As filed with the Securities and Exchange Commission on January 6, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8 and FORM S-3
Registration Statement Under
The Securities Act of 1933
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SIMON TRANSPORTATION SERVICES INC.
(Exact name of registrant as specified in charter)
NEVADA 87-0545608
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
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5175 West 2100 South
West Valley City, Utah 84120
(801) 268-9100
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
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Simon Transportation Services Inc. Incentive Stock Plan
(Full title of plan)
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RICHARD D. SIMON
Chairman, President, and Chief Executive Officer
Simon Transportation Services Inc.
5175 West 2100 South
West Valley City, Utah 84120
(801) 268-9100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Mark A. Scudder, Esq.
Scudder Law Firm, P.C.
411 South 13th Street, Suite 200
Lincoln, Nebraska 68508
(402) 435-3223
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Approximate date of commencement of proposed sales pursuant to the plan: As
soon as practicable after the effective date of this registration statement.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum Amount of
Title of Securities to be Registered Amount to be Maximum Offering Aggregate Offering Registration
Registered(1) Price per Share (2)Price (2) Fee
- ------------------------------------ ------------ --------------- --------------- ------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par value 600,000 $23.75 $14,250,000 $4,319
==================================== ============ =============== =============== ============
<FN>
(1) The Registrant previously registered 400,000 shares of Class A Common Stock
for issuance under the Incentive Stock Plan and is registering an additional
600,000 shares for issuance.
(2) Estimated pursuant to Rule 457(c) of the Securities Act of 1933, as amended
(the "Securities Act") solely for purposes of calculating the registration
fee. The price is based upon the average of the high and low prices of Simon
Transportation Services Inc. Class A Common Stock on January 5, 1998, as
reported on the Nasdaq National Market.
</FN>
</TABLE>
Page 1 of 10
<PAGE>
SIMON TRANSPORTATION SERVICES INC.
CROSS REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
Form S-3 Item Number Location in Re-Offer Prospectus
1. Forepart of Registration
Statement and Outside Front Cover
Page of Prospectus............... Outside Front Cover
2. Inside Front and Outside Back
Cover Page of Prospectus......... Table of Contents; Available
Information Concerning Simon
Transportation; Incorporation
of Information by Reference
3. Summary Information, Risk Factors,
and Ratio of Earnings to Fixed
Charges........................... Not Applicable
4. Use of Proceeds................... Not Applicable
5. Determination of Offering Price... Not Applicable
6. Dilution.......................... Not Applicable
7. Selling Security Holders.......... Selling Security Holders
8. Plan of Distribution.............. Plan of Distribution
9. Description of Securities to be
Registered........................ Not Applicable
10. Interests of Named Experts and
Counsel........................... Not Applicable
11. Material Changes.................. Not Applicable
12. Incorporation of Certain
Information by Reference.......... Incorporation of Information
by Reference
13. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities................... Indemnification of Officers
and Directors
Page 2 of 10
<PAGE>
INCORPORATION OF PRIOR REGISTRATION STATEMENT BY REFERENCE
Simon Transportation Services Inc. (the "Company"), hereby incorporates by
reference in this Registration Statement the prior registration statement on
Form S-8 and S-3 (No. 33-80409), excluding Part II, Item 3 and the entire
re-offer prospectus, previously filed with the Securities and Exchange
Commission (the "Commission"). Under such registration statement, the Company
previously registered 400,000 shares of Class A Common Stock for issuance under
the Simon Transportation Services Inc. Incentive Stock Plan.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference in this Registration Statement
the following documents previously filed with the Commission:
a. The Company's latest annual report on Form 10-K filed with the Commission
on December 8, 1997, containing audited financial statements for the
Company's latest fiscal year; and
b. The description of the Company's Class A Common Stock contained under the
caption "Description of Capital Stock" in the Company's prospectus dated
February 13, 1997 included in the Company's Registration Statement on Form
S-1 (No. 333-21711), effective February 13, 1997).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended, 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.
Page 3 of 10
<PAGE>
SIMON TRANSPORTATION SERVICES INC.
600,000 SHARES
CLASS A COMMON STOCK
Par Value $.01
RE-OFFER PROSPECTUS
This Prospectus relates to the offer and sale of shares of Class A Common
Stock, par value $.01 per share (the "Common Shares"), of Simon Transportation
Services Inc. ("Simon Transportation" or the "Company") issuable (upon exercise
of options or otherwise) pursuant to the Company's Incentive Stock Plan (the
"Incentive Plan"). The Incentive Plan Common Shares may be offered hereby from
time to time by any or all of the selling stockholders named herein and in one
or more supplements hereto (the "Selling Stockholders"). The Company will
receive none of the proceeds of this offering. All expenses incurred in
connection with the preparation and filing of this Prospectus and the related
Registration Statement are being borne by the Company.
All or a portion of the Common Shares offered hereby may be offered for
sale, from time to time, on the Nasdaq National Market, or otherwise, at prices
and terms then obtainable. All brokers' commissions, concessions or discounts
will be paid by the Selling Stockholders.
The Common Shares are listed on the Nasdaq National Market. On January 5,
1998, the average of the high and low prices on the Nasdaq National Market was
$23.75 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is January 6, 1998.
Page 4 of 10
<PAGE>
TABLE OF CONTENTS
Available Information Concerning Simon Transportation........................6
Selling Security Holders.....................................................7
Plan of Distribution.........................................................8
Incorporation of Information by Reference....................................9
Indemnification of Officers and Directors....................................9
Page 5 of 10
<PAGE>
No person has been authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering made hereby, and, if given or made, such information or
representations must not be relied upon. Neither the delivery of this Prospectus
nor any offer, solicitation or sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the Company since the date hereof or that the information herein is
correct as of any time subsequent to its date. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
in any jurisdiction to any person to whom it is unlawful to make any such offer
or solicitation.
AVAILABLE INFORMATION CONCERNING SIMON TRANSPORTATION
Simon Transportation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copies may be obtained (at
prescribed rates) at the Commission's Public Reference Section, Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549, as well as the
regional offices at 7 World Trade Center, Suite 1300, New York, New York 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511 and at the Web site maintained by the Commission at
http:\\www.sec.gov. In addition, Simon Transportation's Class A Common Stock is
listed on the Nasdaq National Market, and certain reports, proxy material and
other information may be inspected at such offices at 1735 "K" Street, N.W.,
Washington, DC 20006-1500. Additional updating information with respect to the
securities and the Incentive Plan may be provided to participants in the future
by means of supplements to this Prospectus.
This Prospectus does not contain all of the information set forth in the
Registration Statement of which this Prospectus is a part and which the Company
has filed with the Commission. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement, including the exhibits filed as a part thereof, copies of which can
be inspected at, or obtained at prescribed rates from, the Public Reference
Section of the Commission at the address set forth above. Additional updating
information with respect to the Company may be provided in the future by means
of appendices or supplements to this Prospectus.
Copies of all information incorporated by reference in the Registration
Statement of which this Prospectus is a part (other than exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated into the incorporated information) which are not
included or delivered with this Prospectus will be provided without charge to
each person to whom a Prospectus is delivered upon written or oral request
therefor to Alban B. Lang, Treasurer and Chief Financial Officer, Simon
Transportation Services Inc., 5175 West 2100 South, West Valley City, Utah
84120, 801/268-9100.
Page 6 of 10
<PAGE>
SELLING SECURITY HOLDERS
Common Shares may be offered pursuant to this Prospectus by certain
officers and employees of the Company, including those current officers and
employees listed below; others to be named in one or more supplements to this
Prospectus who acquire shares (pursuant to the exercise of options or otherwise)
after the date hereof pursuant to the Incentive Plan.
Name Number of Shares
Kelle A. Simon 125,000
Lyn Simon 125,000
Richard D. Simon, Jr. 125,000
Sherry L. Simon Bokovoy 125,000
Alban B. Lang 125,000
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TOTAL OPTION SHARES 625,000
The officers and employees listed above have been granted options to purchase
the number of Common Shares listed opposite their names. The first of such
options became exercisable on June 1, 1996. Of such individuals, Kelle A. Simon,
Lyn Simon, Sherry L. Simon Bokovoy, Richard D. Simon, Jr., and Alban B. Lang
each presently own approximately one percent of the Company's outstanding
capital stock (excluding the options listed above), and would own approximately
three percent of the Company's outstanding capital stock upon exercise of all
options granted. At the date of this Prospectus options to purchase
approximately 100,834 Common Shares have been granted to non-affiliates under
the Incentive Plan.
Page 7 of 10
<PAGE>
PLAN OF DISTRIBUTION
The Selling Stockholders may sell Common Shares in any of the following
ways: (i) through dealers; (ii) through agents; or (iii) directly to one or more
purchasers. The distribution of the Common Shares may be effected from time to
time in one or more transactions on the Nasdaq National Market (or on such other
national stock exchanges or interdealer quotation systems on which the Common
Shares may be traded from time to time) in transactions which may include
special offerings, exchange distributions and/or secondary distributions
pursuant to and in accordance with the rules of such exchanges, otherwise in the
over-the-counter market, or in transactions other than on such markets, or a
combination of such transactions. Any such transactions may be effected at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices. The Selling
Stockholders may effect such transactions by selling Common Shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or
commissions from purchasers of Common Shares for whom they may act as agent. The
Selling Stockholders and any broker-dealers or agents that participate in the
distribution of Common Shares by them might be deemed to be underwriters, and
any discounts, commissions or concessions received by any such broker-dealers or
agents might be deemed to be underwriting discountsand commissions, under the
Securities Act of 1933, as amended (the "Securities Act").
Page 8 of 10
<PAGE>
INCORPORATION OF INFORMATION BY REFERENCE
The following documents previously filed with the Commission on behalf of
the Company are hereby incorporated by reference in this Registration Statement:
The description of the Company's Class A Common Stock contained
under the caption "Description of Capital Stock" in the Company's
prospectus dated February 13, 1997 included in the Company's Registration
Statement on Form S-1 (No. 333-21711, effective February 13, 1997).
All documents subsequently filed by the Company 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.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Nevada General Corporation Law provides for the indemnification of
officers and directors (and others) under certain circumstances against expenses
incurred in successfully defending against a claim and authorizes Nevada
corporations to indemnify their officers and directors under certain
circumstances against expenses and liabilities incurred in legal proceedings
involving such persons because of their being or having been an officer or
director.
Article VII of the Company's Articles and Article X of the Company's Bylaws
provide that the Company'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 Company 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 Company or while a
director or officer of the Company are or were serving at the Company's request
as a director, officer, partner, trustee, employee of agent or 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 Company, and with respect to
any criminal proceeding, had reasonable cause to believe their conduct was
lawful. The Company 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 Company. The Company may, through
indemnification agreements, insurance, or otherwise, provide additional
indemnification.
Article VI of the Company'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 Company and its stockholders as a
director or officer.
The Company has obtained insurance to protect itself and its directors and
officers 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
Company. In addition, the Company has entered into indemnification agreements
with its officers and directors pursuant to which it has agreed to indemnify
such individuals to the maximum extent permitted by law and not to reduce any
rights of such individuals retrospectively.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to officers, directors, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Page 9 of 10
<PAGE>
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, which includes a Form S-3
re-offer prospectus, and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunder duly authorized, in the City
of West Valley City, State of Utah on December 19, 1997.
SIMON TRANSPORTATION SERVICES INC.
By: /s/ Alban B. Lang
Alban B. Lang, Treasurer & Chief
Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Richard D. Simon,
Alban B. Lang, and Irene Warr, 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 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.
Signatures Title Date
/s/ Richard D. Simon Chairman of the Board, President,
Richard D. Simon and Chief Executive Officer;
Director (principal executive
officer) December 19, 1997
/s/ Alban B. Lang Chief Financial Officer, Treasurer,
Alban B. Lang and Secretary; Director (principal
financial and accounting officer) December 19, 1997
/s/ Irene Warr
Irene Warr Director December 19, 1997
/s/ H. J. Frazier
H. J. Frazier Director December 19, 1997
/s/ Kelle A. Simon
Kelle A. Simon. Director December 19, 1997
/s/ Lyn Simon
Lyn Simon Director December 19, 1997
/s/ Richard D. Simon, Jr.
Richard D. Simon, Jr. Director December 19, 1997
/s/ Sherry L. Simon
Bokovoy
Sherry L. Simon Bokovoy Director December 19, 1997
<PAGE>
EXHIBITS
Exhibit No. Exhibit
5.1 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
23.3 Consent of Scudder Law Firm, P.C. (contained in Exhibit 5.1 hereto)
24 Power of Attorney (contained in the signature pages to this
Registration Statement)
Page 10 of 10
January 6, 1998
Simon Transportation Services Inc.
5175 West 2100 South
West Valley City, Utah 84120
Ladies and Gentlemen:
This opinion is rendered in connection with a Registration Statement on
Form S-8, which includes a Form S-3 reoffer prospectus (the "Registration
Statement") to be filed by Simon Transportation Services Inc. (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933.
The Registration Statement relates to the registration of shares of the
Company's Class A Common Stock, par value $.01 per share (the "Shares"), which
are to be offered under the Company's Incentive Stock Plan (the "Plan"). It is
our opinion that:
1. The Company is a valid organized and existing corporation under
the laws of the State of Nevada.
2. All necessary corporate action has been duly taken to authorize
the establishment of the Plan, the issuance of Shares under the Plan, and
the registration of the Shares covered by the Registration Statement under
the Securities Act of 1933.
3. The Shares, when issued and paid for in accordance with the Plan
and any agreements evidencing awards of the Shares, will be legally
issued, fully paid and non-assessable shares of the Class A Common Stock
of the Company.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement.
Very truly yours,
SCUDDER LAW FIRM, P.C.
By: /s/ Mark A. Scudder
Mark A. Scudder
MAS:pad
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8, which includes a Form
S-3 re-offer prospectus, of our report dated October 15, 1997 included in Simon
Transporation Service Inc.'s Form 10-K for the year ended September 30, 1997 and
to all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Salt Lake City, Utah
January 5, 1998
