SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Big Sky Transportation Co.
(Exact Name of Registrant as Specified in its Charter)
Montana 81-0387503
(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
1601 Aviation Place
Billings, Montana 59105
(Address of Principal Executive Office and Zip Code)
Big Sky Transportation Co. Director Composition, Meeting and Compensation Plan
(Full Title of the Plan)
Terry D. Marshall
Big Sky Transportation Co.
1601 Aviation Place
Billings, Montana 59105
(406) 245-9449
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Options to Purchase
1996 Series Common
Stock under the Indefinite $ 0.00 $ 0.00 $ 0.00
Director Plan
1996 Series Common
Stock issuable upon
exercise of options
granted under the 20,000 shares $1.1875 $23,750 $7.20
Director Plan
$7.20
TOTAL:
================================================================================================================================
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(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein and any additional securities which may become
issuable pursuant to anti-dilution provisions of the plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee and based upon the average of the high and low
prices of the Registrant's 1996 Series Common Stock on February 28,
1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, or either (I) the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of
1933 that contains audited financial statements for the
Registrant's latest fiscal year for which such
statements have been filed or (II) the Registrant's
effective registration statement on Form 10 or 10-SB
filed under the Securities Exchange Act of 1934
containing audited financial statements for the
Registrant's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the
end of the fiscal year covered by the Registrant
document referred to in (a) above;
(c) If the class of securities to be offered is registered
under Section 12 of the Securities Exchange Act of
1934, the description of such class of securities
contained in a registration statement filed under such
Act, 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 Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all such securities then 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. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Montana Business Corporation Act provides that a director
or officer of a corporation (i) shall, unless limited by the Articles of
Incorporation, be indemnified by the
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corporation for expenses in defense of any action or proceeding if the director
or officer is sued by reason of his service to the corporation, to the extent
that such person has been successful in defense of such action or proceeding and
(ii) may be indemnified by the corporation for expenses, judgments, fines,
penalties and amounts paid in settlement of a proceeding, even if he is not
successful on the merits, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation (and in a criminal proceeding, if he did not have reasonable cause
to believe his conduct was unlawful), provided that no indemnification is
permitted without court approval if the director or officer was adjudged liable
to the corporation. The Registrant's Articles of Incorporation do not limit the
Registrant's obligation to indemnify its directors and officers.
The Registrant's Articles of Incorporation limit the liability of its
directors as permitted by the Montana Business Corporation Act. Specifically,
directors of the Registrant will not be personally liable for monetary damages
for any action taken or any failure to take any action as a director, except for
(i) the amount of financial benefit received by a director to which a director
is not entitled, (ii) an intentional infliction of harm on the corporation or
its shareholders, (iii) an unlawful distribution to shareholders or (iv) an
intentional violation of criminal law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion and Consent of Wright, Tolliver and Guthals, P.C.
relating to the legality of securities under the Director
Composition, Meeting and Compensation Plan.
23.1 Consent of Wright, Tolliver and Guthals, P.C. -- included in
their opinion filed as Exhibit 5.
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney from certain directors.
Item 9. Undertakings.
(a) The undersigned 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
of 1933;
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(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,
represents a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed by
the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purposes of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(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) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public
policy as expressed in the 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
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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 Act and will be governed by final
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Billings, Montana, on the 20th day of December,
1996.
BIG SKY TRANSPORTATION CO.
(the "Registrant")
By /s/ Terry D. Marshall
Terry D. Marshall
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
(Power of Attorney)
Each of the undersigned constitutes and appoints Jon Marchi and Terry D.
Marshall his true and lawful attorney-in-fact and agent, each acting alone, with
full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Form S-8 Registration
Statement of Big Sky Transportation Co. relating to the Company's Director
Composition, Meeting and Compensation Plan and any or all amendments or
post-effective amendments to the Form S-8 Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to
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be done in and about the premises, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, each acting alone, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ Terry D. Marshall President, Chief Executive December 20, 1996
Terry D. Marshall Officer and Director (principal
executive officer)
/s/ Jon Marchi Treasurer and Director February 12, 1997
Jon Marchi (principal financial officer)
/s/ Karie Kane Principal Accounting Officer December 23, 1996
Karie Kane
/s/ Jack K. Daniels Director February 12, 1997
Jack K. Daniels
/s/ Craig Denney Director December 20, 1996
Craig Denney
/s/ Stephen D. Huntington Director February 12, 1997
Stephen D. Huntington
/s/ Alan D. Nicholson Director February 12, 1997
Alan D. Nicholson
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
BIG SKY TRANSPORTATION CO.
Form S-8 Registration Statement
E X H I B I T I N D E X
Exhibit
Number Exhibit Description
5 Opinion and Consent of counsel re securities under the Plan
23.1 Consent of counsel (See Exhibit 5)
23.2 Consent of independent accountants
24 Power of attorney
EXHIBIT 5
WRIGHT, TOLLIVER AND GUTHALS, P.C.
Windsor Court
10 North 27th Street
Billings, Montana 59103-1977
Telephone: (406) 245-3071
Facsimile: (406) 245-3074
February 12, 1997
Big Sky Transportation Co.
1601 Aviation Place
Billings, Montana 59105
Re: Registration Statement on Form S-8
Ladies/Gentlemen:
We are acting as corporate counsel to Big Sky Transportation Co. (the
"Company") in connection with the original registration by the Company on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act") of options and 20,000 shares (the "Shares") of 1996 Series Common
Stock issuable pursuant to the Company's Director Composition, Meeting and
Compensation Plan (the "Plan").
In acting as such counsel and for the purpose of rendering this opinion, we
have reviewed copies of the following, as presented to us by the Company:
1. The Company's Articles of Incorporation, as amended.
2. The Company's Bylaws, as amended.
3. Certain corporate resolutions adopted by the Board of
Directors of the Company pertaining to the adoption of the
Plan.
4. The Plan.
5. The Registration Statement.
Based on, and subject to, the foregoing and upon representations and
information provided by the Company or its officers or directors, it is our
opinion as of this date that:
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1. The Shares are validly authorized by the Company's Articles
of Incorporation, as amended.
2. Upon issuance and delivery of the Shares against receipt by
the Company of the consideration for the Shares pursuant to
the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
WRIGHT, TOLLIVER AND GUTHALS, P.C.
By /s/ Joel E. Guthals
Joel E. Guthals
EXHIBIT 23.2
We hereby consent to the incorporation by reference in this Form S-8
Registration Statement of Big Sky Transportation Co. (the "Registrant"), of our
report dated August 23, 1996, relating to the balance sheets of the Registrant
as of June 30, 1996 and 1995, and the related statements of operations,
stockholders' equity and cash flows for each of the years in the three-year
period ended June 30, 1996, which report appears in the Registrant's Annual
Report on Form 10-K for the year ended June 30, 1996.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Billings, Montana
February 12, 1997
