As filed with the Securities and Exchange Commission on December 13, 1999
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Simon Transportation Services Inc.
(Exact name of registrant as specified in its charter)
Nevada 87-0545608
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5175 West 2100 South, West Valley City, Utah 84120-1252
(Address of Principal Executive Offices) (Zip Code)
Simon Transportation Services Inc. 1998 Non-Officer Incentive Stock Plan
(Full title of the plan)
Richard D. Simon
Chairman, President, and Chief Executive Officer
Simon Transportation Services Inc.
5175 West 2100 South
West Valley City, Utah 84120-1252
(Name and address of agent for service)
(801) 924-7000
(Telephone number, including area code, of agent for service)
With Copies To:
Mark A. Scudder
Scudder Law Firm, P.C.
411 South 13th Street, Suite 200
Lincoln, Nebraska 68508
(402) 435-3223
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered share (1) price (1) registration fee
- ------------------------- -------------------- ---------------------- --------------------- ----------------------
Class A Common Stock 400,000 shares $5.4862 $2,194,480.00 $579.34
($0.01 par value)
- ------------------------- -------------------- ---------------------- --------------------- ----------------------
(1) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended (the "Securities Act") solely for purposes of calculating the
registration fee. The price is based upon (i) the actual price of $5.50
for 308,000 options, and (ii) the average of high and low prices
($5.44) of Simon Transportation Services Inc. Class A Common Stock on
December 6, 1999, as reported on The Nasdaq National Market, with
respect to the 92,000 shares of Class A Common Stock subject to future
grants under the 1998 Non-Officer Incentive Stock Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Rule 428
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated
by reference in this Registration Statement:
a. The Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1999, and;
b. The description of the Registrant's Class A Common Stock
contained under the heading Description of Capital Stock in
the prospectus dated February 13, 1997, included in the
Registrant's Registration Statement on Form S-1 (No.
333-20019, effective February 13, 1997), including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII of the Registrant's Articles of Incorporation ("Articles")
and Article X of the Registrant's Bylaws provide that the Registrant's directors
and officers shall be indemnified against liabilities they may incur while
serving in such capacities to the fullest extent allowed by the Nevada General
Corporation Law. Under these indemnification provisions, the Registrant is
required to indemnify its directors and officers against any reasonable expenses
(including attorneys' fees) incurred by them in the defense of any action, suit,
or proceeding, whether civil, criminal, administrative, or investigative, to
which they were made a party, or in defense of any claim, issue, or matter
therein, by reason of the fact that they are or were a director or officer of
the Registrant or while a director or officer of the Registrant are or were
serving at the Registrant's request as a director, officer, partner, trustee,
employee, or agent of another corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise unless it is ultimately determined by
a court of competent jurisdiction that they failed to act in a manner they
believed in good faith to be in, or not opposed to, the best interests of the
Registrant, and with respect to any criminal proceeding, had reasonable cause to
believe their conduct was lawful. The Registrant will advance expenses incurred
by directors or officers in defending any such action, suit, or proceeding upon
receipt of written confirmation from such officers or directors that they have
met certain standards of conduct and an undertaking by or on behalf of such
officers or directors to repay such advances if it is ultimately determined that
they are not entitled to indemnification by the Registrant. The Articles provide
that the Registrant may, through indemnification agreements, insurance, or
otherwise, provide additional indemnification. The Registrant has entered into
indemnification agreements with its directors and officers, pursuant to which
the Registrant agrees to indemnify such persons to the maximum extent against
expense or loss arising from any action, suit, or proceeding brought by reason
of the fact that any person is a director or officer of the Registrant. The
Registrant maintains an insurance policy under which the insurer will, subject
to certain conditions, defend the directors and officers of the Registrant
against and indemnify them from any liability incurred in their capacity as a
director or officer.
Article VI of the Registrant's Articles eliminates, to the fullest
extent permitted by law, the liability of directors and officers for monetary or
other damages for breach of fiduciary duties to the Registrant and its
stockholders as a director or officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Exhibit
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4.1 Articles of Incorporation of Simon Transportation Services Inc. (incorporated by reference to
Exhibit 3.1 to the Registration Statement on Form S-1, File No. 33-96876 (the
"Form S-1")), effective November 17, 1995.
- ----------------- ------------------------------------------------------------------------------------------------
4.2 Bylaws of Simon Transportation Services Inc. (incorporated by reference to Exhibit 3.2 to the
Form S-1).
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5 Opinion of Scudder Law Firm, P.C. as to the validity of the shares of Class A Common Stock,
par value $0.01 per share.*
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23.1 Consent of Arthur Andersen, LLP.*
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23.2 Consent of Scudder Law Firm, P.C. (contained in Exhibit 5 hereto).*
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24 Power of Attorney (contained in the signature page to this Registration Statement).*
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99 Simon Transportation Services Inc. 1998 Non-Officer Incentive Stock Plan.*
- ----------------- ------------------------------------------------------------------------------------------------
<FN>
* Filed herewith
</FN>
ITEM 9. UNDERTAKINGS
a. Rule 415 Offering. The Registrant hereby undertakes:
1. To file, during any period in which offers
or sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement; 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 paragraph (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 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
b. Filing incorporating subsequent Exchange Act documents by
reference. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
c. Request for acceleration of effective date or filing of
registration statement on Form S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to
directors, officers, and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer, or controlling person
of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
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The Registrant. Pursuant to the requirements of the Securities Act, 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 Salt Lake City, State of Utah, on December 13, 1999.
SIMON TRANSPORTATION SERVICES INC.
By: /s/ Richard D. Simon
Richard D. Simon, Chairman of the Board, President,
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Mark A.
Scudder, Heidi Hornung Scherr, and Alban B. Lang, and each of them, as
attorneys-in-fact with full power of substitution, to execute in their
respective names, individually and in each capacity stated below, any and all
amendments (including post-effective amendments) to this Registration Statement
as the attorney-in-fact and to file any such amendment to the Registration
Statement, exhibits thereto and documents required in connection therewith with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
their substitutes, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully
as he or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and their substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Richard D. Simon Chairman of the Board, President, and Chief December 13, 1999
- ---------------------- Executive Officer
Richard D. Simon
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Alban B. Lang Chief Financial and Operating Officer, December 13, 1999
- ------------------ Treasurer, and Secretary; Director
Alban B. Lang
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Kelle A. Simon Vice President of Maintenance; Director December 13, 1999
- -------------------
Kelle A. Simon
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Lyn Simon Vice President of Sales and Marketing; December 13, 1999
- ------------------- Director
Lyn Simon
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Richard D. Simon, Jr. Vice President of Operations; Director December 13, 1999
- --------------------------
Richard D. Simon, Jr.
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Sherry L. Bokovoy Assistant Secretary/Treasurer; Director December 13, 1999
- ----------------------
Sherry L. Bokovoy
- -------------------------------------------- --------------------------------------------- -------------------------
/s/ Irene Warr Director December 13, 1999
- --------------
Irene Warr
- -------------------------------------------- --------------------------------------------- -------------------------
INDEX TO EXHIBITS
Exhibit No. Exhibit
- ----------------- ------------------------------------------------------------------------------------------------
4.1 Articles of Incorporation of Simon Transportation Services Inc. (incorporated by reference to
Exhibit 3.1 to the Registration Statement on Form S-1, File No. 33-96876 (the
"Form S-1")), effective November 17, 1995.
- ----------------- ------------------------------------------------------------------------------------------------
4.2 Bylaws of Simon Transportation Services Inc. (incorporated by reference to Exhibit 3.2 to the
Form S-1).
- ----------------- ------------------------------------------------------------------------------------------------
5 Opinion of Scudder Law Firm, P.C. as to the validity of the shares of Class A Common Stock,
par value $0.01 per share.*
- ----------------- ------------------------------------------------------------------------------------------------
23.1 Consent of Arthur Andersen, LLP.*
- ----------------- ------------------------------------------------------------------------------------------------
23.2 Consent of Scudder Law Firm, P.C. (contained in Exhibit 5 hereto).*
- ----------------- ------------------------------------------------------------------------------------------------
24 Power of Attorney (contained in the signature page to this Registration Statement).*
- ----------------- ------------------------------------------------------------------------------------------------
99 Simon Transportation Services Inc. 1998 Non-Officer Incentive Stock Plan.*
- ----------------- ------------------------------------------------------------------------------------------------
<FN>
* Filed herewith
</FN>