall not receive additional
compensation for his or her services as a Director.
13. Removal. Any one or more Directors may be removed from office with or
without cause by the vote of Stockholders representing not less than two-
thirds of the total voting power of the issued and outstanding stock entitled
to vote in the election of such directors.
ARTICLE IV
OFFICERS
1. Number. The Corporation shall have the following officers: a Chairman of
the Board, a Chief Executive Officer, a President, a Vice President, a
Secretary and a Treasurer. At the discretion of the Board of Directors, the
Corporation may also have additional Vice Presidents, one or more Assistant
Vice Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers.
B-6
2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors or at a special meeting of the
Board of Directors called for that purpose. Each such officer shall hold
office until his or her successor is duly elected or until his or her earlier
death or resignation or removal in the manner hereinafter provided.
3. Agents. In addition to the officers mentioned in Section 1 of this
Article IV, the Board of Directors may appoint such agents as the Board of
Directors may deem necessary or advisable, each of which agents shall have
such authority and perform such duties as are provided in these Bylaws or as
the Board of Directors may from time to time determine. The Board of Directors
may delegate to any officer or to any committee the power to appoint or remove
any such agents.
4. Removal. Any officer may be removed, with or without cause, at any time
by resolution adopted by a majority of the whole entire Board of Directors.
5. Resignations. Any officer may resign at any time by giving written
notice of his or her resignation to the Board of Directors, the Chairman of
the Board, the President Chief Executive Officer, or the Secretary. Any such
resignation shall take effect at the times specified therein, or, if the time
when it shall become effective is not specified therein, it shall take effect
immediately upon its receipt by the Board of Directors, the Chairman of the
Board, the President Chief Executive Officer, or the Secretary; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
6. Vacancies. A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board. The Chairman of the Board shall be the chief
executive officer of the Corporation and shall have, subject to the control
preside at all meetings of the Stockholders and at all meetings of the Board
of Directors, general and active supervision and direction over the business
and affairs of the Corporation and over its several officers. If at any time
the Corporation has no Chairman of the Board, the duties and responsibilities
designated for such position shall be performed by the President, or by an
officer of the Corporation designated by the President or, in the absence of
such designation, designated by the Board of Directors. The Chairman of the
Board shall: (a) preside at all meetings of the Stockholders and at all
meetings of the Board of Directors; (b) make a report of the state of the
business of the Corporation at each annual meeting of the Stockholders; (c)
see that all orders and resolutions of the Board of Directors are carried into
effect; (d) sign, with the Secretary or an Assistant Secretary, certificates
for stock of the Corporation; (e) have the right to sign, execute and deliver
in the name of the Corporation all deeds, mortgages, bonds, contracts or other
instruments authorized by the Board of Directors, except in cases where the
signing, execution or delivery thereof is expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or where any of them are required by law otherwise to be signed, executed or
delivered; and (f) have the right to cause the corporate seal, if any, to be
affixed to any instrument which requires it. In general, the Chairman of the
Board shall perform all duties incident to the office of the Chairman of the
Board and such other duties as from time to time may be assigned to him or her
by the Board of Directors.
8. President. The President Chief Executive Officer. The Chief Executive
Officer shall be the chief executive officer of the Corporation and shall
have, subject to the control of the Board of Directors and the Chairman of the
Board, general and active supervision and direction over the business and
affairs of the Corporation and over its several officers. At the request of If
at any time the Corporation has no Chief Executive Officer, the duties and
responsibilities designated for such position shall be performed by the
Chairman of the Board, or in case of his or her absence or inability to act,
the President shall perform the duties of by an officer of the Corporation
designated by the Chairman of the Board and, when so acting, shall have all
the powers of, and be subject to all the restrictions upon, the Chairman or,
in the absence of such designation, designated by the Board of Directors. The
Chief Executive Officer shall: (a) make a report of the state of the business
of the Corporation at each annual meeting of the Stockholders; (b) see that
all orders and resolutions of the Board. He may sign of Directors are carried
into effect; (c) sign, with the Secretary or an Assistant Secretary,
certificates for stock of the Corporation.
B-7
He may; (d) have the right to sign, execute, and deliver in the name of the
Corporation all deeds, mortgages, bonds, contracts, or other instruments
authorized by the Board of Directors, except in cases where the signing,
execution or delivery thereof is expressly delegated by the Board of Directors
or by these Bylaws to some other officers officer or agent of the Corporation
or where any of them are required by law otherwise to be signed, executed or
delivered, and he may; and (e) have the right to cause the corporate seal, if
any, to be affixed to any instrument which requires it.
In general, the 9. President. The President shall perform all duties
incident to the office of the President and such other such duties as from
time to time may be assigned to him or her by the Board of Directors or, the
Chairman of the Board, or the Chief Executive Officer.
9 10. Vice President. The Vice President and any additional Vice Presidents
shall have such powers and perform such duties as the Chairman of the Board,
the President Chief Executive Officer or the Board of Directors may from time
to time prescribe and shall perform such other duties as may be prescribed by
these Bylaws.
At the request of the President, or in case of his or her absence or
inability to act, and a Vice President so designated by the Board of
Directors, shall perform the duties of the President and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
President.
10 11. Secretary. The Secretary shall: (a) record all the proceedings of
the meetings of the Stockholders, the Board of Directors and the committees of
the Board of Directors, if any, in one or more books kept for that purpose;
(b) see that all notices are duly given in accordance with the provisions of
these Bylaws or as required by law; (c) be the custodian of all contracts,
deeds, documents, all other indicia of title to properties owned by the
Corporation and of its other corporate records (except accounting records) and
of the corporate seal, if any, and affix such seal to all documents the
execution of which on behalf of the Corporation under its seal is authorized
and required; (d) sign, if directed by the Board of Directors, with the
Chairman of the Board, the President, or a Vice President another authorized
officer, certificates for stock of the Corporation; (e) have charge, directly
or through the transfer clerk or transfer clerks, transfer agent or transfer
agents and registrar or registrars appointed as provided in Section 3 of
Article VII of these Bylaws, of the issue, transfer and registration of
certificates for stock of the Corporation and of the records thereof, such
records to be kept in such manner as to show at any time the amount of the
stock of the Corporation issued and outstanding, the manner in which and the
time when such stock was paid for, the names, alphabetically arranged, and the
addresses of the holders of record thereof, the number of shares held by each,
and the time when each became a holder of record; (f) upon request, exhibit or
cause to be exhibited at all reasonable times to any Director director such
records of the issue, transfer and registration of the certificates for stock
of the Corporation; (g) see that the books, reports, statements, certificates
and all other documents and records required by law are properly kept and
filed; and (h) see that the duties prescribed by Section 6 of Article II of
these Bylaws are performed. In general, the Secretary shall perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him or her by the Chairman of the Board, the President
Chief Executive Officer or the Board of Directors.
11 12. Treasurer. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall determine.
The Treasurer shall: (a) have charge and custody of, and be responsible for,
all funds, securities, notes and valuable effects of the Corporation; (b)
receive and give receipt for monies due and payable to the Corporation from
any sources whatsoever; (c) deposit all such monies to the credit of the
Corporation or otherwise as the Board of Directors, the Chairman of the Board,
or the President Chief Executive Officer shall direct in such banks, trust
companies or other depositories as shall be selected in accordance with the
provisions of Article VI of these Bylaws; (d) cause such funds to be disbursed
by checks or drafts on the authorized depositories of the Corporation signed
as provided in Article VI of these Bylaws; (e) be responsible for the accuracy
of the amounts of, and cause to be preserved proper vouchers for, all monies
so disbursed; (f) have the right to require from time to time reports or
statements giving such information as he or she may desire with respect to any
and all financial transactions of the Corporation from the officers or agents
transacting the same;
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(g) render to the Chairman of the Board, the President Chief Executive
Officer, or the Board of Directors, whenever they, respectively, shall request
him or her so to do, an account of the financial condition of the Corporation
and of all his or her transactions as Treasurer; (h) sign, if directed by the
Board of Directors, with the Chairman of the Board, the President, or a Vice
President another authorized officer, certificates for stock of the
Corporation; and (i) upon request, exhibit or cause to be exhibited at all
reasonable times the cash books and other records to the Chairman of the
Board, the President Chief Executive Officer, or any of the Directors of the
Corporation. In general, the Treasurer shall perform all duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the President Chief
Executive Officer or the Board of Directors.
12 13. Assistant Officers. Any persons elected as assistant officers shall
assist in the performance of the duties of the designated office and such
other duties as shall be assigned to them by any Vice President, the Secretary
or the Treasurer, as the case may be, or by the Board of Directors, the
Chairman of the Board, or the President Chief Executive Officer.
13 14. Combination of Offices. Any two of the offices hereinabove
enumerated may be held by one and the same person, if such person is so
elected or appointed.
14 15. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers. The Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, may
designate one or more of the Directors then in office, who shall include the
Chairman of the Board, to constitute an Executive Committee, which shall have
and may exercise between meetings of the Board of Directors all the delegable
powers of the Board of Directors to the extent not expressly prohibited by the
Nevada General Corporation Law or by resolution of the Board of Directors. The
Board of Directors may designate one or more Directors as alternate members of
the Committee who may replace any absent or disqualified member at any meeting
of the Committee. Each member of the Executive Committee shall continue to be
a member thereof only during the pleasure of a majority of the whole Board of
Directors.
2. Executive Committee; Organization. The Chairman of the Board shall act
as chairman at all meetings of the Executive Committee and the Secretary shall
act as secretary thereof. In case of the absence from any meeting of the
Chairman of the Board or the Secretary, the Committee may appoint a chairman
or secretary, as the case may be, of the meeting.
3. Executive Committee; Meetings. Regular meetings of the Executive
Committee may be held without notice on such days and at such places as shall
be fixed by resolution adopted by a majority of the Committee and communicated
to all its members. Special meetings of the Committee shall be held whenever
called by the Chairman of the Board or a majority of the members thereof then
in office. Notice of each special meeting of the Committee shall be given in
the manner provided in Section 6 of Article III of these Bylaws for special
meetings of the Board of Directors. Notice of any such meeting of the
Executive Committee, however, need not be given to any member of the Committee
if waived by him or her in writing or by telegraph, cable, wireless or other
form of recorded communication either before or after the meeting, or if he or
she is present at such meeting, except when he or she attends for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Subject to the provisions of this Article V,
the Committee, by resolution adopted by a majority of the whole Committee,
shall fix its own rules of procedure and it shall keep a record of its
proceedings and report them to the Board of Directors at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board of Directors;
provided, however, that third parties shall not be prejudiced by any such
revision or alteration.
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4. Executive Committee; Quorum and Manner of Acting. A majority of the
Executive Committee shall constitute a quorum for the transaction of business,
and, except as specified in Section 3 of this Article V, the act of a majority
of those present at a meeting thereof at which a quorum is present shall be
the act of the Committee. The members of the Committee shall act only as a
committee, and the individual members shall have no power as such.
5. Other Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may constitute other committees, which shall in
each case consist of one or more of the Directors and, at the discretion of
the Board of Directors, such officers who are not Directors. The Board of
Directors may designate one or more Directors or officers who are not
Directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee. Each such committee shall
have and may exercise such powers as the Board of Directors may determine and
specify in the respective resolutions appointing them; provided, however, that
(a) unless all of the members of any committee shall be Directors, such
committee shall not have authority to exercise any of the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and (b) if any committee shall have the power to determine the amounts of the
respective fixed salaries of the officers of the Corporation or any of them,
such committee shall consist of not less than three (3) members and none of
its members shall have any vote in the determination of the amount that shall
be paid to him or her as a fixed salary. A majority of all the members of any
such committee may fix its rules of procedure, determine its action and fix
the time and place of its meetings and specify what notice thereof, if any,
shall be given, unless the Board of Directors shall otherwise by resolution
provide.
6. Committee Minutes. The Executive Committee and any other committee shall
keep regular minutes of their proceedings and report the same to the Board of
Directors when required.
7. Action by Committees Without a Meeting. Any action required or permitted
to be taken at a meeting of the Executive Committee or any other committee of
the Board of Directors may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, is signed by all members of the committee and such consent is filed
with the minutes of the proceedings of the committee.
8. Resignations. Any member of the Executive Committee or any other
committee may resign therefrom at any time by giving written notice of his or
her resignation to the Chairman of the Board, the President Chief Executive
Officer, or the Secretary. Any such resignation shall take effect at the time
specified therein, or if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the Chief Executive Officer, or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
9. Vacancies. Any vacancy in the Executive Committee or any other committee
shall be filled by the vote of a majority of the whole Board of Directors.
10. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that committee members shall be paid a fixed sum
for attendance at each committee meeting or a stated salary as a committee
member in either case payable in cash, the Corporation stock, or such other
form designated by the Board of Directors. In addition, the Board of Directors
may at any time and from time to time by resolution provide that such
committee members shall be paid their actual expenses, if any, of attendance
at each committee meeting. Nothing in this section shall be construed as
precluding any committee member from serving the Corporation in any other
capacity and receiving compensation therefor, but the Board of Directors may
by resolution provide that any committee member receiving compensation for his
or her services to the Corporation in any other capacity shall not receive
additional compensation for his or her services as a committee member.
11. Dissolution of Committees; Removal of Committee Members. The Board of
Directors, by resolution adopted by a majority of the whole Board, may, with
or without cause, dissolve the Executive Committee or any other committee,
and, with or without cause, remove any member thereof.
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ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts. Except as otherwise required by law or by these
Bylaws, any contract or other instrument may be executed and delivered in the
name of the Corporation and on its behalf by the Chairman of the Board, the
Chief Executive Officer, the President, or any Vice President. In addition,
the Board of Directors may authorize any other officer or officers or agent or
agents to execute and deliver any contract or other instrument in the name of
the Corporation and on its behalf, and such authority may be general or
confined to specific instances as the Board of Directors may by resolution
determine.
2. Attestation. Any The President, any Vice President, the Secretary, or
any Assistant Secretary may attest the execution of any instrument or document
by the Chairman of the Board, the President Chief Executive Officer, or any
other duly authorized officer or agent of the Corporation and may affix the
corporate seal, if any, in witness thereof, but neither such attestation nor
the affixing of a corporate seal shall be requisite to the validity of any
such document or instrument.
3. Checks, Drafts. All checks, drafts, orders for the payment of money,
bills of lading, warehouse receipts, obligations, bills of exchange, and
insurance certificates shall be signed or endorsed (except endorsements for
collection for the account of the Corporation or for deposit to its credit,
which shall be governed by the provisions of Section 4 of this Article VI) by
such officer or officers or agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as
the Board of Directors, the Chairman of the Board, or the President Chief
Executive Officer shall direct in general or special accounts at such banks,
trust companies, savings and loan associations, or other depositories as the
Board of Directors may select or as may be selected by any officer or officers
or agent or agents of the Corporation to whom power in that respect has been
delegated by the Board of Directors. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation. The Board of Directors may make such special rules and
regulations with respect to such accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
Chairman of the Board, the President, or any Vice President or the Chief
Executive Officer may exercise in the name and on behalf of the Corporation
the powers and rights which the Corporation may have as the holder of stock or
other securities in any other corporation, including without limitation the
right to vote or consent with respect to such stock or other securities.
6. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors, and may thereafter be changed from time
to time by action of the Board of Directors. Initially, the fiscal year shall
begin on October 1 and end on September 30.
7. Applicability of the Acquisition of Controlling Interest Statute. The
provisions of the Nevada Revised Statutes, Sections 78.378 to 78.3793,
inclusive, shall not apply to the Corporation or to the acquisition of a
controlling interest of the Corporation by existing or future stockholders.
ARTICLE VII
STOCK
1. Certificates. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman of the Board, the Chief Executive Officer, the President, or a
B-11
Vice President and by the Treasurer, Secretary, or an Assistant Treasurer or
Assistant Secretary. The signatures of such officers upon such certificate may
be facsimiles if the certificate is manually signed by a transfer agent or
registered by a registrar, other than the Corporation itself or one of its
employees. If any officer who has signed or whose facsimile signature has been
placed upon a certificate has ceased for any reason to be such officer prior
to issuance of the certificate, the certificate may be issued with the same
effect as if that person were such officer at the date of issue. All
certificates for stock of the Corporation shall be consecutively numbered,
shall state the number of shares represented thereby and shall otherwise be in
such form as shall be determined by the Board of Directors, subject to such
requirements as are imposed by the Nevada General Corporation Law. The names
and addresses of the persons to whom the shares represented by certificates
are issued shall be entered on the stock transfer books of the Corporation,
together with the number of shares and the date of issue, and in the case of
cancellation, the date of cancellation. Certificates surrendered to the
Corporation for transfer shall be cancelled, and no new certificate shall be
issued in exchange for such shares until the original certificate has been
cancelled; except that in the case of a lost, stolen, destroyed or mutilated
certificate, a new certificate may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
2. Transfer of Stock. Transfers of shares of stock of the Corporation shall
be made only on the stock transfer books of the Corporation by the holder of
record thereof or by his or her legal representative or attorney in fact, who
shall furnish proper evidence of authority to transfer to the Secretary, or a
transfer clerk or a transfer agent, and upon surrender of the certificate or
certificates for such shares properly endorsed and payment of all taxes
thereon. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
3. Regulations. The Board of Directors may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers or
any committee to appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all certificates for stock
to bear the signature or signatures of any of them.
4. Lost Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of the fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
5. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of stock in the manner and upon
the terms and conditions provided in the Articles of Incorporation and the
Nevada General Corporation Law.
B-12
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance
a corporate seal is used, the same shall bear the full name of the Corporation
and the year and state of incorporation, or words or figures of similar
import.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify its directors and officers to the maximum
extent permitted by the Nevada General Corporation Law. Indemnification shall
be provided unless it is ultimately determined by a court of competent
jurisdiction that (i) the indemnified party did not act in a manner he or she
believed in good faith to be in, or not opposed to, the best interests of the
Corporation and, (ii) with respect to any criminal action or proceeding, the
indemnified party had no reasonable cause to believe his or her conduct was
lawful. Expenses shall be advanced to an indemnified party upon written
confirmation that he or she has not acted in a manner that would preclude
indemnification above and an undertaking to return any advances if it is
ultimately determined by a court of competent jurisdiction that the party is
not entitled to indemnification under the standard set forth herein.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered, or amended, or new bylaws may be
adopted, by (i) the affirmative vote of a majority of all the directors. These
Bylaws may also be repealed, altered or amended, or new bylaws may be adopted
by the total voting power of the outstanding common stock of the Corporation,
or (ii) the affirmative vote of not less than a majority of the combined
voting power of the then outstanding capital stock of the Corporation. entire
Board of Directors; provided, that no repeal, alteration, amendment, or
adoption of these New Bylaws by the directors shall be effective to override
any provision adopted after the date of the New Bylaws by the Stockholders
and, further provided, that the Stockholders shall be entitled to override any
repeal, alteration, amendment, or adoption of any provision solely by the
Board of Directors by subsequent action.
The undersigned Secretary of Simon Transportation Services Inc. hereby
certifies the foregoing to be the Bylaws of the Corporation, as adopted by the
Board of Directors on the day of , 1995, 2000.
Alba_______________________________Bn
Lan__________________________________g
, Secretary
B-13
Consent Card
This Consent is being Solicited by Jerry Moyes
Consent of Stockholders to Action Without a Meeting
The undersigned, a stockholder of record of Simon Transportation Services
Inc. (the "Company"), hereby consents pursuant to Section 78.320 of the Nevada
General Corporation Law, with respect to the number of Class A and/or Class B
Common Shares, par value $0.01 per share, of the Company held by the
undersigned, to each of the following actions, which will occur in the order
set forth in this Consent Card, without prior notice and without a vote, as
more fully described in the Consent Statement, receipt of which is hereby
acknowledged. The undersigned directs that this consent be filed with the
minutes of the proceedings of the stockholders, and this consent shall be
deemed to be so filed upon delivery to the Company.
1. Proposal No. 1--The Repeal of Current Bylaws Proposal: Repeal the Current
Bylaws in their entirety. Proposal No. 1 is worded as follows:
"RESOLVED, that the bylaws of Simon Transportation Services Inc., as
previously amended and in effect immediately prior to the adoption of this
resolution, are hereby repealed in their entirety."
[_] CONSENT[_] CONSENT WITHHELD[_] ABSTAIN
Note: If no box is marked with respect to the Repeal of Current Bylaws
Proposal, this Consent will be voted in favor of repealing the Current
Bylaws in their entirety.
2. Proposal No. 2--The New Bylaws Proposal: Adopt the New Bylaws in the form
attached as Exhibit A. Proposal No. 2 is worded as follows:
"RESOLVED, that the New Bylaws of Simon Transportation Services Inc., in
the form attached as Exhibit A to the Consent Statement of Jerry Moyes, are
hereby adopted as the bylaws of Simon Transportation Services Inc.,
effective immediately."
[_] CONSENT[_] CONSENT WITHHELD[_] ABSTAIN
Note: If no box is marked with respect to the New Bylaws Proposal, this
Consent will be voted in favor of adopting the New Bylaws.
3. Proposal No. 3--The Director Election Proposal: Elect the Nominees as
directors of the Company to serve until their successors are duly elected
and qualified. Proposal No. 3 is worded as follows:
"RESOLVED, that the following persons are hereby elected, effective
immediately upon the adoption of the New Bylaws, as directors of the Simon
Transportation Services Inc. to serve until the next annual meeting of the
stockholders of Simon Transportation Services Inc. or until their successors
are duly elected and qualified:
Jerry Moyes, Jon Isaacson, Earl H. Scudder, Gordon K. Holladay, Vickie L.
Moyes, Craig P. Moyes, Jeff L. Archibald, Patrice Archibald, Ronald G.
Moyes, Krista B. Moyes, Michael J. Moyes, Buddy Favero and Laura Favero"
[_] CONSENT[_] CONSENT WITHHELD[_] ABSTAIN
To withhold consent to a proposed Nominee, specify the Nominee in the
following space:
-----------------------------------------------------------------------------
Note: If no box is marked above with respect to the Director Election
Proposal, this Consent will be voted in favor of the election of all
Nominees.
The effectiveness of this consent is conditioned upon the approval of
Proposals 1, 2 and 3. If all of such Proposals are not approved as indicated,
none of the Proposals will be enacted even though sufficient consents may have
been received to approve a particular Proposal.
If you have any questions or need assistance, please contact MacKenzie
Partners, Inc., which is assisting Moyes in this Consent Statement. Call toll
free 1-800-322-2885
PLEASE ACT PROMPTLY. IMPORTANT: THIS CONSENT MUST BE SIGNED AND DATED TO BE
VALID.
Dated: ______________________ , 2000
Signature: _________________________
Signature (if held jointly): _______
Title or authority (if
applicable): _______________________
Consents can only be given by the stockholder of record on the Record Date.
Please sign exactly as name appears on your stock certificate(s) on the Record
Date or on the label affixed hereto. If shares are registered in more than one
name, the signature of all such persons should be provided. A corporation
should sign in its full corporate name by a duly authorized officer, stating
his or her title. Trustees, guardians, executors, and administrators should
sign in their official capacity, giving their full title as such. If a
partnership, please sign in the partnership name by authorized persons. The
consent card votes all shares in all capacities.
PLEASE MARK, SIGN, AND DATE THIS CONSENT BEFORE MAILING THE CONSENT IN THE
ENCLOSED ENVELOPE.