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Registration No. 33-_____________
As filed with the Securities and Exchange Commission on January 9, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
AASCHE TRANSPORTATION SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3964954
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
10214 NORTH MT. VERNON ROAD (815) 864-2421
SHANNON, ILLINOIS 61078 (Telephone number, including
(Address, including zip code, of area code, of registrant's
registrant's principal executive offices) principal executive offices)
AMENDED EMPLOYMENT AND STOCK OPTION AGREEMENT
AND SEPARATION AGREEMENT
(Full title of the plans)
Mr. Larry L. Asche Copy to:
Chairman and Chief Operating Officer Joel R. Schaider
Aasche Transportation Services, Inc. Sachnoff & Weaver, Ltd.
10214 North Mt. Vernon Road 30 South Wacker Drive, Suite 2900
Shannon, Illinois 61078 Chicago, Illinois 60606
(815) 864-2421 (312) 207-1000
(Name, address, including zip code and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered (1) registered(1) share price registration fee(4)
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Common Stock,
$0.0001 par value 110,000(2) (3) (3) $166.67
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) The amount being registered represents the estimated aggregate amount that
could be contributed by the employees. The amount is estimated solely for the
purposes of calculating the registration fee. This Registration Statement
includes any additional shares of the Registrant's Common Stock that may be
issued resulting from stock splits, stock dividends, or similar transactions.
(3) The offering price is not known.
(4) Pursuant to Rule 457(h), the registration fee was computed on the basis of
the price of Aasche Transportation Services, Inc. Common Stock, determined on
the basis of the average of the high and low prices ($5.00) of such stock on
the Nasdaq National Market on January 7, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission as
part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Aasche
Transportation Services, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference in this
Registration Statement, except to the extent that any statement or information
therein is modified, superseded or replaced by a statement or information
contained in any other subsequently filed document incorporated herein by
reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the periods
ended March 31, 1996, June 30, 1996 and September 30, 1996;
3. The Company's Current Report contained on Form 8-K dated
April 1, 1996; and
4. The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A dated July 26, 1994
(No. 0-24576), including any amendments or reports filed for the
purpose of updating such descriptions.
All documents filed by the Company or the Aasche Transportation Services, Inc.
Stock Option Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Six of the registrant's Certificate of Incorporation ("Article
Six") is consistent with Section 102(b)(7) of the Delaware General Corporation
Law, which generally permits a company to include a provision limiting the
personal liability of a director in the company's certificate of incorporation.
With limitations, Article Six eliminates the personal liability of the
Company's directors to the registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director. However, Article Six does not
eliminate director liability: (i) for breaches of the duty of loyalty to the
registrant and its stockholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (iii)
for transactions from which a director derives improper personal benefit; and
(iv) under Section 174 of the Delaware General Corporation Law ("Section 174").
Section 174 makes directors personally liable for unlawful dividends and stock
repurchases or redemptions and expressly sets forth a negligence standard with
respect to such liability. While Article Six protects the directors from
awards for monetary damages for breaches of their duty of care, it does not
eliminate their duty of care. The limitations in Article Six have no effect on
claims arising under the federal securities laws.
The registrant's Certificate of Incorporation contains provisions that
require the registrant to indemnify its directors and officers to the fullest
extent permitted by Delaware law. Under Section 145 of the Delaware General
Corporation law, directors and officers, as well as other employees and
individuals, may be indemnified against expenses (including attorneys' fees),
judgments, fines, amounts paid in settlement in connection with specified
actions, suits, or proceedings, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation -- a
"derivative action") if they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to criminal actions or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with the defense or settlement of such an action, and the
Delaware General Corporation Law requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation.
The registrant's By-Laws contains provisions whereby the registrant shall
indemnify and hold harmless the directors to the fullest extent permitted by
applicable law against any and all reasonable attorneys' fees and all other
reasonable expense, cost, liability and loss (including a
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mandatory obligation by the registrant to advance reimbursement of
legal fees and expenses) paid or reasonably incurred by such director or on his
or her behalf in connection with any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation not initiated by the
director that he or she believes in good faith might lead to a proceeding,
inquiry or investigation (a "Proceeding"), relating to the fact that the
director is or was a director, officer, employee or agent of the registrant, or
is or was serving at the request of the registrant as a director, officer,
employee, trustee, agent or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, or by reason of any
action or inaction by the director in such capacity. However, the registrant's
obligation to indemnify the director is subject to a determination by the
registrant's Board of Directors that the director is entitled to
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
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1. The undersigned registrant hereby undertakes:
a. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
i. To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
iii. To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in the
registration statement.
b. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
c. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act and each filing of the Plan's annual report pursuant
to Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to officers, directors, and controlling
persons of the registrant pursuant to the registrant's certificate of
incorporation or by-laws, or otherwise, the registrant has been advised
that in the opinion of the Commission such indemnification is against
public
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policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person
in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Shannon, State of Illinois, on
January 6, 1997.
Aasche Transportation Services, Inc.
By: /s/ Larry L. Asche
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Larry L. Asche, Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Aasche Transportation
Services, Inc., hereby constitutes and appoints Larry L. Asche our true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for us and in our stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and all documents relating thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
necessary or advisable to be done in and about the premises, as fully to all
intents and purposes as we might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
respective capacities on January 6, 1997.
Signature Title
--------- -----
/s/ Larry L. Asche
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Larry L. Asche Chairman and Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Kevin M. Clark
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Kevin M. Clark President and Director
/s/ Leon M. Monachos
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Leon M. Monachos Chief Financial Officer (Principal Financial Officer
and Principal Accounting Officer) and Director
/s/ Diane L. Asche
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Diane L. Asche Director
/s/ Steven R. Green
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Steven R. Green Director
/s/ Richard S. Baugh
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Richard S. Baugh Director
/s/ Gary I. Goldberg
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Gary I. Goldberg Director
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EXHIBIT INDEX
Exhibit Sequential
Number Description of Exhibit Page Number
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4.1 Certificate of Incorporation of Aasche *
Transportation Services, Inc., as amended
4.2 By-Laws of Aasche Transportation Services, Inc. *
5.1 Opinion of Sachnoff & Weaver, Ltd. with regard
to the legality of the securities being
registered.
23.1 Consent of Ernst & Young LLP with respect to
the financial statements of the Company.
23.2 Consent of Sachnoff & Weaver, Ltd. (included
in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature
page hereto)
99.1 Amended Employment and Stock Option Agreement
dated July 22, 1996 between Polar Express
Corporation, Aasche Transportation Services,
Inc. and Trey Trumbo
99.2 Separation Agreement dated July 26, 1996
between Polar Express Corporation, Aasche
Transportation Services, Inc. and Orin S.
Neiman
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* Filed as an exhibit to Aasche Transportation Services, Inc. Registration
Statement on Form SB-2, Registration Statement No. 33-81942C, declared
effective by the Securities and Exchange Commission on September 23, 1994,
and incorporated herein by reference.
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