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
<TABLE>
<S> <C> <C> <C> <C>
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)
- ------------------------- -------------------- ---------------------- --------------------- ----------------------
</TABLE>
(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.
<PAGE>
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
<TABLE>
<S> <C>
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>
</TABLE>
<PAGE>
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.
<PAGE>
SIGNATURES
- --------------------------------------------------------------------------------
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.
<TABLE>
<S> <C> <C>
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
- -------------------------------------------- --------------------------------------------- -------------------------
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<S> <C>
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>
</TABLE>
Exhibit 5
December 8, 1999
Simon Transportation Services Inc.
5175 West 2100 South
West Valley City, Utah 84120-1252
Ladies and Gentlemen:
Scudder Law Firm, P.C. has served as legal counsel to Simon
Transportation Services Inc., a Nevada corporation (the "Company"), in the
preparation and filing with the Securities and Exchange Commission of the
Company=s Registration Statement on Form S-8 (the "Registration Statement"). The
Registration Statement relates to the registration of shares of the Company's
Class A Common Stock, par value $0.01 per share (the "Shares"), which are to be
offered under the Company's 1998 Non-Officer Incentive Stock Plan (the "Plan").
It is our opinion that:
1. The Company is a validly 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 sale of the Shares under the Plan, and the
registration of the Shares covered by the Registration Statement under the
Securities Act of 1933.
3. Any Shares issued and paid for under the Plan 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
Exhibit 23.1
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 of our report dated October
15, 1999 included in Simon Transportation Services Inc.'s Annual Report on Form
10-K for the year ended September 30, 1999 and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Salt Lake City, Utah
December 9, 1999
Exhibit 99
SIMON TRANSPORTATION SERVICES INC.
1998 NON-OFFICER INCENTIVE STOCK PLAN
1. Purpose and Scope of the Plan. The purpose of this incentive stock
plan is to attract and retain the best available non-officer personnel for
positions of substantial responsibility, to provide additional incentive to
Employees and Consultants of the Company, and to promote the success of the
Company's business. Options granted under the Plan may be Incentive Stock
Options, Nonstatutory Stock Options, Restricted Stock Awards, Reload Options,
Other Stock Based Awards, or Other Benefits at the discretion of the Board and,
if required by the Board, as reflected in the terms of written Award agreements.
Incentive Stock Options shall only be granted to Employees. The Plan shall not
confer upon any Participant any right with respect to continuation of an
employment or consulting relationship with the Company, nor shall it interfere
in any way with an employee's right or the Company's right to terminate the
employment or consulting relationship at any time.
2. Definitions. As used in this Plan, the following definitions
shall apply:
(a) "Award" shall mean Incentive Stock Options, Nonstatutory
Stock Options, Restricted Stock Awards, Reload Options, Other Stock
Based Awards, or Other Benefits granted pursuant to the Plan.
(b) "Board" shall mean the Committee, if one has been
appointed, or the Board of Directors of the Company, if no Committee
is appointed.
(c) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(d) "Committee" shall mean the Committee appointed by
the Board of Directors in accordance with Section 4 of the Plan, if one
is appointed.
(e) "Common Stock" shall mean the Class A Common Stock
of the Company, par value $.01 per share.
(f) "Company" shall mean Simon Transportation Services Inc., a
Nevada corporation, or any permitted successor that assumes the
obligations under this Plan by agreement or operation of law.
(g) "Consultant" shall mean any person who is engaged by the
Company, Parent, or any Subsidiary to render consulting services and is
compensated for such consulting services or any other person determined
by the Board to have performed services for or on behalf of the Company
which merits the grant of an Award, and any director of the Company
whether compensated for such services or not.
(h) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee.
Continuous Status as an Employee shall not be considered interrupted in
the case of sick leave, military leave, or any other leave of absence
approved by the Board; provided that such leave is for a period of not
more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute.
(i) "Director" shall mean a member of the Board of
Directors of the Company, Parent, or any Subsidiary.
(j) "Employee" shall mean any person, not to include
officers and directors, employed by the Company or any Parent or
Subsidiary of the Company.
(k) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(l) "Fair Market Value" shall mean:
(i) If the Common Stock, at the time of grant of an
option is publicly traded but not listed or admitted to
trading on a stock exchange, the mean between the lowest
reported bid price and the highest reported asked price of the
Common Stock in the over-the-counter market on the date an
Option is awarded, as such prices are reported by The Nasdaq
Stock Market or in a publication of general circulation
selected by the Board and regularly reporting the market price
of the Common Stock in such market; or
(ii) If the Common Stock, at the time of an option
grant, is listed or admitted to trading on any stock exchange,
the mean between the lowest and highest reported sales price
of the Common Stock on the date of the grant of the Option on
the principal exchange on which the Common Stock is then
listed or admitted to trading; or
(iii) If the Common Stock, at the time of an option
grant, is not publicly traded, the price established by the
Board as reflecting fair market value based upon all factors
deemed relevant by the Board.
If no reported quotation or sale of Common Stock takes place on the
date in question, the last reported closing sale price of the Common
Stock prior to such date shall be determinative.
(m) "Incentive Stock Option" shall mean an Option intended to
qualify as an incentive stock option within the meaning of Section 422
of the Code.
(n) "Nonstatutory Stock Option" shall mean an Option
not intended to qualify as an Incentive Stock Option.
(o) "Option" shall mean a stock option granted pursuant
to the Plan.
(p) "Optioned Stock" shall mean the Common Stock subject
to an Option.
(q) "Other Benefits" shall mean types of Awards granted under
this Plan as determined by the Board in addition to those specifically
provided.
(r) "Other Stock Based Awards" shall mean awards valued in
whole or in part by reference to, or otherwise based on, the Company's
Common Stock.
(s) "Parent" shall mean a "parent corporation," whether
now or hereafter existing, as defined in Section 424(e) of the Code.
(t) "Participant" shall mean an Employee or Consultant
who receives an Award.
(u) "Plan" shall mean this 1998 Non-Officer Incentive
Stock Plan.
(v) "Reload Option" shall mean an Option to purchase for cash
or shares a number of shares of Common Stock up to (i) the number of
shares of Common Stock used to exercise the underlying option, and (ii)
the number of shares of Common Stock used to satisfy any tax
withholding requirement incident to the exercise of the underlying
option, in either case through the use of shares of Common Stock or
vested options.
(w) "Restricted Stock" shall mean shares of Common Stock which
are subject to the restrictions described in this Plan and such other
terms and conditions as the Board may prescribe.
(x) "Securities Act" shall mean the Securities Act of
1933, as amended.
(y) "Share" shall mean a share of the Common Stock,
as adjusted in accordance with Section 12 of the Plan.
(z) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the
Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 12
of the Plan, the maximum aggregate number of shares which may be optioned, sold,
or granted through Awards under the Plan is 400,000 shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock. If an Option
should expire or become unexercisable for any reason without having been
exercised in full, the unpurchased Shares which were subject to the Option shall
become available for future grant under the Plan, unless the Plan shall have
been terminated. Any shares of Restricted Stock which are forfeited shall again
be available for Awards under the Plan. Fractional shares shall not be issued.
The Board will determine the manner in which fractional share values will be
treated. Each Award shall state the total number of shares of Common Stock
subject to such Award. Shares issued under the Plan and later repurchased by the
Company shall become available for future grant or sale under the Plan.
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board of
Directors of the Company or a committee appointed by the Board in
accordance with this Section 4. The Board of Directors may appoint a
committee consisting of not less than two members of the Board of
Directors to administer the Plan on behalf of the Board of Directors,
subject to such terms and conditions as the Board of Directors may
prescribe. Once appointed, the committee shall continue to serve until
otherwise directed by the Board of Directors. From time to time the
Board of Directors may increase the size of the Committee and appoint
additional members of the Board, remove members (with or without
cause), appoint new members, fill vacancies however caused, or remove
all members of the Committee and thereafter directly administer the
Plan.
(b) Powers of the Board. Subject to the provisions of the
Plan, the Board shall have the authority, in its discretion: (i) to
grant Incentive Stock Options, Nonstatutory Stock Options, Restricted
Stock Awards, Reload Options concurrently with the grant of any Award
of Incentive Stock Options or Nonstatutory Stock Options, Other Stock
Based Awards, and Other Benefits; (ii) to determine, upon review of
relevant information and in accordance with Section 2(1) of the Plan,
the Fair Market Value of the Common Stock; (iii) to determine the
exercise price per share of Options to be granted, which exercise price
shall be determined in accordance with Section 8(a) of the Plan; (iv)
to determine the Employees and Consultants to whom, and the time or
times at which, Awards shall be granted and the number of shares to be
represented by each Award; (v) to interpret the Plan; (vi) to
prescribe, amend, and rescind rules and regulations relating to the
Plan; (vii) to determine the terms and provisions of each Award granted
(which need not be identical) and, with the consent of the holder of
the Award, modify or amend each Award; (viii) to accelerate or defer
(with the consent of the Participant) the exercise or vesting date of
any Award, consistent with the provisions of Section 7 of the Plan;
(ix) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Award previously
granted by the Board; and (x) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) Effect of Board's Decision. All decisions,
determinations, and interpretations of the Board shall be final and
binding on all Participants and any other holders of any Awards granted
under the Plan.
5. Eligibility.
(a) Generally. Awards may be granted only to Employees and
Consultants. Incentive Stock Options may be granted only to Employees.
An Employee or Consultant who has been granted an Award may, if he is
otherwise eligible, be granted an additional Award or Awards.
(b) Limitations on Incentive Stock Options. The aggregate Fair
Market Value (determined as of the date of grant) of Common Stock with
respect to which Incentive Stock Options are exercisable for the first
time by any Participant during any calendar year (under all plans of
the Company, Parent, or any Subsidiary) shall not exceed $100,000. If
the Fair Market Value (determined as of the date of grant) of Common
Stock with respect to which Incentive Stock Options are exercisable for
the first time by any Participant during any calendar year exceeds
$100,000, then the Options for the first $100,000 worth of Common Stock
to become exercisable in such calendar year shall be Incentive Stock
Options and the Options for the amount in excess of $100,000 that
become exercisable in that calendar year shall be Nonstatutory Stock
Options. In the event that the Code or the regulations promulgated
thereunder are amended after the date of the Plan to provide for a
different limit on the Fair Market Value of Common Stock permitted to
be subject to Incentive Stock Options, such different limit shall be
automatically incorporated in this Section 5(b) and shall apply to any
Incentive Stock Options granted after the effective date of such
amendment.
(c) Other Stock Based Awards. The Board shall have the right
to grant Other Stock Based Awards which may include, without
limitation, the grant of Common Stock based on certain conditions,
including short-term incentives or the issuance of Common Stock in lieu
of cash under other incentive or deferred compensation programs of the
Company.
(d) Other Benefits. The Board shall have the right to
provide Other Benefits, if the Board believes that such Awards would
further the purposes for which this Plan was established.
6. Term of Plan. The Plan shall become effective upon adoption
by the Board of Directors. It shall continue in effect until terminated under
Section 14 of the Plan. No Awards of Incentive Stock Options shall be made
hereunder after December 17, 2008.
7. Term of Awards. The term of each Incentive Stock Option shall be ten
(10) years from the date of grant or such shorter term as may be provided in any
notice or agreement evidencing such Award; provided, however, in the case of an
Incentive Stock Option granted to a Participant who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Incentive Stock Option shall be five (5) years from
the date of grant or such shorter time as may be provided in the Incentive Stock
Option agreement. The foregoing notwithstanding, if the Code or regulations
promulgated thereunder are subsequently amended to provide for a different
percentage of voting power or maximum option term for Incentive Stock Options,
such new limits shall be automatically incorporated in this Section 7 and shall
apply to any Incentive Stock Options granted after the effective date of such
amendment. The term of each Reload Option shall be equal to the remaining option
term of the underlying Option. The term of each Award, if applicable, that is
not an Incentive Stock Option or Reload Option shall be determined by the Board
and set forth in the agreement or notification relating to Nonstatutory Stock
Options, Restricted Stock, Other Stock Based Awards, or Other Benefits.
8. Exercise Price and Consideration.
(a) Exercise Price. The per Share exercise price for
the Shares to be issued pursuant to exercise of an Option shall be such
price as is determined by the Board, but shall be subject to the
following:
(i) In the case of an Incentive Stock Option, any
restrictions imposed by the Code at the time of grant, which
restrictions currently are as follows:
(A) grants to an Employee who, at the time
of the grant of such Incentive Stock Option, owns
stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company
or any Parent or Subsidiary, shall have a per Share
exercise price no less than 110% of the Fair Market
Value per Share on the date of grant; or
(B) grants to any other Employee shall have
a per Share exercise price no less than 100% of the
Fair Market Value per Share on the date of grant.
(ii) In the case of Nonstatutory Stock Options,
at any price per Share determined by the Board.
(iii) In the case of Reload Options, unless otherwise
established by the Board, the exercise price per share of
Common Stock deliverable upon the exercise of a Reload Option
shall be the Fair Market Value of a share of Common Stock on
the date the grant of the Reload Option becomes effective.
(b) Consideration for Restricted Stock, Other Stock Based
Awards, and Other Benefits. In the case of Restricted Stock, an award
of Restricted Stock may provide that the Participant be required to
furnish such consideration for the Award as the Board shall determine,
or may be issued in exchange for past services or other legal
consideration. An Award of Restricted Stock may provide that such
Restricted Stock may be exchanged during the Restricted Period for
other Restricted Stock upon such terms and conditions as the Board may
permit or shall require. Payment under or a settlement of any Other
Stock Based Awards and Other Benefits shall be made in such manner and
at such times as the Board may determine.
(c) Form of Consideration. The consideration to be paid for
the Shares to be issued upon exercise of an Option or grant of an
Award, including the method of payment, shall be determined by the
Board and may consist entirely of (i) cash, (ii) check, (iii) other
Shares of Common Stock having a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to
which the Option shall be exercised, (iv) vested and exercisable (but
unexercised) Options valued at the difference between the exercise
price and Fair Market Value of the Shares, or (v) any combination of
such methods of payment, or other consideration and method of payment
for the issuance of Shares to the extent permitted under the Nevada
General Corporation Law. In making its determination as to the type of
consideration to accept, the Board shall consider whether acceptance of
the consideration may be reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Generally. Any Option granted under the Plan shall be
exercisable at such times and under such conditions as determined by
the Board, including performance criteria with respect to the Company
and/or the Participant, and as shall be permissible under the terms of
the Plan. An Option may not be exercised for a fraction of a Share.
Anything to the contrary notwithstanding, each Reload Option is fully
exercisable two years from the effective date of grant (or if fewer
than two years remain until the termination of this Plan, then such
Reload Option shall be exercisable within 90 days prior to termination
of the Plan).
(b) Procedure. An Option shall be deemed to be exercised when
written notice of exercise in accordance with Section 22(c) and (d)
hereof (if applicable, in the form required by the Nonstatutory or
Incentive Stock Option agreement or notice) has been given to the
Company in accordance with the terms of the Option by the person
entitled to exercise the Option and full payment for the Shares with
respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 8 of the
Plan. The Company shall issue (or cause to be issued) the stock
certificate promptly upon exercise of the Option. No adjustment will be
made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in
Section 12 of the Plan. Exercise of an Option in any manner shall
result in a decrease in the number of Shares which may be available,
both for purposes of the Plan and for purchase under the Option, by the
number of Shares as to which the Option is exercised.
10. Conditions and Restrictions Affecting Awards.
(a) Certain Events Affecting Exercisability of Incentive
Stock Options.
(i) Termination of Status as an Employee. With
respect to Options that are Incentive Stock Options at the
time of grant, in the event of termination of a Participant's
Continuous Status as an Employee, such Participant may, but
only within three (3) months after such event of termination
of a Participant's Continuous Status as an Employee (but in no
event later than the date of expiration of the term of the
Incentive Stock Option as set forth in Section 7 hereof),
exercise his Incentive Stock Option to the extent that he was
entitled to exercise it at the date of termination. To the
extent that he was not entitled to exercise the Incentive
Stock Option at the date of such termination, or if he does
not exercise the Incentive Stock Option (which he was entitled
to exercise) within the time specified in this Subsection
10(a) the Incentive Stock Option shall terminate.
(ii) Disability of Participant. With respect to
Options that are Incentive Stock Options at the time of grant,
notwithstanding the provision of Section 10(a)(i) above, in
the event of termination of a Participant's Continuous Status
as an Employee as a result of his total and permanent
disability (as defined in Section 22(e)(3) of the Code), he
may, but only within twelve (12) months following the date of
termination (but in no event later than the date of expiration
of the term of the Incentive Stock Option as set forth in
Section 7 hereof), exercise his Incentive Stock Option to the
extent he was entitled to exercise it at the date of
termination. To the extent that he was not entitled to
exercise the Incentive Stock Option at the date of
termination, or if he does not exercise the Incentive Stock
Option (which he was entitled to exercise) within the time
specified herein, the Incentive Stock Option shall terminate.
(iii) Death of Participant. With respect to Options
that are Incentive Stock Options at the time of grant, in the
event of the death of a Participant:
(A) who is at the time of his death an
Employee of the Company and who shall have been in
Continuous Status as an Employee since the date of
grant of the Incentive Stock Option, the Incentive
Stock Option may be exercised, at any time within
twelve (12) months following the date of death (but
in no event later than the date of expiration of the
term of the Incentive Stock Option as set forth in
Section 7 hereof), by the Participant's estate or by
a person who acquired the right to exercise the
Incentive Stock Option by bequest or inheritance, but
only to the extent that the Participant had the right
to exercise the Incentive Stock Option at the date of
death; or
(B) which occurs within three (3) months
after the termination of Continuous Status as an
Employee, the Incentive Stock Option may be
exercised, at any time within twelve (12) months
following the date of death (but in no event later
than the date of expiration of the term of the
Incentive Stock Option as set forth Section 7
hereof), by the Participant's estate or by a person
who or entity which acquired the right to exercise
the Incentive Stock Option by bequest or inheritance,
but only to the extent of the right to exercise that
had accrued at the date of termination.
(iv) Expiration of Option Period. Subject to Sections
7 and 10, notwithstanding anything in the Plan to the
contrary, all Incentive Stock Options to the extent not
already exercised shall terminate upon expiration of a term
equal to ten (10) years from the date of grant.
(b) Certain Conditions Affecting Restricted Stock Awards.
(i) Restriction. Except as provided in Section
10(b)(iii), at the time of an Award of Restricted Stock, the
Board may establish in its discretion, for each Participant a
vesting schedule and a period of time ("Restricted Period")
during which Restricted Stock may not be sold, assigned,
transferred, pledged, or otherwise encumbered, except as
hereinafter provided. Except for such restrictions as may be
provided in the Restricted Stock agreement or notice and
subject to this Subsection 10(b), the Participant shall have
all rights of a stockholder with respect to such Restricted
Stock. The Board, in its discretion, may accelerate the time
at which any or all of the restrictions shall lapse with
respect to any shares of Restricted Stock prior to the
expiration of the Restricted Period or remove any or all of
such restrictions, as it deems appropriate.
(ii) Registration and Redelivery of Restricted Stock.
Each certificate of Restricted Stock shall be registered in
the name of the Participant and deposited by the Participant,
together with a stock power endorsed in blank, with the
Company. During the Restricted Period, the Restricted Stock
shall remain in the possession of the Company. At the end of
the Restricted Period, the Company shall redeliver to the
Participant (or the Participant's legal representative or
personal representative) the certificates of Common Stock
deposited pursuant to this Subsection 10(b)(ii). The Common
Stock so delivered to the Participant shall no longer be
subject to the provisions of this Subsection 10(b).
(iii) Termination of Employment. Unless the
Restricted Stock agreement or notice otherwise provides, in
the event the Participant's employment with the Company and/or
its Subsidiaries or Parent is terminated for reasons other
than death, total and permanent disability (as defined in
Section 22(e)(3) of the Code), or retirement after the age of
65, all Restricted Stock awarded to such Participant which is
still subject to restriction shall be forfeited. For the
purposes of this Subsection 10(b)(iii), the forfeiture period
for each Award of Restricted Stock shall be separately
calculated from the date of the Award. Unless the Restricted
Stock agreement or notice otherwise provides, the restrictions
contained in Subsection 10(b)(i) shall terminate on the
Participant's death, total and permanent disability (as
defined in Section 22(e)(3) of the Code), or attainment of age
sixty-five (65).
(c) Certain Conditions Affecting Reload Options.
(i) Non-Qualification as Incentive Stock Option.
Notwithstanding the fact that the underlying Option may be
an Incentive Stock Option, a Reload Option is not intended
to qualify as an Incentive Stock Option.
(ii) Reload Option Amendment. Each Incentive Stock
Option and Nonstatutory Stock Option agreement or notice shall
state whether the Board has authorized Reload Options with
respect to the underlying options. Upon the exercise of an
underlying option, any additional Reload Option must be
evidenced by an amendment to the underlying agreement or
notice or by a new notice from the Board.
(iii) Termination of Employment. No additional Reload
Options shall be granted to Participants when Options are
exercised pursuant to the terms of this Plan following
termination of the Participant's employment.
(iv) Application Sections. Applicable sections of the
Plan or written notice or agreement regarding the manner of
payment, restrictions, death, retirement, total or permanent
disability (as defined in Section 22(e)(3) of the Code) of the
Participant, and similar provisions relating to the underlying
Option, are incorporated by reference in this Subsection 10(c)
as though fully set forth herein.
(d) Certain Conditions Affecting Other Stock Based Awards and
Other Benefits. Unless the agreement or notice relating to the Other
Stock Based Awards or Other Benefits otherwise provides, except in the
event of the Participant's death, total or permanent disability (as
defined in Section 22(e)(3) of the Code), or retirement after attaining
age 65, in the event that the Participant terminates employment with
the Company and/or its Subsidiaries or Parent prior to the time
benefits become payable pursuant to Awards of Other Stock Based Awards
or Other Benefits, such Awards shall be immediately forfeited. Unless
the agreement or notice relating to the Other Stock Based Awards or
Other Benefits otherwise provides, in the event of the Participant's
death, total or permanent disability (as defined in Section 22(e)(3) of
the Code), or retirement after attaining age 65, the Company shall pay
to the Participant (or the Participant's legal representative or
personal representative) the amount that would have been payable to the
Participant had the Participant satisfied all of the requirements
contained in the agreement relating to such Award calculated as of the
date of the occurrence of an event described in this sentence.
(e) Special Conditions Concerning Forfeiture, Right to
Repurchase, and Economic Benefit. Unless approved in writing by the
Board or otherwise provided in the agreement reflecting the Award, if
(i) the Participant (A) voluntarily terminates
employment with the Company or the Participant's employment is
involuntarily terminated for nonperformance of duties and (B)
within one year of either such termination of employment the
Participant becomes, directly or indirectly, a sole
proprietor, partner, stockholder, officer, director, employee,
independent contractor, source of business or financial
resources, or consultant of or to any competitive business
which is related to the contract or common carriage of goods
(such determination being made by the Board in its sole
discretion); or
(ii) the Participant's employment is involuntarily
terminated for (or the Participant voluntarily terminates
because of) gross misconduct, fraud, embezzlement, theft, or
breach of any fiduciary duty to the Company
(each of (i) and (ii) a "Triggering Event"), then the Award,
regardless of whether then vested, shall immediately terminate
and be forfeited to the Company. With respect to Options, the
Board, in its discretion, may cause the Company to repurchase
each Share issued in respect of an exercised Option for the
exercise price of such Option and the Participant shall be
required to convey such Shares to the Company for such price.
With respect to any non-Option Award, if a Triggering Event
occurs, the Participant shall be required to return any Shares
received by such person in an Award to the Company immediately
upon demand by the Board. If a Triggering Event occurs and the
Participant has already disposed of all or some of the Shares,
the Board may demand, and the Participant shall pay to the
Company, (i) with respect to Options, the difference between
the exercise price and the Fair Market Value on the date of
exercise, or (ii) with respect to any other Award, the Fair
Market Value of the Award on the date it was received by the
Participant. The Company shall exercise its rights hereunder
by written notification to the Participant to be given within
180 days after the Board becomes aware of the Triggering
Event.
11. Transferability of Options. Except with Board approval and
otherwise in accordance with applicable provisions of the Code and SEC rules and
regulations, all Awards may not be transferred in any manner other than by will
or by the laws of descent or distribution and may be exercised, during the
lifetime of the Participant, only by the Participant. Following transfer, the
Awards shall continue to be subject to the same terms and conditions as were
applicable immediately prior to transfer, provided that the term "Participant"
shall be deemed to refer to the transferee.
12. Adjustments Upon Certain Changes. In the event of any change in the
outstanding Common Stock by reason of a stock split, stock dividend,
combination, reclassification, or exchange of Common Stock, recapitalization,
merger, consolidation, or other similar event, the shares of Common Stock
authorized hereunder and outstanding Awards, as applicable, shall be
proportionately adjusted by the Board in its sole discretion and any such
judgment shall be binding and conclusive on all persons. Provided, however, in
the case of Incentive Stock Options, no such adjustment shall be made if the
result thereof would be that the excess of (i) the aggregate Fair Market Value
of the new or substituted shares over (ii) the aggregate exercise price of such
shares is more than (x) the excess of the aggregate Fair Market Value of all
shares subject to the Option immediately before such substitutions or assumption
over (y) the aggregate exercise price of such shares, or that the new Option or
the assumption of the old Option gives the Participant additional benefits which
the Participant did not have under the old Option.
13. Time of Granting Awards. The date of grant of an Award, for all
purposes, shall be the date on which the Board makes the determination granting
that Award or such other effective date as the Board may specify in its grant of
the Award. Notice of the determination shall be given to each Employee or
Consultant to whom an Award is so granted within a reasonable time after the
date of such grant and such notice or the Award agreement shall be effective as
of the date of the grant.
<PAGE>
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may
deem advisable, unless otherwise required by any applicable laws.
(b) Effect of Amendment or Termination. Any amendment or
termination of the Plan shall not affect Awards already granted and
those Awards shall remain in full force and effect as if this Plan had
not been amended or terminated, unless mutually agreed otherwise
between the Participant and the Board, which agreement must be in
writing and signed by the Participant and the Company.
15. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise or grant of an Award unless the exercise or grant of
such Award and the issuance and delivery of Shares shall comply with all
relevant provisions of law, including, without limitation, the Securities Act
and the Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange or quotation system upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Board may require any person
receiving Common Stock hereunder to acknowledge that such Common Stock is being
acquired for investment purposes and not with a view for resale or distribution
and such Common Stock shall not be sold or transferred unless in accordance with
applicable law and regulations. If the Company, as part of an offering of
securities or otherwise, finds it desirable because of legal or regulatory
requirements to reduce the period during which Options may be exercised, the
Board may, in its discretion and without the holders' consent, so reduce such
period on not less than fifteen (15) days' written notice to the holders
thereof.
16. Reservation of Shares. The Company, during the term of this Plan,
shall at all times reserve and keep available the number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance or sale of any Shares under the Plan, shall relieve the Company of any
liability in respect of the failure to issue or sell the Shares as to which the
requisite authority shall not have been obtained.
17. Award Agreement. Awards shall be evidenced by written
agreements or notices in form as the Board shall approve.
18. Tax Withholding.
(a) The Board shall have sole discretion whether to withhold
stock sufficient to satisfy any withholding or other tax due with
respect the exercise of an Option, the vesting of Restricted Stock, or
any similar transaction under the Plan, or to demand such amounts in
cash. Any tax withholding effected in shares of Common Stock must
comply with all applicable laws.
(b) Notwithstanding anything in the Plan to the contrary, the
Participant acknowledges that under certain circumstances, including
but not limited to a "disqualifying disposition" of an Incentive Stock
Option under Section 422(a)(i) of the Code, the Participant may
recognize ordinary income which, for tax purposes, is considered
payment of wages for services. As a result, the Company may have
certain tax withholding and reporting obligations. The Company shall
not be obligated to issue any stock certificate upon the exercise of
the right to purchase, or the transfer of, Shares until the Participant
has delivered sufficient funds to cover all income, FICA, FUTA, and
other applicable tax withholding. The Participant shall notify the
Company of any disqualifying disposition of Shares underlying the
Option (currently, any disposition within two years of the date of
grant or one year of the exercise date or cashless exercise with shares
underlying the Option tendered in payment) and take all actions
necessary for the Company to obtain a tax deduction if compensation
income is deemed to result from any exercise or disposition. The
Participant shall indemnify and hold the Company harmless against any
loss it may experience as a result of the Participant's failure to
comply with this subsection. At the Board's sole discretion, to satisfy
the Company's withholding obligations, the Company may retain such
number of shares of Common Stock subject to the exercised Option which
have an aggregate Fair Market Value on the date of exercise equal to
the Company's aggregate federal, state, local, and foreign tax
withholding obligations as a result of the exercise of the Option by
the Participant. The Board may consider the Participant's preference in
making such determination, but the Participant acknowledges that the
Board is under no obligation to follow or even consider the
Participant's preference.
19. Non-Uniform Determinations. The Board's determinations, including
without limitation, (a) the Participants' right to receive Awards, (b) the form,
amount, and timing of Awards, (c) the terms, conditions, and provisions of
Awards (including vesting and forfeiture provisions), and (d) the agreements or
notices evidencing the same, need not be uniform and may be made by it
selectively among Participants who receive, or who are eligible to receive,
Awards under the Plan, whether or not such Participants are similarly situated.
20. Indemnification. Directors shall be indemnified and held harmless
by the Company from any loss, liability, or expense that may be imposed upon or
incurred by such present or past Director in connection with or resulting from
any claim, action, or proceeding in which the Director is involved by reason of
any action taken or failure to act under the Plan; provided such Director shall
give the Company an opportunity, at its own expense, to defend the same. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Company's
Articles of Incorporation or Bylaws, as a matter or law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.
21. Requirements of Law. Awards, agreements, notices, and the
issuance of shares of Common Stock shall be subject to applicable laws, rules,
and regulations, and to such approvals by any governmental agencies or
securities exchanges or quotation systems as may be required.
22. Miscellaneous.
(a) Participant Not a Stockholder. The Participant shall not
be deemed for any purposes to be a stockholder of the Company with
respect to an Award except to the extent that a stock certificate has
been issued (as evidenced by the appropriate entry on the books of the
Company) or of a duly authorized transfer agent of the Company and, if
applicable, the Option exercised and payment made.
(b) Disputes or Disagreements. The Participant agrees, for
himself and his personal representatives, that any disputes or
disagreements which arise under or as a result of this Plan or any
agreement hereunder shall be determined by the Board in its sole
discretion, and any interpretation by the Board of the terms of this
Plan or any Agreement shall be final, binding, and conclusive.
(c) Notices. Any notice to be given hereunder ("Notice") shall
be addressed to the Company in care of its Treasurer at 5175 West 2100
South, West Valley City, Utah 84120 or at its then current corporate
headquarters. Notice to be given to the Participant shall be addressed
to him or her by hand delivery or at his or her then current
residential address as appearing on the payroll records. Notice shall
be deemed duly given when enclosed in a properly sealed envelope and
deposited by certified mail, return receipt requested, in a post office
or branch post office regularly maintained by the United States
Government.
(d) Exercise of Incentive Stock Option. Subject to the terms
and conditions of the Plan and any agreement reflecting the grant of
Incentive Stock Option, such Option may be exercised only by completing
and signing a written notice in substantially the following form:
I hereby exercise [all/part of] the Incentive Stock Option
granted to me by Simon Transportation Services Inc. on
____________ (date of grant), and elect to purchase
____________ (______) shares of the Company's Class A Common
Stock for $________ per share, representing the Fair Market
Value on the date of grant.
(e) No Right to Continued Employment. The grant of an Award to
any Participant shall not be deemed for any purpose to constitute a
right to continued employment. Unless otherwise set forth in writing,
all Participants shall remain "at will" employees. As a condition to
accepting any Award, each Participant relinquishes any claim to
continued employment and covenants not to sue the Company or any
affiliate for any action alleging a right to continued employment.
(f) Adoption Date. This Plan was adopted pursuant to
action of the Board of Directors on December 18, 1998.
