Exhibit 99.3
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE,
TRANSFER OR OTHER DISPOSITION OF THIS WARRANT, SAID SHARES OR ANY
INTEREST THEREIN MAY BE EFFECTED WITHOUT, AMONG SATISFYING OTHER
CONDITIONS, (I) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO,
(II) AN OPINION OF COUNSEL FOR THE HOLDER THAT SUCH REGISTRATION IS NOT
REQUIRED OR (III) RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS
NOT REQUIRED.
Void after 5:00 p.m., Utah Time
on June 29, 2011
SIMON TRANSPORATION SERVICES INC.
AMENDED AND RESTATED
WARRANT TO PURCHASE
SERIES I PREFERRED SHARES
--------------------------
This certifies that as of June 30, 2001 (the "Grant Date"), for value
received, the Moyes Children's Limited Partnership (the "Purchaser") or
registered assigns (the Purchaser or such assignee, as applicable, being
referred to herein as the "Holder"), is entitled to ONE HUNDRED SIXTY-TWO
THOUSAND FOUR HUNDRED ONE (162,401) warrants, each such warrant entitling the
Holder to purchase one (1) share of Series I Preferred Shares, par value $0.01
per share (the "Series I Preferred Shares"), of Simon Transportation Services
Inc., a Nevada corporation (the "Company"), at a price of Forty-one and 10/100
Dollars ($41.10) per share (the "Exercise Price") (such warrants and this
certificate evidencing such warrants being referred to herein, collectively, as
this "Warrant"). The number of shares of Series I Preferred Shares to be
received upon the exercise of this Warrant (the "Warrant Shares") and the
Exercise Price may be adjusted from time to time as hereinafter set forth.
1. Exercise of Warrant. Subject to the provisions of Section 2 below,
this Warrant may be exercised, in whole or in part, at any time or from time to
time on or after the Grant Date, but in any event no later than 5:00 p.m., Utah
time, on June 29, 2011, or if such date is a day on which federal or
state-chartered banking institutions in Utah are authorized by law to close,
then on the next succeeding day which shall not be such a day; provided,
however, no portion of this Warrant may be exercised with respect to fewer than
fifty thousand (50,000) Warrant Shares at any one time, as such number is
adjusted from time to time in accordance with Section 7 below. Such exercise
shall be effective upon presentation and surrender to the Company at its
principal office or at the office of its stock transfer agent, if any, of a copy
of this Warrant with the duly executed Notice of Exercise form set forth on
Exhibit A (attached hereto and made a part hereof by this reference) (the
"Notice of Exercise"). The Notice of Exercise must be accompanied by payment, in
cash or by certified or official bank check, payable to the order of the
Company, in the amount of the Exercise Price for the number of the Warrant
Shares, together with all transfer and similar taxes applicable upon such
exercise for which the Company must withhold. The Company may require the Holder
to execute such further documents and make certain representations and
warranties as the Company deems necessary to ensure compliance with exemptions
from applicable federal and state securities laws as required by Section 2
below.
2. Compliance with Securities Laws. This Warrant may not be exercised
by the Holder unless at the time of exercise (i) a registration statement
registering the Warrant Shares upon such exercise is effective under the
Securities Act of 1933, as amended (and together with the rules and regulations
promulgated thereunder, collectively, the "Securities Act"), or the transaction
in which such Warrant Shares are to be issued is exempted from the application
of the registration requirements of the Securities Act, and (ii) the Warrant
Shares have been registered or qualified under any applicable state securities
laws or an exemption from registration or qualification is available under such
laws. This Warrant may not be exercised so long as the Holder is in default
under the representations, warranties or covenants of this Warrant.
3. Stock Fully Paid; Reservation of Shares. All Warrant Shares that may
be issued upon the exercise of this Warrant shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issue thereof. The Company hereby
covenants and agrees that at all times during the period this Warrant is
exercisable it shall reserve from its authorized and unissued Series I Preferred
Shares for issuance and delivery upon exercise of this Warrant such number of
shares of its Series I Preferred Shares as shall be required for issuance and
delivery upon exercise of this Warrant. The Company agrees that its issuance of
this Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Series I Preferred Shares upon the exercise of this
Warrant.
4. Fractional Shares. No fractional shares or stock representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of
any fractional shares which would otherwise be issuable, the Company shall, in
its sole discretion, either (i) pay cash equal to the product of such fraction
multiplied by the fair market value of one share of Series I Preferred Shares on
the date of exercise, as determined in good faith by the Company's Board of
Directors or (ii) issue the next largest whole number of Warrant Shares.
5. Transfer, Exchange, Assignment or Loss of Warrant or Certificates.
(a) This Warrant may not be assigned or transferred except as
provided herein and in accordance with and subject to the provisions of the
Securities Act and any other applicable federal and state securities laws. Any
purported transfer or assignment made other than in accordance with this Section
5 and Section 8 hereof shall be null and void and of no force and effect.
(b) This Warrant shall be transferable only upon the receipt
by the Company of an opinion of counsel satisfactory to the Company to the
effect that (i) the transferee is a person to whom the Warrant may be legally
transferred without registration under the Securities Act or any state
securities laws; and (ii) such transfer will not violate any applicable law or
governmental rule or regulation including, without limitation, any applicable
federal or state securities law.
(c) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the duly
executed Assignment Form set forth on Exhibit B attached hereto and made a part
hereof by this reference and funds sufficient to pay any transfer tax. In such
event, the Company shall execute and deliver a new Warrant in the name of the
assignee named in such Assignment Form, and this Warrant shall promptly be
cancelled. This Warrant may be divided or combined with other Warrants which
carry the same rights upon presentation thereof at the principal office of the
Company together with a written notice signed by the Holder thereof, specifying
the names and denominations in which new Warrants are to be issued. The terms
"Warrant" and "Warrants" as used herein include any Warrants in substitution for
or replacement of this Warrant, or into which this Warrant may be divided or
exchanged.
(d) Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate representing Warrant Shares issued upon the exercise hereof and, in
the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, and, in the case of any such mutilation,
upon surrender and cancellation of this Warrant or such stock certificate, the
Company will execute and deliver a new Warrant or stock certificate of like
tenor and date, and any such lost, stolen, destroyed or mutilated Warrant or
stock certificate shall thereupon become void.
(e) Each of the Holders of this Warrant, the Warrant Shares or
any other security issued or issuable upon exercise of this Warrant shall
indemnify and hold harmless the Company, its directors and officers, and each
person, if any, who controls the Company, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director,
officer or any such person may become subject under the Securities Act or any
statute or common law, insofar as such losses, claims, damages or liabilities,
or actions in respect thereof, arise out of or are based upon the disposition by
such Holder of the Warrant, the Warrant Shares or other such securities in
violation of the terms of this Warrant.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder by virtue hereof are limited to those expressed in
this Warrant.
7. Adjustment of Exercise Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Subdivision or Combination of Series I Preferred Shares.
If the Company at any time subdivides (by any stock split, stock dividend or
otherwise) its outstanding shares of Series I Preferred Shares into a greater
number of shares, or combines (by reverse stock split or otherwise) its
outstanding shares of Series I Preferred Shares into a smaller number of shares,
the number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder of this Warrant
shall be entitled to receive the kind and number of Warrant Shares or other
securities of the Company which it would have owned or have been entitled to
receive after the happening of any of the events described above had this
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. If the Holder is entitled to receive shares of
two or more classes of capital stock of the Company pursuant to the foregoing
upon exercise of the Warrant, the Company shall determine the allocation of the
adjusted Exercise Price between the classes of capital stock. After such
allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Series I Preferred Shares in this Section 7. An adjustment
made pursuant to this subsection 7(a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event. Such adjustment shall be made successively whenever such a payment,
subdivision or combination is made.
(b) Adjustment in Exercise Price. When the number of Warrant
Shares purchasable upon the exercise of each Warrant is adjusted as provided in
subsection 7(a), the Exercise Price payable upon exercise of each Warrant shall
be adjusted by multiplying such Exercise Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of Warrant
Shares purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
purchasable immediately thereafter.
(c) Merger, Sale of Assets, etc. If at any time while this
Warrant, or any portion hereof, is outstanding and unexpired there shall be (i)
a reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger or
consolidation of the Company with or into another corporation in which the
Company is not the surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the shares of the Company's capital stock
outstanding immediately prior to the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash, or
otherwise, or (iii) a sale or transfer of the Company's properties and assets
as, or substantially as, an entirety to any other person, then, as a part of
such reorganization, merger, consolidation, sale or transfer, lawful provision
shall be made so that the holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 7. The foregoing provisions of this subsection 7(c) shall
similarly apply to successive reorganizations, consolidations, mergers, sales
and transfers and to the stock or securities of any other corporation that are
at the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant. As a condition to effecting any merger or consolidation of the
Company or a sale of substantially all of its assets, the Company or the
successor or surviving corporation, as the case may be, shall execute and
deliver to the Holder an agreement as to the Holder's rights in accordance with
this subsection 7(c), providing, to the extent of any right to purchase equity
securities hereunder, for subsequent adjustments as nearly equivalent as may be
practicable to the adjustments provided for in this Section 7.
(d) Reclassification. If the Company, at any time while this
Warrant, or any portion hereof, remains outstanding and unexpired by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Warrant exist into the same or a
different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 7.
(e) Certain Dividends and Distributions. If the Company at any
time while this Warrant is outstanding and unexpired shall make a distribution
of its assets to it stockholders as a dividend in liquidation or by way of
return of capital or other than as a dividend payable out of earnings or surplus
legally available for dividends under applicable law, the Holder shall, upon
exercise of this Warrant, be entitled to receive, in addition to the number of
shares of Series I Preferred Shares receivable thereupon, and without payment of
any additional consideration therefor, a sum equal to the amount of such assets
as would have been payable to him as owner of that number of shares of Series I
Preferred Shares receivable by exercise of this Warrant had he been the Holder
of record of such Series I Preferred Shares on the record date for such
distribution, or if no such record date is taken, as of the date of such
distribution, and an appropriate provision therefor shall be made a part of any
such distribution.
(f) Issuance of Additional Shares of Capital Stock. If the
Company at any time while this Warrant remains outstanding and unexpired shall
issue any Additional Shares of Capital Stock (as defined below) (otherwise than
as provided in the foregoing subsections (7)(a) through (7)(e) above) at a price
per share less, or for other consideration lower, than the Exercise Price (the
"Lower Price"), then upon such issuance the Exercise Price in effect immediately
prior to such issuance shall be adjusted to equal the Lower Price. In
determining the Lower Price in connection with issuances of the Company's Class
A Common Stock ("Common Stock") pursuant to this subsection 7(f), and for
purposes of subsections 7(g) and 7(h), the issue price per share of the Common
Stock should be multiplied by the number of shares of Common Stock each share of
Series I Preferred Shares is convertible into. The provisions of this subsection
7(f) shall not apply under any of the circumstances for which an adjustment is
provided in subsections 7(a) through 7(e). No adjustment of the Exercise Price
shall be made under this subsection 7(f) upon the issuance of any Additional
Shares of Capital Stock which are issued pursuant to the exercise of any
warrants, options or other subscription or purchase rights or pursuant to the
exercise of any conversion or exchange rights in any convertible securities if
any such adjustments shall previously have been made upon the issuance of any
such warrants, options or other rights or upon the issuance of any convertible
securities (or upon the issuance of any warrants, options or any rights
therefor) pursuant to subsections 7(g) or 7(h) hereof. As used herein,
"Additional Shares of Capital Stock" shall mean any shares of Common Stock or
Series I Preferred Shares (collectively, "Capital Stock"), except any shares of
Capital Stock issued through the exercise of options pursuant to a stock option,
equity, or similar plan of the Company approved by the Company's stockholders
and directors.
(g) Issuance of Warrants, Options or Other Rights. In case the
Company shall issue any warrants, options or other rights to subscribe for or
purchase any Additional Shares of Capital Stock and the price per share for
which Additional Shares of Capital Stock may at any time thereafter be issuable
pursuant to such warrants, options or other rights shall be a Lower Price, then
upon such issuance the Exercise Price shall be adjusted as provided in
subsection7(f) hereof on the basis that the aggregate consideration for the
Additional Shares of Capital Stock issuable pursuant to such warrants, options
or other rights, shall be deemed to be the consideration received by the Company
for the issuance of such warrants, options, or other rights plus the additional
consideration payable to the Company upon the exercise of such warrants, options
or other rights.
(h) Issuance of Convertible Securities. In case the Company
shall issue any securities (debt or equity) convertible into Additional Shares
of Capital Stock and the consideration per share for which Additional Shares of
Capital Stock may at any time thereafter be issuable pursuant to the terms of
such convertible securities shall be a Lower Price, then upon such issuance the
Exercise Price shall be adjusted as provided in subsection 7(f) hereof on the
basis that (i) the maximum number of Additional Shares of Capital Stock
necessary to effect the conversion or exchange of all such convertible
securities shall be deemed to have been issued as of the date of issuance of
such convertible securities, and (ii) the aggregate consideration for such
maximum number of Additional Shares of Capital Stock shall be deemed to be the
consideration paid or payable to the Company in respect of the subscription for
or purchase of such convertible securities, plus the additional consideration,
if any, payable to the Company upon the exercise of the right of conversion or
exchange in such convertible securities. No adjustment of the Exercise Price
shall be made under this subsection upon the issuance of any convertible
securities which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights therefor, if any such adjustment shall
previously have been made upon the issuance of such warrants or other rights
pursuant to subsection 6(g) hereof.
(i) Other Provisions Applicable to Adjustments
Under this Section. The following provisions will be applicable to the
making of adjustments in the Exercise Price hereinabove provided in this
Section 7:
(i) Computation of Consideration. To the extent that
any Additional Shares of Capital Stock or any
warrants, options or other rights to subscribe for or
purchase any Additional Shares of Capital Stock, or
any securities (debt or equity) convertible into
Additional Shares of Capital Stock shall be issued
for cash consideration, the consideration received by
the Company therefor shall be deemed to be the amount
of the cash received by the Company therefor, or, if
such Additional Shares of Capital Stock or
convertible securities (debt or equity) are offered
by the Company for subscription, the subscription
price, or, if such Additional Shares of Capital Stock
or convertible securities (debt or equity) are sold
to underwriters or dealers for public offering
without a subscription offering, or through
underwriters or dealers for public offering without a
subscription offering, the public offering price, in
any such case excluding any amounts paid or incurred
by the Company for and in the underwriting of, or
otherwise in connection with the issue thereof. To
the extent that such issuance shall be for a
consideration other than cash, then, except as herein
otherwise expressly provided, the amount of such
consideration shall be deemed to be the fair value of
such consideration at the time of such issuance as
determined in good faith by the Company's Board of
Directors. In case of the issuance at any time of any
Additional Shares of Capital Stock or convertible
securities (debt or equity) in payment or
satisfaction of any dividend upon any class of stock
preferred as to dividends in a fixed amount, the
Company shall be deemed to have received for such
Additional Shares of Capital Stock or convertible
securities a consideration equal to the amount of
such dividend so paid or satisfied.
(ii) Other Action Affecting Capital Stock. In case
after the date hereof the Company shall take any
action affecting the Capital Stock, other than an
action described in any of the foregoing subsections
(6)(a) to (6)(h) hereof, inclusive, which in the
opinion of the Company's Board of Directors would
have a materially adverse effect upon the rights of
the Holder to purchase the Warrant Shares, the
Exercise Price shall be adjusted in such manner and
at such time as the Board of Directors may in good
faith determine to be equitable in the circumstances.
(j) Notice of Certain Actions. Not less than 10 nor more than
30 days prior to the record date or effective date, as the case may be, of any
action which will require an adjustment or readjustment pursuant to this Section
7, the Company shall give notice to the Holder of such event, describing in such
detail and specifying the record date or effective date, as the case may be,
and, if determinable, the required adjustment and the computation thereof. If
the required adjustment is not determinable at the time of such notice, the
Company shall give notice to the Holder of such adjustment and computation
promptly after such adjustment becomes determinable.
8. Transfer to Comply with the Securities Act.
(a) Neither this Warrant, the Warrant Shares, any other
security issued or issuable upon exercise of this Warrant, nor any interest
therein may be sold, transferred or otherwise disposed of except to a person
who, in the opinion of counsel reasonably satisfactory to the Company, is a
person to whom this Warrant or such Warrant Shares may legally be transferred
pursuant to Section 5 hereof without registration and without the delivery of a
current prospectus under the Securities Act with respect thereto, and then only
upon compliance by the Holder and such purchaser with the requirements of
Section 5 and receipt by the Company of an agreement of such person to comply
with the provisions of this Warrant with respect to any resale or other
disposition of this Warrant and/or such securities, as applicable.
(b) If the Warrant Shares are not subject to an effective
registration statement under the Securities Act and applicable state securities
laws, the Holder shall represent that the Warrant Shares to be issued upon
exercise hereof are being acquired for the account of the Holder for investment
purposes and not with a view to, or for resale in connection with, the
distribution thereof and that the Holder will not offer, sell or otherwise
dispose of such Warrant Shares except under circumstances which will not result
in a violation of the Securities Act and all applicable state securities laws.
The Holder represents that the Holder has no present intention of distributing
or reselling the Warrant Shares.
(c) The Company may cause the following legend, or one of
similar substance, to be set forth on each certificate representing Warrant
Shares or any other security issued or issuable upon exercise of this Warrant,
unless the Holder delivers an opinion of counsel satisfactory to the Company
that such legend is unnecessary:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO ANY
STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED UNLESS SUCH ARE FIRST REGISTERED PURSUANT TO THE APPLICABLE
FEDERAL AND STATE SECURITIES LAWS OR UNLESS THE COPORATION RECEIVES A
WRITTEN OPINION OF COUNSEL WHICH OPINION AND COUNSEL ARE SATISFACTORY
TO THE CORPORATION, THAT SUCH REGISTRATION IS NOT REQUIRED.
9. Governing Law. This Warrant shall be governed by, and
construed in accordance with, the laws of the State of Nevada.
10. Modification and Waiver. This Warrant and any provision
hereof may be modified, amended, waived or discharged only by an instrument
in writing signed by the party against which enforcement of the same is sought.
11. Notice. Notices and other communications to be given to the
Holder shall be delivered by hand or mailed, postage prepaid, to such address as
the Holder shall have designated by written notice to the Company as provided in
this Section. Notices or other communications to the Company shall be deemed to
have been sufficiently given if delivered by hand or mailed postage prepaid to
the Company at 5175 West 2100 South, West Valley City, Utah 84120, Attn: Chief
Executive Officer, or such other address as the Company shall have designated by
written notice to the Holder as provided in this Section. Notice by mail shall
be deemed given when deposited in the United States mail, postage prepaid, as
herein provided.
12. Construction. The descriptive headings of the several
paragraphs and sections of this Warrant are inserted for convenience only and
do not constitute a part of this Warrant. Unless otherwise indicated,
references to sections shall be construed as references to the corresponding
sections of this Warrant.
** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Warrant effective as of the 30th day of June, 2001.
SIMON TRANSPORTATION SERVICES INC.,
a Nevada corporation
By:/s/ Jon Isaacson
-----------------
Jon Isaacson, CEO
MOYES CHILDREN'S LIMITED PARTNERSHIP
By:/s/ Ronald Moyes
------------------
Ronald Moyes, General Partner
EXHIBIT A
NOTICE OF EXERCISE
TO: SIMON TRANSPORTATION SERVICES INC. (the "Company"):
-------
1. The undersigned holder of the attached warrant (the
"Warrant") hereby elects to purchase _____________________ Warrant Shares
(as defined in the Warrant).
2. Please issue a certificate or certificates representing such
Warrant Shares in the name of the undersigned.
---------------
(DATE)
---------------------------------------
(SIGNATURE)
---------------------------------------
(PRINT OR TYPE NAME)
EXHIBIT B
ASSIGNMENT FORM
Dated: ____________________
FOR VALUE RECEIVED, _____________________ hereby sells, assigns, and
transfers unto ______________________ (please type or print)
______________________________ (address) the right to purchase Series I
Preferred Shares represented by the warrant attached hereto to the extent of
_____________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint Simon Transportation Services Inc. (the
"Company") and/or its transfer agent as attorney to transfer the same on the
books of the Company with full power of substitution in the premises.
---------------------------------------
(SIGNATURE)