<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Schedule TO
Tender Offer Statement
under Section 14(d)(1) or 13(e)(1) of the
Securities Exchange Act of 1934
(Amendment No. )*
----------------
SIMON TRANSPORTATION SERVICES INC.
(Name of Subject Company (issuer))
----------------
JERRY MOYES (Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other
person))
CLASS A COMMON SHARES, $0.01 Par Value
CLASS B COMMON SHARES, $0.01 Par Value
(Title of Class of Securities)
828813105
(CUSIP Number of Class of Securities)
Jerry Moyes
2200 South 75th Avenue
Phoenix, Arizona 85043
(623) 269-9700
(Name, address, and telephone number of person authorized to receive notices
and communications on behalf of filing persons)
With a Copy to:
Earl H. Scudder, Esq.
Scudder Law Firm, P.C.
411 South 13th Street
Lincoln, Nebraska 68508
(402) 435-3223
Calculation of Filing Fee
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<TABLE>
<CAPTION>
Amount
of
Transaction filing
valuation* fee
- ------------------------------------------------------------------------------
<S> <C>
$36,830,913 $7,367
</TABLE>
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- --------
*Estimated for purposes of calculating the amount of the filing fee only. The
filing fee calculation assumes the purchase of all outstanding shares of
Class A Common Stock, par value $.01 (the "Class A Common Shares") and
Class B Common Stock, par value $.01 (the "Class B Common Shares" and
together with Class A Common Shares, the "Shares") of Simon Transportation
Services Inc., a Nevada corporation (the "Company"), other than the 848,550
Shares deemed to be beneficially owned by the Filing Person and certain
persons affiliated with him, at $7.00 per Share net to the seller in cash.
According to the Company's
<PAGE>
Form 10-Q for the quarter ended December 31, 1999, there were 5,196,358
Class A Common Shares (including the 848,550 Shares deemed to be
beneficially owned by the Filing Person and certain persons affiliated with
the Filing Person), and 913,751 Class B Common Shares issued and
outstanding. The total of 6,110,109 outstanding Shares, less the 848,550
Shares deemed to be beneficially owned by the Filing Person and certain
persons affiliated with him, result in 5,261,559 Shares subject to the
offer. Based on the foregoing, the transaction value is equal to the
product of 5,261,559 Shares and $7.00 per Share. The amount of the filing
fee calculated in accordance with Rule 0-11 of the Securities Exchange Act
of 1934, as amended, equals 1/50th of one percent of the value of the
transaction.
[ ] Check the box if any part of the fee is offset as provided by Rule 0-
11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the
Form or Schedule and the date of its filing.
Amount Previously Paid: _____
Form or Registration No.: ___
Filing Party: _______
Date Filed: _______
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which
the statement relates:
[x] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
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2
<PAGE>
SCHEDULE TO
This Schedule TO Tender Offer Statement (this "Statement") relates to the
offer by Jerry Moyes ("Purchaser") to purchase all outstanding shares of Class
A Common Stock, par value $.01 (the "Class A Common Shares") and Class B
Common Stock, par value $.01 (the "Class B Common Shares" and together with
Class A Common Shares, the "Shares") of Simon Transportation Services Inc., a
Nevada corporation (the "Company"), at $7.00 per Share (the "Offer Price"),
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated May 23, 2000, and in the related Letter
of Transmittal (which together with any amendments or supplements thereto,
collectively constitute the "Offer"). Copies of the Offer to Purchase and the
Letter of Transmittal are annexed hereto as Exhibits (a)(1)(A) and (a)(1)(B),
respectively.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the Offer to Purchase under "Summary Term
Sheet" is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The name of the subject company is Simon Transportation Services Inc.
The Company's principal executive offices are located at 5175 West 2100 South,
West Valley City, Utah 84120-1252. The telephone number for the Company's
principal executive office is (801) 924-7000.
(b) The information set forth in the Offer to Purchase under "Introduction"
is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase in Section 6 ("Price
Range of Shares; Dividends on the Shares") is incorporated herein by
reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) and (c) This Statement is being filed by Purchaser. The information set
forth in the Offer to Purchase in Section 8 ("Certain Information Concerning
the Purchaser") is incorporated herein by reference.
(b) Not applicable.
ITEM 4. TERMS OF THE TRANSACTION.
(a)(1)(i-viii, xii) The information set forth in the Offer to Purchase
under "Introduction" and in Section 1 ("Terms of the Offer"), Section 2
("Procedures for Tendering Shares"), Section 3 ("Withdrawal Rights"), Section
4 ("Acceptance for Payment and Payment"), and Section 5 ("Certain Federal
Income Tax Consequences") is incorporated herein by reference.
(a)(1)(ix) Not applicable.
(a)(1)(x) Not applicable.
(a)(1)(xi) Not applicable.
(a)(2)(i-vii) Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) Not applicable.
(b) The information set forth in the Offer to Purchase in Section 9
("Background of the Offer") is incorporated herein by reference.
3
<PAGE>
ITEM 6. PURPOSES OF THE TRANSACTIONS AND PLANS OR PROPOSALS.
(a) The information set forth in the Offer to Purchase in Section 10
("Purpose of the Offer; Plans for the Company") is incorporated herein by
reference.
(b) Not applicable.
(c) (1-7) The information set forth in the Offer to Purchase under
("Introduction") and in Section 10 ("Purpose of the Offer; Plans for the
Company"), Section 12 ("Effect of the Offer on the Market for the Common
Shares; Exchange Act Registration; Margin Regulations"), Section 13
("Dividends and Distributions"), and Section 14 ("Certain Conditions of the
Offer") is incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in the Offer to Purchase in Section 11 ("Source
and Amount of Funds") is incorporated herein by reference.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information set forth in the Offer to Purchase in Section 8
("Certain Information Concerning the Purchaser"), Section 9 ("Background of
the Offer"), and in Schedule I to the Offer to Purchase is incorporated herein
by reference.
(b) Not applicable.
ITEM 9. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) The information set forth in the Offer to Purchase in Section 16 ("Fees
and Expenses") is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
(a) and (b) Because the consideration offered consists solely of cash, the
Offer is not subject to any financing condition, and the Offer is for all
outstanding Shares, Purchaser believes that Purchaser's financial condition is
not material to a decision by a holder of Shares as to whether to sell,
tender, or hold Shares pursuant to the Offer.
ITEM 11. ADDITIONAL INFORMATION.
(a) The information set forth in the Offer to Purchase under Section 9
("Background of the Offer"), Section 10 ("Purpose of the Offer; Plans for the
Company"), and Section 14 ("Certain Conditions of the Offer") is incorporated
herein by reference.
(b) The information set forth in the Offer to Purchase and the related
Letter of Transmittal, copies of which are filed as Exhibits (a)(1)(A) and
(a)(1)(B) hereto, respectively, is incorporated herein by reference.
ITEM 12. EXHIBITS.
(a)(1)(A)--Offer to Purchase dated May 23, 2000.
(a)(1)(B)--Letter of Transmittal.
(a)(1)(C)--Notice of Guaranteed Delivery.
(a)(1)(D)--Form of letter to clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
4
<PAGE>
(a)(1)(E)--Form of letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
(a)(1)(F)--Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(G)--Text of Press Release issued by Purchaser on May 23, 2000.
(a)(1)(H)--Summary Publication, dated May 23, 2000.
(b)--Not applicable.
(c)--None.
(d) --Not applicable.
(e)--Not applicable.
(f)--Form of Preliminary Consent Solicitation.
(g)--Not applicable.
5
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
/s/ Earl H. Scudder
By: _________________________________
Earl H. Scudder on behalf of Jerry
Moyes, individually
(Signature)
Earl H. Scudder, under power of
attorney
(Name and title)
May 23, 2000
Date
6
<PAGE>
POWER OF ATTORNEY
I, Jerry Moyes, hereby authorize and designate Earl H. Scudder and Mark A.
Scudder, individually, with full power of substitution, to execute and file,
on my behalf, all Schedules TO (including any amendments thereto) that I may
be required to file with the U.S. Securities and Exchange Commission as a
result of my ownership of or transactions in securities of Simon
Transportation Services Inc.
The authority granted herein shall continue until I am no longer required
to file Schedules TO (or amendments thereto) with regard to my ownership of or
transactions in securities of Simon Transportation Services Inc., unless
earlier revoked in writing.
I, the undersigned, acknowledge that by serving in such capacity at my
request, neither Earl H. Scudder, Mark A. Scudder, nor Scudder Law Firm, P.C.
is assuming any responsibility to comply with Schedule TO of the Securities
and Exchange Act of 1934.
/s/ Jerry Moyes
_____________________________________
Jerry Moyes, individually
May 3, 2000
Date
7
<PAGE>
OFFER TO PURCHASE
ALL CLASS A AND CLASS B COMMON SHARES
OF
SIMON TRANSPORTATION SERVICES INC.
AT
$7.00 NET CASH PER SHARE
BY
JERRY MOYES
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON
WEDNESDAY, JUNE 21, 2000, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED PRIOR TO THE EXPIRATION OF THE OFFER AND NOT WITHDRAWN A NUMBER OF
CLASS A AND CLASS B COMMON SHARES (COLLECTIVELY, THE "SHARES") OF SIMON
TRANSPORTATION SERVICES INC. (THE "COMPANY") THAT, TOGETHER WITH THE SHARES
DEEMED TO BE BENEFICIALLY OWNED BY JERRY MOYES ("PURCHASER") AND CERTAIN
PERSONS AFFILIATED WITH HIM (AS DESCRIBED IN THE INTRODUCTION TO THIS OFFER TO
PURCHASE), WILL CONSTITUTE AT LEAST A MAJORITY OF THE TOTAL VOTING POWER OF
OUTSTANDING SHARES AS OF THE DATE THE SHARES ARE ACCEPTED FOR PAYMENT PURSUANT
TO THE OFFER (THE "MINIMUM TENDER CONDITION"); (II) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN AT LEAST 450,000 CLASS B COMMON SHARES DEEMED TO BE
BENEFICIALLY OWNED, DIRECTLY OR INDIRECTLY THROUGH ANY TRUST OR OTHERWISE, BY
RICHARD D. SIMON (THE "SIMON TENDER CONDITION"); (III) PURCHASER AND HIS
DESIGNEES BEING ELECTED OR APPOINTED TO FILL A MAJORITY OF THE DIRECTORSHIPS
COMPRISING THE ENTIRE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD OF
DIRECTORS CONDITION"); (IV) THE COMPANY GIVING PURCHASER ACCESS TO PERFORM A
DUE DILIGENCE EXAMINATION OF THE COMPANY'S ASSETS, LIABILITIES, FACILITIES,
BUSINESS OPERATIONS, PERSONNEL, CUSTOMERS, AND OTHER MATTERS, AND PURCHASER'S
SATISFACTION, IN HIS SOLE DISCRETION, WITH THE RESULTS OF SUCH EXAMINATION
(THE "DUE DILIGENCE CONDITION"); (V) THE CONTINUING EFFECTIVENESS OF THE
COMPANY'S WAIVER OF ALL APPLICABLE ANTI-TAKEOVER STATUTES, INCLUDING SECTIONS
78.411, ET SEQ. AND 78.378, ET SEQ. OF THE NEVADA GENERAL CORPORATION LAW (THE
"ANTI-TAKEOVER STATUTE CONDITION"); AND (VI) THE EXPIRATION OR TERMINATION OF
ALL APPLICABLE WAITING PERIODS UNDER THE HART-SCOTT-RODINO ANTITRUST
IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER AS WELL
AS COMPLIANCE WITH ANY OTHER APPLICABLE ANTITRUST LAWS (THE "ANTITRUST
CONDITION"). THE OFFER ALSO IS CONDITIONED UPON CERTAIN OTHER CONDITIONS
DESCRIBED IN SECTION 14 HEREIN.
THE OFFER IS NOT SUBJECT TO ANY FINANCING CONDITION.
A SUMMARY OF THE PRINCIPAL TERMS OF THE OFFER AND OTHER IMPORTANT
INFORMATION REGARDING THE OFFER APPEARS ON PAGES 1 THROUGH 3. YOU SHOULD READ
THIS ENTIRE DOCUMENT CAREFULLY BEFORE DECIDING WHETHER TO TENDER YOUR SHARES.
THE DATE OF THIS OFFER TO PURCHASE IS MAY 23, 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Summary Term Sheet........................................................ 1
Introduction.............................................................. 4
Section 1. Terms of the Offer............................................ 6
Section 2. Procedures for Tendering Shares............................... 8
Section 3. Withdrawal Rights............................................. 11
Section 4. Acceptance for Payment and Payment............................ 11
Section 5. Certain Federal Income Tax Consequences....................... 13
Section 6. Price Range of Shares; Dividends on the Shares................ 14
Section 7. Certain Information Concerning the Company.................... 14
Section 8. Certain Information Concerning the Purchaser.................. 15
Section 9. Background of the Offer....................................... 16
Section 10. Purpose of the Offer; Plans for the Company................... 18
Section 11. Source and Amount of Funds.................................... 19
Section 12. Certain Effects of the Offer; Market for the Class A Common
Shares; Exchange Act Registration; Margin Regulations............. 20
Section 13. Dividends and Distributions................................... 20
Section 14. Certain Conditions of the Offer............................... 21
Section 15. Certain Legal Matters......................................... 23
Section 16. Fees and Expenses............................................. 26
Section 17. Miscellaneous................................................. 26
Schedule I................................................................ 28
</TABLE>
i
<PAGE>
SUMMARY TERM SHEET
This summary term sheet is intended to give you a brief overview of my
offer to purchase all Class A and Class B common shares of Simon
Transportation that you own for $7.00 per share in cash. Please read the
entire offering document, as this summary term sheet does not contain all of
the information you should review before deciding whether to tender your
shares.
Purchaser: My name is Jerry Moyes. I am the Chairman,
President, and Chief Executive Officer of Swift
Transportation Co., Inc. (Nasdaq: SWFT). I also
control several private corporations, including
Central Freight Lines, Inc. of Waco, Texas, SME
Industries, Inc. of Salt Lake City, Utah, and
Interstate Leasing, Inc. of Phoenix, Arizona. See
section 8.
Offer: I am offering $7.00 per share in cash for all of
the outstanding Class A and Class B common shares
of Simon Transportation. Persons affiliated with
me and I already control approximately 848,550
Class A common shares. This would leave
approximately 4,347,808 Class A Common Shares and
913,751 Class B Common Shares that may be
tendered in the offer.
If you are the record owner of your shares, you
will not have to pay any brokerage or similar
fees. However, if you own your shares through a
broker or other nominee, your broker or nominee
may charge you a fee to tender. You should
consult your broker or nominee to determine
whether any charges will apply. See
"Introduction." In addition, if you do not
complete and sign the Substitute Form W-9
included in the letter of transmittal, you may be
subject to required backup federal income tax
withholding. See section 2 and instruction 10 to
the letter of transmittal.
Financing: I have the financial ability to complete the
offer. My offer is not conditioned on financing.
See section 11.
Plans for the company: I intend to assume control of the board of
directors. If I do so, I plan to seek additional
information and to undertake a comprehensive
review of the company's business, operations,
capitalization, and management with a view toward
improving the company's potential. I intend for
the company to appoint Jon Isaacson as the new
chief executive officer of Simon Transportation.
Mr. Isaacson presently serves as Vice President
of East Coast Operations for Swift Transportation
Co., Inc. He has expressed a desire to return to
Salt Lake City.
I intend to keep Simon Transportation public if
sufficient shares remain outstanding in the hands
of a number of stockholders that I deem likely to
support a reasonable public market. Among other
factors, I may consider whether the company
continues to meet the requirements for inclusion
for trading on the Nasdaq National Market. I
believe the publicly traded stock can provide an
incentive for employees holding stock options and
could be used in acquisitions (although none are
currently planned). If I believe the number of
shares outstanding and remaining stockholders are
insufficient, I may propose to take the company
private. See section 10.
1
<PAGE>
Board's opinion: On May 8, 2000, Simon Transportation's board of
directors informed me that it had decided to
remain neutral and not to recommend for or
against my offer. The Simon board has waived the
restrictions of all anti-takeover statutes and
has furnished me with stockholder mailing lists
to facilitate my offer. The Simon Transportation
board of directors could change its position in
the future. See sections 1 and 9.
How to tender: You may tender all or any portion of your shares
by delivering your certificate(s) and the
enclosed letter of transmittal to the depositary,
Wilmington Trust Company, or by requesting your
broker, dealer, commercial bank, trust company,
or other nominee to effect the transaction for
you. See section 2.
When to tender: You must tender your shares prior to 5:00 p.m.,
Eastern time, on Wednesday, June 21, 2000, unless
I extend the offer. If the offer is extended, I
will issue a press release announcing the
extension period no later than 9:00 a.m., Eastern
time on the first business morning following the
date the offer was scheduled to expire. See
section 1.
How to withdraw: You may withdraw your decision to tender at any
time prior to 5:00 p.m., Eastern time, on
Wednesday, June 21, 2000. If I extend the offer,
you may withdraw your tender at any time prior to
5:00 p.m. on the business day to which the offer
is extended. You also may withdraw your decision
to tender if it has not been accepted for payment
by July 21, 2000. To withdraw your tender, you
must follow the procedures in the attached
materials. See section 3.
Recent market price: The closing market price of the Class A common
shares was $5.66 on May 22, 2000, the last full
day of trading before I announced and commenced
this offer. Please obtain a recent quotation for
your shares prior to deciding whether or not to
tender. See section 6.
If you do not tender: The purchase of shares pursuant to my offer will
reduce the number of shares that might otherwise
trade publicly and the number of holders of
shares, which could adversely affect the
liquidity and market value of the remaining
shares held by the public. I cannot predict
whether the reduction in the number of shares
that might otherwise trade publicly would have an
adverse or beneficial effect on the market price
and marketability of the shares. Depending on a
variety of factors, including the number of
shares tendered, there may not be a public
trading market for the company's shares after the
completion of my offer. In that instance, the
company may not be required to, and thus may
cease to, comply with the Securities and Exchange
Commission's rules governing publicly-held
companies. In that case or in certain other
circumstances I might propose to take the company
private. See section 12.
Conditions to offer: My offer is conditioned upon:
. stockholders having validly tendered and not
withdrawn before the expiration of the offer
shares of Class A and Class B common stock
which, together with the shares deemed to be
beneficially owned by myself and persons
affiliated with me, constitute a majority of
the total voting power of the company's
common stock.
2
<PAGE>
. there being validly tendered and not
withdrawn at least 450,000 Class B common
shares deemed to be beneficially owned,
directly or indirectly through any trust or
otherwise, by Richard D. Simon;
. myself and my designees being elected or
appointed to fill a majority of the seats on
the company's board of directors;
. my satisfaction with the results of a due
diligence examination of the company;
. the waiver of all applicable anti-takeover
statutes that might apply to me, my
affiliates, this offer, or the shares we
own;
. the expiration or termination of all
applicable waiting periods under the Hart-
Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the regulations
thereunder, as well as compliance with any
other applicable anti-trust laws; and
. certain other conditions described in
section 14.
Tax consequences: The receipt of cash by you in exchange for your
Simon shares pursuant to the offer is taxable for
federal income tax purposes and may be taxable
under applicable state, local, or foreign tax
laws. In general, you will recognize capital gain
or loss equal to the difference between your
adjusted tax basis in the shares you tender and
the amount of cash you receive for those shares.
You should consult your tax advisor about the
particular effect tendering will have on your
shares. See section 5.
Payment for shares: Provided the conditions to the offer are
satisfied, you will receive a check equal to the
number of shares you tendered multiplied by $7.00
as promptly as practicable following the
consummation of the offer. See section 2.
Return of shares: If any tendered shares are not purchased, share
certificates for any such unpurchased shares will
be returned, without expense to the tendering
stockholder, as promptly as practicable after the
expiration, termination, or withdrawal of the
offer. See section 4.
Consent solicitation: I have filed consent solicitation materials with
the SEC. I intend to seek the consent of
stockholders with a majority of the voting power
to elect my nominees to a majority of the seats
on the Simon Transportation board of directors.
See section 10.
Questions: If you have questions about my offer, contact my
information agent, MacKenzie Partners, Inc., at
1-800-322-2885.
3
<PAGE>
TO THE HOLDERS OF SHARES OF
SIMON TRANSPORTATION SERVICES INC.:
INTRODUCTION
Jerry Moyes ("Purchaser") hereby offers to purchase all outstanding Class A
common shares, $.01 par value (the "Class A Common Shares") and Class B common
shares, par value $.01 (the "Class B Common Shares" and together with the
Class A Common Shares, the "Shares") of Simon Transportation Services Inc., a
Nevada corporation (the "Company"), at $7.00 per Share (the "Offer Price"),
net to the seller in cash, upon the terms and subject to the conditions set
forth in this Offer to Purchase and in the related Letter of Transmittal
(which together with any amendments or supplements hereto or thereto,
collectively constitute the "Offer"). Tendering Stockholders who have Shares
registered in their own name and who tender directly to the Depositary (as
defined below) will not be obligated to pay brokerage fees or commissions or,
subject to instruction 6 of the Letter of Transmittal, stock transfer taxes on
the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who
hold their Shares through their broker, bank, or other nominee should consult
with such institution as to whether there are any fees applicable to a tender
of Shares. Purchaser will pay all charges and expenses of Wilmington Trust
Company, as depositary (the "Depositary"), and MacKenzie Partners, Inc., as
information agent (the "Information Agent"). Unless the context requires
otherwise, all references to "Stockholders" shall mean holders of Shares.
The Purchaser attempted for many months to negotiate an agreement with the
Company's Board of Directors under which the Purchaser would acquire control
of the Company. The Purchaser and the Company's Board of Directors failed to
reach agreement on all terms of a potential transaction. Nevertheless, the
Purchaser and the Company's Board of Directors shared the view that the
Stockholders should be able to consider the Offer. Accordingly, on May 5,
2000, the Company's Board of Directors resolved to remain neutral, and not to
recommend to the Stockholders for or against the Offer. The Board of Directors
reserved the right to change its position in the exercise of its fiduciary
obligations. The Company's Board of Directors also waived the restrictions
contained in all anti-takeover statutes, subject to the conditions that the
Purchaser commence a tender offer at $7.00 per share, complete the offer in
accordance with its terms, and acquire, with certain affiliated persons, a
majority of the total voting power of the Shares prior to August 31, 2000. The
Company furnished the Purchaser with stockholder information to facilitate the
Offer on May 22, 2000.
The purpose of the Offer is to enable the Purchaser to acquire control of
the Company. The Purchaser's principal occupation is serving as the Chairman,
President, and Chief Executive Officer of Swift Transportation Co., Inc.
("Swift"). Swift is the third largest publicly traded truckload carrier in the
United States (measured by revenue) and is traded on the Nasdaq National
Market under the symbol "SWFT." During the pendency of, and initially
following the consummation of the Offer, the Purchaser currently intends to
seek additional information about the Company and to evaluate the Company's
business and operations. The Purchaser intends to review such information as
part of a comprehensive review of the Company's business, operations,
capitalization, and management with a view toward improving the Company's
potential.
Following the consummation of the Offer, the Purchaser intends for the
Company to appoint Jon Isaacson as Chief Executive Officer. Mr. Isaacson
currently serves as Vice President of East Coast Operations for Swift. He
formerly lived in Salt Lake City and has expressed a desire to return. The
Purchaser currently does not have any other plans for changes in management.
From time-to-time after consummation of the Offer, the Purchaser may seek
to increase the Company's growth, including through one or more mergers,
acquisitions, or other business combinations. However, except as stated
herein, the Purchaser has no present plans or proposals that would result in
an extraordinary corporate transaction, such as a merger, consolidation,
reorganization, liquidation, or sale or transfer of a material amount of
assets, involving the Company or any of its subsidiaries, or any material
changes in the Company's present capitalization, dividend policy, employee
benefit plans, corporate structure, or business or any material changes or
reductions in the composition of its management or personnel.
Following the consummation of the Offer, it is the Purchaser's preference
that the Class A Common Shares continue to be listed on the Nasdaq National
Market. However, if the number of Shares held by Stockholders, other than
Stockholders affiliated with the Purchaser and those who are part of the
current management of the
4
<PAGE>
Company, are less than the requirements necessary to be traded on the Nasdaq
National Market or are not sufficient, as determined by the Purchaser in his
sole discretion, to provide sufficient justification for the Company to
continue to meet the reporting and disclosure obligations of the Nasdaq
National Market and the Securities and Exchange Commission (the "Commission"),
the Purchaser may propose corporate action to take the Company private. In
that instance, holders of Shares other than the Purchaser and persons
affiliated with him would receive cash for their Shares and no longer be
Stockholders.
The Offer is not conditioned upon the Purchaser obtaining financing. The
Offer is conditioned upon, among other things, the satisfaction of: (i) the
Minimum Tender Condition; (ii) the Simon Tender Condition; (iii) the Board of
Directors Condition; (iv) the Due Diligence Condition; (v) the Anti-Takeover
Statute Condition; and (vi) the Antitrust Condition. The Offer is also subject
to certain other conditions described in section 14. The Purchaser reserves
the right (but shall not be obligated) to waive any or all such conditions.
See sections 1, 14, and 15 herein.
The Minimum Tender Condition conditions the Offer upon there being validly
tendered prior to the Expiration Date (as defined in section 1) and not
withdrawn at least that number of Shares which, together with the Shares
deemed to be beneficially owned by Purchaser and certain persons affiliated
with him would represent a majority of the total voting power of the Shares on
the date of purchase. Purchaser reserves the right (subject to the applicable
rules and regulations of the Commission) to waive or reduce the Minimum Tender
Condition. See sections 1 and 15 herein.
According to the Company's Form 10-Q for the quarter ended March 31, 2000
(the "Second Quarter 10-Q"), as of March 31, 2000, there were 5,196,358 Class
A Common Shares and 913,751 Class B Common Shares outstanding. According to
the Company's Proxy Statement filed with the Commission on January 6, 2000
(the "Most Recent Proxy"), there were, as of December 15, 1999, approximately
1,415,500 Class A Common Shares reserved for issuance to employees under the
Company's stock option plans. Of the Shares reserved, options had been granted
covering approximately 1,008,000 Shares, and approximately 275,000 Shares
were, at December 15, 1999, subject to vested but unexercised options.
According to the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1999 (the "Company 10-K"), at such time, no options were
outstanding and exercisable with exercise prices of less than the Offer Price.
According to the Company's Articles of Incorporation filed with the Nevada
Secretary of State on August 15, 1995, holders of Class A Common Shares are
entitled to one (1) vote for each share held. Holders of Class B Common Shares
are entitled to two (2) votes for each share held on all matters submitted to
a vote of the common stockholders so long as the holder is Richard D. Simon,
Valene Simon, Kelle A. Simon, Lyn Simon, Sherry Bokovoy, or Richard D. Simon,
Jr. (the "Founders"), any trust for the benefit of one or more of the Founders
or any other entity which is 100% owned by the Founders. Holders of Class B
Common Shares may convert such shares into Class A Common Shares, at any time
and from time-to-time, on the basis of one Class A Common Share for each Class
B Common Share. If any Class B Common Shares cease to be owned by the
Founders, or any trust for the benefit of one or more of the Founders or by
any other entity which is 100% owned by one or more of the Founders, such
Shares that are no longer so owned shall be converted automatically into Class
A Common Shares and shall be entitled to one (1) vote per share.
Based on the foregoing and assuming, from December 15, 1999, through the
Expiration Date, that no new options are granted, no additional options are
exercised, canceled, or expire, and no Shares are issued or reacquired, there
would be 5,196,358 Class A Common Shares, having one vote per share, and
913,751 Class B Common Shares, having two votes per share, outstanding on the
Expiration Date. A total of 7,023,860 votes would be represented by those
Shares. The Purchaser is deemed to beneficially own 657,650 Class A Common
Shares. Certain persons affiliated with him, consisting of the Nominees (as
defined in section 10), are deemed to beneficially own an additional 190,900
Class A Common Shares. Thus, the Purchaser and certain persons affiliated with
him control approximately 848,550 Class A Common Shares. Assuming that the
minimum number of Class B Common Shares are tendered pursuant to the Simon
Tender Condition, and also assuming that no other Class B Common Shares are
tendered, the minimum number of Class A Common Shares that would have to be
tendered and not withdrawn on the Expiration Date to satisfy the Minimum
Tender Condition would be 2,438,381. On April 19, 2000, Richard D. Simon,
trustee of the holder of the Class B Common Shares, indicated that he and the
management team did not desire to sell their Shares at that time. The
Purchaser does not know
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whether such persons will tender pursuant to the Offer. The number of Class A
Common Shares that must be tendered to meet the Minimum Tender Condition if no
Class B Common Shares are tendered would be 2,663,381. The actual minimum
number of Shares required to meet the Minimum Tender Condition will depend on
the facts as they exist on the date of purchase.
On May 23, 2000, the Purchaser filed preliminary consent solicitation
material with the Commission, which, in definitive form, will be mailed to
Stockholders after completion of review by the staff of the Commission and
receipt from the Company of a current stockholder list. The consent
solicitation material (the "Consent Solicitation") requests Stockholders to,
among other things, increase the size of the Company's Board of Directors and
fill the new director positions with the Nominees, such that the Nominees
constitute a majority of the entire Board of Directors. If the Nominees are
elected, consistent with their fiduciary duties to the Company and its
Stockholders under applicable law, the Purchaser expects that the Nominees
will consider whether to, and methods by which it may be possible for them to,
take such actions as may be required to permit the prompt consummation of the
Offer.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF PROXIES OR
CONSENTS. ANY SUCH SOLICITATION WILL BE MADE PURSUANT TO SEPARATE PROXY OR
CONSENT SOLICITATION MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION
14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER (THE "EXCHANGE ACT").
Any Stockholder desiring to tender all or any portion of such Stockholder's
Shares should either (i) complete and sign the Letter of Transmittal (or a
facsimile thereof) in accordance with the instructions in the Letter of
Transmittal, have such Stockholder's signature thereon guaranteed if required
by instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such facsimile) and any other required documents to the
Depositary, and either deliver the certificates for such Shares to the
Depositary along with the Letter of Transmittal (or facsimile) or deliver such
Shares pursuant to the procedure for book-entry transfer as set forth in
section 2 hereof, or (ii) request such Stockholder's broker, dealer,
commercial bank, trust company, or other nominee to effect the transaction for
such Stockholder. A Stockholder having Shares registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee must contact
such broker, dealer, commercial bank, trust company, or other nominee if such
Stockholder desires to tender such Shares.
If a Stockholder desires to tender Shares and such Stockholder's
certificates for Shares are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis, or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date, such Stockholder's tender may be effected by following the procedure for
guaranteed delivery set forth in section 2.
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number set forth on the back cover of this
Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery, and other related materials
may be obtained from the Information Agent or from Stockholders' brokers,
dealers, commercial banks, trust companies, and other nominees.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS
MADE WITH RESPECT TO THE OFFER.
Section 1. Terms of the Offer
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is amended or extended, the terms and conditions of any amendment or
extension), the Purchaser will accept for payment and pay for all Shares
validly tendered prior to the Expiration Date. The term "Expiration Date"
means 5:00 p.m., Eastern time, on Wednesday, June 21, 2000, unless and until
the Purchaser, in his sole discretion, shall have extended the period of time
during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Offer, as so extended by the
Purchaser, will expire.
The Offer is not conditioned upon the Purchaser obtaining financing. The
Offer is conditioned upon, among other things, the satisfaction of the Minimum
Tender Condition, the Simon Tender Condition, the Board of Directors
Condition, the Due Diligence Condition, the Anti-Takeover Statute Condition,
the Antitrust Condition, and the other conditions listed in section 14 hereof.
If such conditions are not satisfied prior to the Expiration Date, the
Purchaser reserves the right, but shall not be obligated to, (i) decline to
purchase any of the Shares tendered and terminate the Offer, (ii) waive any of
the conditions to the Offer, to the extent permitted by
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applicable law, and, subject to complying with applicable rules and
regulations of the Commission, purchase all Shares validly tendered, or (iii)
extend the Offer and, subject to the right of Stockholders to withdraw Shares
until the Expiration Date, retain the Shares tendered during the period or
periods for which the Offer is extended.
Subject to the applicable rules and regulations of the Commission, the
Purchaser reserves the right at any time, and from time-to-time, and
regardless of whether any of the events set forth in section 14 hereof have
occurred or been determined by the Purchaser to have occurred, to (i) extend,
in his sole discretion, the period of time during which the Offer is open, and
thereby delay acceptance for payment of any Shares, by giving oral or written
notice of such extension and delay to the Depositary and (ii) amend the Offer
or waive any condition by giving oral or written notice of such amendment or
waiver to the Depositary. During any such extension, all Shares previously
tendered and not properly withdrawn will remain subject to the Offer, subject
to the right of a tendering Stockholder to withdraw such Stockholder's Shares.
See section 3. Under no circumstances will interest be paid on the purchase
price for tendered Shares, whether or not the Purchaser exercises his right to
extend the Offer.
The rights reserved by the Purchaser in the two preceding paragraphs are in
addition to the Purchaser's rights pursuant to section 14. There can be no
assurance that the Purchaser will exercise his right to extend the Offer. Any
extension, amendment, delay, waiver, or termination will be followed as
promptly as practicable by public announcement. In the case of an extension,
Rule 14e-1(d) under the Exchange Act requires that the announcement be issued
no later than the earlier of (i) 9:00 a.m. Eastern time, on the next business
day after the previously scheduled Expiration Date or (ii) the first opening
of the Nasdaq National Market on the next business day after the previously
scheduled Expiration Date, in accordance with the public announcement
requirements of Rule 14e-1 under the Exchange Act. Subject to applicable law
(including Rules 14d-4(d) and 14d-6(c) under the Exchange Act, which require
that any material change in the information published, sent, or given to
Stockholders in connection with the Offer be promptly disseminated to
Stockholders in a manner reasonably designed to inform Stockholders of such
change), and without limiting the manner in which the Purchaser may choose to
make any public announcement, the Purchaser will not have any obligation to
publish, advertise, or otherwise communicate any such public announcement
other than by making a release to PR Newswire. As used in this Offer to
Purchase, "business day" has the meaning set forth in Rule 14d-1 under the
Exchange Act.
If the Purchaser extends the Offer, is delayed in his acceptance for
payment, is delayed in making payment (whether before or after his acceptance
for payment of Shares), or is unable to pay for Shares pursuant to the Offer
for any reason, then, without prejudice to the Purchaser's rights under the
Offer, the Depositary may retain tendered Shares on behalf of the Purchaser,
and such Shares may not be withdrawn except to the extent tendering
Stockholders are entitled to withdrawal rights as described in section 3.
However, the ability of the Purchaser to delay the payment for Shares that the
Purchaser has accepted for payment is limited by Rule 14e-1(c) under the
Exchange Act, which requires that a bidder pay the consideration offered or
return the securities tendered by or on behalf of holders of securities
promptly after the termination or withdrawal of such bidder's offer.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
the Purchaser will extend the Offer and disseminate additional tender offer
materials to the extent required by Rules 14d-4(d), 14d-6(c), and 14e-1 under
the Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in the percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the changed terms. For information with
respect to a change in price or a change in the number of securities sought, a
minimum period of 10 business days is required to allow for adequate
dissemination to Stockholders and investor response. If the Purchaser should
decide to change the price offered or the number of Shares sought, such change
will be applicable to all Stockholders who hold any Shares.
The Offer to Purchase, Letter of Transmittal, and other relevant materials
will be mailed to record holders of Shares and will be furnished to brokers,
dealers, commercial banks, trust companies, and similar persons whose names,
or the names of whose nominees, appear on the Stockholder lists, or, if
applicable, who are listed
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as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of Shares, by the Purchaser
following receipt of such lists or listings from the Company.
Section 2. Procedures for Tendering Shares
Valid Tender. For a Stockholder validly to tender Shares pursuant to the
Offer, a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees, or in the
case of a book-entry transfer, an Agent's Message (as defined below), and any
other required documents, must be received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date, and either (i) certificates for tendered Shares ("Share
Certificates") must be received by the Depositary at one of such addresses or
(ii) such Shares must be delivered pursuant to the procedures for book-entry
transfer set forth below (and a Book-Entry Confirmation (as defined below)
must be received by the Depositary), in each case prior to the Expiration
Date. Alternatively, the tendering Stockholder must comply with the guaranteed
delivery procedures set forth below.
Book-Entry Transfer. The Depositary will establish accounts with respect to
the Shares at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Offer within two business days after the date
of this Offer to Purchase. Any financial institution that is a participant
("Participant") in the Book-Entry Transfer Facility's system may make book-
entry delivery of Shares by causing the Book-Entry Transfer Facility to
transfer such Shares into the Depositary's account in accordance with the
Book-Entry Transfer Facility's procedures for such transfer. However, although
delivery of Shares may be effected through book-entry transfer into the
Depositary's account at the Book-Entry Transfer Facility, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or an Agent's Message, and any other
required documents, must, in any case, be transmitted to, and received by, the
Depositary at one of its addresses set forth on the back cover of this Offer
to Purchase prior to the Expiration Date, or the tendering Stockholder must
comply with the guaranteed delivery procedures described below. The
confirmation of a book-entry transfer of Shares into the Depositary's account
at the Book-Entry Transfer Facility as described above is referred to herein
as a "Book-Entry Confirmation."
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility
has received an express acknowledgment from the Participant in the Book-Entry
Transfer Facility tendering the Shares that such Participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against such Participant.
Participants in the Book-Entry Transfer Facility's system may tender their
Shares in accordance with the Book-Entry Transfer Facility's Automated Tender
Offer Program ("ATOP"), to the extent it is available to such Participants for
the Shares they wish to tender. A Stockholder tendering through ATOP must
expressly acknowledge that the Stockholder has received and agreed to be bound
by the Letter of Transmittal and that the Letter of Transmittal may be
enforced against such Stockholder.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL,
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY
TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER.
SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL, AND ALL OTHER REQUIRED
DOCUMENTS WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY
CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
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Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if the Letter of Transmittal is signed by the registered holder
(which term, for purposes of this section, includes any Participant in the
Book-Entry Transfer Facility's system whose name appears on a security
position listing as the owner of the Shares) of Shares tendered therewith and
such registered holder has not completed either the "Special Delivery
Instructions" or the "Special Payment Instructions" on the Letter of
Transmittal. Likewise, no signature guarantee is required on the Letter of
Transmittal if such Shares are tendered for the account of a financial
institution (including most commercial banks, savings and loan associations,
and brokerage houses) that is a participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Guarantee
Program, or the Stock Exchange Medallion Program (an "Eligible Institution").
In all other cases, all signatures on the Letter of Transmittal must be
guaranteed by an Eligible Institution. See instructions 1 and 5 to the Letter
of Transmittal. If Share Certificates are registered in the name of a person
other than the signer of the Letter of Transmittal, or if payment is to be
made or Share Certificates for Shares not tendered or not accepted for payment
are to be returned to a person other than the registered holder of the Share
Certificates surrendered, the tendered Share Certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered holders appear on the Share Certificates, with
the signatures on the Share Certificates or stock powers guaranteed as
described above. See instructions 1 and 5 to the Letter of Transmittal.
Guaranteed Delivery. If a Stockholder desires to tender Shares pursuant to
the Offer and such Stockholder's Share Certificates are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach
Depositary prior to the Expiration Date, such Stockholder's tender may be
effected if all the following conditions are met:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by Depositary, as provided below, prior to the Expiration Date; and
(iii) the Share Certificates, representing all tendered Shares, in
proper form for transfer (or a Book-Entry Confirmation with respect to all
such Shares), together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof), with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message,
and any other required documents are received by the Depositary within
three trading days after the date of execution of such Notice of Guaranteed
Delivery. A "trading day" is any day on which the Nasdaq National Market is
open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission, or mail to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery and a representation that the
Stockholder on whose behalf the tender is being made is deemed to own the
Shares being tendered within the meaning of Rule 14e-4 promulgated under the
Exchange Act.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) Share Certificates for (or a timely Book-
Entry Confirmation with respect to) such Shares, (b) a Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any
required signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message, and (c) any other documents required by the Letter of
Transmittal. Accordingly, tendering Stockholders may be paid at different
times depending upon when Share Certificates or Book-Entry Confirmations with
respect to Shares are actually received by the Depositary. Under no
circumstances will interest be paid on the Offer Price of the Shares to be
paid by the Purchaser, regardless of any extension of the Offer or any delay
in making such payment.
It is a violation of section 14(e) of the Exchange Act and Rule 14e-4
promulgated thereunder for a person, directly or indirectly, to tender Shares
for his own account unless the person so tendering (i) has a net long position
equal to or greater than his amount of (x) Shares tendered or (y) other
securities immediately convertible
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into, exercisable, or exchangeable for the amount of Shares tendered and will
acquire such Shares for tender by conversion, exercise, or exchange of such
other securities and (ii) will cause such Shares to be delivered in accordance
with the terms of the Offer. Rule 14e-4 provides a similar restriction
applicable to the tender or guarantee of a tender on behalf of another person.
A tender of Shares made pursuant to any one of the procedures set forth
above will constitute the tendering Stockholder's acceptance of the terms and
conditions of the Offer, including the tendering Stockholder's representation
and warranty that (i) such Stockholder has a net long position in the Shares
being tendered within the meaning of Rule 14e-4 and (ii) the tender of such
Shares complies with Rule 14e-4.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering Stockholder
and Purchaser upon the terms and subject to the conditions of the Offer.
Appointment as Proxy. By executing a Letter of Transmittal as set forth
above, a tendering Stockholder irrevocably appoints designees of the Purchaser
as such Stockholder's attorneys-in-fact and proxies in the manner set forth in
the Letter of Transmittal, each with full power of substitution, to the full
extent of such Stockholder's rights with respect to the Shares tendered by
such Stockholder and accepted for payment by the Purchaser. All such proxies
will be irrevocable and considered coupled with an interest in the tendered
Shares. Such appointment will be effective when, and only to the extent that,
the Purchaser accepts such Shares for payment pursuant to the Offer. Upon such
acceptance for payment, all prior powers of attorney, proxies, and consents
given by such Stockholder with respect to such Shares will, without further
action, be revoked and no subsequent powers of attorney, proxies, consents, or
revocations may be given (and, if given, will not be deemed effective). The
designees of the Purchaser will thereby be empowered to exercise all voting
and other rights with respect to such Shares in respect of any annual,
special, adjourned, or postponed meeting of the Company's Stockholders,
actions by written consent in lieu of any such meeting, or otherwise, as they
in their sole discretion deem proper. The Purchaser reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon the Purchaser's acceptance for payment of such Shares, the Purchaser must
be able to exercise full voting, consent, and other rights with respect to
such Shares, including voting at any meeting of Stockholders. The foregoing
proxies are effective only upon acceptance for payment of Shares pursuant to
the Offer.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt), and acceptance for payment of any
tender of Shares will be determined by the Purchaser, in his sole discretion,
whose determination will be final and binding on all parties. The Purchaser
reserves the absolute right to reject any or all tenders determined by him not
to be in proper form or the acceptance for payment of or payment for which
may, in the opinion of the Purchaser's counsel, be unlawful. The Purchaser
also reserves the absolute right to waive any defect or irregularity in the
tender of any Shares of any particular Stockholder whether or not similar
defects or irregularities are waived in the case of other Stockholders. No
tender of Shares will be deemed to have been validly made until all defects or
irregularities relating thereto have been cured or waived. None of the
Purchaser, the Information Agent, the Depositary, nor any other person will be
under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give any such notification. The
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the instructions thereto) will be final and
binding on all parties.
Backup Withholding. In order to avoid "backup withholding" of federal
income tax on payments of cash pursuant to the Offer, a Stockholder
surrendering Shares in the Offer must, unless an exemption applies, provide
the Depositary with such Stockholder's correct taxpayer identification number
("TIN") on a Substitute Form W-9 and certify under penalties of perjury that
such TIN is correct and that such Stockholder is not subject to backup
withholding. If a Stockholder does not provide such Stockholder's correct TIN
or fails to provide the certifications described above, the Internal Revenue
Service may impose a penalty on such Stockholder and the payment of cash to
such Stockholder pursuant to the Offer may be subject to backup withholding of
31% of the amount of such payment. All Stockholders surrendering Shares
pursuant to the Offer should complete and sign
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the main signature form and the Substitute Form W-9 included as part of the
Letter of Transmittal to provide the information and certification necessary
to avoid backup withholding (unless an applicable exemption exists and is
proved in a manner satisfactory to the Purchaser and the Depositary).
Non-corporate foreign Stockholders should complete and sign the main
signature form and a Form W-8, Certificate of Foreign Status, a copy of which
may be obtained from the Depositary, in order to avoid backup withholding. See
instruction 10 to the Letter of Transmittal.
Section 3. Withdrawal Rights
Except as otherwise provided in this section 3, tenders of Shares pursuant
to the Offer are irrevocable. Shares tendered pursuant to the Offer may be
withdrawn pursuant to the procedures set forth below at any time prior to the
Expiration Date and, unless theretofore accepted for payment by the Purchaser
pursuant to the Offer, may also be withdrawn at any time after July 21, 2000.
For a withdrawal to be effective, a written, telegraphic, or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
its address set forth on the back cover of this Offer to Purchase and must
specify the name of the person having tendered the Shares to be withdrawn, the
number of Shares to be withdrawn, and the name of the registered holder of the
Shares to be withdrawn, if different from the name of the person who tendered
the Shares. If Share Certificates have been delivered or otherwise identified
to the Depositary, then, prior to the physical release of such Share
Certificates, the serial numbers shown on such Share Certificates must be
submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution, the signatures on the notice of withdrawal must be
guaranteed by an Eligible Institution. If Shares have been delivered pursuant
to the procedure for book-entry transfer as set forth in section 2, any notice
of withdrawal must also specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Shares and
otherwise comply with the Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares
properly withdrawn will thereafter be deemed not validly tendered for purposes
of the Offer. However, withdrawn Shares may be retendered by again following
one of the procedures described in section 2 at any time prior to the
Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in his sole
discretion, whose determination will be final and binding on all parties. None
of the Purchaser, the Information Agent, the Depositary, nor any other person
will be under any duty to give notification of any defects or irregularities
in any notice of withdrawal or incur any liability for failure to give any
such notification.
If the Purchaser extends the Offer or if the Purchaser is delayed in its
acceptance for payment of or payment (whether before or after its acceptance
for payment of Shares) for Shares or he is unable to pay for Shares pursuant
to the Offer for any reason, then, without prejudice to Purchaser's rights
under the Offer, the Depositary may retain tendered Shares on behalf of
Purchaser, and such Shares may not be withdrawn except to the extent tendering
Stockholders are entitled to withdrawal rights as described herein under this
section 3. However, the ability of Purchaser to delay the payment for Shares
that Purchaser has accepted for payment is limited by Rule 14e-1(c) under the
Exchange Act, which requires that a bidder pay the consideration offered or
return the securities deposited by or on behalf of stockholders promptly after
termination or withdrawal of such bidder's offer.
Section 4. Acceptance for Payment and Payment
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such
extension or amendment), the Purchaser will accept for payment and will pay
for all Shares validly tendered promptly after the Expiration Date. All
questions as to the satisfaction of such terms and conditions will be
determined by the Purchaser, in his sole discretion, whose determination will
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be final and binding on all parties. See sections 1 and 14. The Purchaser
expressly reserves the right, in his sole discretion, to delay acceptance for
payment of Shares in order to comply in whole or in part with any applicable
law, including, without limitation, the HSR Act. See section 15. Any such
delays will be effected in compliance with Rule 14e-1(c) under the Exchange
Act (relating to a bidder's obligation to pay for or return tendered
securities promptly after the termination or withdrawal of such bidder's
offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) Share
Certificates for (or a timely Book-Entry Confirmation with respect to) such
Shares, (ii) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in
the case of a book-entry transfer, an Agent's Message, and (iii) any other
documents required by the Letter of Transmittal. The per Share consideration
paid to any Stockholder pursuant to the Offer will be the highest per Share
consideration paid to any other Stockholder of the same class pursuant to the
Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares validly tendered to the Purchaser
as, if, and when the Purchaser gives oral or written notice to the Depositary
of the Purchaser's acceptance for payment of such Shares. Payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
Offer Price therefor with the Depositary, which will act as agent for validly
tendering Stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering Stockholders.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE OFFER PRICE OF THE
SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER
OR ANY DELAY IN MAKING SUCH PAYMENT.
Upon the deposit of funds with the Depositary for the purpose of making
payments to tendering Stockholders, the Purchaser's obligation to make such
payment shall be satisfied, and tendering Stockholders must thereafter look
solely to the Depositary for payment of amounts owed to them by reason of the
acceptance for payment of Shares pursuant to the Offer. The Purchaser will pay
any stock transfer taxes with respect to the transfer and sale to him or his
order pursuant to the Offer, except as otherwise provided in instruction 6 of
the Letter of Transmittal, as well as any charges and expenses of the
Information Agent and the Depositary.
If the Purchaser is delayed in his acceptance for payment of or payment for
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer, then, without prejudice to the Purchaser's rights under the Offer (but
subject to compliance with Rule 14e-1(c) under the Exchange Act), the
Depositary may, nevertheless, on behalf of the Purchaser, retain tendered
Shares, and such Shares may not be withdrawn except to the extent tendering
Stockholders are entitled to exercise, and duly exercise, withdrawal rights as
described in section 3.
If Purchaser includes a "subsequent offering period," Purchaser must accept
and promptly pay for all Shares tendered prior to the beginning of such
period. Rule 14d-11 under the Exchange Act provides that a bidder may, subject
to certain conditions, elect to provide a subsequent offering period of three
business days to 20 business days so long as, among other things, (i) the
offer remains open for a minimum of 20 business days and has expired, (ii) the
offer is for all outstanding shares, (iii) the bidder accepts and promptly
pays for all shares tendered during the offer, (iv) the bidder announces the
results of the offer, including the approximate number and percentage of
shares deposited no later than 9:00 a.m., Eastern time on the next business
day after the expiration date and immediately begins the subsequent offering
period, (v) the bidder immediately accepts and promptly pays for the shares as
they are tendered during the subsequent offering period, and (vi) the bidder
pays the offer price for all shares tendered in the subsequent offering
period. A subsequent offering period, if one is included by the Purchaser,
would not be an extension of the Offer but would be an additional period of
time, following the expiration of the Offer, in which stockholders may tender
Shares not tendered in the Offer.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, Share Certificates for any such unpurchased Shares will be returned,
without expense to the tendering Stockholder (or, in the case of Shares
12
<PAGE>
delivered by book-entry transfer of such Shares into the Depositary's account
at the Book-Entry Transfer Facility pursuant to the procedure set forth in
section 2, such Shares will be credited to an account maintained at the Book-
Entry Transfer Facility), as promptly as practicable after the expiration,
termination, or withdrawal of the Offer.
The Purchaser reserves the right to transfer or assign, in whole at any
time or from time-to-time in part, to any affiliate, the right to purchase
Shares tendered pursuant to the Offer, but any such transfer or assignment
will not relieve the Purchaser of his obligations under the Offer and will in
no way prejudice the rights of tendering Stockholders to receive payment for
Shares validly tendered and accepted for payment pursuant to the Offer.
Section 5. Certain Federal Income Tax Consequences
The receipt of cash pursuant to the Offer will be a taxable transaction for
federal income tax purposes under the Internal Revenue Code of 1986, as
amended, and may also be a taxable transaction under applicable state, local,
or foreign income or other tax laws. Generally, for federal income tax
purposes, a tendering Stockholder will recognize gain or loss equal to the
difference between the amount of cash received by the Stockholder pursuant to
the Offer and the aggregate tax basis in the Shares tendered by the
Stockholder and purchased pursuant to the Offer. Gain or loss will be
calculated separately for each block of Shares tendered and purchased pursuant
to the Offer.
If Shares are held by a Stockholder as capital assets, gain or loss
recognized by the Stockholder will be capital gain or loss, which, in the case
of non-corporate Stockholders, generally will be long-term capital gain or
loss subject to a maximum federal income tax rate of 20% if the Stockholder's
holding period for the Shares exceeds one year. Special rules (and generally
lower maximum rates) apply for non-corporate Stockholders in lower tax
brackets.
A Stockholder that tenders Shares pursuant to the Offer may be subject to
backup withholding at a rate of 31% unless such Stockholder provides a TIN and
certifies under penalties of perjury that such TIN is correct or properly
certifies that such Stockholder is awaiting a TIN, or unless an exemption
applies. See "Backup Withholding" under section 2 hereof and instruction 10 in
the Letter of Transmittal.
THE FOREGOING DISCUSSION IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY
NOT BE APPLICABLE WITH RESPECT TO SHARES RECEIVED AS COMPENSATION OR WITH
RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX TREATMENT UNDER
THE CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES, TAX-EXEMPT
ORGANIZATIONS, PASS-THROUGH ENTITIES AND INVESTORS IN SUCH ENTITIES, AND
FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A HOLDER OF SHARES IN LIGHT OF
INDIVIDUAL CIRCUMSTANCES. STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING THE
APPLICATION AND EFFECT OF THE ALTERNATIVE MINIMUM TAX AND ANY STATE, LOCAL, OR
FOREIGN INCOME AND OTHER TAX LAWS) OF THE OFFER.
13
<PAGE>
Section 6. Price Range of Shares; Dividends on the Shares
The Class A Common Shares are included for trading on the Nasdaq National
Market under the symbol "SIMN." The Class A Common Shares began trading on the
Nasdaq National Market on November 17, 1995. The Class B Common Shares are not
listed on a national securities exchange. The following table sets forth the
high and low sales prices per Class A Common Share, as reported by the Nasdaq
National Market, for the periods indicated.
<TABLE>
<CAPTION>
High Low
--------- ---------
<S> <C> <C>
Fiscal Year 1998:
First Quarter....................................... $24 3/4 $21 3/4
Second Quarter...................................... 24 13 3/8
Third Quarter....................................... 15 5/8 6 3/8
Fourth Quarter...................................... 6 7/8 4 7/8
Fiscal Year 1999:
First Quarter....................................... $ 6 13/16 $ 4 3/8
Second Quarter...................................... 7 1/2 4 11/16
Third Quarter....................................... 6 1/2 4 3/4
Fourth Quarter...................................... 5 3/4 4
Fiscal Year 2000:
First Quarter....................................... $ 6 3/4 $ 4 1/2
Second Quarter...................................... $ 6 1/8 $ 4 29/64
Third Quarter (through May 22, 2000)................ $ 5 3/4 $ 4 7/8
</TABLE>
On May 22, 2000, the last full trading day prior to the commencement and
first public announcement of the Offer, the last reported sale price of the
Class A Common Shares was $5.66. The Company's filings with the Commission
indicate that it did not pay any dividends on the Shares during the above
periods. Based on publicly available information the Purchaser believes that
the Company's ability to pay dividends is restricted by its credit agreement
with U.S. Bank, n.a.
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE CLASS A
COMMON SHARES.
Section 7. Certain Information Concerning the Company
According to its filings with the Commission, the Company is a Nevada
corporation with its principal offices at 5175 West 2100 South, West Valley
City, Utah 84120. According to the Company 10-K, the Company is a truckload
carrier that specializes in temperature-controlled transportation services for
major shippers in the food industry. The Company operates nationwide and in
eight Canadian provinces from its headquarters in Salt Lake City, Utah, and
terminals in Phoenix, Arizona; Fontana, California; Atlanta, Georgia; and
Katy, Texas. For the fiscal year ended September 30, 1999, the Company
generated $209.1 million in revenue and had a net loss of $3.2 million.
Selected Financial Information. Following is certain selected consolidated
financial information with respect to the Company and its subsidiary excerpted
from the information contained in the Company 10-K and the Second Quarter 10-
Q. More comprehensive financial information is included in the Company 10-K,
the Second Quarter 10-Q, and other documents filed by the Company with the
Commission. The following summary is qualified in its entirety by reference to
such information. The Company 10-K, the Second Quarter 10-Q, and such other
documents should be available for inspection and copies thereof should be
obtainable in the manner set forth below under "Available Information."
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<PAGE>
SIMON TRANSPORTATION SERVICES INC.
SELECTED FINANCIAL INFORMATION
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months
Fiscal Years Ended Ended
September 30, March 31,
-------------------------- ----------------
1997 1998 1999 1999 2000
-------- -------- -------- ------- -------
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Operating revenue............... $155,296 $193,507 $209,143 $49,271 $55,159
Operating expenses.............. 143,552 191,372 212,988 51,987 54,614
Operating earnings (loss)....... 11,744 2,135 (3,845) (2,716) 545
Net earnings (loss)............. 7,779 338 (3,233) (1,926) 78
Diluted net earnings (loss) per
common share................... 1.33 0.05 (0.53) (0.32) 0.01
Balance Sheet Data:
Net property and equipment...... $ 71,154 $ 64,618 $ 57,648 $57,648 $54,254
Total assets.................... 107,704 100,169 96,730 96,730 92,874
Long-term debt and capitalized
leases, including current
portion........................ 32,791 21,206 21,623 21,623 17,555
Stockholders' equity............ 59,849 59,699 55,944 55,944 55,883
</TABLE>
Available Information. The Company is subject to the information and
reporting requirements of the Exchange Act and, in accordance therewith, is
obligated to file reports and other information with the Commission relating
to its business, financial condition, and other matters. Information, as of
particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal holders of the
Company's securities, any material interests of such persons in transactions
with the Company, and other matters is required to be disclosed in proxy
statements, distributed to the Stockholders and filed with the Commission.
Such reports, proxy statements and other information should be available for
inspection at the public reference room at the SEC's offices at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and also should be
available for inspection and copying at the regional offices of the SEC
located at Seven World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies may be obtained by mail, upon payment of the SEC's customary charges,
by writing to its principal office at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549 and can be obtained electronically on the SEC's World
Wide Web site at http://www.sec.gov. Such materials should also be available
for inspection at the office of the Nasdaq Stock Market, Inc., 8513 Key West
Avenue, Rockville, Maryland 20850.
Company Information. The information concerning the Company contained in
this Offer to Purchase has been derived from publicly available information
filed with the Commission. Although Purchaser does not have any knowledge that
any such information is untrue, the Purchaser takes no responsibility for the
accuracy or completeness of such information or for any failure by the Company
to disclose events that may have occurred and may affect the significance or
accuracy of any such information.
Section 8. Certain Information Concerning the Purchaser
The Purchaser is a United States citizen with a business address of 2200
South 75th Avenue, Phoenix, Arizona 85043. The Purchaser's present principal
occupation is serving as Chairman of the Board, President, and Chief Executive
Officer of Swift, the third largest publicly-held truckload carrier in the
United States. Swift has regional operations throughout the continental United
States. Purchaser has served in that capacity since 1984. The business address
of Swift is 2200 South 75th Avenue, Phoenix, Arizona 85043, and its telephone
number is (800) 800-2200. Purchaser also owns a controlling interest in, and
serves as Chairman of the Board of certain other business entities, including:
Central Freight Lines, Inc., a less-than-truckload carrier based in Waco,
Texas; SME Industries, Inc., a steel fabrication and erection company based in
Salt Lake City, Utah; and Interstate Leasing, Inc., an equipment leasing
company based in Phoenix, Arizona. Purchaser is not an employee of any of such
entities.
15
<PAGE>
During the past five years, the Purchaser has not been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) and
has not been a party to any judicial or administrative proceeding that
resulted in a judgment, decree, or final order enjoining him from future
violations of, or prohibiting activities subject to, federal or state
securities laws, or a finding of any violation of federal or state securities
laws.
The Purchaser and his associates, including a family trust and his
majority-owned corporation, SME Industries, Inc. (collectively with the
Purchaser, the "Purchaser Entities"), are deemed to beneficially own 657,650,
or approximately 12.7%, of the Class A Common Shares. See Schedule I to this
Offer to Purchase. None of the Purchaser Entities has effected any transaction
in any equity security of the Company during the past 60 days.
Except as set forth in this Offer to Purchase, none of the Purchaser
Entities has any contract, arrangement, understanding, or relationship with
any other person with respect to any securities of the Company, including,
without limitation, any contract, arrangement, understanding, or relationship
concerning the transfer or the voting of any securities of the Company, joint
ventures, loan or option arrangements, puts or calls, guaranties of loans,
guaranties against loss, or the giving or withholding of proxies. Although
there is no stated arrangement, the Purchaser expects that the Nominees and
the Purchaser Entities will not tender Shares in the Offer and will execute
consents in favor of the Purchaser's proposals contained in the Consent
Solicitation. Except as set forth in this Offer to Purchase, none of the
Purchaser Entities has had transactions with the Company or any of its
executive officers, directors, or affiliates that would require reporting
under the rules of the Commission.
Except as set forth in this Offer to Purchase, there have been no contacts,
negotiations, or transactions between the Purchaser Entities or the Nominees
on the one hand, and the Company or its executive officers, directors, or
affiliates, on the other hand, concerning a merger, consolidation or
acquisition, tender offer, or other acquisition of securities, election of
directors, or a sale or other transfer of a material amount of assets that
would require reporting under the rules of the Commission.
Section 9. Background of the Offer
The Purchaser has known Richard D. Simon, the Chairman and Chief Executive
Officer of the Company, as well as the Company's other executive officers, for
many years. From time-to-time prior to the Company's November 1995 initial
public offering, the Purchaser and Mr. Simon informally discussed the
possibility of the Purchaser or Swift acquiring the Company, but formal
negotiations never developed. The Purchaser generally has been aware of the
Company's financial performance since its public offering.
The Purchaser Entities frequently invest in shares of transportation
companies. The Purchaser Entities began accumulating Class A Common Shares in
December 1998 through open market purchases. On August 9, 1999, the Purchaser
was informed by an individual who was acquainted with both the Purchaser and
Richard D. Simon that Mr. Simon might consider an offer to purchase all of his
Shares or all of the Shares of the Company. The Purchaser indicated some
interest, but was informed on August 11 that, after further consideration, Mr.
Simon was not interested in selling.
The Purchaser Entities continued to accumulate Class A Common Shares. By
August 16, 1999, the Purchaser Entities beneficially owned approximately
533,500 of the Company's Class A Common Shares and filed an initial Schedule
13D.
The Purchaser Entities continued to accumulate Class A Common Shares. In
October 1999, the Purchaser contacted Mr. Simon to discuss the possibility of
Purchaser acquiring the stock owned by the Simon family and assuming control
of the Board of Directors. The Purchaser and Mr. Simon met to discuss issues
generally impacting the Company and the industry, such as equipment values and
increases in fuel prices and driver wages. They also discussed the Company's
recent history of losses and prospects for turning around the Company's
performance. They discussed the still-pending class-action securities
litigation against the Company and certain of its officers and directors, and
they also discussed the Purchaser's proposals for management and other
personnel. At the end of the discussion Mr. Simon indicated that they were
still apart on a number of issues, including valuation. On October 29, 1999,
the Purchaser wrote Mr. Simon, offering to acquire the approximately 1,213,909
Shares owned by management for $7.00 per share. Mr. Simon declined the offer.
16
<PAGE>
By November 10, 1999, the Purchaser Entities had accumulated 687,500 Class
A Common Shares, representing slightly less than 10% of the total voting power
of all Class A and Class B Common Shares. The Purchaser offered to increase
the number of Shares subject to his offer to 3,575,000 and discussions
resumed. The Purchaser Entities amended their Schedule 13D filing to indicate
that the Purchaser and the Company were in negotiations regarding a
transaction for control. The Purchaser Entities have not acquired any
additional shares since November 1999.
On November 29, 1999, the Purchaser delivered a letter proposing terms of a
transaction to the Company's Board of Directors. In general, the proposed
transaction was to acquire 3,575,000 of the Shares at a price of $6.80 per
share. The proposed offer was subject to a number of conditions, including the
sale of up to 750,000 Shares of Class B Common Stock by Mr. Simon, execution
of employment and noncompetition agreements, and the execution of a tender
agreement. The tender agreement was intended to address certain procedural
aspects of a proposed tender offer, gain the Company's support for the offer,
waive the application of all anti-takeover statutes, and provide for the
resignation of the existing directors, other than Richard D. Simon, and the
appointment of Purchaser's nominees. After several telephone discussions
between representatives of the Purchaser and the Company concerning the
proposed terms, the Company's Board of Directors rejected the proposal and
issued a press release to that effect on December 7, 1999.
In late 1999 and early 2000, the Purchaser met with members of the
Company's management team to attempt to re-start negotiations. The Purchaser
raised his offer to $7.00 per Share. Those meetings failed to produce an
agreement. The Company's Board of Directors indicated that the Company would
not agree to certain conditions contained in the proposal and that it did not
wish to be bound by any agreement. The Board also stated its desire that the
Purchaser tender for all outstanding Shares rather than for control.
On March 6, 2000, the Purchaser delivered a letter to the Company's Board
of Directors proposing a tender offer for all Shares at $7.00 per share. The
offer was conditioned on Mr. Simon agreeing to sell his Class B Common Shares
or convert them to Class A Common Shares, the appointment of Purchaser's
nominees to the Board of Directors, resignation of all current directors
except Richard D. Simon, and certain other conditions. The Company indicated
that it would not consider the proposal because it contained a condition
outside the Company's control, namely the condition that Mr. Simon sell or
convert his Class B Common Shares.
On April 18, 2000, the Purchaser met with the Company's entire Board of
Directors to urge them, at a minimum, to waive the applicability of all anti-
takeover statutes and allow the Stockholders to consider a tender offer at
$7.00 per Share by the Purchaser. At the meeting, the Purchaser also advised
the Board of Directors of his intention to recruit as a new Chief Executive
Officer, Jon Isaacson. Mr. Isaacson currently serves as Vice President of East
Coast Operations for Swift. He has been employed by Swift for 12 years and has
expressed a desire to return to Salt Lake City. The Purchaser indicated that
it was his present intention to retain existing management below the level of
Chief Executive Officer.
By letter dated April 19, 2000, the Company's Board of Directors offered to
waive all anti-takeover statutes and invited the Purchaser to "launch a tender
offer for whatever other shares may be available at $7.00." The letter
indicated that members of management did not wish to sell their Shares at that
time.
Between April 17, 2000, and May 2, 2000, the Purchaser attempted to
negotiate an agreement with the Company's Board of Directors that would result
in certain current directors resigning and the Purchaser and his designees
being appointed as a majority of the Company's directors. These negotiations
proved unsuccessful.
On May 5, 2000, the Board of Directors approved the Purchaser as an
"interested stockholder" under Nevada's statute concerning business
combinations with interested stockholders and waived the applicability of all
anti-takeover statutes. The waiver is subject to the following conditions
occurring before August 31, 2000: the Purchaser commencing a tender offer at
$7.00 per share, completing the offer, purchasing the tendered shares in
accordance with the terms of the offer, and, together with persons affiliated
with him, acquiring shares with a majority of the total voting power. The
Board of Directors also agreed to assist the Purchaser in obtaining
Stockholder mailing lists to facilitate the Offer.
17
<PAGE>
On May 22, 2000, the Company delivered the stockholder list to the
Purchaser. On May 23, 2000, the Purchaser filed his consent solicitation
materials with the Commission and commenced the Offer.
Section 10. Purpose of the Offer; Plans for the Company
The purpose of the Offer is to enable the Purchaser to acquire control of
the Company. During the pendency of, and initially following the consummation
of the Offer, the Purchaser intends to seek additional information about the
Company and to evaluate the Company's business and operations. The Purchaser
intends to review such information as part of a comprehensive review of the
Company's business, operations, capitalization, and management with a view
toward improving the Company's potential.
Following the consummation of the Offer, the Purchaser intends for the
Company to appoint Jon Isaacson as Chief Executive Officer. Mr. Isaacson
currently serves as Vice President of East Coast Operations for Swift. He
formerly lived in Salt Lake City and has expressed a desire to return. The
Purchaser currently does not have any other plans for changes in management.
From time-to-time after consummation of the Offer, the Purchaser may seek
to increase the Company's growth, including through one or more mergers,
acquisitions, or other business combinations. However, except as stated
herein, the Purchaser has no present plans or proposals that would result in
an extraordinary corporate transaction, such as a merger, consolidation,
reorganization, liquidation, or sale or transfer of a material amount of
assets, involving the Company or any of its subsidiaries, or any material
changes in the Company's present capitalization, dividend policy, employee
benefit plans, corporate structure, or business or any material changes or
reductions in the composition of its management or personnel.
Following the consummation of the Offer, it is the Purchaser's preference
that the Class A Common Shares continue to be listed on the Nasdaq National
Market. However, if the number of Shares held by Stockholders, other than
Stockholders affiliated with the Purchaser and those who are part of the
current management of the Company, are less than the requirements necessary to
be traded on the Nasdaq National Market or are not sufficient, as determined
by the Purchaser in his sole discretion, to provide sufficient justification
for the Company to continue to meet the reporting and disclosure obligations
of the Nasdaq National Market and the Commission, the Purchaser may propose
corporate action to take the Company private. In that instance, holders of
Shares other than the Purchaser and persons affiliated with him would receive
cash for their Shares and no longer be Stockholders.
If, after making the evaluation discussed above, the Purchaser decides to
propose a transaction to take the Company private, the transaction could take
one of several forms. If the Purchaser (individually or together with persons
affiliated with him) acquires Shares which, together with Shares already
beneficially owned by him (and such other persons, if applicable), represent
at least 90 percent of each class of the outstanding Shares, and such persons
contribute the Shares to a holding corporation, the Purchaser (together with
such persons, if applicable) could cause a "short-form" merger without
approval of the Stockholders or the Company's Board of Directors pursuant to
Section 92A.180 of the Nevada General Corporate Law (the "NGCL"). In a short-
form merger, the Company would be merged with and into a corporation
controlled by the Purchaser (and such other persons, if applicable), and the
non-tendering Stockholders would receive cash as consideration for their
Shares. If the Purchaser (and such other persons, if applicable) acquires a
number of Shares sufficient to satisfy the Minimum Tender Condition, but
which, together with the Shares beneficially owned by him (and such other
persons, if applicable), are not sufficient to effect a "short-form" merger,
the Purchaser could cause the Company to engage in a "long-form" merger. Under
Section 92A.120 of the NGCL, this would require approval of the Company's
Board of Directors and at least a majority of the total voting power of the
outstanding Shares. In a long-form merger, like a short-form merger, the
Company would be merged with a corporation controlled by the Purchaser (and
such other persons, if applicable), and the non-tendering Stockholders would
receive cash as consideration for their Shares.
The per Share cash consideration received by non-tendering Stockholders in
a going-private-transaction, whether long-form merger or short-form merger,
would be the fair market value of the Shares. The Purchaser believes that if a
going-private-transaction is proposed promptly after the Offer is consummated,
the per Share cash consideration received by non-tendering Stockholders would
be equal to the Offer Price.
18
<PAGE>
The Purchaser also could propose that the Board of Directors approve a
reverse stock split pursuant to Section 78.207 of the NGCL. In a reverse stock
split each outstanding Share would be converted into a fraction of a Share.
Holders of fewer Shares than the number required to hold at least one full
Share after the reverse stock split would receive cash rather than a
fractional Share. This action would require approval of the Stockholders if
the number of shares would be reduced by ten percent (10%) or more.
Holders of Shares do not have dissenters' rights of appraisal as a result
of the Offer. If the Purchaser decides to take the Company private, however,
Stockholders may be entitled to a court appraisal of the fair value of their
Shares, together with accrued interest, if any, to be paid. In determining
such value, a court may consider all relevant factors, including market value
and, among other things, asset values and earning capacity. The value so
determined may be more or less than the consideration to be paid in the Offer
or the proposed going-private transaction. If the Purchaser proposes a going-
private transaction and the going-private transaction takes the form of a
merger, any dissenters' rights of appraisal to which Stockholders might be
entitled may be limited, pursuant to Section 92A.390 of the NGCL, to the
extent the class of Shares they hold is publicly traded.
Any proposed going-private transaction would have to comply with applicable
federal law operative at the time of its consummation. Rule 13e-3 under the
Exchange Act is applicable to certain going-private transactions. Purchaser
does not believe that Rule 13e-3 would be applicable to a proposal to take the
Company private unless the transaction is consummated more than one year after
the termination of the Offer, or the form, effect, or terms of the transaction
differ substantially from those disclosed herein. If applicable, Rule 13e-3
would require, among other things, that certain financial information
concerning the Company and certain information relating to the fairness of a
proposed transaction and the consideration offered to minority stockholders be
filed with the SEC and disclosed to minority Stockholders prior to
consummation of such proposed transaction.
On May 23, 2000, the Purchaser filed the preliminary Consent Solicitation
with the Commission, which, in definitive form, will be mailed to Stockholders
after completion of review by the staff of the Commission and receipt from the
Company of a current Stockholder list. The Consent Solicitation requests
Stockholders to, among other things, repeal the Company's existing bylaws,
adopt new bylaws, and fill the new director positions created by the new
bylaws with the following persons nominated by the Purchaser, who together
would constitute a majority of the entire Board of Directors:
Jerry Moyes Craig P. Moyes
Earl H. Scudder Jeff L. Archibald
Gordon K. Holladay Patrice Archibald
Jon Isaacson Ronald G. Moyes
Vickie L. Moyes Krista B. Moyes
Michael J. Moyes Buddy Favero
Laura Favero
(the "Nominees"). If the Nominees are elected, consistent with their fiduciary
duties to the Company and its Stockholders under applicable law, the Purchaser
expects that the Nominees will consider whether to, and methods by which it
may be possible for them to, take such actions as may be required to permit
the prompt consummation of the Offer.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF PROXIES OR
CONSENTS. ANY SUCH SOLICITATION WILL BE MADE PURSUANT TO SEPARATE PROXY OR
CONSENT SOLICITATION MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION
14(A) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND THE RULES AND
REGULATIONS PROMULGATED THEREUNDER.
Section 11. Source and Amount of Funds
The Purchaser estimates that the total amount of funds required to purchase
all of the outstanding Shares (other than those deemed to be beneficially
owned by Purchaser and the Nominees) pursuant to the Offer and to pay fees and
expenses related to the Offer will be approximately $39,000,000. A portion of
the funds to pay for
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Shares accepted in the Offer and fees and expenses related to the transaction
will come from the Purchaser's $25,000,000 line of credit with Zions First
National Bank (the "Loan"). The Loan will bear interest at a rate equal to the
bank's prime rate in effect from time-to-time minus one-quarter point. The
Loan has a maturity date of December 31, 2001, and requires that the
outstanding principal balance be reduced to no more than $15,000,000 by
October 1, 2000. The Purchaser will pledge Shares acquired pursuant to the
Offer as collateral for the Loan. The Loan is cross-defaulted with, and
secured by collateral for other, loans made by Zions First National Bank to
Purchaser, the Purchaser Entities, and certain other entities controlled by
the Purchaser.
Section 12. Certain Effects of the Offer; Market for the Class A Common
Shares; Exchange Act Registration; Margin Regulations
Market for Shares. The purchase of Shares by Purchaser pursuant to the
Offer will reduce the number of Shares that might otherwise trade publicly and
may reduce the number of holders of Shares, which could adversely affect the
liquidity and market value of the remaining Shares held by the public.
Purchaser cannot predict whether the reduction in the number of Shares that
might otherwise trade publicly would have an adverse or beneficial effect on
the market price for, or marketability of, the Shares or whether such
reduction would cause future market prices to be greater or less than the per
Share amount being offered in the Offer.
Stock Quotation. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the standards for continued inclusion
on the Nasdaq National Market. If, as a result of the purchase of Shares
pursuant to the Offer, the Shares no longer meet the criteria for continued
inclusion on the Nasdaq National Market, the market for the Shares could be
adversely affected. According to the Nasdaq National Market's published
guidelines, the Shares would not be eligible for continued listing if, among
other things, the number of Shares publicly-held fall below 750,000, the
number of beneficial holders of Shares falls below 400 (round lot holders) or
the aggregate market value of such publicly-held Shares does not exceed
$5,000,000. If the Shares were no longer eligible for inclusion in the Nasdaq
National Market, they might nevertheless continue to be included in the
Nasdaq's SmallCap Market unless, among other things, the public float is less
than 500,000 Shares or there are fewer than 300 beneficial holders (round lot
holders) in total, or the market value of the public float is less than
$1,000,000.
Margin Regulations. The Shares are presently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve Board (the
"Federal Reserve Board"), which has the effect, among other things, of
allowing brokers to extend credit on the collateral of such Shares. Depending
upon factors similar to those described above regarding market quotations, the
Shares may no longer constitute "margin securities" for the purposes of the
Federal Reserve Board's margin regulations, in which event the Shares would be
ineligible as collateral for margin loans made by brokers.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. This registration may be terminated upon application by the
Company to the Commission if the Shares are not listed on a national
securities exchange and there are fewer than 300 record holders of the Shares.
The termination of registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company
to holders of Shares and to the Commission and would make certain provisions
of the Exchange Act, such as the short-swing profit recovery provisions of
section 16(b), the requirement to furnish a proxy statement in connection with
Stockholders' meetings pursuant to section 14(a), and the requirements of Rule
13e-3 under the Exchange Act with respect to "going private" transactions, no
longer applicable to the Shares. In addition, "affiliates" of the Company and
persons holding "restricted securities" of the Company may be deprived of the
ability to dispose of these securities pursuant to Rule 144 under the
Securities Act of 1933, as amended (the "Securities Act"). If registration of
the Shares under the Exchange Act were terminated, the Shares would no longer
be eligible for trading on the Nasdaq National Market.
Credit Agreements. The Company's $20 million revolving credit and security
agreement with U.S. Bank, n.a. filed with the Commission contains an event of
default if there is a substantial change in the senior management of the
Company. It is also a condition to advances that the Company's representation
concerning
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stock ownership (which was made as of September 28, 1999) continues to be
correct. The Company's headquarters loan with U.S. Bank is cross-defaulted
with the credit and security agreement. The Purchaser does not know whether
U.S. Bank would deem either completing the Offer or any change in management
an event of default. The Purchaser will seek to have U.S. Bank waive any
potential events of default or will seek replacement financing. There can be
no assurance of the success or timing of these efforts.
Change-in-Control Payments; Stock Options. According to the Most Recent
Proxy, the Company does not have any employment agreements, severance
agreements, or change-in-control agreements with its executive officers.
However, under certain circumstances involving a change-in-control, the stock
options held by executive officers and other personnel may become immediately
vested and exercisable, either with or without further action of the Board of
Directors.
Section 13. Dividends and Distributions
If, on or after the date of this Offer to Purchase, the Company should (i)
split, combine or otherwise change the Shares or its capitalization, (ii)
acquire currently outstanding Shares or otherwise cause a reduction in the
number of outstanding Shares, or (iii) issue or sell additional Shares, shares
of any other class of capital stock, other voting securities, or any
securities convertible into, or rights, warrants, or options, to acquire, any
of the foregoing, other than Shares issued pursuant to the exercise of stock
options outstanding as of the date of the Offer to Purchase, then, subject to
the provisions of section 14 below, Purchaser, in his sole discretion, may
make such adjustments as he deems appropriate in the Offer Price to be paid
pursuant to the Offer and other terms of the Offer, including, without
limitation, the number or type of securities offered to be purchased.
If, on or after the date of this Offer to Purchase, the Company should
declare or pay any cash dividend on the Shares or other distribution on the
Shares, or issue with respect to the Shares any additional Shares, shares of
any other class of capital stock, other voting securities, or any securities
convertible into, or rights, warrants, or options, conditional or otherwise,
to acquire, any of the foregoing, payable or distributable to holders of
record on a date prior to the transfer of the Shares purchased pursuant to the
Offer to Purchaser or his nominee or transferee on the Company's stock
transfer records, then, subject to the provisions of section 14 below, (i) the
Offer Price may, in the sole discretion of Purchaser, be reduced by the amount
of any such cash dividend or cash distribution and (ii) the whole of any such
non-cash dividend, distribution, or issuance to be received by the tendering
Stockholders will (a) be received and held by the tendering Stockholders for
the account of Purchaser and will be required to be promptly remitted and
transferred by each tendering Stockholder to the Depositary for the account of
Purchaser, accompanied by appropriate documentation of transfer, or (b) at the
direction of Purchaser, be exercised for the benefit of Purchaser, in which
case the proceeds of such exercise will promptly be remitted to Purchaser.
Pending such remittance and subject to applicable law, Purchaser will be
entitled to all rights and privileges as owner of any such noncash dividend,
distribution, issuance, or proceeds and may withhold the entire Offer Price or
deduct from the Offer Price the amount or value thereof, as determined by
Purchaser in his sole discretion.
Section 14. Certain Conditions of the Offer
Notwithstanding any other provisions of the Offer, in addition to (and not
in limitation of) the Purchaser's right to extend and amend the Offer at any
time in his sole discretion, the Purchaser shall not be required to accept for
payment or, subject to any applicable rules and regulations of the Commission,
including Rule 14e-1(c) under the Exchange Act, pay for, and may delay the
acceptance for payment of or, subject to the regulations referred to above,
the payment for, any tendered Shares, and may extend, terminate, or amend the
Offer as to any Shares not previously accepted for payment if the Minimum
Tender Condition, the Simon Tender Condition, the Board of Directors
Condition, the Due Diligence Condition, the Anti-Takeover Condition, or the
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Antitrust Condition has not been satisfied or, on or after the date of this
Offer to Purchase and at or before the Expiration Date, any of the following
events shall occur:
(i) there shall be threatened, instituted, or pending any action,
proceeding, or application before any court, government, governmental
authority, other regulatory or administrative agency, or commission,
domestic or foreign, (a) which challenges the acquisition by Purchaser of
the Shares, seeks to restrain, delay, or prohibit the consummation of the
Offer, seeks to obtain any material damages, which otherwise directly or
indirectly relates to the Offer, or which seeks to impose voting,
procedural, price, or other requirements, in addition to those required by
the federal securities laws or the NGCL (each as in effect on the date of
this Offer to Purchase), (b) which seeks to prohibit or impose material
limitations on Purchaser's acquisition, ownership, or operation of all or
any portion of his or the Company's business or assets (including the
business or assets of their respective affiliates and subsidiaries) or of
the Shares (including, without limitation, the right to vote the Shares
purchased, on an equal basis with all other Shares, on all matters
presented to the Stockholders of the Company), (c) which in the sole
judgment of Purchaser is reasonably likely to materially adversely affect
the Company or Purchaser, or any of their respective affiliates or
subsidiaries (such an effect, an "Adverse Effect"), or result in a material
diminution in the value of the Shares or the benefits expected to be
derived by Purchaser as a result of the Offer (such a diminution, a
"Diminution in Value"); or (d) which seeks to impose any condition to the
Offer unacceptable to Purchaser;
(ii) any regulation or order or injunction shall be sought, proposed,
enacted, promulgated, entered, enforced, or deemed to become applicable to
the Offer that might, directly or indirectly, result in any of the
consequences referred to in clauses (a) through (d) of paragraph (i) above;
(iii) any change (or any condition, event, or development involving a
prospective change) shall have occurred that has or in the sole judgment of
Purchaser is reasonably likely to have a materially adverse effect on the
business, properties, assets, liabilities, capitalization, stockholders'
equity, financial condition, operations, licenses, franchises, results of
operations, or prospects of the Company or any of its subsidiaries;
(iv) Purchaser shall have become aware of any fact that has, or in the
sole judgment of Purchaser is reasonably likely to have, an Adverse Effect,
or, in the sole judgment of Purchaser is reasonably likely to result in a
Diminution in Value;
(v) there shall have occurred (a) any general suspension of, or
limitation on times or prices for, trading in securities on any national
securities exchange or in the over-the-counter market, (b) a declaration of
a banking moratorium or any suspension of payments in respect of banks in
the United States, (c) the outbreak or escalation of a war, armed
hostilities, or other international or national calamity directly or
indirectly involving the United States, (d) any limitation (whether or not
mandatory) by any governmental authority on, or any other event which might
affect the extension of credit by banks or other lending institutions, (e)
any suspension of or limitation (whether or not mandatory) on the currency
exchange markets or the imposition of, or material changes in, any currency
or exchange control laws in the United States or abroad, (f) a general
decline in the market prices of securities of publicly-traded United States
companies generally or in the trucking industry specifically, or (g) in the
case of any of the foregoing existing at the time of commencement of the
Offer, a material acceleration or worsening thereof;
(vi) the Company or any subsidiary of the Company shall have (a) issued,
distributed, pledged, sold, or authorized, or proposed the issuance of or
sale, distribution, or pledge to any person of (1) any shares of its
capital stock, other than sales or issuances pursuant to employee stock
options disclosed in the Most Recent Proxy (in accordance with the then-
existing terms thereof), of any class (including, without limitation, the
Shares) or securities convertible into or exchangeable for any such shares
of capital stock, or any rights, warrants, or options to acquire any such
shares or convertible securities or any other securities of the Company,
(2) any other securities in respect of, in lieu of, or in substitution for
Shares outstanding on the date of commencement of this Offer (in accordance
with the then-existing terms thereof), or (3) any debt securities or any
securities convertible into or exchangeable for debt securities or any
rights, warrants, or options entitling the holder thereof to purchase or
otherwise acquire any debt securities, (b) purchased or otherwise acquired,
or proposed or offered to purchase or otherwise acquire, any outstanding
Shares or other securities, (c) proposed, recommended, authorized,
declared, issued, or paid any dividend or distribution on
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any Shares or any other security, whether payable in cash, securities, or
other property, (d) altered or proposed to alter any material term of any
outstanding security, (e) incurred, agreed to incur, or announced its
intention to incur any debt other than in the ordinary course of business
and consistent with past practice, (f) authorized, recommended, proposed,
or publicly announced its intent to enter into any merger, consolidation,
liquidation, dissolution, business combination, acquisition, or disposition
of assets or securities other than in the ordinary course of business
consistent with past practice, any material change in its capitalization,
any release or relinquishment of any material contractual or other rights
or any comparable event, or taken any action to implement any such
transaction previously authorized, recommended, proposed, or publicly
announced, or (g) entered into any other agreement or otherwise effected
any other arrangement with any other party or with its officers or other
employees of the Company that might, individually or in the aggregate, have
an Adverse Effect or result in a Diminution in Value;
(vii) the Company or any of its subsidiaries shall have amended or
proposed or authorized any repeal or adoption of, change in, or amendment
to, its respective articles of incorporation or bylaws or similar
organizational documents (other than those proposed by the Consent
Solicitation);
(viii) Purchaser shall have learned that the Company or any of its
subsidiaries shall have proposed, adopted, or recommended any amendment to
its articles of incorporation, bylaws, or similar organizational documents
that has not previously been publicly disclosed by the Company and also set
forth in filings with the Commission (other than those proposed by the
Consent Solicitation);
(ix) any tender or exchange offer for some portion or all of the Shares
shall have been commenced or publicly proposed to be made by a person other
than Purchaser (including the Company or its subsidiaries), or it shall
have been publicly disclosed or Purchaser shall have learned that (a) any
person (including the Company or its subsidiaries), entity, or "group" (as
defined in section 13(d)(3) of the Exchange Act) shall, other than for bona
fide arbitrage purposes, have acquired or proposed to acquire more than
five percent of the outstanding Shares, or shall have been granted any
option or right, conditional or otherwise, to acquire more than five
percent of the outstanding Shares, other than acquisitions by persons or
groups who have publicly disclosed in a Schedule 13D or 13G (or amendments
thereto on file with the Commission) such ownership on or prior to the
commencement of the Offer; (b) any such person, entity, or group who has
publicly disclosed any such ownership of more than five percent of the
outstanding Shares prior to such date shall have acquired or proposed to
acquire additional Shares constituting more than one percent of the
outstanding Shares, or shall have been granted any option or right to
acquire more than one percent of the outstanding Shares; (c) any new group
was, or is, formed which beneficially owns more than five percent of the
outstanding Shares; (d) any person, entity, or group shall have entered
into a definitive agreement or an agreement in principle or made a proposal
with respect to a tender offer or exchange offer for some portion or all of
the outstanding Shares or a merger, consolidation, or other business
combination or sale of assets (other than in the ordinary course of
business consistent with past practice) with or involving the Company or
any of its affiliates or subsidiaries; or (e) any person shall have filed a
Notification and Report Form under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
thereunder or made a public announcement reflecting an intent to acquire
the Company or assets or securities of the Company;
(x) any change (or any condition, event, or development involving a
prospective change) shall have occurred or be threatened in the general
economic, financial, currency exchange, or market conditions in the United
States or abroad that has or might have an Adverse Effect or results or
might result in a Diminution in Value;
(xi) the Company or any of its subsidiaries shall have transferred into
trust, escrow, or similar arrangement any amounts required to fund any
existing benefit, employment, or severance agreements with any of its
employees or shall have entered into or otherwise effected with its
officers or any other employees any additional benefit, employment,
severance, or similar agreements, arrangements, or plans other than in the
ordinary course of business consistent with past practice or entered into
or amended any agreements, arrangements, or plans so as to provide for
increased benefits to such employee or employees as a result of or in
connection with the transactions contemplated by the Offer; or
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(xii) any material contractual right of the Company or any of its
subsidiaries or affiliates shall be impaired or otherwise adversely
affected or any material amount of indebtedness of the Company or any of
its subsidiaries, joint ventures, or partnerships shall become accelerated
or otherwise become due before its stated due date, in either case, with or
without notice or the lapse of time or both, as a result of the
transactions contemplated by the Offer or any covenant, term, or condition
in any of the Company's or any of its subsidiaries', joint ventures' or
partnerships' instruments, licenses, or agreements is or may have an
Adverse Effect or a Diminution in Value (including, but not limited to, any
event of default that may ensue as a result of the consummation of the
Offer or the acquisition by Purchaser of control of the Company), which in
the sole judgment of Purchaser with respect to each and every matter
referred to above makes it inadvisable to proceed with the Offer or with
such acceptance for payment or payment.
The Purchaser shall be entitled to waive any of the foregoing conditions in
his sole discretion, and, upon communicating any such waiver by oral or
written notice to the Depositary, and complying with any applicable rules and
regulations of the Commission, the Purchaser may accept the tendered Shares
and complete the Offer regardless of whether all of such conditions have, in
fact, been satisfied. The waiver of any one condition shall not be construed
as the waiver of any other condition. The failure by the Purchaser at any time
to exercise any of his rights shall not be deemed a waiver of any such right
and each such right shall be deemed an ongoing right which may be asserted at
any time and from time-to-time.
Section 15. Certain Legal Matters
General. Except as otherwise disclosed herein, based on a review of
publicly available information filed by the Company with the Commission, the
Purchaser is not aware of (i) any license or regulatory permit that appears to
be material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by the acquisition of Shares by the
Purchaser pursuant to the Offer, or (ii) any approval or other action, by any
governmental, administrative, or regulatory agency or authority, domestic,
foreign, or supranational, that would be required for the acquisition or
ownership of Shares by the Purchaser as contemplated herein. Should any such
approval or other action be required, the Purchaser currently contemplates
that such approval or action would be sought. While the Purchaser does not
currently intend to delay the acceptance for payment of Shares tendered
pursuant to the Offer pending the outcome of any such matter, there can be no
assurance that any such approval or action, if needed, would be obtained or
would be obtained without substantial conditions or that adverse consequences
might not result to the business of the Company or the Purchaser or that
certain parts of the businesses of the Company or the Purchaser might not have
to be disposed of in the event that such approvals were not obtained or any
other actions were not taken. The Purchaser's obligation under the Offer to
accept for payment and pay for Shares is subject to certain conditions. See
section 14.
United States Antitrust Approval. Under the HSR Act, certain acquisition
transactions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the
"Antitrust Division") and the Federal Trade Commission (the "FTC") and certain
waiting period requirements have been satisfied. The Purchaser intends to file
a Notification and Report Form with respect to the Offer promptly.
Under the provisions of the HSR Act applicable to the Offer, the purchase
of Shares under the Offer may not be consummated until the expiration of a 15-
calendar day waiting period following the filing by the Purchaser. The
Purchaser intends to make such filing on or about June 5, 2000. The waiting
period with respect to the Offer would expire at 11:59 p.m., Eastern time, on
the date fifteen days after such filing is made, unless the Purchaser receives
a request for additional information or documentary material, or the Antitrust
Division and the FTC terminate the waiting period prior thereto. If, within
such 15-day period, either the Antitrust Division or the FTC requests
additional information or material from the Purchaser concerning the Offer,
the waiting period will be extended and would expire at 11:59 p.m., Eastern
time, on the tenth calendar day following the date of substantial compliance
by the Purchaser with such request. Only one extension of the waiting period
pursuant to a request for additional information is authorized by the HSR Act.
Thereafter, such waiting period
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may be extended only by court order or with the consent of the Purchaser. The
Purchaser will not accept for payment Shares tendered pursuant to the Offer
unless and until the waiting period requirements imposed by the HSR Act with
respect to the Offer have been satisfied. See section 15.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's acquisition of
Shares pursuant to the Offer. At any time before or after the Purchaser's
acquisition of Shares, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the
public interest, including seeking to enjoin the acquisition of Shares
pursuant to the Offer or otherwise or seeking divestiture of Shares acquired
by the Purchaser or divestiture of substantial assets of the Purchaser.
Private parties and state attorneys general also may bring action under the
antitrust laws under certain circumstances. Based upon an examination of
publicly available information relating to the businesses in which the
Purchaser and the Company are engaged, the Purchaser believes that the
acquisition of Shares by the Purchaser will not violate the antitrust laws.
Nevertheless, there can be no assurance that a challenge to the Offer or other
acquisition of Shares by the Purchaser on antitrust grounds will not be made
or, if such a challenge is made, of the result.
Nevada Anti-Takeover Law. Section 78.411 et seq. of the NGCL (the
"Combination with Interested Stockholders Statute") prevents an "interested
stockholder" and an applicable Nevada corporation from entering into a
"combination," unless certain conditions are met. A "combination" includes,
among other transactions, any merger or consolidation with an "interested
stockholder," or any sale, lease, exchange, mortgage, pledge, transfer, or
other disposition, in one transaction or a series of transactions with an
"interested stockholder" having: (i) an aggregate market value equal to 5% or
more of the aggregate market value of the assets of a corporation; (ii) an
aggregate market value equal to 5% or more of the aggregate market value of
all outstanding shares of a corporation; or (iii) representing 10% or more of
the earning power or net income of the corporation. An "interested
stockholder" means the beneficial owner of 10% or more of the voting shares of
a corporation, or an affiliate or associate thereof. A corporation may not
engage in a "combination" within three years after the interested stockholder
acquired his shares unless the combination or purchase is approved by the
board of directors before the interested stockholder acquired such shares. If
this approval is not obtained, then after the expiration of the three-year
period, the business combination may be consummated by the approval of the
board of directors before the interested stockholder's date of acquiring
shares, or a majority of the voting power held by the corporation's
disinterested stockholders, or if the consideration to be paid by the
interested stockholder is at least equal to the highest of: (i) the highest
price per share paid by the interested stockholder within the three years
immediately preceding the date of the announcement of the combination or in
the transaction in which he became an interested stockholder, whichever is
higher (as adjusted for interest and dividends); (ii) the market value per
common share on the date of announcement of the combination or the date the
interested stockholder acquired the shares, whichever is higher (as adjusted
for interest and dividends); or (iii) if higher for the holders of shares of
preferred stock, the highest liquidation value for the shares of preferred
stock.
Section 78.378 et seq. of the NGCL (the "Acquisition of Controlling
Interest Statute") prohibits an acquiror, under certain circumstances, from
voting shares of a target corporation's stock after crossing certain threshold
ownership percentages, unless the acquiror obtains the approval of the target
corporation's disinterested stockholders. The Acquisition of Controlling
Interest Statute specifies three thresholds: one-fifth or more but less than
one-third, one-third but less than a majority, and a majority or more, of the
outstanding voting power. Once an acquiror crosses one of the above thresholds
in an offer or acquisition, those shares acquired within 90 days immediately
preceding his becoming an Acquiring Person become "Control Shares." The
Acquiring Person is prohibited from voting the Control Shares until
disinterested stockholders restore the right. The Acquisition of Controlling
Interest Statute also provides that in the event Control Shares are accorded
full voting rights and the Acquiring Person has acquired a majority or more of
all voting power, all other stockholders who do not vote in favor of
authorizing voting rights to the Control Shares are entitled to demand payment
for the fair value of their shares. The board of directors is to notify the
stockholders as soon as practicable after such an event has occurred that they
have the right to receive the fair value of their shares in accordance with
statutory procedures established generally for dissenters' rights. This
statute is applicable only to Nevada corporations doing business
25
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in the state and that have at least 200 stockholders of record, at least 100
of whom have addresses in Nevada appearing on the stock ledger of the
corporation.
The Company's Board of Directors has taken steps to ensure that the
restrictions contained in the Combination with Interested Stockholders Statute
and the Acquisition of Controlling Interest Statute do not apply to the
Purchaser or the Shares purchased in the Offer so long as certain conditions
are met prior to August 31, 2000. These conditions include the Purchaser
commencing the Offer, the Purchaser completing the Offer and purchasing the
tendered Shares in accordance with the terms of the Offer, and the Purchaser
and persons affiliated with him being deemed to beneficially own Shares
representing a majority of the total voting power of all outstanding Shares.
The Offer is conditioned on the continuing effectiveness of the Company's
waiver of the Combination with Interested Stockholders Statute and the
Acquisition of Controlling Interest Statute. See section 14.
Other State Laws. A number of other states have adopted laws and
regulations applicable to attempts to acquire securities of corporations that
are incorporated, or have substantial assets, stockholders, principal
executive offices, or principal places of business, or whose business
operations otherwise have substantial economic effects, in such states. In
1982, in Edgar v. MITE Corp., the Supreme Court of the United States
invalidated on constitutional grounds the Illinois Business Takeover Statute,
which, as a matter of state securities law, made takeovers of corporations
meeting certain requirements more difficult. However, in 1987 in CTS Corp. v.
Dynamics Corp. of America, the Supreme Court held that the Indiana Control
Share Acquisition Act was constitutional. Such Act, by its terms, is
applicable only to corporations that have a substantial number of Stockholders
in Indiana and are incorporated there. Subsequently, a number of federal
courts ruled that various state takeover statutes were unconstitutional
insofar as they apply to corporations incorporated outside the state of
enactment.
The Company, directly or through subsidiaries, conducts business in a
number of states throughout the United States, some of which have enacted
takeover laws. The Purchaser does not know whether any of these laws will, by
their terms, apply to the Offer and has not complied with any such laws.
Should any person seek to apply any state takeover law, the Purchaser will
take such action as then appears desirable, which may include challenging the
validity or applicability of any such statute in appropriate court
proceedings. In the event it is asserted that one or more state takeover laws
is applicable to the Offer, and an appropriate court does not determine that
it is inapplicable or invalid as applied to the Offer, the Purchaser might be
required to file certain information with, or receive approvals from, the
relevant state authorities. In addition, if enjoined, the Purchaser might be
unable to accept for payment any Shares tendered pursuant to the Offer, or be
delayed in continuing or consummating the Offer. In such case, the Purchaser
may not be obligated to accept for payment any Shares tendered. See section
14.
Other Antitrust Approvals. In connection with the acquisition of the Shares
pursuant to the Offer, the laws of certain foreign countries and jurisdictions
may require the filing of information with, or the obtaining of the approval
of, governmental authorities in such countries and jurisdictions. The
governments in such countries and jurisdictions might attempt to impose
additional conditions on the Company's operations conducted in such countries
and jurisdictions as a result of the acquisition of the Shares pursuant to the
Offer. There can be no assurance that the Purchaser will be able to cause the
Company or its subsidiaries to satisfy or comply with such laws or that
compliance or non-compliance will not have adverse consequences for the
Company or any subsidiary after purchase of the Shares pursuant to the Offer.
Section 16. Fees and Expenses
Mackenzie Partners, Inc. has been retained by the Purchaser as Information
Agent in connection with the Offer. The Information Agent may contact holders
of Shares by mail, telephone, telex, telegraph, and personal interview and may
request brokers, dealers, and other nominee Stockholders to forward material
relating to the Offer to beneficial owners of Shares. The Purchaser will pay
the Information Agent reasonable and customary compensation for all such
services in addition to reimbursing the Information Agent for reasonable out-
of-pocket
26
<PAGE>
expenses in connection therewith. The Purchaser has agreed to indemnify the
Information Agent against certain liabilities and expenses in connection with
the Offer including, without limitation, certain liabilities under the federal
securities laws.
Purchaser will pay the Depositary reasonable and customary compensation for
its services in connection with the Offer, plus reimbursement for out-of-
pocket expenses, and will indemnify the Depositary against certain liabilities
and expenses in connection therewith, including liabilities under the federal
securities laws.
Except as set forth above, the Purchaser will not pay any fees or
commissions to any broker, dealer, or other person for soliciting tenders of
Shares pursuant to the Offer. Brokers, dealers, commercial banks, and trust
companies, and other nominees will, upon request, be reimbursed by the
Purchaser for customary clerical and mailing expenses incurred by them in
forwarding offering materials to the beneficial owners.
Section 17. Miscellaneous
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the
securities, blue sky, or other laws of such jurisdiction. However, Purchaser
may, in his sole discretion, take such action as he may deem necessary to make
the Offer in any such jurisdiction and extend the Offer to holders of Shares
in such jurisdiction. The Purchaser is not aware of any jurisdiction in which
the making of the Offer or the acceptance thereof would not be in compliance
with the laws of such jurisdiction. In any jurisdiction the securities, blue
sky, or other laws of which require the Offer to be made by a licensed broker
or dealer, the Offer is being made on behalf of the Purchaser by or one or
more registered brokers or dealers licensed under the laws of such
jurisdiction.
No person has been authorized to give any information or to make any
representation on behalf of the Purchaser not contained herein or in the
Letter of Transmittal and, if given or made, such information or
representation must not be relied upon as having been authorized. Neither the
delivery of the Offer to Purchase nor any purchase pursuant to the Offer will,
under any circumstances, create any implication that there has been not change
in the affairs of Purchaser or the Company since the date as of which
information is furnished or the date of this Offer to Purchase.
The Purchaser has filed with the Commission a Tender Offer Statement on
Schedule TO pursuant to Rule 14d-3 under the Exchange Act, together with
exhibits, furnishing certain additional information with respect to the Offer,
and may file amendments thereto. Such Schedule TO and any amendments thereto,
including exhibits, may be inspected and copies may be obtained in the manner
set forth in section 7 with respect to the Company (except that such material
will not be available at the regional offices of the Commission).
Dated: May 23, 2000
27
<PAGE>
SCHEDULE I
TRANSACTIONS EFFECTED DURING THE PAST TWO YEARS
BY THE PURCHASER ENTITIES*
<TABLE>
<CAPTION>
Number of Average
Shares Price Purchase
Quarterly Period Purchased Range/Quarter Price/Quarter
- ---------------- --------- ------------- -------------
<S> <C> <C> <C>
10/1/98-12/31/98.......................... 13,300 $5.20 $5.20
1/1/99-3/31/99............................ 31,850 $4.81-$4.92 $4.87
4/1/99-6/30/99............................ 45,100 $4.75-$4.99 $4.90
7/1/99-9/30/99 ........................... 497,700 $4.00-$5.55 $4.63
10/1/99-12/31/99.......................... 69,700 $4.63-$5.81 $5.66
-------
657,650
=======
</TABLE>
- --------
* All Shares were purchased through The Jerry and Vickie Moyes Family Trust
Dated 12/11/87 (the "Trust") except those purchased between 7/1/99 and
9/30/99. Of Shares purchased during such period, 60,500 were purchased
directly by Jerry Moyes, 300,000 by SME Steel Contractors, Inc., a Utah
corporation (SME-Utah), and 137,200 by the Trust. Because Mr. Moyes owns
approximately 75% of the outstanding voting stock of SME Industries, Inc.,
a Nevada corporation, ("SME-Nevada"), which in-turn owns 100% of the
outstanding voting stock of SME-Utah, Mr. Moyes may be deemed to
beneficially own (as defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) a portion of the 300,000 Shares owned by
SME-Utah. The 69,700 Shares purchased between 10/1/99 and 12/31/99 were net
of 30,000 Shares disposed of during such period.
28
<PAGE>
The Depositary for the Offer is:
Wilmington Trust Company
By Mail: By Hand/Overnight Courier:
Corporate Trust Operations Wilmington Trust Company
Wilmington Trust Company 1105 North Market Street, First Floor
P. O. Box 8861 Wilmington, DE 19801
Wilmington, DE 19885-9472 Attn: Corporate Trust Operations
By Facsimile Transmission: For Confirmation Telephone:
(302) 651-1079 (302) 651-8869
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
212-929-5500 (call collect)
Call Toll Free (800) 322-2885
Fax Number (212) 929-0308
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER
CLASS A AND CLASS B COMMON SHARES
OF
SIMON TRANSPORTATION SERVICES INC.
AT
$7.00 NET CASH PER SHARE
PURSUANT TO THE OFFER TO PURCHASE
DATED MAY 23, 2000
BY
JERRY MOYES
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON
JUNE 21, 2000, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
Wilmington Trust Company
By Mail: By Hand/Overnight Courier:
Corporate Trust Operations Wilmington Trust Company
Wilmington Trust Company 1105 North Market Street, First Floor
P. O. Box 8861 Wilmington, DE 19801
Wilmington, DE 19885-9472 Attn: Corporate Trust Operations
By Facsimile Transmission: For Confirmation Telephone:
(302) 651-1079 (302) 651-8869
DESCRIPTION OF SHARES TENDERED
- -------------------------------------------------------------------------------
Names and Address(es) of Registered Holder(s).
(Please fill in, if blank, exactly as Name(s) appear on Share Certificate(s))
- -------------------------------------------------------------------------------
<TABLE>
- -----------------------------------------------------------------------------
<CAPTION>
Share Certificate Numbers Total Number of Shares
Type of (attach additional list, Represented by Share Number of Shares
Shares if necessary)* Certificates* Tendered**
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
CLASS A
SHARES
</TABLE>
- -------------------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C>
CLASS B SHARES
</TABLE>
* Need not be completed by stockholders delivering Shares by book-entry
transfer or in accordance with DTC's ATOP procedures for transfers.
** Unless otherwise indicated, it will be assumed that all Shares evidenced
by each Share Certificate delivered to the Depositary are being tendered
hereby. See Instruction 4.
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN
THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE SUBSTITUTE
FORM W-9 PROVIDED BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
1
<PAGE>
This Letter of Transmittal is to be completed by stockholders of Simon
Transportation Services Inc. either if certificates evidencing Shares (as
defined below) are to be forwarded herewith or, unless an Agent's Message (as
defined in Section 2 of the Offer to Purchase) is utilized, if delivery of
Shares is to be made by book-entry transfer to the Depositary's account at the
Depository Trust Company ("DTC" or the "Book-Entry Transfer Facility")
pursuant to the book-entry transfer procedure described in Section 2 of the
Offer to Purchase (as defined below). Holders who are participants
("Participants") in DTC may execute their tender through the Automated Tender
Offer Program of DTC as set forth in Section 2 of the Offer to Purchase.
Stockholders whose certificates evidencing Shares (the "Share
Certificates") are not immediately available or who cannot deliver their Share
Certificates and all other documents required hereby to the Depositary prior
to the Expiration Date (as defined in Section 1 of the Offer to Purchase) or
who cannot complete the procedure for delivery by book-entry transfer on a
timely basis and who wish to tender their Shares must do so pursuant to the
guaranteed delivery procedures described in Section 2 of the Offer to
Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
[_]CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE
FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY
DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution: _____________________________________________
Account Number: __________________ Transaction Code Number: ____________
[_]CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
Name(s) of Registered Holder(s): ___________________________________________
Window Ticket Number (if any): _____________________________________________
Date of Execution of Notice of Guaranteed Delivery: ________________________
Name of Institution which Guaranteed Delivery: _____________________________
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS LETTER
OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Jerry Moyes (the "Purchaser"), the above-
described shares of Class A Common Stock, $.01 par value (the "Class A Common
Shares"), and/or the above-described shares of Class B Common Stock, $.01 par
value (the "Class B Common Shares" and, together with Class A Common Shares,
the "Shares"), of Simon Transportation Services Inc., a Nevada corporation
(the "Company"), pursuant to Purchaser's offer to purchase all outstanding
Shares, at $7.00 per Share, net to the seller in cash, without interest
thereon (the "Offer Price"), upon the terms and subject to the conditions set
forth in the offer to purchase, dated May 23, 2000 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which, as amended or supplemented from time-to-time, together constitute the
"Offer"). The undersigned understands that Purchaser reserves the right to
transfer or assign, in whole at any time or in part from time-to-time, to one
or more of his affiliates, the right to purchase all or any portion of the
Shares tendered pursuant to the Offer, but any such transfer or assignment
will not relieve Purchaser of his obligations under the Offer and will in no
way prejudice the rights of tendering stockholders to receive payment for
Shares validly tendered and accepted for payment pursuant to the Offer. Unless
the context indicates otherwise, as used herein.
The Offer is conditioned upon, among other things, the satisfaction of: (i)
the Minimum Tender Condition; (ii) the Simon Tender Condition; (iii) the Board
of Directors Condition; (iv) the Due Diligence Condition; (v) the Anti-
Takeover Statute Condition; and (vi) the Antitrust Condition, all as defined
in the Offer to Purchase. The Offer is also subject to certain other
conditions described in Section 14 of the Offer to Purchase. The Offer is not
conditioned upon the Purchaser obtaining financing.
Subject to, and effective upon, acceptance for payment of and payment for,
the Shares tendered herewith, in accordance with the terms and subject to the
conditions of the Offer (including, if the Offer is extended or amended, the
terms and conditions of any such extension or amendment), the undersigned
hereby sells, assigns, and transfers to, or upon the order of, the Purchaser
all right, title, and interest in and to all the Shares that are being
tendered hereby and any and all dividends, distributions (including, without
limitation, distributions of additional Shares or other securities issued or
issuable in respect thereof), and rights declared, paid, or distributed in
respect of such Shares on or after the date of the Offer to Purchase
(collectively, "Distributions"), and irrevocably constitutes and appoints the
Depositary the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares and any and all Distributions, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver Share Certificates evidencing such
Shares and all Distributions, or transfer ownership of such Shares and any and
all Distributions on the account books maintained by the Book-Entry Transfer
Facility, together, in either case, with all accompanying evidences of
transfer and authenticity, to or upon the order of the Purchaser, (ii) present
such Shares and any and all Distributions for transfer on the books of the
Company, and (iii) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares and any and all Distributions, all in
accordance with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned irrevocably
appoints Jerry Moyes, Earl H. Scudder, and Gordon K. Holladay as attorneys-in-
fact and proxies of the undersigned, each with full power of substitution, to
the full extent of the undersigned's rights with respect to the Shares
tendered by the undersigned and accepted for payment by the Purchaser (and any
and all Distributions). All such proxies shall be considered coupled with an
interest in the tendered Shares. This appointment will be effective if, when,
and only to the extent that, the Purchaser accepts such Shares for payment
pursuant to the Offer. This power of attorney and proxy are irrevocable and
are granted in consideration of the acceptance for payment of such Shares in
accordance with the terms of the Offer. Such acceptance for payment shall,
without further action, revoke any prior powers of attorney, proxies,
consents, or revocations of consent granted by the undersigned at any time
with respect to such Shares (and any and all Distributions), and no subsequent
powers of attorney, proxies, consents or revocations
3
<PAGE>
may be given by the undersigned with respect thereto (and, if given, will not
be deemed effective). The designees of the Purchaser named above will, with
respect to the Shares and other securities for which the appointment is
effective, be empowered to exercise all voting and other rights of the
undersigned as they in their sole discretion may deem proper at any annual or
special meeting of the stockholders of the Company or any adjournment or
postponement thereof, by written consent in lieu of any such meeting or
otherwise, and the Purchaser reserves the right to require that, in order for
Shares or other securities to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment of such Shares, the Purchaser must be able
to exercise full voting, consent, and other rights with respect to such Shares
(and any and all Distributions), including voting at any meeting of the
Company's stockholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign, and transfer the Shares
tendered hereby and all Distributions, that the undersigned owns the Shares
tendered hereby within the meaning of Rule 14e-4 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that the
tender of the tendered Shares complies with Rule 14e-4 under the Exchange Act,
and that when such Shares are accepted for payment by the Purchaser, the
Purchaser will acquire good, marketable, and unencumbered title thereto and to
all Distributions, free, and clear of all liens, restrictions, charges and
encumbrances, and that none of such Shares and Distributions will be subject
to any adverse claim. The undersigned, upon request, shall execute and deliver
all additional documents deemed by the Depositary or the Purchaser to be
necessary or desirable to complete the sale, assignment, and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned
shall remit and transfer promptly to the Depositary for the account of the
Purchaser all Distributions in respect of the Shares tendered hereby,
accompanied by appropriate documentation of transfer, and, pending such
remittance and transfer or appropriate assurance thereof, the Purchaser shall
be entitled to all rights and privileges as owner of each such Distribution
and may withhold the entire purchase price of the Shares tendered hereby or
deduct from such purchase price, the amount or value of such Distribution as
determined by the Purchaser in his sole discretion.
No authority herein conferred or agreed to be conferred shall be affected
by, and all such authority shall survive, the death or incapacity of the
undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors, and assigns of the
undersigned. Except as otherwise stated in the Offer to Purchase, this tender
is irrevocable.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in Section 2 of the Offer to Purchase and in
the Instructions hereto will constitute the undersigned's acceptance of the
terms and conditions of the Offer. The Purchaser's acceptance of such Shares
for payment will constitute a binding agreement between the undersigned and
the Purchaser upon the terms and subject to the conditions of the Offer,
including, without limitation, the undersigned's representation and warranty
that the undersigned owns the Shares being tendered. The undersigned
recognizes that under certain circumstances set forth in the Offer to
Purchase, Purchaser may not be required to accept for payment any of the
Shares tendered hereby.
Unless otherwise indicated herein in the section entitled "Special Payment
Instructions," please issue the check for the purchase price of all Shares
purchased, and return all Share Certificates evidencing Shares not purchased
or not tendered, in the name(s) of the registered holder(s) appearing above
under "Description of Shares Tendered." Similarly, unless otherwise indicated
in the section entitled "Special Delivery Instructions," please mail the check
for the purchase price of all Shares purchased and/or return all Share
Certificates evidencing Shares not tendered or not purchased (and accompanying
documents, as appropriate) to the address(es) of the registered holder(s)
appearing above under "Description of Shares Tendered." In the event that the
sections entitled "Special Payment Instructions" and "Special Delivery
Instructions" are both completed, please issue the check for the purchase
price of all Shares purchased and/or return all Share Certificates evidencing
Shares not tendered or not purchased (and accompanying documents, as
appropriate) in the name(s) of, and mail such check and Share Certificates
(and accompanying documents, as appropriate) to, the person(s) and addresses
so indicated. Unless otherwise indicated herein in the section entitled
"Special Payment Instructions," please credit any Shares tendered herewith by
book-entry transfer that are not accepted
4
<PAGE>
for payment by crediting the account at the Book-Entry Transfer Facility
designated above. The undersigned recognizes that the Purchaser has no
obligation, pursuant to the Special Payment Instructions, to transfer any
Shares from the name of the registered holder(s) thereof if the Purchaser does
not accept for payment any of the Shares tendered hereby.
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6, AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment or Share Certificates evidencing Shares not tendered
or not accepted for payment are to be issued in the name of someone other
than the undersigned, or if Shares tendered hereby and delivered by book-
entry transfer that are not accepted for payment are to be returned by
credit to an account maintained at a Book-Entry Transfer Facility other
than the account indicated above.
Issue check and/or Share Certificate(s) to:
Name: _____________________________________________________________________
(Please Print)
Address: __________________________________________________________________
---------------------------------------------------------------------------
(Zip Code)
---------------------------------------------------------------------------
Taxpayer Identification or Social Security Number (See Substitute Form W-9) On
Reverse Side
Credit Shares delivered by book-entry transfer and not purchased to the
Book-Entry Transfer Facility account: _____________________________________
(Account Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6, AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment and/or Share Certificates evidencing Shares not
tendered or not accepted for payment are to be mailed to someone other
than the undersigned, or to the undersigned at an address other than that
shown under "Description of Shares Tendered."
Mail check and/or Share Certificates to:
Name: _____________________________________________________________________
(Please Print)
Address: __________________________________________________________________
---------------------------------------------------------------------------
(Zip Code)
---------------------------------------------------------------------------
Taxpayer Identification or Social Security Number (See Substitute Form W-9) On
Reverse Side
5
<PAGE>
IMPORTANT
STOCKHOLDERS: SIGN HERE
(ALSO PLEASE COMPLETE SUBSTITUTE FORM W-9 INCLUDED HEREIN)
X _________________________________________________________________________
X _________________________________________________________________________
SIGNATURE(S) OF STOCKHOLDER(S)
Dated: , 2000
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
Share Certificates or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation, or other person
acting in a fiduciary or representative capacity, please provide the
following information. See Instruction 5 hereof.)
Name(s): __________________________________________________________________
(Please Print)
Capacity (full title): ____________________________________________________
Address: __________________________________________________________________
___________________________________________________________________________
(Zip Code)
Area Code and Telephone No.: ______________________________________________
Tax Identification or Social Security No.: ________________________________
(Substitute Form W-9 Included Herein)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5 HEREOF)
FOR USE BY FINANCIAL INSTITUTIONS ONLY.
PLACE MEDALLION GUARANTEE IN THE SPACE BELOW
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. All signatures on this Letter of Transmittal
must be guaranteed by a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers,
Inc., or by a financial institution (including most commercial banks, savings
and loan associations, and brokerage houses) that is a participant in the
Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(each an "Eligible Institution"), unless (i) this Letter of Transmittal is
signed by the registered holder(s) of the Shares (which term, for purposes of
this document, shall include any participant in the Book-Entry Transfer
Facility whose name appears on a security position listing as the owner of
Shares) tendered hereby and such registered holder(s) has (have) completed
neither the section entitled "Special Payment Instructions" nor the section
entitled "Special Delivery Instructions" or (ii) such Shares are tendered for
the account of an Eligible Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be used if Share
Certificates are to be forwarded herewith, or, unless an Agent's Message is
utilized, if Shares are to be delivered by book-entry transfers pursuant to
the procedure set forth in Section 2 of the Offer to Purchase, or if Shares
are to be delivered through ATOP. For a stockholder to tender Shares validly
pursuant to the Offer, either (i) Share Certificates evidencing all physically
tendered Shares, or a confirmation of a book-entry transfer into the
Depositary's account at the Book-Entry Transfer Facility of all Shares
delivered by book-entry transfer, together in each case with a properly
completed and duly executed Letter of Transmittal (or facsimile thereof),
together with any required signature guarantees, or (ii) an Agent's Message
(as defined in Section 2 of the Offer to Purchase) in connection with a book-
entry transfer or tender pursuant to ATOP procedures, and any other documents
required by this Letter of Transmittal, must be received by the Depositary at
one of its addresses set forth herein prior to the Expiration Date (as defined
in Section 1 of the Offer to Purchase). If Share Certificates are forwarded to
the Depositary in multiple deliveries, a properly completed and duly executed
Letter of Transmittal must accompany each such delivery. Stockholders whose
Share Certificates are not immediately available, who cannot deliver their
Share Certificates and all other required documents to the Depositary prior to
the Expiration Date or who cannot complete the procedure for delivery by book-
entry transfer on a timely basis may tender their Shares pursuant to the
guaranteed delivery procedure described in Section 2 of the Offer to Purchase.
Pursuant to such procedure: (i) such tender must be made by or through an
Eligible Institution; (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by the
Purchaser, must be received by the Depositary prior to the Expiration Date;
and (iii) the Share Certificates evidencing all physically delivered Shares in
proper form for transfer by delivery, or a confirmation of a book-entry
transfer into the Depositary's account at the Book-Entry Transfer Facility of
all Shares delivered by book-entry transfer, in each case together with a
Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or, in the case of a book-
entry transfer, an Agent's Message, and any other documents required by this
Letter of Transmittal, must be received by the Depositary within three trading
days after the date of execution of such Notice of Guaranteed Delivery, all as
described in Section 2 of the Offer to Purchase. A "trading day" is any day on
which the Nasdaq National Market is open for business.
Participants in DTC may tender their Shares in accordance with ATOP, to the
extent it is available to such Participants for the Shares they wish to
tender. A stockholder tendering through the ATOP must expressly acknowledge
that the stockholder has received and agreed to be bound by the Letter of
Transmittal and that the Letter of Transmittal may be enforced against such
stockholder.
If the tender is not made through ATOP, Share Certificates or a Book-Entry
Confirmation (as defined in Section 2 of the Offer to Purchase), as well as
this Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Depositary at
its address set forth herein on or prior to the Expiration Date to be
effective.
7
<PAGE>
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES,
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY
TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional, or contingent tenders will be accepted and no
fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering stockholders waive any
right to receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the type of Shares, the Share Certificate
numbers, the number of Shares evidenced by such Share Certificates and the
number of Shares tendered should be listed on a separate signed schedule
attached hereto.
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If fewer than all the Shares evidenced by any Share Certificate
delivered to the Depositary herewith are to be tendered hereby, fill in the
number of Shares which are to be tendered in the box entitled "Number of
Shares Tendered" in the "Description of Shares Tendered." In such case, new
Share Certificate(s) evidencing the remainder of the Shares that were
evidenced by the Share Certificates delivered to the Depositary herewith will
be sent to the person(s) signing this Letter of Transmittal, unless otherwise
provided in the section entitled "Special Delivery Instructions," as soon as
practicable after the expiration or termination of the Offer. All Shares
evidenced by Share Certificates delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the face of the Share Certificates evidencing such Shares without
alteration, enlargement, or any other change whatsoever.
If any Share tendered hereby is owned of record by two or more persons, all
such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign, and submit as many
separate Letters of Transmittal as there are different registrations of such
Shares.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate
stock powers are required, unless payment is to be made to, or Share
Certificates evidencing Shares not tendered or not purchased are to be issued
in the name of, a person other than the registered holder(s), in which case,
the Share Certificate(s) evidencing the Shares tendered hereby must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on such Share
Certificate(s). Signatures on such Share Certificate(s) and stock powers must
be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Share Certificate(s). Signatures on
such Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
8
<PAGE>
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation, or other person acting in a fiduciary or
representative capacity for the registered holder, such person should so
indicate when signing, and proper evidence satisfactory to the Purchaser of
such person's authority so to act must be submitted.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction
6, the Purchaser will pay all stock transfer taxes with respect to the sale
and transfer of any Shares to it or its order pursuant to the Offer. If,
however, payment of the purchase price of any Shares purchased is to be made
to, or Share Certificate(s) evidencing Shares not tendered or not accepted for
payment are to be issued in the name of, a person other than the registered
holder(s), or if tendered certificates are registered in the name of any
person other than the person(s) signing this Letter of Transmittal, the amount
of any stock transfer taxes (whether imposed on the registered holder(s), such
other person or otherwise) payable on account of the transfer to such other
person will be deducted from the purchase price of such Shares purchased,
unless evidence satisfactory to the Purchaser of the payment of such taxes, or
exemption therefrom, is submitted. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6,
IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE
CERTIFICATES EVIDENCING THE SHARES TENDERED HEREBY.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Shares accepted for payment is to be issued, or Share
Certificate(s) evidencing Shares not tendered or not accepted for payment are
to be issued, in the name of a person other than the person(s) signing this
Letter of Transmittal or if such check or any such Share Certificate is to be
sent to someone other than the person(s) signing this Letter of Transmittal or
to the person(s) signing this Letter of Transmittal but at an address other
than that shown in the section entitled "Description of Shares Tendered," the
appropriate sections of this Letter of Transmittal must be completed. Any
stockholder(s) delivering Shares by book-entry transfer may request that
Shares not purchased be credited to such account maintained at the Book-Entry
Transfer Facility as such stockholder(s) may designate in the section entitled
"Special Payment Instructions." If no such instructions are given, any such
Shares not purchased will be returned by crediting the account at the Book-
Entry Transfer Facility designated above as the account from which such Shares
were delivered.
8. WAIVER OF CONDITIONS. Purchaser reserves the absolute right in his sole
discretion to waive, at any time or from time to time, any of the specified
conditions of the Offer, in whole or in part, in the case of any Shares
tendered.
9. QUESTIONS AND REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Information Agent at its
address or telephone number set forth below. Additional copies of the Offer to
Purchase, this Letter of Transmittal, and the Notice of Guaranteed Delivery
may be obtained from the Information Agent or from brokers, dealers,
commercial banks, or trust companies.
10. SUBSTITUTE FORM W-9. Each tendering stockholder is required, unless an
exemption applies, to provide the Depositary with such stockholder's correct
Taxpayer Identification Number ("TIN") on the Substitute Form W-9 which is
provided under "Important Tax Information" below, and to certify, under
penalties of perjury, that such number is correct and that such stockholder is
not subject to backup withholding of federal income tax. If a tendering
stockholder has been notified by the Internal Revenue Service that such
stockholder is subject to back-up withholding, such stockholder must cross out
item (2) of the certification box of the Substitute Form W-9, unless such
stockholder has since been notified by the Internal Revenue Service that such
stockholder is no longer subject to backup withholding. Failure to provide the
information on the Substitute Form W-9 may subject the tendering stockholder
to 31% federal income tax withholding on the payment of the purchase price of
all Shares purchased from such stockholder. If the tendering stockholder has
not been issued a TIN and has applied for one or intends to apply for one in
the near future, such stockholder should write "Applied For" in the space
provided for the TIN in Part III of the Substitute Form W-9, and sign and date
the Substitute Form W-9. If "Applied For" is written in Part III and the
Depositary is not provided with a TIN within 60 days, the Depositary will
withhold 31% on all payments of the purchase price to such stockholder until a
TIN is provided to the Depositary.
9
<PAGE>
11. LOST, DESTROYED, OR STOLEN SHARE CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by designating in the "Special Payment
Instructions" or "Special Delivery Instructions" section the number of Shares
lost. The stockholder will then be instructed as to the steps that must be
taken in order to replace the Shares certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen Shares certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE HEREOF
(TOGETHER WITH CERTIFICATES OR A BOOK-ENTRY CONFIRMATION FOR SHARES AND ANY
REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS), OR A NOTICE OF GUARANTEED
DELIVERY, MUST BE RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION
DATE.
10
<PAGE>
IMPORTANT TAX INFORMATION
Under the federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required by law to provide the Depositary (as payor)
with such stockholder's correct TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If a tendering stockholder is subject to backup withholding, such
stockholder must cross out item (2) of the Certification box on the Substitute
Form W-9. If the Depositary is not provided with the correct TIN, the
stockholder may be subject to penalties imposed by the Internal Revenue
Service. In addition, payments that are made to such stockholder with respect
to Shares purchased pursuant to the Offer may be subject to backup
withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that stockholder must submit a statement, signed under penalties of
perjury, attesting to such individual's exempt status. Forms of such
statements can be obtained from the Depositary. Exempt stockholders, other
than foreign individuals, should furnish their TIN, write "Exempt" on the face
of the Substitute Form W-9 below, and sign, date, and return the Substitute
Form W-9 to the Depositary. See the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the stockholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder
with respect to Shares purchased pursuant to the Offer, the stockholder is
required to notify the Depositary of such stockholder's correct TIN by
completing the form below certifying that the TIN provided on Substitute Form
W-9 is correct (or that such stockholder is awaiting a TIN). The stockholder
also is required to certify that (i) such stockholder has not been notified by
the Internal Revenue Service that such stockholder is subject to backup
withholding as a result of a failure to report all interest or dividends or
(ii) the Internal Revenue Service has notified such stockholder that such
stockholder is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the
name of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance
on which number to report. If the tendering stockholder has not been issued a
TIN and has applied for a number or intends to apply for a number in the near
future, the stockholder should write "Applied For" in the space provided for
the TIN in Part III, and sign and date the Substitute Form W-9. If "Applied
For" is written in Part III and the Depositary is not provided with a TIN
within 60 days, the Depositary will withhold 31% of all payments of the
purchase price to such stockholder until a TIN is provided to the Depositary.
11
<PAGE>
ALL TENDERING STOCKHOLDERS MUST COMPLETE THE FOLLOWING:
PAYOR: Wilmington Trust Company, as Depositary
- -------------------------------------------------------------------------------
PART I--Taxpayer
Identification Number--
For all accounts, enter
taxpayer identification
number where provided in
Part III at right. (For
most individuals, this
is your social security
number. If you do not
have a number, see
Obtaining a Number in
the enclosed
Guidelines.) Certify by
signing and dating
below. Note: If the
account is in more than
one name, see the chart
in the enclosed
Guidelines to determine
which number to give the
payor.
PART III--Social
Security Number or
Employee ID Number (If
awaiting TIN write
"Applied For")
SUBSTITUTE
FORM W-9
Department of the (1) The number shown on this form is my correct
Treasury Internal Taxpayer Identification Number (or I am waiting
Revenue Service for a number to be issued to me); and
(2) I am not subject to backup withholding
either because I am exempt from backup
withholding, or I have not been notified by the
Internal Revenue Service (the "IRS") that I am
subject to backup withholding as a result of a
failure to report all interest or dividends, or
the IRS has notified me that I am no longer
subject to backup withholding.
#________________________
Certificate Instructions--You must cross out item
(2) above if you have been notified by the IRS that
you are currently subject to backup withholding
because of underreporting interest or dividends on
your tax return. However, if after being notified
by the IRS that you were subject to backup
withholding you received another notification from
the IRS that you are no longer subject to backup
withholding, do not cross out such item (2). (Also
see instructions in the enclosed Guidelines.)
Payor's Request for ------------------------------------------------------
Taxpayer
Identification
Number ("TIN")
PART II--For Payees exempt from backup withholding,
see enclosed Guidelines and complete as instructed
therein
CERTIFICATION--Under penalties of perjury, I
certify that:
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
Signature: ______________ Date: ___________________
Address: ___________________________________________
Questions and requests for assistance or additional copies of the Offer to
Purchase, this Letter of Transmittal and other tender offer materials may be
directed to the Information Agent at its address and telephone numbers set
forth below:
Name: ______________________________________________
(Include Zip Code)
Area Code and Telephone No.: _______________________
(Please Print)
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (Call Collect)
Call Toll Free (800) 322-2885
Fax (212) 929-0308
12
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF CLASS A COMMON SHARES
AND
TENDER OF CLASS B COMMON SHARES
OF
SIMON TRANSPORTATION SERVICES INC.
TO
JERRY MOYES
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or one substantially in the form
hereof, must be used to accept the Offer (as defined below) if (i)
certificates (the "Share Certificates") evidencing Class A Common Stock, $.01
par value (the "Class A Common Shares"), and Class B Common Stock, $.01 par
value (the "Class B Common Shares" and, together with Class A Common Shares,
the "Shares") of Simon Transportation Services Inc., a Nevada corporation (the
"Company"), are not immediately available, (ii) time will not permit all
required documents to reach Wilmington Trust Company, as Depositary (the
"Depositary"), prior to the Expiration Date (as defined in Section 1 of the
Offer to Purchase (as defined below)) or (iii) the procedure for book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand or transmitted by telegram, facsimile
transmission, or mail to the Depositary (see Section 2 of the Offer to
Purchase).
The Depositary for the Offer is:
Wilmington Trust Company
By Mail: By Hand/Overnight Courier:
Corporate Trust Operations Wilmington Trust Company
Wilmington Trust Company 1105 North Market Street, First Floor
P. O. Box 8861 Wilmington, DE 19801
Wilmington, DE 19885-9472 Attn: Corporate Trust Operations
By Facsimile Transmission: For Confirmation Telephone:
(302) 651-1079 (302) 651-8869
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
THE ELIGIBLE INSTITUTION THAT COMPLETES THIS FORM MUST COMMUNICATE THE
GUARANTEE TO THE DEPOSITARY AND MUST DELIVER THE LETTER OF TRANSMITTAL AND
SHARE CERTIFICATES TO THE DEPOSITARY WITHIN THE TIME PERIOD SHOWN HEREIN.
FAILURE TO DO SO COULD RESULT IN FINANCIAL LOSS TO SUCH ELIGIBLE INSITUTION.
1
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Jerry Moyes (the "Purchaser"), upon the
terms and subject to the conditions set forth in the offer to purchase, dated
May 23, 2000 (the "Offer to Purchase"), and the related Letter of Transmittal
(which, as amended or supplemented from time-to-time, together constitute the
"Offer"), receipt of each of which is hereby acknowledged, the number of
Shares specified below pursuant to the guaranteed delivery procedures
described in Section 2 of the Offer to Purchase.
Number of Shares (specify type (Class A Common Shares and/or Class B Common
Shares) and number):
_______________________________________________________________________________
_______________________________________________________________________________
Certificate Nos. (if available): ______________________________________________
[_] Check box if Shares will be tendered by book-entry transfer or through
DTC's ATOP:
Account Number: _______________________________________________________________
Name(s) of Record Holder(s): __________________________________________________
_______________________________________________________________________________
(Please Print)
Address(es): __________________________________________________________________
_______________________________________________________________________________
(Zip Code)
Area Code and Tel. No.: _______________________________________________________
Signature(s): _________________________________________________________________
_______________________________________________________________________________
Dated: ________________, 2000
2
<PAGE>
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a firm that is a commercial bank, broker, dealer, credit
union, savings association, or other entity which is a member in good standing
of the Securities Transfer Agents Medallion Program, the New York Stock
Exchange Medallion Signature Guarantee Program, or the Stock Exchange
Medallion Program (an "Eligible Institution") hereby guarantees delivery to
the Depositary, at its address set forth above, of Share Certificates
evidencing the Shares tendered hereby in proper form for transfer, or
confirmation of book-entry transfer of such Shares into the Depositary's
account at The Depository Trust Company (pursuant to the procedures for book-
entry transfer, set forth in Section 2 of the Offer to Purchase), in each case
with delivery of a properly completed and duly executed Letter of Transmittal
(or a facsimile thereof) with any required signature guarantees, or an Agent's
Message (as defined in Section 2 of the Offer to Purchase), and any other
documents required by the Letter of Transmittal, within three Nasdaq National
Market trading days after the date of execution of this Notice of Guaranteed
Delivery.
Name of Firm: _________________________________________________________________
Address: ______________________________________________________________________
(Zip Code)
Area Code and Tel. No.: _______________________________________________________
Authorized Signatory: _________________________________________________________
(Please Print Name and Title)
Authorized Signature: _________________________________________________________
Date: _________________, 2000
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY.
SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
3
<PAGE>
OFFER TO PURCHASE
ALL OUTSTANDING CLASS A AND CLASS B COMMON SHARES
OF
SIMON TRANSPORTATION SERVICES INC.
AT
$7.00 NET CASH PER SHARE
BY
JERRY MOYES
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON
JUNE 21, 2000, UNLESS THE OFFER IS EXTENDED.
May 23, 2000
To Our Clients:
Enclosed for your consideration are the offer to purchase, dated May 23,
2000 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
as amended or supplemented from time-to-time, together constitute the "Offer")
in connection with the Offer by Jerry Moyes (the "Purchaser") to purchase all
outstanding shares of Class A Common Stock, $.01 par value (the "Class A
Common Shares") and Class B Common Stock, $.01 par value (the "Class B Common
Shares" and, together with the Class A Common Shares, the "Shares"), of Simon
Transportation Services Inc., a Nevada corporation (the "Company"), at a price
of $7.00 per Share, net to the seller in cash, without interest thereon, upon
the terms and subject to the conditions set forth in the Offer to Purchase.
Stockholders whose certificates evidencing Shares (the "Share
Certificates") are not immediately available or who cannot deliver their Share
Certificates and all other documents required by the Letter of Transmittal to
the Depositary prior to the Expiration Date (as defined in the Offer to
Purchase) or who cannot complete the procedure for delivery by book-entry
transfer to the Depositary's account at the Book-Entry Transfer Facility (as
defined in Section 2 of the Offer to Purchase) on a timely basis and who wish
to tender their Shares must do so pursuant to the guaranteed delivery
procedure described in Section 2 of the Offer to Purchase (see also
Instruction 2 of the Letter of Transmittal). Delivery of documents to the
Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's procedures does not constitute delivery to the Depositary.
THIS MATERIAL IS BEING SENT TO YOU AS THE BENEFICIAL OWNER OF SHARES HELD
BY US FOR YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME. WE ARE THE HOLDER OF
RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE
MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE
LETTER OF TRANSMITTAL IS BEING FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND
CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on your
behalf any or all of the Shares held by us for your account upon the terms and
subject to the conditions set forth in the Offer to Purchase.
Your attention is invited to the following:
1. The tender price is $7.00 per Share, net to you in cash, without
interest thereon.
2. The Offer and withdrawal rights will expire at 5:00 P.M., Eastern
time, on June 21, 2000, unless the Offer is extended.
3. The Offer is being made for all of the outstanding Shares.
1
<PAGE>
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer.
The Offer is made solely by the Offer to Purchase and the related Letter of
Transmittal and any supplements or amendments thereto and is being made to all
holders of Shares. The Offer is not being made to (nor will tenders be
accepted from or on behalf of) holders of Shares in any jurisdiction in which
the making of the Offer or the acceptance thereof would not be in compliance
with the securities, blue sky, or other laws of such jurisdiction. The
Purchaser is not aware of any jurisdiction in which the making of the Offer or
the acceptance thereof would not be in compliance with the laws of such
jurisdiction. In any jurisdiction the securities, blue sky, or other laws of
which require the Offer to be made by a licensed broker or dealer, the Offer
is being made on behalf of the Purchaser by one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing, and returning to us the instruction form
contained in this letter. An envelope in which to return your instructions to
us is enclosed. If you authorize the tender of your Shares, all such Shares
will be tendered unless otherwise specified on the instruction form contained
in this letter. Your instructions should be forwarded to us in ample time to
permit us to submit a tender on your behalf prior to the expiration of the
Offer.
If holders of Shares wish to tender Shares, but it is impracticable for
them to forward their Share Certificates or other required documents to the
Depositary prior to the Expiration Date or to comply with the procedures for
book-entry transfer on a timely basis, a tender may be effected by following
the guaranteed delivery procedures specified under Section 2 of the Offer to
Purchase.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE
ALL OUTSTANDING CLASS A AND CLASS B COMMON SHARES
OF
SIMON TRANSPORTATION SERVICES INC.
AT
$7.00 NET CASH PER SHARE
BY
JERRY MOYES
The undersigned acknowledge(s) receipt of your letter and the enclosed
offer to purchase, dated May 23, 2000 (the "Offer to Purchase"), and the
related Letter of Transmittal (which, as amended or supplemented from time-to-
time, together constitute the "Offer"), in connection with the Offer by Jerry
Moyes (the "Purchaser") to purchase all outstanding Shares at $7.00 per Share,
net to the seller in cash without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase.
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or, if no number is indicated below, all Shares) held by you
for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Number and Type (Class A Common Shares and/or Class B Common Shares) of Shares
to be Tendered*:
_______________________________________________________________________________
Account Number: _______________________________________________________________
Signature(s): _________________________________________________________________
_______________________________________________________________________________
Dated: _______________ , 2000
Please type or print name(s): _________________________________________________
_______________________________________________________________________________
Please type or print address(es) here: ________________________________________
_______________________________________________________________________________
Area Code and Telephone Number: _______________________________________________
Taxpayer Identification or Social Security Number(s): _________________________
- --------
* Unless otherwise indicated, it will be assumed that all Shares held by us
for your account are to be tendered and that all Shares are Class A Common
Shares.
3
<PAGE>
OFFER TO PURCHASE
ALL OUTSTANDING CLASS A AND CLASS B COMMON SHARES
OF
SIMON TRANSPORTATION SERVICES INC.
AT
$7.00 NET CASH PER SHARE
BY
JERRY MOYES
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., EASTERN TIME, ON
JUNE 21, 2000, UNLESS THE OFFER IS EXTENDED.
May 23, 2000
To Brokers, Dealers, Commercial Banks,
Trust Companies, and Other Nominees:
We have been appointed by Jerry Moyes (the "Purchaser"), to act as
Information Agent in connection with the Purchaser's offer to purchase all
outstanding shares of Class A Common Stock, $.01 par value (the "Class A
Common Shares") and Class B Common Stock, $.01 par value (the "Class B Common
Shares" and, together with the Class A Common Shares, the "Shares"), of Simon
Transportation Services Inc., a Nevada corporation (the "Company"), at a price
of $7.00 per Share, net to the seller in cash, without interest thereon, upon
the terms and subject to the conditions set forth in the offer to purchase,
dated May 23, 2000 (the "Offer to Purchase"), and in the related Letter of
Transmittal (which, as amended or supplemented from time to time, together
constitute the "Offer") enclosed herewith.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares registered in your name or in the name of
your nominee.
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the Expiration Date (as defined in the
Offer to Purchase) a number of Shares which, when added to the Shares deemed
to be beneficially owned by Purchaser and certain persons affiliated with him,
represents at least a majority of the total voting power of the Shares
outstanding on the date Shares are accepted for payment. The Offer is also
subject to other conditions set forth in the Offer to Purchase.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, or who hold
Shares registered in their own names, we are enclosing the following
documents:
1. The Offer to Purchase, dated May 23, 2000;
2. The Letter of Transmittal to be used by holders of Shares in
accepting the Offer and tendering Shares;
3. The Notice of Guaranteed Delivery to be used to accept the Offer if
the certificates evidencing such Shares (the "Share Certificates") and all
other required documents cannot be delivered to the Depositary (as defined
below), or if the procedures for book-entry transfer cannot be completed,
by the Expiration Date (as defined in the Offer to Purchase);
4. A letter which may be sent to your clients for whose accounts you
hold Shares registered in your name or in the name of your nominee, with
space provided for obtaining such clients' instructions with regard to the
Offer;
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9 providing information
relating to backup federal income tax withholding; and
6. A return envelope addressed to the Depositary.
1
<PAGE>
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such
extension or amendment), the Purchaser will accept for payment, and will pay
for the Shares validly tendered prior to the Expiration Date and not
theretofore properly withdrawn when, as, and if Purchaser gives oral or
written notice to the Depositary of the Purchaser's acceptance of such Shares
for payment pursuant to the Offer. In all cases, payment for Shares purchased
pursuant to the Offer will be made only after timely receipt by the Depositary
of (i) the Share Certificates, or a Book-Entry Confirmation (as defined in the
Offer to Purchase) pursuant to the procedures set forth in Section 2 of the
Offer to Purchase, or confirmation of surrender of Shares through DTC's
Automated Tender Offer Program ("ATOP"), (ii) the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message (as defined in Section 2 of the
Offer to Purchase), in the case of a book-entry transfer or tender pursuant to
ATOP procedures, and (iii) any other documents required by the Letter of
Transmittal.
The Purchaser will not pay any fees or commissions to any broker or dealer
or any other person (other than the Information Agent and the Depositary as
described in Section 16 of the Offer to Purchase) in connection with the
solicitation of tenders of Shares pursuant to the Offer. The Purchaser will,
however, upon request, reimburse you for customary mailing and handling
expenses incurred by you in forwarding the enclosed materials to your clients.
The Purchaser will pay any stock transfer taxes applicable to his purchase
of Shares pursuant to the Offer, subject to Instruction 6 of the Letter of
Transmittal.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00
P.M., EASTERN TIME, ON JUNE 21, 2000, UNLESS THE OFFER IS EXTENDED.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or a facsimile thereof), with any required
signature guarantees, or an Agent's Message in connection with a book-entry
transfer of Shares, and any other required documents, should be sent to the
Depositary, and certificates evidencing the tendered Shares should be
delivered or such Shares should be tendered by book-entry transfer or in
accordance with DTC's ATOP procedures, all in accordance with the Instructions
set forth in the Letter of Transmittal and the Offer to Purchase.
If holders of Shares wish to tender Shares, but it is impracticable for
them to forward their Share Certificates or other required documents to the
Depositary prior to the Expiration Date or to comply with the procedures for
book-entry transfer or ATOP prior to the Expiration Date, a tender may be
effected by following the guaranteed delivery procedures specified under
Section 2 of the Offer to Purchase.
Any inquiries you may have with respect to the Offer should be addressed to
MacKenzie Partners, Inc., the Information Agent, at its respective address and
telephone number set forth on the back cover page of the Offer to Purchase.
Additional copies of the enclosed materials may be obtained by calling
MacKenzie Partners, Inc., the Information Agent, collect at (212) 929-5500 or
toll-free at (800) 322-2885, or from brokers, dealers, commercial banks, or
trust companies.
Very truly yours,
MacKenzie Partners, Inc.
----------------
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
OTHER PERSON AS AN AGENT OF THE PURCHASER, THE COMPANY, THE INFORMATION AGENT,
THE DEPOSITARY, OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE YOU OR
ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF
THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED AND THE
STATEMENTS CONTAINED THEREIN.
2
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payor--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the
number to give the payor.
- --------------------------------------- ---------------------------------------
<TABLE>
<CAPTION>
Give the
For this type of account: SOCIAL SECURITY
number of--
- -----------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner
(joint account) of the account
or, if combined
funds, the first
individual on the
account(2)
3. Husband and wife (joint The actual owner
account) of the account
or, if joint
funds, either
person(2)
4. Custodian account of a The minor(3)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if
account) the minor is the
only contributor,
the minor(2)
6. Account in the name of The ward, minor,
guardian or committee for a or incompetent
designated ward, minor, or person(4)
incompetent person
7. a. The usual revocable The grantor-
savings trust account trustee(2)
(grantor is also
trustee)
b. So-called trust account The actual
that is not a legal or owner(2)
valid trust under State
law
8. Sole proprietorship The owner(5)
account
</TABLE>
<TABLE>
<CAPTION>
Give the EMPLOYER
For this type of account: IDENTIFICATION
number of--
--------
<S> <C>
9. A valid trust, estate, or The legal entity
pension trust (Do not furnish
the identifying
number of the
personal
representative or
trustee unless
the legal entity
itself is not
designated in the
account
title.)(1)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held The partnership
in the name of the business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or
nominee nominee
15. Account with the The public entity
Department of Agriculture
in the name of a public
entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payments
</TABLE>
---------------------------------------
- ---------------------------------------
(1) List first and circle the name of the legal trust, estate, or pension
trust.
(2) List first and circle the name of the person whose number you furnish.
(3) Circle the minor's name and furnish the minor's social security number.
(4) Circle the ward's, minor's, or incompetent person's name and furnish such
person's social security number.
(5) Show the name of the owner.
Note: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you don't have a TIN or you don't know your number, obtain Form SS-5,
Application for a Social Security Number Card, or Form SS-4, Application for
Employer Identification Number, at the local office of the Social Security
Administration or the Internal Revenue Service and apply for a number.
Payees Exempt from Backup Withholding
Payees specifically exempted from backup withholding on ALL payments include
the following:
. An organization exempt from tax under section 501(a), any IRA, or a custo-
dial account under section 403(b)(7) if the account satisfies the require-
ments of section 401(f)(2).
. The United States or any of its agencies or instrumentalities.
. A state, the District of Columbia, a possession of the United States, or
any of their political subdivision or instrumentalities
. A foreign government or any of its political subdivisions, agencies, or
instrumentalities.
. An international organization or any of its agencies or instrumentalities.
Other payees that may be exempt from backup withholding on certain payments
include the following:
. A corporation.
. A financial institution.
.A dealer in securities or commodities required to register in the United
States, the District of Columbia, or a possession of the United States.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a)
. A trust exempt from tax under section 664 or described in section 4947.
. An entity registered at all times during the tax year under the Investment
Company Act of 1940.
. A foreign central bank of issue.
. A middleman known in the investment community as a nominee or custodian.
. A futures commission merchant registered with the Commodity futures Trad-
ing Commission.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Section 404(k) distributions made by an ESOP.
Interest payments that generally are exempt from backup withholding include
the following:
. Payments of interest on obligations issued by individuals. NOTE: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payor's trade or business and you have not pro-
vided your correct taxpayer identification number to the payor.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Mortgage or student loan interest paid to you.
EXEMPT PAYEES SHOULD COMPLETE A SUBSTITUTE FORM W-9 TO AVOID POSSIBLE
ERRONEOUS BACKUP WITHHOLDING. FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER,
WRITE "EXEMPT" ON THE FORM, SIGN AND DATE THE FORM, AND RETURN IT TO THE
PAYOR.
Certain payments other than interest, dividends, and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see sections 6041, 6041A, 6045, and 6050A and their
regulations.
Privacy Act Notice.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payors
who must report the payments to IRS. The IRS uses the numbers for
identification purposes. Payors must be given the numbers whether or not
recipients are required to file tax returns. Payors must generally withhold
31% of taxable interest, dividends, and certain other payments to a payee who
does not furnish a taxpayer identification number to a payor. Certain
penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number.--If you
fail to furnish your taxpayer identification number to a payor, you are
subject to a penalty of $50 for each such failure unless your failure is due
to reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE>
EXHIBIT (a)(1)(G)
JERRY MOYES ANNOUNCES TENDER OFFER
FOR ALL OUTSTANDING SHARES OF
SIMON TRANSPORTATION SERVICES INC.
AT $7.00 PER SHARE
FOR IMMEDIATE RELEASE: TUESDAY, MAY 23, 2000
Phoenix, Az.--Jerry Moyes announced today that he has commenced a tender
offer for all outstanding Class A and Class B Common Shares of Simon
Transportation Services Inc. (Nasdaq: SIMN) at a price of $7.00 net per share
in cash. Total consideration for the transaction is approximately $39 million.
The tender offer is not subject to any financing contingencies.
Mr. Moyes also has filed preliminary consent solicitation materials with
the Securities and Exchange Commission for the solicitation of written
consents from the stockholders of Simon Transportation. The consent
solicitation is intended to facilitate the tender offer and the appointment of
Mr. Moyes and his designees as a majority of Simon Transportation's board of
directors.
Mr. Moyes stated: "I attempted for many months to negotiate an agreement
with Simon Transportation's board of directors under which I would acquire
control of the company. Although we failed to agree on all terms, the Simon
board and I shared the view that the stockholders should be able to consider
my offer. The board has waived all anti-takeover statutes and furnished me
with stockholder information to facilitate the distribution of my offer. The
decision is now in the hands of the stockholders."
The tender offer is conditioned upon, among other things, (i) there being
validly tendered prior to the expiration of the tender offer and not withdrawn
a number of Class A and Class B Common Shares, which, together with the shares
deemed to be beneficially owned by Mr. Moyes and certain persons affiliated
with him, will constitute at least a majority of the total voting power of the
outstanding shares as of the date the shares are accepted for payment pursuant
to the tender offer; (ii) there being validly tendered and not withdrawn at
least 450,000 Class B Common Shares deemed to be beneficially owned, directly
or indirectly through any trust or otherwise, by Richard D. Simon; (iii) Mr.
Moyes and his designees being elected or appointed to fill a majority of the
directorships comprising the entire Board of Directors of Simon
Transportation; (iv) Simon Transportation giving Mr. Moyes access to perform a
due diligence examination of its assets, liabilities, facilities, business
operations, personnel, customers, and other matters and Mr. Moyes'
satisfaction, in his sole discretion, with the results of such examination;
(v) the continuing effectiveness of Simon Transportation's waiver of all
applicable anti-takeover statutes, including, sections 78.411, et seq. and
78.378, et seq. of the Nevada General Corporation Law; and (vi) the expiration
or termination of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the regulations thereunder
as well as compliance with any other applicable antitrust laws. The tender
offer also is conditioned upon certain other conditions that are described in
the Offer to Purchase, which is filed as an exhibit to the tender offer
statement filed by Mr. Moyes with the Securities and Exchange Commission.
Other Important Information:
This press release is for information purposes only and is not an offer to
buy or the solicitation of an offer to sell any of the shares of Simon
Transportation and is not a solicitation of a proxy or written consents. The
offer to buy Simon Transportation shares will be made only pursuant to the
Offer to Purchase and related materials that Mr. Moyes will send to Simon
Transportation stockholders and has filed as an exhibit to the tender offer
statement. The tender offer statement contains, and the consent solicitation
materials will contain, important information that stockholders should
consider before making any decision regarding their shares. You will be
G-1
<PAGE>
able to obtain the tender offer statement, as well as other filings containing
information about Mr. Moyes and Simon Transportation, without charge, at the
Securities and Exchange Commission's Internet site (www.sec.gov). Copies of
the tender offer statement and other SEC filings will also be available,
without charge, from the Information Agent for the Offer, as identified below:
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
G-2
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares (as defined below). The Offer (as defined below) is made
solely by the Offer to Purchase, dated May 23, 2000, and the related Letter of
Transmittal and any amendments or supplements thereto, and is being made to
all holders of Shares. The Offer is not being made to (nor will tenders be
accepted from or on behalf of) holders of Shares in any jurisdiction in which
the making of the Offer or the acceptance thereof would not be in compliance
with the laws of such jurisdiction. In any jurisdiction where the securities,
blue sky, or other laws require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed to be made on behalf of the Purchaser (as
defined below) by one or more registered brokers or dealers that are licensed
under the laws of such jurisdiction.
Notice of Offer to Purchase
All of the Outstanding Class A and Class B Common Shares
of
Simon Transportation Services Inc.
at
$7.00 Net Cash Per Share
by
Jerry Moyes
Jerry Moyes ("Purchaser") hereby offers to purchase all of the outstanding
shares of Class A Common Stock, par value $.01 (the "Class A Common Shares")
and Class B Common Stock, par value $.01 (the "Class B Common Shares" and
together with Class A Common Shares, the "Shares") of Simon Transportation
Services Inc., a Nevada corporation (the "Company"), at $7.00 per Share (the
"Offer Price"), net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated May 23, 2000, and in the
related Letter of Transmittal (which together with any amendments or
supplements thereto, collectively constitute the "Offer"). Tendering
stockholders who have Shares registered in their own name and who tender
directly to the Depositary (as defined below) will not be obligated to pay
brokerage fees or commissions or, subject to Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by Purchaser
pursuant to the Offer. Stockholders who own Shares through a broker or nominee
may be charged a fee by such broker or nominee to tender.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M. EASTERN TIME, ON WEDNESDAY, JUNE 21, 2000,
UNLESS THE OFFER IS EXTENDED.
The purpose of the Offer is to enable Purchaser to acquire control of the
Company. Purchaser intends to review the Company's business, operations,
capitalization, and management with a view toward improving the Company's
potential. Purchaser has no present plans, proposals, or negotiations that
would result in an extraordinary corporate transaction, such as a merger,
consolidation, reorganization, liquidation, or sale or transfer of a material
amount of assets, involving the Company or any of its subsidiaries, or any
material changes in the Company's present capitalization, dividend policy,
employee benefit plans, corporate structure, or business or, except for the
hiring of a new chief executive officer, any material changes or reductions in
the composition of its management or personnel.
<PAGE>
Following the consummation of the Offer, it is Purchaser's preference that
the Class A Common Shares continue to be listed on the Nasdaq National Market
if the Company continues to meet the listing requirements and the Purchaser
believes the number of publicly held Shares justifies continuing to meet the
reporting and disclosure obligations of the SEC. If these factors are not met,
Purchaser may propose corporate action to take the Company private. In that
instance, holders of Shares other than Purchaser and persons affiliated with
him would receive cash for their shares and no longer be stockholders.
The Offer is conditioned upon, among other things, (i) there being validly
tendered prior to the expiration of the Offer and not withdrawn, a number of
Shares, which, together with the Shares deemed to be beneficially owned by
Purchaser and certain persons affiliated with him, will constitute at least a
majority of the voting power of the outstanding Shares as of the date the
Shares are accepted for payment pursuant to the Offer; (ii) there being
validly tendered and not withdrawn at least 450,000 Class B Common Shares
deemed to be beneficially owned, directly or indirectly through any trust or
otherwise, by Richard D. Simon; (iii) Purchaser and his designees being
elected or appointed to fill a majority of the directorships comprising the
entire Board of Directors of the Company; (iv) the Company giving Purchaser
access to perform a due diligence examination of the Company's assets,
liabilities, facilities, business operations, personnel, customers, and other
matters and Purchaser's satisfaction, in his sole discretion, with the results
of such examination; (v) the continuing effectiveness of the Company's waiver
of all applicable anti-takeover statutes, including, sections 78.411, et seq.
and 78.378, et seq. of the Nevada General Corporation Law; and (vi) the
expiration or termination of all applicable waiting periods under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
regulations thereunder as well as compliance with any other applicable
antitrust laws. The Offer also is conditioned upon certain other conditions
described in Section 14 of the Offer to Purchase. For purposes of the Offer,
Purchaser will have purchased Shares validly tendered as, if, and when
Purchaser gives notice to Wilmington Trust Company (the "Depositary") of
Purchaser's acceptance for payment of such Shares. Payment will be made by
deposit of the Offer Price therefor with the Depositary, which will act as
agent for validly tendering stockholders for the purpose of receiving payment
from Purchaser and transmitting payment to tendering stockholders. If any
tendered Shares are not purchased, Share Certificates (as defined in the Offer
to Purchase) for the unpurchased Shares will be returned, without expense to
the tendering stockholder (or, in the case of Shares delivered by book-entry
transfer of such Shares into the Depositary's account at the Book-Entry
Transfer Facility (as defined in the Offer to Purchase) pursuant to the
procedure set forth in Section 2 of the Offer to Purchase, such Shares will be
credited to an account maintained at the Book-Entry Transfer Facility), as
promptly as practicable after the expiration, termination, or withdrawal of
the Offer. Payment for Shares accepted for payment will be made only after
timely receipt by the Depositary of (i) Share Certificates for (or a timely
Book-Entry Confirmation with respect to) such Shares, (ii) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or, in the case of a book-entry transfer,
an Agent's Message (as defined in the Offer to Purchase), and (iii) any other
documents required by the Letter of Transmittal. The per Share consideration
paid to any stockholder pursuant to the Offer will be the highest per Share
consideration paid to any other stockholder of the same class pursuant to the
Offer. Under no circumstances will interest be paid on the Offer Price of the
Shares to be paid by Purchaser.
Subject to SEC rules and regulations, Purchaser reserves the right to (i)
extend, in Purchaser's sole discretion, the period of time during which the
Offer is open, and thereby delay acceptance for payment of any Shares, by
giving oral or written notice of such extension and delay to the Depositary
and (ii) amend the Offer or waive any condition by giving oral or written
notice of such amendment or waiver to the Depositary. During any such
extension, all Shares previously tendered and not properly withdrawn will
remain subject to the Offer, subject to the right of a tendering stockholder
to withdraw such stockholder's Shares. Any extension, amendment, delay,
waiver, or termination will be followed promptly by public announcement. In
the case of an extension, the announcement will be issued no later than the
earlier of (i) 9:00 a.m. Eastern time, on the next business day after the
previously scheduled Expiration Date (as defined in the Offer to Purchaser) or
(ii) the first opening of the Nasdaq National Market on the next business day
after the previously scheduled Expiration Date. Purchaser may include a
"subsequent offering period." Rule 14d-11 under the Exchange Act provides that
a bidder may, subject to certain conditions, elect to provide a subsequent
offering period of three business days to 20 business days so
<PAGE>
long as, among other things, (i) the Offer remains open for a minimum of 20
business days and has expired, (ii) the Offer is for all outstanding Shares,
(iii) the bidder accepts and promptly pays for all Shares tendered during the
Offer, (iv) the bidder announces the results of the Offer, including the
approximate number and percentage of Shares deposited no later than 9:00 a.m.,
Eastern time on the next business day after the Expiration Date and
immediately begins the subsequent offering period, (v) the bidder immediately
accepts and promptly pays for the Shares as they are tendered during the
subsequent offering period, and (vi) the bidder pays the Offer Price for all
Shares tendered in the subsequent offering period.
Shares tendered pursuant to the Offer may be withdrawn pursuant to the
procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment by Purchaser pursuant to the Offer,
may also be withdrawn at any time after July 21, 2000. For a withdrawal to be
effective, a written, telegraphic, or facsimile transmission notice of
withdrawal must be timely received by the Depositary at its address set forth
on the back cover of the Offer to Purchase and must specify the name of the
person having tendered the Shares to be withdrawn, the number of Shares to be
withdrawn, and the name of the registered holder of the Shares to be
withdrawn, if different from the name of the person who tendered the Shares.
The withdrawal must otherwise follow the procedures discussed in Section 3 of
the Offer to Purchase. All questions as to the form and validity (including
time of receipt) of notices of withdrawal will be determined by Purchaser, in
his sole discretion. None of Purchaser, the Information Agent, the Depositary,
or any other person will be under any duty to give notification of any defects
or irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification.
The receipt of cash in exchange for Shares pursuant to the Offer will be a
taxable transaction for federal income tax purposes and may also be a taxable
transaction under applicable state, local or foreign tax laws. Generally, a
stockholder who receives cash in exchange for Shares pursuant to the Offer
will recognize gain or loss for federal income tax purposes equal to the
difference (if any) between the amount of cash received and such stockholder's
adjusted tax basis in the Shares exchanged therefor. Provided that such Shares
constitute capital assets in the hands of the stockholder, such gain or loss
will be capital gain or loss and will be long-term capital gain or loss if the
holder has held the Shares for more than one year at the time of the exchange.
All stockholders should consult with their tax advisors as to the particular
tax consequences of the Offer to them, including the applicability and effect
of the alternative minimum tax and any state, local or foreign income and
other tax laws and of changes in such tax laws. For a more complete
description of certain U.S. federal income tax consequences of the Offer, see
Section 5 of the Offer to Purchase.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6
of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, is contained in the Offer to Purchase and is incorporated
herein by reference.
The Company's board of directors has resolved to remain neutral toward the
Offer, has waived the restrictions contained in all anti-takeover statutes,
and has furnished Purchaser with stockholder information to facilitate the
Offer. The board's actions are conditioned upon Purchaser and persons
affiliated with him acquiring shares with a majority of the total voting power
prior to August 31, 2000, and the board's continuing fiduciary obligations.
The Offer to Purchase and the related Letter of Transmittal will be mailed to
record holders of Shares and will be furnished to brokers, banks and similar
persons whose names, or the names of whose nominees, appear on the stockholder
list or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
The Offer to Purchase and the Letter of Transmittal contain important
information that should be read carefully before any decision is made with
respect to the Offer.
Questions and requests for assistance may be directed to the Information
Agent at the address and telephone number set forth below. Requests for
additional copies of the Offer to Purchase, the related Letter of Transmittal
and other tender offer materials may be directed to the Information Agent.
Such additional copies will be furnished at Purchaser's expense. Purchaser
will not pay any fees or commissions to any broker or dealer or any other
person (other than the Information Agent and the Depositary) for soliciting
tenders of Shares pursuant to the Offer.
<PAGE>
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
May 23, 2000
<PAGE>
SCHEDULE 14A
(Rule 14A-101)
INFORMATION REQUIRED IN CONSENT STATEMENT
SCHEDULE 14A INFORMATION
Consent Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant [_]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[_]Confidential, for use of the
[X]Preliminary Consent Statement Commission only (as permitted by
Rule 14a-6(e)(2))
[_]Definitive Consent Statement
[_]Definitive Additional Materials
[_]Soliciting Material Pursuant to Rule 14a-12
SIMON TRANSPORTATION SERVICES INC.
(Name of Registrant as Specified In Its Charter)
Jerry Moyes
(Name of Person(s) Filing Consent Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X]No fee required.
[_]Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[_]Fee paid previously with preliminary materials.
[_]Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
Jerry Moyes
2200 S. 75th Avenue
Phoenix, Arizona 85043
, 2000
Dear Fellow Stockholders of Simon Transportation Services Inc.:
I am writing to urge you to assist me in my effort to gain control of the
board of directors of Simon Transportation. The proposals designed to
accomplish this are described in the attached Consent Statement. Please
express your consent to the proposals by marking, signing, and dating the
enclosed WHITE consent card and returning it in the enclosed, postage-paid
envelope, to my solicitor, MacKenzie Partners, Inc., as set forth in the
Consent Statement.
The persons I propose to nominate to the Simon Transportation board of
directors and I together control approximately 848,550 of the company's Class
A common shares. I wish to gain control of the Simon Transportation board of
directors so that I may complete a tender offer I commenced on May 23, 2000,
for all of the company's Class A and Class B common shares for a price of
$7.00 net cash per share. My offer is subject to the terms and conditions set
forth in the offer to purchase dated May 23, 2000 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together with any amendments
or supplements thereto, collectively constitute the "Offer").
The Simon Transportation board of directors and I attempted for many months
to negotiate an agreement for me to purchase all or a majority of the
company's stock. I believe the relationship between us remains cordial, but we
were unable to agree on all of the terms of a transaction. In the end, the
Simon Transportation board of directors decided they would leave the decision
to the stockholders. In a letter dated May 5, 2000, the Simon Transportation
board of directors informed me that they had decided to remain neutral toward
my offer and had waived the restrictions of all anti-takeover statutes. They
have delivered stockholder records to help me with mailings to the
stockholders. Subject to any action required by their fiduciary obligations,
they indicated that their actions would remain effective if persons affiliated
with me and I obtain shares representing a majority of the total voting power
prior to August 31, 2000. The rest is up to you.
If you believe all stockholders should have the opportunity to either sell
their shares for $7.00 net cash per share or, if I gain control and sufficient
shares also remain in public hands, to retain their investment under the
leadership of a new majority on the board of directors, please join me in
supporting the proposals.
If the Offer is completed, the stockholders who tender their shares will
receive $7.00 net cash per share and will have no further interest in the
company. Stockholders who do not tender face two likely alternatives. My
preference is to keep Simon Transportation public. I believe publicly traded
stock will motivate employees who hold stock options. The stock also could be
used in acquisitions, although I have no present plans or proposals concerning
any acquisitions. If sufficient shares remain outstanding in the hands of a
large enough number of stockholders, I intend to keep the company public. One
of the factors I will consider is whether the company would continue to meet
the listing requirements for the Nasdaq National Market. If it appears that
the untendered shares will not support continued listing with Nasdaq as well
as public trading that I deem significant, I may propose a merger or other
going private transaction in which stockholders who are not affiliated with me
would receive cash for their shares. If such a transaction would occur
promptly following the consummation of the Offer, I believe the consideration
to be received by the non-tendering stockholders would be $7.00 net cash per
share. In that event all stockholders other than myself and persons affiliated
with me would cease to own stock in the company.
If the Offer is not completed, but the proposals are adopted, my nominees
and I would comprise a majority of the company's board of directors.
Thereafter, I expect that the other nominees and I would, subject to our
fiduciary duties to all of the stockholders, propose one or more transactions
designed to acquire shares representing at least a majority of the total
voting power of the company's outstanding common stock.
<PAGE>
There are a number of conditions that must be satisfied for me to complete
the Offer. Among other things, I must obtain enough shares in the Offer which,
together with the shares persons affiliated with me and I already control,
would represent at least a majority of the total voting power of Simon
Transportation's common stock. My nominees and I must be elected or appointed
to a majority of seats of the company's entire board of directors. The
company's waiver of all anti-takeover laws must continue to be in effect, and
I must have been given due diligence access to information concerning the
company and have been satisfied with the results. Please review the Offer to
Purchase for a more complete discussion of these and the other conditions to
the Offer. My Offer is not conditioned upon obtaining financing.
I believe that adopting the proposals will further my efforts to complete
the Offer. If adopted, the proposals would satisfy the condition that my
nominees and I gain control of the board of directors. In addition, adopting
the proposals would facilitate gaining access to conduct a due diligence
review and ensuring the continuing effectiveness of the company's waiver of
all applicable anti-takeover laws.
Only stockholders of record at the close of business on May 23, 2000, are
entitled to consent in connection with this consent solicitation. If you were
a stockholder of record on May 23, 2000, but subsequently sold your shares,
you still retain your voting and consent rights.
Please note that although the proposals are stated separately as required
by SEC rules, all of Proposals 1, 2, and 3 must be adopted to accomplish my
objectives. The failure to sign and return a consent will have the same effect
as a vote against the proposals.
Please sign and return your consent card today. In any case, your consent
must be received by July 19, 2000. If you have questions please feel free to
call Lawrence Dennedy of MacKenzie Partners, Inc. at (800) 322-2885.
Sincerely,
Jerry Moyes
IMPORTANT
1. If your Simon Transportation shares are held in your name, please sign,
date, and mail the enclosed WHITE consent card to MacKenzie Partners, Inc.
in the postage-paid envelope provided.
2. If your Simon Transportation shares are held in a "street name," only your
broker or bank can execute a consent with respect to your shares and only
upon receipt of your specific instructions. Accordingly, you should deliver
the enclosed WHITE consent card to your broker or bank, contact the person
responsible for your account, and give instructions for the WHITE consent
card to be signed representing your shares. Please confirm in writing your
instructions to the person responsible for your account and provide a copy
of those instructions to Jerry Moyes in care of MacKenzie Partners, Inc. so
that Mr. Moyes will be aware of all instructions given and can attempt to
ensure that such instructions are followed.
If you have any questions or require any assistance in executing your
consent, please call:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
<PAGE>
PRELIMINARY COPY--SUBJECT TO COMPLETION, DATED MAY 23, 2000
CONSENT STATEMENT
OF
JERRY MOYES
GENERAL
Jerry Moyes ("Moyes") is furnishing this Consent Statement and form of
written consent in connection with his solicitation of written consents from
the holders of Class A Common Stock, par value $0.01 per share ("Class A
Common Shares") and Class B Common Stock, par value $0.01 per share ("Class B
Common Shares" and, collectively with Class A Common Shares, the "Shares") of
Simon Transportation Services Inc. (the "Company"). This Consent Statement and
the enclosed WHITE consent card are first being furnished to holders of the
Shares on , 2000. This Consent Statement proposes the following
actions, in the order set forth below, without the necessity of a meeting of
the Company's stockholders, as authorized by Nevada law:
1. Repeal the Company's current bylaws (the "Current Bylaws"), as
previously amended and in effect at the time that written stockholder
consents representing a sufficient number of votes to effect the repeal are
delivered to the Company by Moyes (the "Repeal of Current Bylaws
Proposal").
2. Adopt new bylaws of the Company in the form attached as Exhibit A
(the "New Bylaws"), which, among other things, would (i) retain the
directors actually serving as directors of the Company immediately prior to
the adoption of the New Bylaws (the "Incumbent Directors") for their
remaining terms; (ii) increase the number of directors constituting the
entire board of directors by thirteen (13); (iii) provide a method whereby
the stockholders can remove directors and fill vacancies on the board of
directors; (iv) provide for annual terms for all directors (except the
present terms of the Incumbent Directors shall continue until their
scheduled expiration); (v) empower the stockholders holding more than one-
third of the total number of shares of the Company's common stock to call
special meetings of the stockholders; (vi) change the requirement for a
quorum to be based upon total voting power rather than number of shares;
(vii) create the office of "Chief Executive Officer" and change certain
duties of the other officers; and (viii) provide that the Acquisition of
Controlling Interest Statute does not apply to the Company (the "New Bylaws
Proposal").
3. Elect the following thirteen (13) persons (the "Nominees") to fill
the new director seats created by the adoption of the New Bylaws and to
serve as directors until the next annual meeting of the Company's
stockholders or until their respective successors are duly elected and
qualified: Jerry Moyes, Earl H. Scudder, Gordon K. Holladay, Jon Isaacson,
Vickie L. Moyes, Craig P. Moyes, Jeff L. Archibald, Patrice Archibald,
Ronald G. Moyes, Krista B. Moyes, Michael J. Moyes, Buddy Favero, and Laura
Favero (the "Director Election Proposal").
All of the foregoing actions (collectively, the "Proposals") are designed
to permit Moyes to acquire control of the Company's board of directors. It is
a condition to the Offer (as described below) by Moyes to purchase up to all
of the Shares for $7.00 in cash, net to the seller, that Moyes obtains control
over the Company's board of directors. Moyes asks that you express your
consent to the Proposals by marking, signing, and dating the enclosed WHITE
consent card and returning it in the enclosed, postage-paid envelope to Moyes'
solicitor, MacKenzie Partners, Inc., in accordance with the instructions set
forth below.
A Proposal will become effective when properly completed, unrevoked
consents are signed by the holders of record on the Record Date (as defined
below) of a number of Shares representing a majority of the total voting power
of all outstanding Shares and such consents are delivered to the Company on or
before July 19, 2000. See "Consent Procedure." The effectiveness of the
consents is conditioned on the approval of Proposals 1, 2, and 3. If all of
such Proposals are not approved as indicated, none of the Proposals will be
enacted even though sufficient consents may have been received to approve a
particular Proposal.
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The record date for this Consent Statement is May 23, 2000 (the "Record
Date"). Stockholders who sold Shares subsequent to May 23, 2000, still retain
their voting and consent rights with respect to such Shares. Stockholders of
record on the Record Date are urged to execute and return a consent to
MacKenzie Partners, Inc. no later than June 21, 2000, to ensure timely
delivery of the consents. Certain information regarding consent procedures is
found beginning on page 8.
Moyes recommends that you consent to each of the Proposals. The failure to
execute and timely return a consent will have the same effect as voting
against the Proposals.
THIS CONSENT STATEMENT IS BEING MADE BY MOYES AND NOT ON BEHALF OF THE
COMPANY'S CURRENT BOARD OF DIRECTORS.
On May 23, 2000, Moyes commenced an offer to purchase up to all of the
outstanding Shares at a price of $7.00 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set
forth in the offer to purchase dated May 23, 2000 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together with any amendments
or supplements thereto, collectively constitute the "Offer"). The purpose of
the Offer is to enable Moyes to acquire control of the Company.
The Offer is conditioned upon, among other things: (i) there being validly
tendered prior to the expiration of the Offer and not withdrawn, a number of
Shares that, together with the Shares deemed to be beneficially owned by Moyes
and the other Nominees, will represent at least a majority of the total voting
power of the outstanding Shares as of the date the Shares are accepted for
payment pursuant to the Offer (the "Minimum Tender Condition"); (ii) there
being validly tendered and not withdrawn at least 450,000 Class B Common
Shares deemed to be beneficially owned, directly or indirectly through any
trust or otherwise, by Richard D. Simon (the "Simon Tender Condition"); (iii)
Moyes and his designees being elected or appointed to fill a majority of the
directorships comprising the entire Board of Directors of the Company (the
"Board of Directors Condition"); (iv) the Company giving Moyes access to
perform a due diligence examination of the Company's assets, liabilities,
facilities, business operations, personnel, customers, and other matters and
Moyes' satisfaction, in his sole discretion, with the results of such
examination (the "Due Diligence Condition"); (v) the continuing effectiveness
of the Company's waiver of all applicable anti-takeover statutes, including
Sections 78.411, et seq. and 78.378, et seq. of the Nevada General Corporation
Law (the "Anti-Takeover Statute Condition"); and (vi) the expiration or
termination of all applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the regulations
thereunder, as well as compliance with any other applicable antitrust laws
(the "Antitrust Condition"). The Offer also is conditioned upon certain other
conditions described in Section 14 of the Offer to Purchase.
All conditions to the Offer must be satisfied or waived prior to the
expiration of the Offer. There can be no assurance as to whether the
conditions to the Offer will be satisfied and, if so, as to the timing of
satisfaction of such conditions.
Complete information about the Offer is contained in the Offer to Purchase,
which is available upon request from MacKenzie Partners, Inc., the Information
Agent for the Offer, by calling (800) 322-2885. Information also is available
in the Tender Offer Statement on Schedule TO, which has been filed with the
Securities and Exchange Commission (the "Commission"). The Tender Offer
Statement on Schedule TO and any amendments thereto, including exhibits, are
available for inspection and copies are obtainable in the manner set forth
under "Additional Information."
THIS CONSENT STATEMENT IS NEITHER A REQUEST FOR THE TENDER OF SHARES NOR AN
OFFER WITH RESPECT THERETO. THE OFFER IS BEING MADE ONLY BY MEANS OF THE OFFER
TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL.
Moyes urges you to read this entire Consent Statement carefully. The
information contained in this Consent Statement includes forward-looking
statements within the meaning of Section 21E of the Securities Exchange
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<PAGE>
Act of 1934, as amended (the "Exchange Act"). While Section 21E of the
Exchange Act is not applicable to forward-looking statements made in
connection with a tender offer, it has not been finally determined whether the
safe harbor provided by Section 21E of the Exchange Act applies to forward-
looking statements in a consent solicitation conducted in connection with a
tender offer. Such statements are indicated by words or phrases such as
"anticipates," "estimates," "projects," "believes," "intends," "expects," and
similar words and phrases. Forward-looking statements are subject to risks,
uncertainties, and other factors which could cause actual results to differ
materially from future results expressed or implied by such forward-looking
statements. Such factors include, among others, the following: (i)
consummation of the proposed transactions; and (ii) new or different
circumstances resulting in a change in the current intentions of the Nominees.
Given these uncertainties, prospective investors are cautioned not to
attribute undue certainty to such forward-looking statements. Moyes disclaims
any obligation to update any such factors or to publicly announce the results
of any revisions to any of the forward-looking statements contained herein to
reflect future events or developments.
REASONS FOR THE CONSENT STATEMENT
Moyes is soliciting consents to the Proposals in order to permit the
consummation of the Offer. The purpose of the Offer is to enable Moyes to
acquire control of the Company.
The consideration that stockholders would receive in the Offer reflects a
premium over the closing price of the Class A Common Shares on the Nasdaq
National Market of $5.66 on May 22, 2000, the last full day of trading prior
to the commencement and first public announcement of the Offer. In the last
twelve months, the closing price of the Class A Common Shares has ranged from
a high of $6.25 on December 29, 1999, to a low of $4.125 on July 28, 1999.
Upon election, the Nominees are expected to consider whether to take any
actions required to permit the prompt consummation of the Offer. Moyes expects
that, subject to their fiduciary duties under applicable law, the Nominees
would take such actions as may be required to permit the prompt consummation
of the Offer. Therefore, adoption of the Proposals is expected to permit the
prompt consummation of the Offer.
THE PROPOSALS
This Consent Statement and the accompanying form of written consent are
being furnished to the Company's stockholders in connection with Moyes'
solicitation from such stockholders of written consents to take the following
actions without the necessity of a stockholders' meeting, as permitted by
Nevada law:
Proposal No. 1. The Repeal of Current Bylaws Proposal.
Proposal No. 1, the Repeal of Current Bylaws Proposal, is worded as
follows: "Resolved, that the bylaws of Simon Transportation Services Inc., as
previously amended and in effect immediately prior to the adoption of this
resolution, are hereby repealed in their entirety."
Adopting the Repeal of Current Bylaws Proposal would result in the Current
Bylaws being repealed in their entirety and no longer being used by the
Company. If the Repeal of Current Bylaws Proposal is adopted, among other
things, the Company would no longer have a classified board of directors
whereby directors are elected for three-year terms and approximately one-third
(but no less than one-fourth) of the directors stand for election each year. A
more complete description of the principal differences between the Current
Bylaws and the New Bylaws follows Proposal No. 2.
The Nevada General Corporation Law (the "NGCL") empowers the stockholders
of a corporation to adopt the corporation's bylaws. Article XI of the Current
Bylaws provides: "These Bylaws may also be repealed, altered, or amended, or
new bylaws may be adopted, by the affirmative vote of not less than a majority
of the
3
<PAGE>
combined voting power of the then outstanding capital stock of the
Corporation." Based on the foregoing, Moyes believes that consents signed and
delivered by holders of a majority of the total voting power of the
outstanding Shares in favor of Proposal No. 1 will be sufficient to repeal the
Current Bylaws. For additional information concerning the required consents,
see "Consent Procedure--How Many Shares Must Consent to the Proposals?"
Proposal No. 2. The New Bylaws Proposal.
Proposal No. 2, the New Bylaws Proposal, is worded as follows: "Resolved,
that the New Bylaws of Simon Transportation Services Inc., in the form
attached as Exhibit A to the Consent Statement of Jerry Moyes, are hereby
adopted as the bylaws of Simon Transportation Services Inc., effective
immediately."
Adopting the New Bylaws Proposal would implement the New Bylaws as the
bylaws to govern the Company. There are several differences between the
Current Bylaws and the New Bylaws. The discussion of the principal differences
herein is a summary only and is qualified by reference to the entire text of
Exhibit B, which reflects the deletions from the Current Bylaws with a strike-
through and additions to the Current Bylaws with underlining (the "Blacklined
Bylaws"). A summary of several of the principal differences between the
Current Bylaws and the New Bylaws follows.
The New Bylaws would permit the holders of more than one-third of the
Company's outstanding shares of all classes of common stock to call a special
meeting of stockholders. The Current Bylaws do not permit the stockholders to
call a special meeting of stockholders. See Article II, Section 2 of the
Blacklined Bylaws.
The New Bylaws would change the requirement for a quorum to more than a
majority of the total voting power of the outstanding common stock entitled to
vote in the election of directors. The Current Bylaws require a majority of
the outstanding common stock (not voting power) to constitute a quorum. See
Article II, Section 7 of the Blacklined Bylaws.
The New Bylaws would create the office of Chief Executive Officer and amend
the duties of certain other officers. See Article IV, Sections 1, 7, 8, and 9
of the Blacklined Bylaws.
The New Bylaws would provide a method whereby stockholders can remove
directors and fill vacancies on the board of directors. The Current Bylaws
lack provisions that address these points. See Article III, Sections 2, 11,
and 13 of the Blacklined Bylaws.
The New Bylaws would provide that Section 78.378 et seq. of the NGCL (the
"Acquisition of Controlling Interest Statute") does not apply to the Company.
This is an anti-takeover statute. The statute prohibits an acquiror, under
certain circumstances, from voting shares of a target corporation's stock
after crossing certain threshold ownership percentages, unless the acquiror
obtains the approval of the target corporation's disinterested stockholders.
The Acquisition of Controlling Interest Statute specified three thresholds:
one-fifth or more but less than one-third, one-third but less than a majority,
and a majority or more, of the outstanding voting power. Once an acquiror
crosses one of the above thresholds in an offer or acquisition, those shares
acquired within 90 days immediately preceding his becoming an Acquiring Person
become "Control Shares." The Acquiring Person is prohibited from voting the
Control Shares until disinterested stockholders restore the right. The
Acquisition of Controlling Interest Statute also provides that in the event
Control Shares are accorded full voting rights and the Acquiring Person has
acquired a majority or more of all voting power, all other stockholders who do
not vote in favor of authorizing voting rights to the Control Shares are
entitled to demand payment for the fair value of their shares. The board of
directors is to notify the stockholders as soon as practicable after such an
event has occurred that they have the right to receive the fair value of their
shares in accordance with statutory procedures established generally for
dissenters' rights. Opting out of the statute would permit Moyes, or any other
acquiror of Control Shares, to purchase without the voting rights of such
shares being denied or being forced to seek the approval of the disinterested
stockholders to restore the voting rights. The Current Bylaws do not contain
this provision.
4
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The New Bylaws would change the Company's board of directors in several
ways:
. The number of directors comprising the entire board of directors would be
increased by thirteen (13) directors. Based on the nine directors
currently serving, Moyes anticipates that the number of directors would
be twenty-two (22). The Current Bylaws provide for a board of directors
comprised of three to twelve directors.
. The terms of the Incumbent Directors would extend for their full original
term.
. The directors appointed pursuant to the New Bylaws would serve annual
terms, and all directors elected thereafter would serve until the next
annual meeting of stockholders following their election or appointment.
The Current Bylaws provide for a classified board of directors with
three-year terms and the election of approximately one-third of the
directors each year.
. The number and terms of directors established by Article III, Section 2
of the New Bylaws could be amended by a majority of the board of
directors or by stockholders holding a majority of the total voting power
of all of the Company's outstanding capital stock. By its terms, Article
III, Section 2 of the Current Bylaws may be amended only by (a) the
affirmative vote of two-thirds of the continuing directors, (i.e. the
Incumbent Directors), or (b) the affirmative vote of stockholders holding
at least two-thirds of the voting power of all outstanding voting stock.
See Article III, Section 2 and Article XI of the Blacklined Bylaws.
The NGCL empowers the stockholders of a corporation to adopt the
corporation's bylaws. Article XI of the Current Bylaws provides that new
bylaws may be adopted, by the affirmative vote of not less than a majority of
the combined voting power of the then outstanding capital stock of the
Company. Based on the foregoing, Moyes believes that consents signed and
delivered by holders of a majority of the total voting power of the
outstanding Shares in favor of Proposal No. 2 will be sufficient to adopt the
New Bylaws. For additional information concerning the required consents, see
"Consent Procedure--How Many Shares Must Consent to the Proposals?"
Proposal No. 3. The Director Election Proposal.
Proposal No. 3, the Director Election Proposal is worded as follows:
"Resolved, that the following persons are hereby elected, effective
immediately upon the adoption of the New Bylaws, as directors of Simon
Transportation Services Inc. to serve until the next annual meeting of the
stockholders of Simon Transportation Services Inc. or until their successors
are duly elected and qualified:
Jerry Moyes Jeff L. Archibald
Jon Isaacson Patrice Archibald
Earl H. Scudder Ronald G. Moyes
Gordon K. Holladay Krista B. Moyes
Vickie L. Moyes Michael J. Moyes
Craig P. Moyes Buddy Favero
Laura Favero"
Adopting the Director Election Proposal would elect the Nominees as
directors of the Company to fill the new director seats created by the
adoption of the New Bylaws. Each of the thirteen (13) Nominees named above has
consented to being named herein to serve as a director, if elected. Although
Moyes has no reason to believe that any of the Nominees will be unable or
unwilling to serve as directors, it is anticipated that if any of the Nominees
is not available for election, the remaining Nominees will vote for the
election of a replacement proposed by Moyes.
Moyes' primary purpose in seeking to elect the Nominees to the Company's
board of directors is to obtain control of the board of directors. Upon their
election, Moyes believes the Nominees would, subject to their fiduciary duties
to the Company and its stockholders, consider and take any actions required to
permit the prompt consummation of the Offer. If elected, the Nominees would be
responsible for managing the business and affairs of the Company. Each
director has an obligation under Nevada law to discharge his or her duties as
a director on an informed basis, in good faith, with the care an ordinarily
careful and prudent person in a like position would
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exercise under similar circumstances and in a manner the director honestly
believes to be in the best interests of the Company. In this connection,
circumstances may arise in which the interests of Moyes and his affiliates, on
the one hand, and the interests of other stockholders of the Company, on the
other hand, may differ. Such circumstances could include, among other things,
taking action with regard to the Offer, considering other takeover proposals
or offers for the Company made by third parties, or considering any action to
take the Company private. In any such case, the Nominees intend to discharge
fully the obligations owing to the Company and its stockholders under Nevada
law.
The NGCL permits the stockholders of a corporation to elect directors by
the written consent of stockholders holding a majority of the total voting
power without a meeting unless otherwise provided in the corporation's
articles of incorporation or bylaws. The Current Bylaws permit such action by
written consent. Therefore, assuming that Proposals 1 and 2 are adopted, Moyes
believes that consents signed and delivered by holders of a majority of the
total voting power of the outstanding Shares in favor of Proposal No. 3 will
be sufficient to adopt the Director Election Proposal. For additional
information concerning the required consents, see "Consent Procedure--How Many
Shares Must Consent to the Proposals?"
If the Nominees are elected to fill a majority of the seats on the entire
board of directors, Moyes expects that, at or before the next annual meeting
of stockholders, the Nominees will consider methods by which the overall
number of directors could be reduced with some of the Nominees remaining as a
majority of the entire board of directors. Any action would be taken
consistent with the Nominees' fiduciary duties to all of the stockholders and
applicable law. It is anticipated that, following any reduction in the number
of directors, the Nominees who would continue to serve as directors would
include at least Jerry Moyes, Jon Isaacson, Earl H. Scudder, and Gordon K.
Holladay.
The following sets forth information concerning the Nominees:
Jerry Moyes. Jerry Moyes has served as the Chairman of the Board,
President, and Chief Executive Officer of Swift Transportation Co., Inc.
("Swift") since 1984. If the Proposals are adopted, the Nominees are
expected to vote to appoint Jerry Moyes Chairman of the Board of the
Company. Jerry Moyes is the husband of Vickie L. Moyes and is 56 years old.
Jon Isaacson. Jon Isaacson is, and for more than the past five years has
been, the Vice President of East Coast Operations of Swift. If the
Proposals are adopted, the Nominees are expected to vote to appoint Mr.
Isaacson as Chief Executive Officer of the Company. Mr. Isaacson is 37
years old.
Earl H. Scudder. Earl Scudder has served as a director of Swift since
May 1993. Mr. Scudder has been President of Scudder Law Firm, P.C. in
Lincoln, Nebraska since February 1990, and has engaged in the private
practice of law since 1966. Mr. Scudder is 57 years old.
Gordon K. Holladay. Gordon Holladay is, and for more than the past five
years has been, the Chief Financial Officer of SME Industries, Inc., the
parent company of SME Steel Contractors, Inc., a steel erection and
fabrication company located in West Jordan, Utah (together referred to as
"SME"). SME is controlled by Mr. Moyes. Mr. Holladay is 45 years old.
Vickie L. Moyes. Vickie Moyes is the wife of Jerry Moyes. She is a
homemaker and is 55 years old.
Craig P. Moyes. Craig Moyes is, and for more than the past five years
has been, the President of SME. He is the cousin of Jerry Moyes and is 55
years old.
Jeff L. Archibald. Jeff Archibald is, and for more than the past five
years has been, the Human Resources Director for SME. Mr. Archibald is the
brother-in-law of Jerry Moyes and the husband of Patrice Archibald. He is
51 years old.
Patrice Archibald. Patrice Archibald is, and for more than the past five
years has been, a general partner of Home to Home International, a company
offering retail sales and business opportunities for home businesses. Mrs.
Archibald is the sister of Jerry Moyes and the wife of Jeff L. Archibald.
She is 51 years old.
Ronald G. Moyes. Ronald Moyes has been the Chief Executive Officer of
Central Freight Lines, Inc., a less-than-truckload trucking company, since
February 2000. Ronald Moyes has served as the President of Total Auto Pros,
Moments Salon, and Sleekcraft Powerboats for more than the past five years.
He is the brother of Jerry Moyes and is 51 years old.
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Krista B. Moyes. Krista Moyes is the sister-in-law of Jerry Moyes and
the spouse of Ronald Moyes. From 1991 to 1998, Krista was employed by
Moments Salon. She is currently a homemaker and is 39 years old.
Michael J. Moyes. Michael Moyes has been employed by Swift as a Market
Analyst since 1996. Prior to his employment with Swift, Michael Moyes was a
student. Michael Moyes is the son of Jerry and Vickie L. Moyes and is 23
years old.
Buddy Favero. Buddy Favero has served as a Regional Vice President for
the Western Region at Swift for more than the past five years. Mr. Favero
is the brother of Vickie L. Moyes and the husband of Laura Favero. He is 47
years old.
Laura Favero. Laura Favero is a homemaker. Mrs. Favero is the wife of
Buddy Favero and the sister-in-law of Vickie L. Moyes. She is 46 years old.
APPROVAL OF THE PROPOSALS
The Proposals will become effective only if properly completed, unrevoked
consents representing a majority of the total voting power of the outstanding
Shares are signed by the holders of record on the Record Date, and such
consents are delivered to the Company on or prior to July 19, 2000. The
effectiveness of the consents is conditioned upon the approval of Proposals 1,
2, and 3. If all of such Proposals are not approved as indicated, none of the
Proposals will be enacted even though sufficient consents may have been
received to approve that particular Proposal. The failure to execute and return
a consent will have the same effect as voting against the Proposals.
ADOPTION OF THE PROPOSALS IS AN IMPORTANT STEP TOWARD PROMPT CONSUMMATION OF
THE OFFER. ACCORDINGLY, YOU ARE URGED TO PROMPTLY SIGN, DATE, AND MAIL THE
ENCLOSED WHITE CONSENT CARD. YOU MUST SEPARATELY TENDER YOUR SHARES PURSUANT TO
THE OFFER IF YOU WISH TO PARTICIPATE IN THE OFFER. EXECUTING A CONSENT DOES NOT
OBLIGATE YOU TO TENDER YOUR SHARES PURSUANT TO THE OFFER, AND YOUR FAILURE TO
EXECUTE A CONSENT DOES NOT PREVENT YOU FROM TENDERING YOUR SHARES PURSUANT TO
THE OFFER.
THE OFFER
General
On May 23, 2000, Moyes commenced the Offer to purchase up to all of the
Shares at a price of $7.00 per Share, net to the seller in cash. The Offer is
subject to the terms and conditions set forth in the Offer to Purchase and the
related Letter of Transmittal, and this summary is qualified by reference to
such documents. The Offer expires at 5:00 p.m., Eastern time, on Wednesday,
June 21, 2000, unless and until Moyes, in his sole discretion, extends the
period for which the Offer is open, in which event the Offer shall expire at
the latest time and date to which the Offer is so extended by Moyes. The
purpose of the Offer is to enable Moyes to acquire control of the Company.
Certain Conditions of the Offer
The Offer is not conditioned upon Moyes obtaining financing. The Offer is
conditioned, among other things, upon the Minimum Tender Condition, the Simon
Tender Condition, the Board of Directors Condition, the Due Diligence
Condition, the Anti-Takeover Statute Condition, the Antitrust Condition, and
certain other conditions as described in Section 14 of the Offer to Purchase.
Moyes reserves the right (but shall not be obligated) to waive any or all such
conditions.
Certain Other Information About the Offer
Stockholders are not being asked to and should not tender their Shares
pursuant to this Consent Statement.
7
<PAGE>
Moyes has reserved the right to amend the terms of the Offer in light of
future developments or to terminate the Offer. Such developments could
include, without limitation, actions that the Company or its board of
directors may take and any materially adverse change in the Company's
business.
The Company's board of directors must take certain actions necessary to
satisfy the conditions of the Offer. To date, the Incumbent Directors have not
agreed to take all actions required to satisfy the conditions. In particular,
the Incumbent Directors have not agreed to appoint Moyes and his designees as
a majority of the entire board of directors and have denied Moyes certain due
diligence access. Moyes does not know whether the Incumbent Directors will
agree to take these actions in the future. Because of this uncertainty, Moyes
is seeking to take control of the board of directors through this consent
solicitation. If this consent solicitation is successful, Moyes expects that
the Nominees would take all actions required to satisfy the conditions of the
Offer. In considering any such actions, the Nominees would act consistently
with their fiduciary obligations.
Until the conditions to the Offer are satisfied or waived, Moyes will not
purchase any Shares pursuant to the Offer. Accordingly, the failure to sign
and deliver the enclosed consent could leave the Company's stockholders
without the ability to participate in the Offer or to gain any actual or
perceived benefits from a change in control of the board of directors.
The purpose of the Offer is to enable Moyes to acquire control of the
Company. During the pendency of, and initially following the consummation of
the Offer, Moyes intends to seek additional information about the Company and
to evaluate the Company's business and operations. Moyes intends to review
such information as part of a comprehensive review of the Company's business,
operations, capitalization, and management with a view toward improving the
Company's potential.
Following the consummation of the Offer, Moyes intends to cause the Company
to appoint Jon Isaacson as Chief Executive Officer. Mr. Isaacson currently
serves as Vice President of East Coast Operations for Swift. He formerly lived
in Salt Lake City, where the Company's headquarters are located, and has
expressed a desire to return. Moyes presently does not have any other plans
for changes in management.
From time-to-time after consummation of the Offer, Moyes may seek to
increase the Company's growth, including through one or more mergers,
acquisitions, or other business combinations. However, except as stated
herein, Moyes has no present plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, consolidation,
reorganization, liquidation, or sale or transfer of a material amount of
assets, involving the Company or any of its subsidiaries, or any material
changes in the Company's present capitalization, dividend policy, employee
benefit plans, corporate structure, or business or any material changes or
reductions in the composition of its management or personnel.
Following the consummation of the Offer, it is Moyes' preference that the
Class A Common Shares continue to be listed on the Nasdaq National Market.
However, if the number of Shares held by stockholders, other than stockholders
affiliated with Moyes and those who are part of the current management of the
Company, are less than the requirements necessary to be traded on the Nasdaq
National Market or are not sufficient, as determined by Moyes in his sole
discretion, to provide sufficient justification for the Company to continue to
meet the reporting and disclosure obligations of the Nasdaq National Market
and the Commission, Moyes may propose corporate action to take the Company
private. In that instance, holders of Shares other than Moyes and persons
affiliated with him would receive cash for their shares and no longer be
stockholders.
CONSENT PROCEDURE
What Provisions of Law Govern the Company in Connection with the Consent
Statement?
Section 78.320 of the NGCL states that, unless otherwise provided in a
corporation's articles of incorporation or bylaws, any action required or
permitted to be taken at a meeting of stockholders may be taken
8
<PAGE>
without a meeting if, before or after the action, a written consent thereto is
signed by stockholders holding at least a majority of the voting power, except
that if a different proportion of voting power is required for such an action
at a meeting, then that proportion of written consents is required.
Article II, Section 13 of the Company's bylaws permits stockholder action
by written consent. The written, unrevoked consents of holders as of the
Record Date of the required voting power of the outstanding Shares discussed
above must be delivered to the Company to effect the actions described in this
Consent Statement.
Who is Entitled to Sign and Deliver Consents?
Consents may be executed by stockholders of record at the close of business
on the Record Date. All stockholders who owned Shares at the close of business
on the Record Date have the right to consent to the Proposals, even if they
have disposed of their Shares after the Record Date. As soon as Moyes has
received valid and unrevoked consents representing a majority of the total
voting power of the outstanding Shares from holders of Shares as of the Record
Date, Moyes will deliver the consents to the Company. After Moyes makes that
delivery, stockholders will be unable to revoke a consent. Moyes will notify
all stockholders who have not consented to the actions at such time as Moyes
has been able to secure a sufficient number of consents to adopt the
Proposals.
What is the Record Date for the Consent Statement?
May 23, 2000, is the Record Date for this Consent Statement. Under Section
78.350 of the NGCL, the board of directors of a corporation may fix a record
date to determine the stockholders entitled to consent in writing to corporate
action without a meeting. According to Article II, Section 5 of the Current
Bylaws, if no record date has been fixed by the board, the record date shall
be the day on which the first written consent is expressed by any stockholder.
The Company's board of directors did not fix a record date in connection with
the consents subject to this Consent Statement. On May 23, 2000, Moyes
delivered the first written consent to the Company. Accordingly, the Record
Date in connection with the consents subject to this Consent Statement is May
23, 2000.
How Many Shares Must Consent to the Proposals?
Consents representing at least a majority of the total voting power of the
outstanding Shares are required to adopt Proposals 1, 2, and 3.
According to the Company's Form 10-Q filed with the Commission for the
quarter ended March 31, 2000 (the "Second Quarter 10-Q"), as of March 31,
2000, there were 5,196,358 Class A Common Shares and 913,751 Class B Common
Shares outstanding. Holders of Class A Common Shares are entitled to one (1)
vote for each share held. Holders of Class B Common Shares are entitled to two
(2) votes for each share held on all matters submitted to a vote of the common
stockholders so long as the holder is Richard D. Simon, Valene Simon, Kelle A.
Simon, Lyn Simon, Sherry L. Bokovoy, or Richard D. Simon, Jr. (the
"Founders"), any trust for the benefit of one or more of the Founders or any
other entity which is 100% owned by the Founders. Holders of Class B Common
Shares may convert such shares into Class A Common Shares, at any time and
from time-to-time, on the basis of one Class A Common Share for each Class B
Common Share. If any Class B Common Shares cease to be owned by the Founders,
or any trust for the benefit of one or more of the Founders or by any other
entity which is 100% owned by one or more of the Founders, such shares that
are no longer so owned are converted automatically into Class A Common Shares
and are entitled to one (1) vote per share.
According to the Company's Proxy Statement filed with the Commission on
January 6, 2000 (the "Most Recent Proxy"), there were, as of December 15,
1999, approximately 1,415,500 Class A Common Shares reserved for issuance to
employees under the Company's stock option plans. Of the shares reserved,
options had been granted covering approximately 1,008,000 shares, and
approximately 275,000 shares were, at December 15, 1999, subject to vested but
unexercised options. Based on the information in the Annual Report on Form 10-
K for the fiscal year ended September 30, 1999, filed by the Company with the
Commission, at such time,
9
<PAGE>
there were no vested options with an exercise price equal to or less than the
offer price. Based on the foregoing and assuming, from December 15, 1999,
through the expiration or consummation of the Offer, that no new options were
granted, no additional options become exercisable or are exercised, canceled,
or expire, and no Shares are issued or reacquired, there would be outstanding
5,196,358 Class A Common Shares, having one vote per share, and 913,751 Class
B Common Shares, having two votes per share. Accordingly, there would be
7,023,860 votes comprising the total voting power of the Company's outstanding
stock.
Based on the foregoing assumptions, the number of votes required for a
majority of the total voting power of the outstanding Shares would be
3,511,931 if none of the Class B Common Shares are converted to Class A Common
Shares or tendered in the Offer. The actual number of votes required will
depend on the facts as they exist on the date consents are delivered to the
Company.
How Many Consents Must Moyes Receive?
Moyes and the other Nominees intend to execute consents for the 848,550
Shares controlled by them in favor of all of the Proposals. Based upon the
information known to Moyes and the assumptions discussed above, for the
Proposals to receive a majority of the total voting power of all outstanding
Shares, the maximum number of additional Shares for which consents must be
received is 2,663,381 if none of the Class B Common Shares consent to the
Proposals. This would represent approximately 61% of the 4,347,808 Class A
Common Shares that Moyes and the other Nominees do not already control. If
Class B Common Shares are converted into Class A Common Shares, are purchased
by Moyes in the Offer, or if holders of Class B Common Shares consent to the
Proposals, the number of Shares for which Moyes must receive consents would be
reduced. The actual number of votes necessary to effect the Proposal will
depend on the actual facts as they existed on the Record Date and as they
exist on the date the consents are submitted to the Company.
When Must I Return the Consent?
Moyes urges you to sign, date, and return your consent as soon as possible,
preferably by June 21, 2000, which is the initial expiration date of the
Offer. You must send your signed consent by July 19, 2000. If Moyes does not
receive timely a consent from you, it will be the same as a "no" vote. Moyes,
therefore, urges you to mark, sign, date, and return the enclosed consent as
soon as possible.
What Must I do to Consent and How do I Complete the Consent Card?
To participate in this consent solicitation, you should mark the "consent",
"consent withheld," or "abstain" box, as applicable, underneath each Proposal
on the accompanying WHITE consent card. You must then sign, date, and return
the WHITE consent card promptly in the enclosed postage-paid envelope. If you
execute and return the WHITE consent card but fail to check a box marked
"Consent," "Consent Withheld," or "Abstain" for any or all of the Proposals,
such consent card will be treated as a consent to such Proposal or Proposals.
You may withhold consent to the election of any individual Nominee under
Proposal 3 by writing such person's name in the appropriate space on the
consent card. However, the effectiveness the Offer is conditioned upon Moyes
and his designees being elected or appointed to fill a majority of the
directorships comprising the Company's entire board of directors. Accordingly,
Moyes recommends that you consent to the election of each Nominee.
If your Shares are held in the name of a brokerage firm, bank nominee, or
other institution, only that entity can execute a consent with respect to your
Shares. They will do so only upon receipt of your specific instructions.
Accordingly, you should contact the person responsible for your account and
instruct him or her to vote a WHITE consent card on your behalf today. Moyes
urges you to confirm in writing your instructions to the person responsible
for your account and provide a copy of those instructions to Moyes in care of
MacKenzie Partners, Inc. at the address set forth on the back cover of this
Consent Statement so that Moyes will be aware of all instructions given and
can attempt to ensure that such instructions are followed.
10
<PAGE>
Your consent is important. Please mark, sign, and date the enclosed WHITE
consent card and return it in the enclosed postage-paid envelope promptly.
Failure to timely return your consent will have the same effect as voting
against the Proposals.
If you have any questions or require any assistance in executing or
delivering your consent, please contact:
MacKenzie Partners, Inc
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
Can I Revoke My Consent?
You can revoke your consent at any time before it becomes effective by
submitting a written, dated revocation of such consent or a later dated
consent covering the same Shares. Your revocation may be in any written form
validly signed by the record holder and should clearly state that the consent
previously given is no longer effective. You must execute and deliver your
revocation before the time that the action authorized by the executed consent
is taken. You may deliver the revocation to MacKenzie Partners, Inc. at the
address set forth above.
Do I Have Appraisal Rights?
You do not have dissenters' rights of appraisal as a result of this
solicitation of consents or the Offer. However, if Moyes pursues corporate
action to take the Company private and you (i) hold Shares that are affected
in such corporate action and (ii) (a) neither voted in favor of such corporate
action nor consented thereto in writing, and (b) 1% or greater of the
outstanding shares of a class of common stock are affected by such corporate
action, you may be entitled to dissenters' rights of appraisal, subject to and
in accordance with Sections 92A.300 to 92A.500 to the NGCL.
COSTS AND METHOD OF CONSENT STATEMENT AND REIMBURSEMENT OF COSTS
Written consents may be solicited in person, or by mail, advertisement,
telephone, facsimile, or other form of communication. Moyes has retained
MacKenzie Partners, Inc. to solicit consents pursuant to this Consent
Statement. Approximately 30 employees of MacKenzie Partners, Inc. will engage
in the solicitation. Moyes has agreed to pay MacKenzie Partners, Inc. a fee of
$15,000 plus reasonable out-of-pocket expenses. MacKenzie Partners, Inc. has
also agreed to provide consulting and analytical services and act as consent
solicitor with respect to banks, brokers, institutional investors, and
individual stockholders.
Banks, brokerage houses, and other custodians, nominees, and fiduciaries
may be requested to forward Moyes' solicitation materials to the beneficial
owners of the Shares they hold of record, and Moyes will reimburse them for
their reasonable out-of-pocket expenses. If your Shares are registered in your
own name, you may mail or fax both sides of your consent card to MacKenzie
Partners, Inc. at the address or fax number listed on the back cover of this
Consent Statement.
The entire expense of preparing, assembling, printing, and mailing this
Consent Statement and any other consent soliciting materials and the cost of
soliciting consents will be borne by Moyes. If the Proposals are approved,
Moyes will request reimbursement from the Company for these expenses.
PARTICIPANTS
Moyes may be deemed to be a participant in the solicitation of consents
described herein. Additionally, the following individuals, each of whom is a
Nominee, may be deemed to be participants in this solicitation: Earl H.
Scudder, Gordon K. Holladay, Jon Isaacson, Vickie L. Moyes, Craig P. Moyes,
Jeff L. Archibald, Patrice Archibald, Ronald G. Moyes, Krista B. Moyes,
Michael J. Moyes, Buddy Favero, and Laura Favero.
11
<PAGE>
INTERESTS OF CERTAIN PERSONS
Except as otherwise set forth in this Consent Statement, no Nominee, nor
any associate of, or immediate family member sharing the same household as
such Nominee, is or within the past year has been a party to, any contract,
arrangement, or understanding with respect to any securities of the Company.
To the knowledge of Moyes, neither he, nor any of his associates or other
representatives, nor any other person who may be deemed to be a participant in
this solicitation of consents, since the beginning of the Company's last
fiscal year, (i) has engaged in or has a direct or indirect interest in any
transaction or series of similar transactions in which the Company or any of
its subsidiaries was or is to be a party where the amount involved was in
excess of $60,000, (ii) is or was an executive officer of, or owns or owned an
equity interest in excess of 10% in any business or professional entity that
made payment to or received payments from the Company for property or services
or that was indebted to the Company, (iii) is or has been a member, partner or
executive officer of, or of counsel to, a law firm or investment banking firm
that the Company has retained or that has performed services to the Company,
or (iv) has been indebted to the Company or its subsidiaries; provided, that
Scudder Law Firm, P.C., the law firm of which Earl H. Scudder is president,
was counsel to the Company until January 5, 2000. During the Company's fiscal
year ended September 30, 1999, the law firm received approximately $112,200
from the Company, and between October 1, 1999, and January 5, 2000, the law
firm received approximately $15,300 in compensation for its services to the
Company. The Company has consented to the representation of Moyes by Scudder
Law Firm, P.C. and has waived any conflict of interest.
The information contained in "Ownership of Common Stock" sets forth
information regarding Shares owned of record and beneficially by the Nominees,
and, to Moyes' best knowledge, by those participating in this solicitation on
Moyes' behalf, or any associate of or immediate family member sharing the same
household as the foregoing persons. Other than as set forth in this Consent
Statement, to the knowledge of Moyes, neither he, nor any of his associates or
other representatives, nor any other person who may be deemed to be a
participant in this solicitation of consents, is the beneficial or record
owner of any securities of the Company or any parent or subsidiary thereof or
is the record owner of any securities of the Company of which it may not be
deemed to be the beneficial owner.
If the Nominees are elected to the board of directors, it is anticipated
that they will receive their pro rata portion of directors' fees on a basis
consistent with the payments to other non-employee directors of the Company.
According to the Most Recent Proxy, the Company's non-employee directors
receive an annual retainer of $5,000, an annual grant of an option to purchase
1,000 Class A Common Shares at the closing price on the date of the annual
meeting of stockholders, and an attendance fee of $1,000 per board meeting, or
committee meeting (if held on a day other than the day of the board meeting).
The non-employee directors also are reimbursed for their expenses of attending
such meetings.
CERTAIN OTHER INFORMATION REGARDING THE COMPANY
The information concerning the Company contained herein has been taken
from, or based upon, and is qualified in its entirety by, publicly available
documents on file with the Commission and other publicly available
information. Moyes does not take any responsibility for the accuracy or
completeness of such information or for any failure by the Company or persons
other than himself to disclose events that may have occurred and may affect
the significance or accuracy of any such information.
The Most Recent Proxy states that the deadline for stockholders to have
submitted proposals to be considered for inclusion in the Company's proxy
statement for this year's annual meeting of stockholders was on or before
September 8, 2000.
CERTAIN EFFECTS OF THE PROPOSALS
Credit Agreements
The Company's $20 million revolving credit and security agreement with U.S.
Bank, n.a. filed with the Commission contains an event of default if there is
a substantial change in the senior management of the
12
<PAGE>
Company. It is also a condition to advances that the Company's representation
concerning stock ownership (which was made as of September 28, 1999) continues
to be correct. The Company's headquarters loan with U.S. Bank is cross-
defaulted with the credit and security agreement. Moyes does not know whether
U.S. Bank would deem either completing the Offer or any change in management
an event of default. Moyes will seek to have U.S. Bank waive any potential
events of default or will seek replacement financing. There can be no
assurance of the success or timing of these efforts.
Change-in-Control Payments; Stock Options
According to the Most Recent Proxy, the Company does not have any
employment agreements, severance agreements, or change-in-control agreements
with its executive officers. However, under certain circumstances involving a
change-in-control, the stock options held by executive officers and other
personnel may become immediately vested and exercisable, either with or
without further action of the board of directors.
OWNERSHIP OF COMMON STOCK
The following table sets forth information regarding the beneficial
ownership of Shares held by Moyes and the other Nominees.
SHARES HELD BY MOYES AND
OTHER PERSONS NOMINATED AS DIRECTORS
BY THIS CONSENT STATEMENT
<TABLE>
<CAPTION>
Amount and
Nature of Percent
Name of Beneficial Beneficial of
Owner Ownership Title of Class Class Percent of Total Shares (1)
- ---------------------- ---------- --------------------- ------- ---------------------------
<S> <C> <C> <C> <C>
Jerry Moyes (2) 657,650 (3) Class A Common Shares 12.7% 10.8%
SME Steel Contractors,
Inc. (2) 300,000 Class A Common Shares 5.8% 4.9%
Earl H. Scudder 30,000 (4) Class A Common Shares * *
Gordon K. Holladay 0 Class A Common Shares -- --
Jon Isaacson 0 Class A Common Shares -- --
Vickie L. Moyes (2) 297,150 (5) Class A Common Shares 5.7% 4.9%
Craig P. Moyes 160,800 (6) Class A Common Shares 3.1% 2.6%
Jeff L. Archibald 0 Class A Common Shares -- --
Patrice Archibald 0 Class A Common Shares -- --
Ronald G. Moyes 0 Class A Common Shares -- --
Krista B. Moyes 0 Class A Common Shares -- --
Michael J. Moyes 0 Class A Common Shares -- --
Buddy Favero (7) 100 Class A Common Shares * *
Laura Favero (7) 100 Class A Common Shares * *
Nominees, as a group 848,550 Class A Common Shares 16.3% 13.9%
</TABLE>
- --------
* Less than one percent.
13
<PAGE>
(1) Based upon 5,196,358 outstanding Class A Common Shares and 913,751
outstanding Class B Common Shares.
(2) The business address of Jerry and Vickie Moyes is 2200 South 75th Avenue,
Phoenix, Arizona 85043. The address of SME is 5955 West Wells Park Road,
West Jordan, Utah 84088.
(3) Includes 60,500 Class A Common Shares held by Jerry Moyes; 297,150 Class A
Common Shares held by The Jerry & Vickie Moyes Family Trust Dated
12/11/87, of which Jerry Moyes and his wife, Vickie L. Moyes are co-
trustees; and 300,000 Class A Common Shares held by SME, the beneficial
ownership of which may be attributable to him under applicable rules of
the Commission.
(4) Includes 29,500 Class A Common Shares held in an IRA account.
(5) Includes 297,150 Class A Common Shares held by The Jerry & Vickie Moyes
Family Trust Dated 12/11/87.
(6) Craig Moyes owns 5% of the outstanding voting stock of the parent of SME
and disclaims beneficial ownership of all Shares owned by SME.
(7) Owned as joint tenants with rights of survivorship.
The following table sets forth certain other information regarding the
beneficial ownership of the Company.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS, DIRECTORS, AND MANAGEMENT OF THE COMPANY
The following table indicates beneficial ownership of the Shares as
reflected in the Most Recent Proxy by each Incumbent Director, the Chief
Executive Officer, the four most highly compensated executive officers other
than the Chief Executive Officer, each person then known by the Company to be
the beneficial owner of more than 5% of the Company's outstanding Class A
Common Shares, and by all current directors and executive officers of the
Company as a group. This table also indicates any change of beneficial
ownership of the Shares as reported on Form 13G filed with the Commission
subsequent to the Most Recent Proxy. Percentages are based on the number of
outstanding Shares as reported in the Second Quarter 10-Q.
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT
<TABLE>
<CAPTION>
Amount & Nature of Percent of
Name of Beneficial Owner Beneficial Total
(1) Ownership (2) Title of Class Percent of Class Shares (3)
- ------------------------ ------------------ ------------------------ ---------------- ----------
<S> <C> <C> <C> <C>
Richard D. Simon 48,819 Class A Common * *
Richard D. Simon (4) 913,751 Class B Common 100% 15.0%
Alban B. Lang 117,896 Class A Common 2.3% 1.9%
Kelle A. Simon 139,808 Class A Common 2.7% 2.3%
Lyn Simon 126,896 Class A Common 2.4% 2.0%
Richard D. Simon, Jr. 126,395 Class A Common 2.4% 2.0%
Sherry L. Bokovoy 118,738 Class A Common 2.3% 1.9%
Gus E. Paulos -- Class A Common -- --
Don L. Skaggs 55,000 Class A Common 1.1% *
Irene Warr 4,700 Class A Common * *
Jerry Moyes (5) 657,650 Class A Common 12.7% 10.8%
SME Steel Contractors,
Inc. (5) 300,000 Class A Common 5.8% 4.9%
Dimensional Fund
Advisors Inc. 337,600 Class A Common 6.5% 5.5%
Wynnefield Capital
Management 330,500 Class A Common 6.4% 5.4%
Capital Research and
Management Company 300,000 Class A Common 5.8% 4.9%
All directors and
executive officers as a
group (9 persons) 1,652,003 (6) Class A & Class B Common N/A 25.7%
</TABLE>
14
<PAGE>
- --------
* Less than one percent.
(1) The business address of Richard D. Simon, Alban B. Lang, Kelle A. Simon,
Lyn Simon, Richard D. Simon, Jr., Sherry L. Bokovoy, and Irene Warr is
P.O. Box 26297, Salt Lake City, Utah 84126-0297. The business address of
Gus E. Paulos is 4050 West 3500 South, West Valley City, Utah 84120. The
business address of Don L. Skaggs is 3828 South Main Street, Salt Lake
City, Utah 84115. The business address of Jerry Moyes is 2200 South 75th
Avenue, Phoenix, Arizona 85043. The address of SME Steel Contractors, Inc.
is 5955 West Wells Park Road, West Jordan, Utah 84088. The address of
Dimensional Fund Advisors Inc. is 1299 Ocean Avenue, 11th Floor, Santa
Monica, California 90401-1038. The address of Wynnefield Capital
Management is One Penn Plaza, Suite 4720, New York, New York 10119. The
address of Capital Research and Management Company is 333 South Hope
Street, Los Angeles, California 90071.
(2) In accordance with applicable rules under the Securities Exchange Act of
1934, as amended, the number of shares beneficially owned includes 64,600
Class A Common Shares underlying options to purchase granted to each of
Alban B. Lang, Kelle A. Simon, Lyn Simon, Richard D. Simon, Jr., and
Sherry L. Bokovoy (the "Optionees") that were, at December 15, 1999,
either currently exercisable or were scheduled to become exercisable
within 60 days of December 15, 1999. The 60,400 remaining shares
underlying options granted to the Optionees that were not scheduled to
become exercisable within 60 days of December 15, 1999 are excluded. The
options have exercise prices ranging from $9.00 to $23.00 per share. The
shares owned also include an aggregate 67,119 shares of Class A Common
Shares held in the Company's 401(k) Plan on behalf of Richard D. Simon
(38,425 shares), Alban B. Lang (9,037 shares), Kelle A. Simon (6,631
shares), Lyn Simon (10,453 shares), and Sherry L. Bokovoy (2,573 shares).
The total shares include 3,000 Class A Common Shares underlying stock
options granted to Irene Warr that are currently exercisable or were
scheduled to become exercisable within 60 days of December 15, 1999.
Unless otherwise indicated all shares are owned directly.
(3) Percentage based on both Class A and Class B Common Shares and includes
for purposes of this chart only the vested portion of options granted
under the Company's Incentive Stock Plan and Outside Director Stock Plan.
(4) All shares are held by Richard D. Simon, Trustee of the Richard D. Simon
Revocable Trust, UTAD 2/12/93, of which the four children of Richard D.
Simon are the beneficiaries, subject to a life estate in favor of Valene
Simon, wife of Richard D. Simon. Because the Class B Common Shares are
entitled to two votes per share, Mr. Simon, as Trustee, controls 25.5% of
the combined voting power of the Shares. Richard D. Simon filed a Form 13G
with the Commission on February 10, 2000.
(5) Includes 300,000 Class A Common Shares owned by SME Steel Contractors,
Inc., the beneficial ownership of which may be attributable to him under
applicable rules of the Commission. Mr. Moyes owns approximately 75% of
the outstanding voting stock of the parent corporation of SME Steel
Contractors, Inc.
(6) Includes approximately 323,000 shares underlying exercisable stock options
with exercise prices ranging from $9.00 to $23.00 per share.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act, as amended, requires officers,
directors, and owners of more than 10% of a registered class of securities, to
file reports of ownership and changes in ownership with the Commission. As an
owner of more than 10% of the Company's Class A Common Shares, Moyes is
required by regulations promulgated by the Commission to furnish the Company
with copies of all Section 16(a) forms he files. As of the date of this
Consent Statement, Moyes has complied with all Section 16(a) filing
requirements applicable to him with respect to transactions in the Company's
Class A Common Shares. The other Nominees are not officers, directors, or
owners of more than 10% of a registered class of the Company's securities and
are therefore not required to make any filings in accordance with Section
16(a).
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CERTAIN INFORMATION ABOUT MOYES
Moyes, an individual residing in Phoenix, Arizona, is the Chairman,
President, and Chief Executive Officer of Swift. Swift is an interstate
truckload carrier providing freight transportation services for customers
throughout the United States. Swift generated over $1 billion in revenue
during 1999 and is the third largest publicly traded truckload carrier in the
United States, measured by revenue. The principal office of Moyes is located
at 2200 S. 75th Avenue, Phoenix, Arizona 85031.
ADDITIONAL INFORMATION
Your consent is important. No matter how many or how few Shares you own,
please submit your consent to the Proposals contained in this Consent
Statement. Moyes must receive the consents by July 19, 2000, to ensure timely
delivery to the Company. Only your latest dated consent counts.
If you have any questions, would like to request copies of Schedule TO, the
Offer to Purchase, or the Letter of Transmittal, or require any assistance in
executing or delivering your consent, please contact Moyes' solicitors:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
Call Toll-Free (800) 322-2885
Fax Number (212) 929-0308
Copies of the Schedule TO, Offer to Purchase, and Letter of Transmittal
also may be obtained by mail, upon payment of the Commission's customary
charges, by writing to its principal office at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and can be obtained electronically on
the Commission's World Wide Web site at http://www.sec.gov.
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EXHIBIT A
NEW BYLAWS
OF
SIMON TRANSPORTATION SERVICES INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be in
Washoe County, Nevada, which initially shall be its known place of business.
2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting. The annual meeting of the Stockholders shall be held at
such date and time as the Board of Directors shall determine, for the purpose
of electing Directors and for the transaction of such other business as may
properly come before the meeting.
2. Special Meetings. Special meetings of the Stockholders may be called for
any purpose or purposes at any time by a majority of the Board of Directors,
the Chairman of the Board, the Chief Executive Officer, or a Stockholder or a
group of Stockholders holding more than one-third of the number of shares of
all classes of common stock.
3. Place of Meetings. Annual and special meetings of the Stockholders may
be held at such time and place within or without the State of Nevada as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
4. Notice of Meeting. Written notice stating the place, date and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered to each Stockholder of record
entitled to vote at such meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting. Notice may be delivered either
personally or by first class, certified or registered mail, postage prepaid,
and signed by an officer of the Corporation at the direction of the person or
persons calling the meeting. If mailed, notice shall be deemed to be delivered
when mailed to the Stockholder at his or her address as it appears on the
stock transfer books of the Corporation. Delivery of any such notice to any
officer of a corporation or association, or to any member of a partnership
shall constitute delivery of such notice to such corporation, association or
partnership. In the event of the transfer of stock after delivery or mailing
of the notice of and prior to the holding of the meeting it shall not be
necessary to deliver or mail notice of the meeting to the transferee. Notice
need not be given of an adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, provided that such
adjournment is for less than thirty (30) days and further provided that a new
record date is not fixed for the adjourned meeting, in either of which events,
written notice of the adjourned meeting shall be given to each Stockholder of
record entitled to vote at such meeting. At any adjourned meeting, any
business may be transacted which might have been transacted at the meeting as
originally noticed. A written waiver of notice, whether given before or after
the meeting to which it relates, shall be equivalent to the giving of notice
of such meeting to the Stockholder or Stockholders signing such waiver.
Attendance of a Stockholder at a meeting shall constitute a waiver of notice
of such meeting, except when the
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Stockholder attends for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record. In order that the
Corporation may determine the Stockholders entitled to notice of and to vote
at any meeting of Stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or to receive
payment of any dividend or other distribution or allotment of any rights, or
to exercise any rights in respect of any other change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix in advance a record date, which shall not be more than sixty (60) nor
less than ten (10) days prior to the date of such meeting or such action, as
the case may be. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to notice of and to vote at a meeting of
Stockholders, the record date shall be at the close of business on the day
next preceding the day on which the notice is given, or if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to express consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors
is necessary, the record date shall be the day on which the first written
consent is expressed by any Stockholder. If the Board of Directors has not
fixed a record date for determining Stockholders for any other purpose, the
record date shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
Stockholders of record entitled to notice of or to vote at a meeting of
Stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
6. Record of Stockholders. The Secretary or other officer having charge of
the stock transfer books of the Corporation shall make, or cause to be made,
at least ten (10) days before every meeting of Stockholders, a complete record
of the Stockholders entitled to vote at a meeting of Stockholders or any
adjournment thereof, arranged in alphabetical order, with the address of and
the number of shares registered in the name of each Stockholder. Such list
shall be open to the examination of any Stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, either at a place specified in the notice of
the meeting or if not so specified, at the Corporation's principal place of
business. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
Stockholder who is present.
7. Quorum and Manner of Acting. At any meeting of the Stockholders, the
presence, in person or by proxy, of a majority of the total voting power of
the outstanding common stock entitled to vote in the election of directors
shall constitute a quorum for the transaction of business except as otherwise
provided by the Nevada General Corporation Law or by the Articles of
Incorporation of the Corporation, as amended form time to time (the "Articles
of Incorporation"). All shares represented and entitled to vote on any single
subject matter which may be brought before the meeting shall be counted for
quorum purposes. Only those shares entitled to vote on a particular subject
matter shall be counted for the purpose of voting on that subject matter.
Business may be conducted once a quorum is present and may continue to be
conducted until adjournment sine die, notwithstanding the withdrawal or
temporary absence of Stockholders leaving less than a quorum. Except as
otherwise provided in the Nevada General Corporation Law or the Articles of
Incorporation, the affirmative vote of the holders of a majority of the shares
of stock then represented at the meeting and entitled to vote thereat shall be
the act of the Stockholders; provided, however, that if the shares of stock so
represented are less than the number required to constitute a quorum, the
affirmative vote must be such as would constitute a majority if a quorum were
present, except that the affirmative vote of the holders of a majority of the
shares of stock then present is sufficient in all cases to adjourn a meeting.
8. Voting of Shares of Stock. Each Stockholder shall be entitled to the
number of votes (or corresponding fraction thereof) authorized for shares of
such class or series in the Corporation's Articles of Incorporation or any
certificate of designation for such class or series for each share of stock
(or fraction thereof) standing in his, her or its name on the books of the
Corporation on the record date. A Stockholder may vote either in person or by
valid proxy, as defined in Section 12 of this Article II, executed in writing
by the Stockholder or by his, her
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or its duly authorized attorney in fact. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other corporation is
held, directly or indirectly, by the Corporation, shall neither be entitled to
vote nor counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of any corporation to vote stock, including but not
limited to its own stock, when held by it in a fiduciary capacity. Shares of
stock standing in the name of another corporation may be voted by such
officer, agent or proxy as the bylaws of such other corporation may prescribe
or, in the absence of such provision, as the Board of Directors of such other
corporation may determine. Unless demanded by a Stockholder present in person
or by proxy at any meeting of the Stockholders and entitled to vote thereat,
or unless so directed by the chairman of the meeting, the vote thereat on any
question need not be by ballot. If such demand or direction is made, a vote by
ballot shall be taken, and each ballot shall be signed by the Stockholder
voting, or by his or her proxy, and shall state the number of shares voted.
9. Organization. At each meeting of the Stockholders, the Chairman of the
Board, or, if he or she is absent therefrom or if no Chairman is appointed,
the Chief Executive Officer, or if he or she is absent therefrom, the
President, one of the Vice Presidents or, if all are absent therefrom, another
officer of the Corporation chosen as chairman of such meeting by Stockholders
holding a majority of the shares present in person or by proxy and entitled to
vote thereat, or, if all the officers of the Corporation are absent therefrom,
a Stockholder of record so chosen, shall act as chairman of the meeting and
preside thereat. The Secretary, or, if he or she is absent from the meeting or
is required pursuant to the provisions of this Section 9 to act as chairman of
such meeting, the person (who shall be an Assistant Secretary, if any and if
present) whom the chairman of the meeting shall appoint shall act as secretary
of the meeting and keep the minutes thereof.
10. Order of Business. The order of business at each meeting of the
Stockholders shall be determined by the chairman of such meeting, but the
order of business may be changed by the vote of Stockholders holding a
majority of the shares present in person or by proxy at such meeting and
entitled to vote thereat.
11. Voting. At all meetings of Stockholders, each Stockholder entitled to
vote thereat shall have the right to vote, in person or by proxy, and shall
have, for each share of stock registered in his, her or its name, the number
of votes provided by the Articles of Incorporation or any certificate of
designation in respect of stock of such class or series. Stockholders shall
not have cumulative voting rights with respect to the election of Directors or
for any other purpose.
12. Voting by Proxy. At any meeting of the Stockholders, any Stockholder
may be represented and vote by a proxy or proxies appointed by an instrument
in writing. In the event that any such instrument in writing shall designate
two (2) or more persons to act as proxies, a majority of such persons present
at the meeting, or, if only one shall be present, then that one shall have and
may exercise all of the powers conferred by such written instrument upon all
of the persons so designated unless the instrument shall otherwise provide. No
such proxy shall be valid after the expiration of six (6) months from the date
of its execution, unless coupled with an interest or unless the person
executing it specifies therein the length of time for which it is to continue
in force, which in no case shall exceed seven (7) years from the date of its
execution. Subject to the above, any proxy duly executed is not revoked and
continues in full force and effect until an instrument revoking it or a duly
executed proxy bearing a later date is filed with the Secretary of the
Corporation.
13. Action by Stockholders Without a Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by Stockholders holding at least
a majority of the voting power (except that if a different proportion of
voting power is required for such an action at a meeting, then that proportion
of written consents is required). Any such consent shall be filed with the
minutes of the proceedings of the Stockholders.
14. Irregularities. All information and/or irregularities in calls, notices
of meetings and in the manner of voting, form of proxies, credentials, and
method of ascertaining those present, shall be deemed waived if no objection
is made at the meeting or if waived in writing.
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ARTICLE III
BOARD OF DIRECTORS
1. General Powers. The property, business and affairs of the Corporation
shall be managed by the Board of Directors.
2. Number, Term of Office, and Qualifications. Upon the adoption of the
Bylaws, the number of directors constituting the entire Board of Directors
shall be increased to that number of directors equal to thirteen (13) more
than the number of directors actually serving as directors of the Company
immediately prior to the adoption of these Bylaws. The thirteen (13) new
director positions created by these Bylaws shall be filled by the Stockholders
if they act contemporaneously with the adoption of these Bylaws to fill such
seats. If such director seats are not filled on or prior to the next business
day after the date these Bylaws are adopted, by the action of holders of a
majority of the total voting power of all outstanding shares of common stock
entitled to vote in the election of directors, by written consent or at a
meeting duly noticed and held, then such seats shall be deemed vacant and
shall be filled by the Stockholders or the Board of Directors pursuant to
Article III, Section 11 of these Bylaws. The terms of the directors elected to
fill the thirteen (13) new seats shall extend until the next annual meeting of
Stockholders. The terms of all directors serving immediately prior to the
adoption of these Bylaws shall continue for their original duration. Following
the expiration of such terms, the seats held by such directors shall be
elected annually at the annual meeting of Stockholders. The terms of all
directors elected to fill vacancies on the Board of Directors (including
vacancies resulting from the increase in directorships effected by these
Bylaws) shall extend until the next annual meeting of Stockholders, and the
seats held by such directors shall thereafter be elected annually at the
annual meeting of Stockholders. Directors need not be Stockholders.
3. Place of Meeting. The Board of Directors may hold its meetings, either
within or without the State of Nevada, at such place or places as it may from
time to time by resolution determine or as shall be designated in any notices
or waivers of notice thereof. Any such meeting, whether regular or special,
may be held by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
4. Annual Meetings. As soon as practicable after each annual election of
Directors and on the same day, the Board of Directors shall meet for the
purpose of organization and the transaction of other business at the place
where regular meetings of the Board of Directors are held, and no notice of
such meeting shall be necessary in order to legally hold the meeting, provided
that a quorum is present. If such meeting is not held as provided above, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for a special meeting of the Board of Directors,
or in the event of waiver of notice as specified in the written waiver of
notice.
5. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such times as the Board of Directors shall from time to time
by resolution determine.
6. Special Meetings; Notice. Special meetings of the Board of Directors
shall be held, either within or without the State of Nevada, whenever called
by the Chairman of the Board, or by the Chief Executive Officer, or a majority
of the Directors at the time in office. Notice shall be given, in the manner
hereinafter provided, of each such special meeting, which notice shall state
the time and place of such meeting, but need not state the purposes thereof.
Except as otherwise provided in Section 9 of this Article III, notice of each
such meeting shall be mailed to each Director, addressed to him or her at his
or her residence or usual place of business, at least two (2) days before the
day on which such meeting is to be held, or shall be sent addressed to him or
her at such place by telegraph, cable, wireless or other form of recorded
communication or delivered personally or by telephone not later than the day
before the day on which such meeting is to be held. A written waiver of
notice, whether given before or after the meeting to which it relates, shall
be equivalent to the giving of notice of such meeting to the Director or
Directors signing such waiver. Attendance of a Director at a special meeting
of the
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Board of Directors shall constitute a waiver of notice of such meeting, except
when he or she attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
7. Quorum and Manner of Acting. A majority of the whole Board of Directors
shall be present in person at any meeting of the Board of Directors in order
to constitute a quorum for the transaction of business at such meeting, and
except as otherwise specified in these Bylaws, and except also as otherwise
expressly provided by the Nevada General Corporation Law, the vote of a
majority of the Directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors. In the absence of a quorum
from any such meeting, a majority of the Directors present thereat may adjourn
such meeting from time to time to another time or place, without notice other
than announcement at the meeting, until a quorum shall be present thereat. The
Directors shall act only as a Board of Directors and the individual Directors
shall have no power as such.
8. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, or, if he or she is absent therefrom or if no Chairman is
appointed, the Chief Executive Officer, or if he or she is absent therefrom, a
Director chosen by a majority of the Directors present thereat, shall act as
chairman of such meeting and preside thereat. The Secretary, or if he or she
is absent, the person (who shall be an Assistant Secretary, if any and if
present) whom the chairman of such meeting shall appoint, shall act as
Secretary of such meeting and keep the minutes thereof.
9. Action by Directors Without a Meeting. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by all Directors and
such consent is filed with the minutes of the proceedings of the Board of
Directors.
10. Resignations. Any Director may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation
shall take effect at the time specified therein, or if the time when it shall
become effective is not specified therein, it shall take effect immediately
upon its receipt by the Chairman of the Board, the Chief Executive Officer, or
the Secretary; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
11. Vacancies. Subject to Article III, Section 2 of these Bylaws, all
vacancies on the Board of Directors may be filled either by (i) the action of
Stockholders holding at least a majority of the total voting power of the
issued and outstanding stock entitled to vote in the election of such
Directors, acting by written consent or at a meeting duly noticed and held, or
(ii) a majority of the Directors then in office, although less than a quorum,
or by a sole remaining Director. If at any time, by reason of death or
resignation or other cause, the Corporation has no Directors in office, then
any officer or any Stockholder or an executor, administrator, trustee, or
guardian of a Stockholder, may call a special meeting of Stockholders for the
purpose of filling vacancies in the Board of Directors. If one or more
Directors shall resign from the Board of Directors, effective at a future
date, a majority of the Directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided in this
section in the filling of other vacancies.
12. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that the Directors may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director or both, in either case payable in cash, the Corporation's stock, or
such other form designated by the Board of Directors. In addition, the Board
of Directors may at any time and from time to time by resolution provide that
Directors shall be paid their actual expenses, if any, of attendance at each
meeting of the Board of Directors. Nothing in this section shall be construed
as precluding any Director from serving the Corporation in any other capacity
and receiving compensation therefor, but the Board of Directors may by
resolution provide that any Director receiving compensation for his or her
services to the Corporation in any other capacity shall not receive additional
compensation for his or her services as a Director.
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13. Removal. Any one or more Directors may be removed from office with or
without cause by the vote of Stockholders representing not less than two-
thirds of the total voting power of the issued and outstanding stock entitled
to vote in the election of such directors.
ARTICLE IV
OFFICERS
1. Number. The Corporation shall have the following officers: a Chairman of
the Board, a Chief Executive Officer, a President, a Vice President, a
Secretary and a Treasurer. At the discretion of the Board of Directors, the
Corporation may also have additional Vice Presidents, one or more Assistant
Vice Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers.
2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors or at a special meeting of the
Board of Directors called for that purpose. Each such officer shall hold
office until his or her successor is duly elected or until his or her earlier
death or resignation or removal in the manner hereinafter provided.
3. Agents. In addition to the officers mentioned in Section 1 of this
Article IV, the Board of Directors may appoint such agents as the Board of
Directors may deem necessary or advisable, each of which agents shall have
such authority and perform such duties as are provided in these Bylaws or as
the Board of Directors may from time to time determine. The Board of Directors
may delegate to any officer or to any committee the power to appoint or remove
any such agents.
4. Removal. Any officer may be removed, with or without cause, at any time
by resolution adopted by a majority of the entire Board of Directors.
5. Resignations. Any officer may resign at any time by giving written
notice of his or her resignation to the Board of Directors, the Chairman of
the Board, the Chief Executive Officer, or the Secretary. Any such resignation
shall take effect at the times specified therein, or, if the time when it
shall become effective is not specified therein, it shall take effect
immediately upon its receipt by the Board of Directors, the Chairman of the
Board, the Chief Executive Officer, or the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
6. Vacancies. A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Stockholders and at all meetings of the Board of Directors. In
general, the Chairman of the Board shall perform all duties incident to the
office of the Chairman of the Board and such other duties as from time to time
may be assigned to him or her by the Board of Directors.
8. Chief Executive Officer. The Chief Executive Officer shall be the chief
executive officer of the Corporation and shall have, subject to the control of
the Board of Directors, general and active supervision and direction over the
business and affairs of the Corporation and over its several officers. If at
any time the Corporation has no Chief Executive Officer, the duties and
responsibilities designated for such position shall be performed by the
Chairman of the Board, or by an officer of the Corporation designated by the
Chairman of the Board or, in the absence of such designation, designated by
the Board of Directors. The Chief Executive Officer shall: (a) make a report
of the state of the business of the Corporation at each annual meeting of the
Stockholders; (b) see that all orders and resolutions of the Board of
Directors are carried into effect; (c) sign, with the Secretary or an
Assistant Secretary, certificates for stock of the Corporation; (d) have the
right to sign, execute, and deliver in the name of the Corporation all deeds,
mortgages, bonds, contracts, or other instruments authorized by the Board of
Directors, except in cases where the signing, execution or delivery thereof is
expressly delegated by
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the Board of Directors or by these Bylaws to some other officer or agent of
the Corporation or where any of them are required by law otherwise to be
signed, executed or delivered; and (e) have the right to cause the corporate
seal, if any, to be affixed to any instrument which requires it.
9. President. The President shall perform such duties as from time to time
may be assigned to him or her by the Board of Directors, the Chairman of the
Board, or the Chief Executive Officer.
10. Vice President. The Vice President and any additional Vice Presidents
shall have such powers and perform such duties as the Chairman of the Board,
the Chief Executive Officer or the Board of Directors may from time to time
prescribe and shall perform such other duties as may be prescribed by these
Bylaws.
11. Secretary. The Secretary shall: (a) record all the proceedings of the
meetings of the Stockholders, the Board of Directors and the committees of the
Board of Directors, if any, in one or more books kept for that purpose; (b)
see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be the custodian of all contracts, deeds,
documents, all other indicia of title to properties owned by the Corporation
and of its other corporate records (except accounting records) and of the
corporate seal, if any, and affix such seal to all documents the execution of
which on behalf of the Corporation under its seal is authorized and required;
(d) sign, if directed by the Board of Directors, with another authorized
officer, certificates for stock of the Corporation; (e) have charge, directly
or through the transfer clerk or transfer clerks, transfer agent or transfer
agents and registrar or registrars appointed as provided in Section 3 of
Article VII of these Bylaws, of the issue, transfer and registration of
certificates for stock of the Corporation and of the records thereof, such
records to be kept in such manner as to show at any time the amount of the
stock of the Corporation issued and outstanding, the manner in which and the
time when such stock was paid for, the names, alphabetically arranged, and the
addresses of the holders of record thereof, the number of shares held by each,
and the time when each became a holder of record; (f) upon request, exhibit or
cause to be exhibited at all reasonable times to any director such records of
the issue, transfer and registration of the certificates for stock of the
Corporation; (g) see that the books, reports, statements, certificates and all
other documents and records required by law are properly kept and filed; and
(h) see that the duties prescribed by Section 6 of Article II of these Bylaws
are performed. In general, the Secretary shall perform all duties incident to
the office of Secretary and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the Chief Executive
Officer or the Board of Directors.
12. Treasurer. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum and
with such surety or sureties as the Board of Directors shall determine. The
Treasurer shall: (a) have charge and custody of, and be responsible for, all
funds, securities, notes and valuable effects of the Corporation; (b) receive
and give receipt for monies due and payable to the Corporation from any
sources whatsoever; (c) deposit all such monies to the credit of the
Corporation or otherwise as the Board of Directors, the Chairman of the Board,
or the Chief Executive Officer shall direct in such banks, trust companies or
other depositories as shall be selected in accordance with the provisions of
Article VI of these Bylaws; (d) cause such funds to be disbursed by checks or
drafts on the authorized depositories of the Corporation signed as provided in
Article VI of these Bylaws; (e) be responsible for the accuracy of the amounts
of, and cause to be preserved proper vouchers for, all monies so disbursed;
(f) have the right to require from time to time reports or statements giving
such information as he or she may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; (g) render to the Chairman of the Board, the Chief Executive Officer, or
the Board of Directors, whenever they, respectively, shall request him or her
so to do, an account of the financial condition of the Corporation and of all
his or her transactions as Treasurer; (h) sign, if directed by the Board of
Directors, with another authorized officer, certificates for stock of the
Corporation; and (i) upon request, exhibit or cause to be exhibited at all
reasonable times the cash books and other records to the Chairman of the
Board, the Chief Executive Officer, or any of the Directors of the
Corporation. In general, the Treasurer shall perform all duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the Chief Executive
Officer or the Board of Directors.
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13. Assistant Officers. Any persons elected as assistant officers shall
assist in the performance of the duties of the designated office and such
other duties as shall be assigned to them by any Vice President, the Secretary
or the Treasurer, as the case may be, or by the Board of Directors, the
Chairman of the Board, or the Chief Executive Officer.
14. Combination of Offices. Any two of the offices hereinabove enumerated
may be held by one and the same person, if such person is so elected or
appointed.
15. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers. The Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, may
designate one or more of the Directors then in office, who shall include the
Chairman of the Board, to constitute an Executive Committee, which shall have
and may exercise between meetings of the Board of Directors all the delegable
powers of the Board of Directors to the extent not expressly prohibited by the
Nevada General Corporation Law or by resolution of the Board of Directors. The
Board of Directors may designate one or more Directors as alternate members of
the Committee who may replace any absent or disqualified member at any meeting
of the Committee. Each member of the Executive Committee shall continue to be
a member thereof only during the pleasure of a majority of the whole Board of
Directors.
2. Executive Committee; Organization. The Chairman of the Board shall act
as chairman at all meetings of the Executive Committee and the Secretary shall
act as secretary thereof. In case of the absence from any meeting of the
Chairman of the Board or the Secretary, the Committee may appoint a chairman
or secretary, as the case may be, of the meeting.
3. Executive Committee; Meetings. Regular meetings of the Executive
Committee may be held without notice on such days and at such places as shall
be fixed by resolution adopted by a majority of the Committee and communicated
to all its members. Special meetings of the Committee shall be held whenever
called by the Chairman of the Board or a majority of the members thereof then
in office. Notice of each special meeting of the Committee shall be given in
the manner provided in Section 6 of Article III of these Bylaws for special
meetings of the Board of Directors. Notice of any such meeting of the
Executive Committee, however, need not be given to any member of the Committee
if waived by him or her in writing or by telegraph, cable, wireless or other
form of recorded communication either before or after the meeting, or if he or
she is present at such meeting, except when he or she attends for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Subject to the provisions of this Article V,
the Committee, by resolution adopted by a majority of the whole Committee,
shall fix its own rules of procedure and it shall keep a record of its
proceedings and report them to the Board of Directors at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board of Directors;
provided, however, that third parties shall not be prejudiced by any such
revision or alteration.
4. Executive Committee; Quorum and Manner of Acting. A majority of the
Executive Committee shall constitute a quorum for the transaction of business,
and, except as specified in Section 3 of this Article V, the act of a majority
of those present at a meeting thereof at which a quorum is present shall be
the act of the Committee. The members of the Committee shall act only as a
committee, and the individual members shall have no power as such.
5. Other Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may constitute other committees, which shall in
each case consist of one or more of the Directors and, at the discretion
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of the Board of Directors, such officers who are not Directors. The Board of
Directors may designate one or more Directors or officers who are not
Directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee. Each such committee shall
have and may exercise such powers as the Board of Directors may determine and
specify in the respective resolutions appointing them; provided, however, that
(a) unless all of the members of any committee shall be Directors, such
committee shall not have authority to exercise any of the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and (b) if any committee shall have the power to determine the amounts of the
respective fixed salaries of the officers of the Corporation or any of them,
such committee shall consist of not less than three (3) members and none of
its members shall have any vote in the determination of the amount that shall
be paid to him or her as a fixed salary. A majority of all the members of any
such committee may fix its rules of procedure, determine its action and fix
the time and place of its meetings and specify what notice thereof, if any,
shall be given, unless the Board of Directors shall otherwise by resolution
provide.
6. Committee Minutes. The Executive Committee and any other committee shall
keep regular minutes of their proceedings and report the same to the Board of
Directors when required.
7. Action by Committees Without a Meeting. Any action required or permitted
to be taken at a meeting of the Executive Committee or any other committee of
the Board of Directors may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, is signed by all members of the committee and such consent is filed
with the minutes of the proceedings of the committee.
8. Resignations. Any member of the Executive Committee or any other
committee may resign therefrom at any time by giving written notice of his or
her resignation to the Chairman of the Board, the Chief Executive Officer, or
the Secretary. Any such resignation shall take effect at the time specified
therein, or if the time when it shall become effective is not specified
therein, it shall take effect immediately upon its receipt by the Chairman of
the Board, the Chief Executive Officer, or the Secretary; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
9. Vacancies. Any vacancy in the Executive Committee or any other committee
shall be filled by the vote of a majority of the whole Board of Directors.
10. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that committee members shall be paid a fixed sum
for attendance at each committee meeting or a stated salary as a committee
member in either case payable in cash, the Corporation stock, or such other
form designated by the Board of Directors. In addition, the Board of Directors
may at any time and from time to time by resolution provide that such
committee members shall be paid their actual expenses, if any, of attendance
at each committee meeting. Nothing in this section shall be construed as
precluding any committee member from serving the Corporation in any other
capacity and receiving compensation therefor, but the Board of Directors may
by resolution provide that any committee member receiving compensation for his
or her services to the Corporation in any other capacity shall not receive
additional compensation for his or her services as a committee member.
11. Dissolution of Committees; Removal of Committee Members. The Board of
Directors, by resolution adopted by a majority of the whole Board, may, with
or without cause, dissolve the Executive Committee or any other committee,
and, with or without cause, remove any member thereof.
ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts. Except as otherwise required by law or by these
Bylaws, any contract or other instrument may be executed and delivered in the
name of the Corporation and on its behalf by the Chairman of the Board, the
Chief Executive Officer, the President, or any Vice President. In addition,
the Board of Directors may authorize any other officer or officers or agent or
agents to execute and deliver any contract or other instrument in the name of
the Corporation and on its behalf, and such authority may be general or
confined to specific instances as the Board of Directors may by resolution
determine.
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2. Attestation. The President, any Vice President, the Secretary, or any
Assistant Secretary may attest the execution of any instrument or document by
the Chairman of the Board, the Chief Executive Officer, or any other duly
authorized officer or agent of the Corporation and may affix the corporate
seal, if any, in witness thereof, but neither such attestation nor the
affixing of a corporate seal shall be requisite to the validity of any such
document or instrument.
3. Checks, Drafts. All checks, drafts, orders for the payment of money,
bills of lading, warehouse receipts, obligations, bills of exchange, and
insurance certificates shall be signed or endorsed (except endorsements for
collection for the account of the Corporation or for deposit to its credit,
which shall be governed by the provisions of Section 4 of this Article VI) by
such officer or officers or agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as
the Board of Directors, the Chairman of the Board, or the Chief Executive
Officer shall direct in general or special accounts at such banks, trust
companies, savings and loan associations, or other depositories as the Board
of Directors may select or as may be selected by any officer or officers or
agent or agents of the Corporation to whom power in that respect has been
delegated by the Board of Directors. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation. The Board of Directors may make such special rules and
regulations with respect to such accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
Chairman of the Board, or the Chief Executive Officer may exercise in the name
and on behalf of the Corporation the powers and rights which the Corporation
may have as the holder of stock or other securities in any other corporation,
including without limitation the right to vote or consent with respect to such
stock or other securities.
6. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors, and may thereafter be changed from time
to time by action of the Board of Directors. Initially, the fiscal year shall
begin on October 1 and end on September 30.
7. Applicability of the Acquisition of Controlling Interest Statute. The
provisions of the Nevada Revised Statutes, Sections 78.378 to 78.3793,
inclusive, shall not apply to the Corporation or to the acquisition of a
controlling interest of the Corporation by existing or future stockholders.
ARTICLE VII
STOCK
1. Certificates. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman of the Board, the Chief Executive Officer, the President, or a Vice
President and by the Treasurer, Secretary, or an Assistant Treasurer or
Assistant Secretary. The signatures of such officers upon such certificate may
be facsimiles if the certificate is manually signed by a transfer agent or
registered by a registrar, other than the Corporation itself or one of its
employees. If any officer who has signed or whose facsimile signature has been
placed upon a certificate has ceased for any reason to be such officer prior
to issuance of the certificate, the certificate may be issued with the same
effect as if that person were such officer at the date of issue. All
certificates for stock of the Corporation shall be consecutively numbered,
shall state the number of shares represented thereby and shall otherwise be in
such form as shall be determined by the Board of Directors, subject to such
requirements as are imposed by the Nevada General Corporation Law. The names
and addresses of the persons to whom the shares represented by certificates
are issued shall be entered on the
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stock transfer books of the Corporation, together with the number of shares
and the date of issue, and in the case of cancellation, the date of
cancellation. Certificates surrendered to the Corporation for transfer shall
be cancelled, and no new certificate shall be issued in exchange for such
shares until the original certificate has been cancelled; except that in the
case of a lost, stolen, destroyed or mutilated certificate, a new certificate
may be issued therefor upon such terms and indemnity to the Corporation as the
Board of Directors may prescribe.
2. Transfer of Stock. Transfers of shares of stock of the Corporation shall
be made only on the stock transfer books of the Corporation by the holder of
record thereof or by his or her legal representative or attorney in fact, who
shall furnish proper evidence of authority to transfer to the Secretary, or a
transfer clerk or a transfer agent, and upon surrender of the certificate or
certificates for such shares properly endorsed and payment of all taxes
thereon. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
3. Regulations. The Board of Directors may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers or
any committee to appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all certificates for stock
to bear the signature or signatures of any of them.
4. Lost Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of the fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
5. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of stock in the manner and upon
the terms and conditions provided in the Articles of Incorporation and the
Nevada General Corporation Law.
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance
a corporate seal is used, the same shall bear the full name of the Corporation
and the year and state of incorporation, or words or figures of similar
import.
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ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify its directors and officers to the maximum
extent permitted by the Nevada General Corporation Law. Indemnification shall
be provided unless it is ultimately determined by a court of competent
jurisdiction that (i) the indemnified party did not act in a manner he or she
believed in good faith to be in, or not opposed to, the best interests of the
Corporation and, (ii) with respect to any criminal action or proceeding, the
indemnified party had no reasonable cause to believe his or her conduct was
lawful. Expenses shall be advanced to an indemnified party upon written
confirmation that he or she has not acted in a manner that would preclude
indemnification above and an undertaking to return any advances if it is
ultimately determined by a court of competent jurisdiction that the party is
not entitled to indemnification under the standard set forth herein.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered, or amended, or new bylaws may be
adopted, by (i) the affirmative vote of a majority of the total voting power
of the outstanding common stock of the Corporation, or (ii) the affirmative
vote of a majority of the entire Board of Directors; provided, that no repeal,
alteration, amendment, or adoption of new bylaws by the directors shall be
effective to override any provision adopted by the Stockholders.
The undersigned Secretary of Simon Transportation Services Inc. hereby
certifies the foregoing to be the Bylaws of the Corporation, as adopted by the
Board of Directors on the day of , 2000.
_____________________________________
, Secretary
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EXHIBIT B
AMENDED NEW BYLAWS
OF
SIMON TRANSPORTATION SERVICES INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be in
Washoe County, Nevada, which initially shall be its known place of business.
2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Nevada as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting. The annual meeting of the Stockholders shall be held at
such date and time as the Board of Directors shall determine, for the purpose
of electing Directors and for the transaction of such other business as may
properly come before the meeting.
2. Special Meetings. Special meetings of the Stockholders may be called for
any purpose or purposes at any time by a majority of the Board of Directors,
the Chairman of the Board, or the President, the Chief Executive Officer, or a
Stockholder or a group of Stockholders holding more than one-third of the
number of shares of all classes of common stock.
3. Place of Meetings. Annual and special meetings of the Stockholders may
be held at such time and place within or without the State of Nevada as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
4. Notice of Meeting. Written notice stating the place, date and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered to each Stockholder of record
entitled to vote at such meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting. Notice may be delivered either
personally or by first class, certified or registered mail, postage prepaid,
and signed by an officer of the Corporation at the direction of the person or
persons calling the meeting. If mailed, notice shall be deemed to be delivered
when mailed to the Stockholder at his or her address as it appears on the
stock transfer books of the Corporation. Delivery of any such notice to any
officer of a corporation or association, or to any member of a partnership
shall constitute delivery of such notice to such corporation, association or
partnership. In the event of the transfer of stock after delivery or mailing
of the notice of and prior to the holding of the meeting it shall not be
necessary to deliver or mail notice of the meeting to the transferee. Notice
need not be given of an adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, provided that such
adjournment is for less than thirty (30) days and further provided that a new
record date is not fixed for the adjourned meeting, in either of which events,
written notice of the adjourned meeting shall be given to each Stockholder of
record entitled to vote at such meeting. At any adjourned meeting, any
business may be transacted which might have been transacted at the meeting as
originally noticed. A written waiver of notice, whether given before or after
the meeting to which it relates, shall be equivalent to the giving of notice
of such meeting to the Stockholder or Stockholders signing such waiver.
Attendance of a Stockholder at a meeting shall constitute a waiver of notice
of such meeting, except when the
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Stockholder attends for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record. In order that the
Corporation may determine the Stockholders entitled to notice of and to vote
at any meeting of Stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or to receive
payment of any dividend or other distribution or allotment of any rights, or
to exercise any rights in respect of any other change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix in advance a record date, which shall not be more than sixty (60) nor
less than ten (10) days prior to the date of such meeting or such action, as
the case may be. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to notice of and to vote at a meeting of
Stockholders, the record date shall be at the close of business on the day
next preceding the day on which the notice is given, or if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held. If the Board of Directors has not fixed a record date for
determining the Stockholders entitled to express consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors
is necessary, the record date shall be the day on which the first written
consent is expressed by any Stockholder. If the Board of Directors has not
fixed a record date for determining Stockholders for any other purpose, the
record date shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
Stockholders of record entitled to notice of or to vote at a meeting of
Stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
6. Record of Stockholders. The Secretary or other officer having charge of
the stock transfer books of the Corporation shall make, or cause to be made,
at least ten (10) days before every meeting of Stockholders, a complete record
of the Stockholders entitled to vote at a meeting of Stockholders or any
adjournment thereof, arranged in alphabetical order, with the address of and
the number of shares registered in the name of each Stockholder. Such list
shall be open to the examination of any Stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, either at a place specified in the notice of
the meeting or if not so specified, at the Corporation's principal place of
business. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
Stockholder who is present.
7. Quorum and Manner of Acting. At any meeting of the Stockholders, the
presence, in person or by proxy, of the holders of a majority of the total
voting power of the outstanding common stock entitled to vote in the election
of directors shall constitute a quorum for the transaction of business except
as otherwise provided by the Nevada General Corporation Law or by the Articles
of Incorporation of the Corporation, as amended form time to time (the
"Articles of Incorporation"). All shares represented and entitled to vote on
any single subject matter which may be brought before the meeting shall be
counted for quorum purposes. Only those shares entitled to vote on a
particular subject matter shall be counted for the purpose of voting on that
subject matter. Business may be conducted once a quorum is present and may
continue to be conducted until adjournment sine die, notwithstanding the
withdrawal or temporary absence of Stockholders leaving less than a quorum.
Except as otherwise provided in the Nevada General Corporation Law or the
Articles of Incorporation, the affirmative vote of the holders of a majority
of the shares of stock then represented at the meeting and entitled to vote
thereat shall be the act of the Stockholders; provided, however, that if the
shares of stock so represented are less than the number required to constitute
a quorum, the affirmative vote must be such as would constitute a majority if
a quorum were present, except that the affirmative vote of the holders of a
majority of the shares of stock then present is sufficient in all cases to
adjourn a meeting.
8. Voting of Shares of Stock. Each Stockholder shall be entitled to the
number of votes (or corresponding fraction thereof) authorized for shares of
such class or series in the Corporation's Articles of Incorporation or any
certificate of designation for such class or series for each share of stock
(or fraction thereof) standing in his, her or its name on the books of the
Corporation on the record date. A Stockholder may vote either in person or by
valid proxy, as defined in Section 12 of this Article II, executed in writing
by the Stockholder or by his, her or its duly authorized attorney in fact.
Shares of its own stock belonging to the Corporation or to another
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corporation, if a majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of
any corporation to vote stock, including but not limited to its own stock,
when held by it in a fiduciary capacity. Shares of stock standing in the name
of another corporation may be voted by such officer, agent or proxy as the
bylaws of such other corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such other corporation may determine.
Unless demanded by a Stockholder present in person or by proxy at any meeting
of the Stockholders and entitled to vote thereat, or unless so directed by the
chairman of the meeting, the vote thereat on any question need not be by
ballot. If such demand or direction is made, a vote by ballot shall be taken,
and each ballot shall be signed by the Stockholder voting, or by his or her
proxy, and shall state the number of shares voted.
9. Organization. At each meeting of the Stockholders, the Chairman of the
Board, or, if he or she is absent therefrom or if no Chairman is appointed,
the President Chief Executive Officer, or if he or she is absent therefrom,
the President, one of the Vice Presidents or, if all are absent therefrom,
another officer of the Corporation chosen as chairman of such meeting by
Stockholders holding a majority of the shares present in person or by proxy
and entitled to vote thereat, or, if all the officers of the Corporation are
absent therefrom, a Stockholder of record so chosen, shall act as chairman of
the meeting and preside thereat. The Secretary, or, if he or she is absent
from the meeting or is required pursuant to the provisions of this Section 9
to act as chairman of such meeting, the person (who shall be an Assistant
Secretary, if any and if present) whom the chairman of the meeting shall
appoint shall act as secretary of the meeting and keep the minutes thereof.
10. Order of Business. The order of business at each meeting of the
Stockholders shall be determined by the chairman of such meeting, but the
order of business may be changed by the vote of Stockholders holding a
majority of the shares present in person or by proxy at such meeting and
entitled to vote thereat.
11. Voting. At all meetings of Stockholders, each Stockholder entitled to
vote thereat shall have the right to vote, in person or by proxy, and shall
have, for each share of stock registered in his, her or its name, the number
of votes provided by the Articles of Incorporation or any certificate of
designation in respect of stock of such class or series. Stockholders shall
not have cumulative voting rights with respect to the election of Directors or
for any other purpose.
12. Voting by Proxy. At any meeting of the Stockholders, any Stockholder
may be represented and vote by a proxy or proxies appointed by an instrument
in writing. In the event that any such instrument in writing shall designate
two (2) or more persons to act as proxies, a majority of such persons present
at the meeting, or, if only one shall be present, then that one shall have and
may exercise all of the powers conferred by such written instrument upon all
of the persons so designated unless the instrument shall otherwise provide. No
such proxy shall be valid after the expiration of six (6) months from the date
of its execution, unless coupled with an interest or unless the person
executing it specifies therein the length of time for which it is to continue
in force, which in no case shall exceed seven (7) years from the date of its
execution. Subject to the above, any proxy duly executed is not revoked and
continues in full force and effect until an instrument revoking it or a duly
executed proxy bearing a later date is filed with the Secretary of the
Corporation.
13. Action by Stockholders Without a Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by Stockholders holding at least
a majority of the voting power (except that if a different proportion of
voting power is required for such an action at a meeting, then that proportion
of written consents is required). andAny such consent isshall be filed with
the minutes of the proceedings of the Stockholders.
14. Irregularities. All information and/or irregularities in calls, notices
of meetings and in the manner of voting, form of proxies, credentials, and
method of ascertaining those present, shall be deemed waived if no objection
is made at the meeting or if waived in writing.
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ARTICLE III
BOARD OF DIRECTORS
1. General Powers. The property, business and affairs of the Corporation
shall be managed by the Board of Directors.
2. Number, Term of Office, and Qualifications. Upon the adoption of the
Bylaws, the number of directors constituting the entire Board of Directors
shall be increased to that number of directors equal to thirteen (13) more
than the number of directors actually serving as directors of the Company
immediately prior to the adoption of these Bylaws. The thirteen (13) new
director positions created by these Bylaws shall be filled by the Stockholders
if they act contemporaneously with the adoption of these Bylaws to fill such
seats. If such director seats are not filled on or prior to the next business
day after the date these Bylaws are adopted, by the action of holders of a
majority of the total voting power of all outstanding shares of common stock
entitled to vote in the election of directors, by written consent or at a
meeting duly noticed and held, then such seats shall be deemed vacant and
shall be filled by the Stockholders or the Board of Directors pursuant to
Article III, Section 12 of these Bylaws. The terms of the directors elected to
fill the thirteen (13) new seats shall extend until the next annual meeting of
Stockholders. The terms of all directors serving immediately prior to the
adoption of these Bylaws shall continue for their original duration. Following
the expiration of such terms, the seats held by such directors shall be
elected annually at the annual meeting of Stockholders. The terms of all
directors elected to fill vacancies on the Board of Directors (including
vacancies resulting from the increase in directorships effected by these
Bylaws) shall extend until the next annual meeting of Stockholders, and the
seats held by such directors shall thereafter be elected annually at the
annual meeting of Stockholders. Directors need not be Stockholders.
2. Number, Term of Office, and Classification. The Board of Directors shall
consist of not less than 3 nor more than 12 directors, the exact number of
directors to be determined from time to time solely by a resolution adopted by
an affirmative vote of a majority of the entire Board of Directors. The
directors shall be divided into three classes, designated Class I, Class II,
and Class III. Each class shall consist, as nearly as possible, of one-third
of the total number of directors constituting the entire Board of Directors,
and in any event at least one-fourth of the number of directors shall be in
each class. At the 1997 annual meeting of stockholders, Class I directors
shall be elected for a one-year term, Class II directors for a two-year term,
and Class III directors for a three-year term. At each succeeding annual
meeting of stockholders, commencing in 1998, successors to the class of
directors whose term expires at that annual meeting shall be elected or
reelected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes of directors so as
to maintain the number of directors in each class as nearly equal as possible,
but in no case will a decrease in the number of directors shorten the term of
any incumbent director. When the number of directors is increased by the Board
of Directors and any newly created directorships are filled by the Board,
there shall be no classification of the additional directors until the next
annual meeting of stockholders. A director shall hold office until the meeting
for the year in which his or her term expires and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification, or removal from office. A director
elected by the Board of Directors to fill a vacancy not resulting from an
increase in the number of directors shall hold office until the expiration of
the term he or she was elected to fill and until his or her successor shall be
elected and shall qualify. Notwithstanding any other provision of these
Bylaws, this Article III, Section 2 of the Bylaws may be amended only by (a)
the affirmative vote of two-thirds of the continuing directors, or (b) the
affirmative vote of stockholders holding at least two-thirds of the voting
power of all outstanding voting stock. For purposes of this section a
continuing director is any director who was a member of the Board of Directors
prior to any person or group becoming an interested stockholder, as well as
any director who subsequently became a director or subsequently whose
nomination or election was approved by a majority of the continuing directors
then in office. An interested stockholder is any person or group acting in
concert who hereafter (a) becomes the beneficial owner of stock representing
25% or more of the outstanding votes entitled to be cast any election of
directors. Stock shall be deemed to be beneficially owned if any person or its
affiliates or associates (as such terms are defined under the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended)
directly or indirectly (a) owns such securities (regardless of whether they
would be
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determined to beneficially own such securities under Section 13(d) under the
Exchange Act); (b) has the right to acquire such securities (immediately or
with the passage of time) pursuant to any offer to purchase, exercise of
exchange, conversion or similar rights, exercise of warrants or options, or
otherwise; or (c) has the right to vote such securities pursuant to any
agreement, arrangement, or understanding other than under a revocable proxy
solicited in accordance with the General Rules and Regulations under the
Exchange Act and not reportable on Schedule 13(d) (or any successor to such
act or form). No person or member of a group that presently owns over 25% of
the company's voting stock, nor any transferee or successive transferee shall
be deemed an interested stockholder.
3. Place of Meeting. The Board of Directors may hold its meetings, either
within or without the State of Nevada, at such place or places as it may from
time to time by resolution determine or as shall be designated in any notices
or waivers of notice thereof. Any such meeting, whether regular or special,
may be held by conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
4. Annual Meetings. As soon as practicable after each annual election of
Directors and on the same day, the Board of Directors shall meet for the
purpose of organization and the transaction of other business at the place
where regular meetings of the Board of Directors are held, and no notice of
such meeting shall be necessary in order to legally hold the meeting, provided
that a quorum is present. If such meeting is not held as provided above, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for a special meeting of the Board of Directors,
or in the event of waiver of notice as specified in the written waiver of
notice.
5. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such times as the Board of Directors shall from time to time
by resolution determine.
6. Special Meetings; Notice. Special meetings of the Board of Directors
shall be held, either within or without the State of Nevada, whenever called
by the Chairman of the Board, or by the President Chief Executive Officer, or
a majority of the Directors at the time in office. Notice shall be given, in
the manner hereinafter provided, of each such special meeting, which notice
shall state the time and place of such meeting, but need not state the
purposes thereof. Except as otherwise provided in Section 9 of this Article
III, notice of each such meeting shall be mailed to each Director, addressed
to him or her at his or her residence or usual place of business, at least two
(2) days before the day on which such meeting is to be held, or shall be sent
addressed to him or her at such place by telegraph, cable, wireless or other
form of recorded communication or delivered personally or by telephone not
later than the day before the day on which such meeting is to be held. A
written waiver of notice, whether given before or after the meeting to which
it relates, shall be equivalent to the giving of notice of such meeting to the
Director or Directors signing such waiver. Attendance of a Director at a
special meeting of the Board of Directors shall constitute a waiver of notice
of such meeting, except when he or she attends the meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened.
7. Quorum and Manner of Acting. A majority of the whole Board of Directors
shall be present in person at any meeting of the Board of Directors in order
to constitute a quorum for the transaction of business at such meeting, and
except as otherwise specified in these Bylaws, and except also as otherwise
expressly provided by the Nevada General Corporation Law, the vote of a
majority of the Directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors. In the absence of a quorum
from any such meeting, a majority of the Directors present thereat may adjourn
such meeting from time to time to another time or place, without notice other
than announcement at the meeting, until a quorum shall be present thereat. The
Directors shall act only as a Board of Directors and the individual Directors
shall have no power as such.
8. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, or, if he or she is absent therefrom or if no Chairman is
appointed, the President Chief Executive Officer, or if he or she is absent
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therefrom, a Director chosen by a majority of the Directors present thereat,
shall act as chairman of such meeting and preside thereat. The Secretary, or
if he or she is absent, the person (who shall be an Assistant Secretary, if
any and if present) whom the chairman of such meeting shall appoint, shall act
as Secretary of such meeting and keep the minutes thereof.
9. Action by Directors Without a Meeting. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by all Directors and
such consent is filed with the minutes of the proceedings of the Board of
Directors.
10. Resignations. Any Director may resign at any time by giving written
notice of his or her resignation to the Corporation. Any such resignation
shall take effect at the time specified therein, or if the time when it shall
become effective is not specified therein, it shall take effect immediately
upon its receipt by the Chairman of the Board, the President Chief Executive
Officer, or the Secretary; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
11. Vacancies. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors elected by all of the
Stockholders having the right to vote as a single class Subject to Article
III, Section 2 of these Bylaws, all vacancies on the Board of Directors may be
filled by a either by (i) the action of Stockholders holding at least a
majority of the total voting power of the issued and outstanding stock
entitled to vote in the election of such Directors, acting by written consent
or at a meeting duly noticed and held, or (ii) a majority of the Directors
then in office, although less than a quorum, or by a sole remaining Director.
If at any time, by reason of death or resignation or other cause, the
Corporation has no Directors in office, then any officer or any Stockholder or
an executor, administrator, trustee, or guardian of a Stockholder, may call a
special meeting of Stockholders for the purpose of filling vacancies in the
Board of Directors. If one or more Directors shall resign from the Board of
Directors, effective at a future date, a majority of the Directors then in
office, including those who have so resigned, shall have the power to fill
such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each Director so
chosen shall hold office as provided in this section in the filling of other
vacancies.
12. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that the Directors may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
Director or both, in either case payable in cash, the Corporation's stock, or
such other form designated by the Board of Directors. In addition, the Board
of Directors may at any time and from time to time by resolution provide that
Directors shall be paid their actual expenses, if any, of attendance at each
meeting of the Board of Directors. Nothing in this section shall be construed
as precluding any Director from serving the Corporation in any other capacity
and receiving compensation therefor, but the Board of Directors may by
resolution provide that any Director receiving compensation for his or her
services to the Corporation in any other capacity shall not receive additional
compensation for his or her services as a Director.
13. Removal. Any one or more Directors may be removed from office with or
without cause by the vote of Stockholders representing not less than two-
thirds of the total voting power of the issued and outstanding stock entitled
to vote in the election of such directors.
ARTICLE IV
OFFICERS
1. Number. The Corporation shall have the following officers: a Chairman of
the Board, a Chief Executive Officer, a President, a Vice President, a
Secretary and a Treasurer. At the discretion of the Board of Directors, the
Corporation may also have additional Vice Presidents, one or more Assistant
Vice Presidents, one or more Assistant Secretaries and one or more Assistant
Treasurers.
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2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors or at a special meeting of the
Board of Directors called for that purpose. Each such officer shall hold
office until his or her successor is duly elected or until his or her earlier
death or resignation or removal in the manner hereinafter provided.
3. Agents. In addition to the officers mentioned in Section 1 of this
Article IV, the Board of Directors may appoint such agents as the Board of
Directors may deem necessary or advisable, each of which agents shall have
such authority and perform such duties as are provided in these Bylaws or as
the Board of Directors may from time to time determine. The Board of Directors
may delegate to any officer or to any committee the power to appoint or remove
any such agents.
4. Removal. Any officer may be removed, with or without cause, at any time
by resolution adopted by a majority of the whole entire Board of Directors.
5. Resignations. Any officer may resign at any time by giving written
notice of his or her resignation to the Board of Directors, the Chairman of
the Board, the President Chief Executive Officer, or the Secretary. Any such
resignation shall take effect at the times specified therein, or, if the time
when it shall become effective is not specified therein, it shall take effect
immediately upon its receipt by the Board of Directors, the Chairman of the
Board, the President Chief Executive Officer, or the Secretary; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
6. Vacancies. A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board. The Chairman of the Board shall be the chief
executive officer of the Corporation and shall have, subject to the control
preside at all meetings of the Stockholders and at all meetings of the Board
of Directors, general and active supervision and direction over the business
and affairs of the Corporation and over its several officers. If at any time
the Corporation has no Chairman of the Board, the duties and responsibilities
designated for such position shall be performed by the President, or by an
officer of the Corporation designated by the President or, in the absence of
such designation, designated by the Board of Directors. The Chairman of the
Board shall: (a) preside at all meetings of the Stockholders and at all
meetings of the Board of Directors; (b) make a report of the state of the
business of the Corporation at each annual meeting of the Stockholders; (c)
see that all orders and resolutions of the Board of Directors are carried into
effect; (d) sign, with the Secretary or an Assistant Secretary, certificates
for stock of the Corporation; (e) have the right to sign, execute and deliver
in the name of the Corporation all deeds, mortgages, bonds, contracts or other
instruments authorized by the Board of Directors, except in cases where the
signing, execution or delivery thereof is expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or where any of them are required by law otherwise to be signed, executed or
delivered; and (f) have the right to cause the corporate seal, if any, to be
affixed to any instrument which requires it. In general, the Chairman of the
Board shall perform all duties incident to the office of the Chairman of the
Board and such other duties as from time to time may be assigned to him or her
by the Board of Directors.
8. President. The President Chief Executive Officer. The Chief Executive
Officer shall be the chief executive officer of the Corporation and shall
have, subject to the control of the Board of Directors and the Chairman of the
Board, general and active supervision and direction over the business and
affairs of the Corporation and over its several officers. At the request of If
at any time the Corporation has no Chief Executive Officer, the duties and
responsibilities designated for such position shall be performed by the
Chairman of the Board, or in case of his or her absence or inability to act,
the President shall perform the duties of by an officer of the Corporation
designated by the Chairman of the Board and, when so acting, shall have all
the powers of, and be subject to all the restrictions upon, the Chairman or,
in the absence of such designation, designated by the Board of Directors. The
Chief Executive Officer shall: (a) make a report of the state of the business
of the Corporation at each annual meeting of the Stockholders; (b) see that
all orders and resolutions of the Board. He may sign of Directors are carried
into effect; (c) sign, with the Secretary or an Assistant Secretary,
certificates for stock of the Corporation.
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He may; (d) have the right to sign, execute, and deliver in the name of the
Corporation all deeds, mortgages, bonds, contracts, or other instruments
authorized by the Board of Directors, except in cases where the signing,
execution or delivery thereof is expressly delegated by the Board of Directors
or by these Bylaws to some other officers officer or agent of the Corporation
or where any of them are required by law otherwise to be signed, executed or
delivered, and he may; and (e) have the right to cause the corporate seal, if
any, to be affixed to any instrument which requires it.
In general, the 9. President. The President shall perform all duties
incident to the office of the President and such other such duties as from
time to time may be assigned to him or her by the Board of Directors or, the
Chairman of the Board, or the Chief Executive Officer.
9 10. Vice President. The Vice President and any additional Vice Presidents
shall have such powers and perform such duties as the Chairman of the Board,
the President Chief Executive Officer or the Board of Directors may from time
to time prescribe and shall perform such other duties as may be prescribed by
these Bylaws.
At the request of the President, or in case of his or her absence or
inability to act, and a Vice President so designated by the Board of
Directors, shall perform the duties of the President and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
President.
10 11. Secretary. The Secretary shall: (a) record all the proceedings of
the meetings of the Stockholders, the Board of Directors and the committees of
the Board of Directors, if any, in one or more books kept for that purpose;
(b) see that all notices are duly given in accordance with the provisions of
these Bylaws or as required by law; (c) be the custodian of all contracts,
deeds, documents, all other indicia of title to properties owned by the
Corporation and of its other corporate records (except accounting records) and
of the corporate seal, if any, and affix such seal to all documents the
execution of which on behalf of the Corporation under its seal is authorized
and required; (d) sign, if directed by the Board of Directors, with the
Chairman of the Board, the President, or a Vice President another authorized
officer, certificates for stock of the Corporation; (e) have charge, directly
or through the transfer clerk or transfer clerks, transfer agent or transfer
agents and registrar or registrars appointed as provided in Section 3 of
Article VII of these Bylaws, of the issue, transfer and registration of
certificates for stock of the Corporation and of the records thereof, such
records to be kept in such manner as to show at any time the amount of the
stock of the Corporation issued and outstanding, the manner in which and the
time when such stock was paid for, the names, alphabetically arranged, and the
addresses of the holders of record thereof, the number of shares held by each,
and the time when each became a holder of record; (f) upon request, exhibit or
cause to be exhibited at all reasonable times to any Director director such
records of the issue, transfer and registration of the certificates for stock
of the Corporation; (g) see that the books, reports, statements, certificates
and all other documents and records required by law are properly kept and
filed; and (h) see that the duties prescribed by Section 6 of Article II of
these Bylaws are performed. In general, the Secretary shall perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him or her by the Chairman of the Board, the President
Chief Executive Officer or the Board of Directors.
11 12. Treasurer. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall determine.
The Treasurer shall: (a) have charge and custody of, and be responsible for,
all funds, securities, notes and valuable effects of the Corporation; (b)
receive and give receipt for monies due and payable to the Corporation from
any sources whatsoever; (c) deposit all such monies to the credit of the
Corporation or otherwise as the Board of Directors, the Chairman of the Board,
or the President Chief Executive Officer shall direct in such banks, trust
companies or other depositories as shall be selected in accordance with the
provisions of Article VI of these Bylaws; (d) cause such funds to be disbursed
by checks or drafts on the authorized depositories of the Corporation signed
as provided in Article VI of these Bylaws; (e) be responsible for the accuracy
of the amounts of, and cause to be preserved proper vouchers for, all monies
so disbursed; (f) have the right to require from time to time reports or
statements giving such information as he or she may desire with respect to any
and all financial transactions of the Corporation from the officers or agents
transacting the same;
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(g) render to the Chairman of the Board, the President Chief Executive
Officer, or the Board of Directors, whenever they, respectively, shall request
him or her so to do, an account of the financial condition of the Corporation
and of all his or her transactions as Treasurer; (h) sign, if directed by the
Board of Directors, with the Chairman of the Board, the President, or a Vice
President another authorized officer, certificates for stock of the
Corporation; and (i) upon request, exhibit or cause to be exhibited at all
reasonable times the cash books and other records to the Chairman of the
Board, the President Chief Executive Officer, or any of the Directors of the
Corporation. In general, the Treasurer shall perform all duties incident to
the office of Treasurer and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the President Chief
Executive Officer or the Board of Directors.
12 13. Assistant Officers. Any persons elected as assistant officers shall
assist in the performance of the duties of the designated office and such
other duties as shall be assigned to them by any Vice President, the Secretary
or the Treasurer, as the case may be, or by the Board of Directors, the
Chairman of the Board, or the President Chief Executive Officer.
13 14. Combination of Offices. Any two of the offices hereinabove
enumerated may be held by one and the same person, if such person is so
elected or appointed.
14 15. Compensation. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V
COMMITTEES
1. Executive Committee; How Constituted and Powers. The Board of Directors,
by resolution adopted by a majority of the whole Board of Directors, may
designate one or more of the Directors then in office, who shall include the
Chairman of the Board, to constitute an Executive Committee, which shall have
and may exercise between meetings of the Board of Directors all the delegable
powers of the Board of Directors to the extent not expressly prohibited by the
Nevada General Corporation Law or by resolution of the Board of Directors. The
Board of Directors may designate one or more Directors as alternate members of
the Committee who may replace any absent or disqualified member at any meeting
of the Committee. Each member of the Executive Committee shall continue to be
a member thereof only during the pleasure of a majority of the whole Board of
Directors.
2. Executive Committee; Organization. The Chairman of the Board shall act
as chairman at all meetings of the Executive Committee and the Secretary shall
act as secretary thereof. In case of the absence from any meeting of the
Chairman of the Board or the Secretary, the Committee may appoint a chairman
or secretary, as the case may be, of the meeting.
3. Executive Committee; Meetings. Regular meetings of the Executive
Committee may be held without notice on such days and at such places as shall
be fixed by resolution adopted by a majority of the Committee and communicated
to all its members. Special meetings of the Committee shall be held whenever
called by the Chairman of the Board or a majority of the members thereof then
in office. Notice of each special meeting of the Committee shall be given in
the manner provided in Section 6 of Article III of these Bylaws for special
meetings of the Board of Directors. Notice of any such meeting of the
Executive Committee, however, need not be given to any member of the Committee
if waived by him or her in writing or by telegraph, cable, wireless or other
form of recorded communication either before or after the meeting, or if he or
she is present at such meeting, except when he or she attends for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Subject to the provisions of this Article V,
the Committee, by resolution adopted by a majority of the whole Committee,
shall fix its own rules of procedure and it shall keep a record of its
proceedings and report them to the Board of Directors at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board of Directors;
provided, however, that third parties shall not be prejudiced by any such
revision or alteration.
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4. Executive Committee; Quorum and Manner of Acting. A majority of the
Executive Committee shall constitute a quorum for the transaction of business,
and, except as specified in Section 3 of this Article V, the act of a majority
of those present at a meeting thereof at which a quorum is present shall be
the act of the Committee. The members of the Committee shall act only as a
committee, and the individual members shall have no power as such.
5. Other Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may constitute other committees, which shall in
each case consist of one or more of the Directors and, at the discretion of
the Board of Directors, such officers who are not Directors. The Board of
Directors may designate one or more Directors or officers who are not
Directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee. Each such committee shall
have and may exercise such powers as the Board of Directors may determine and
specify in the respective resolutions appointing them; provided, however, that
(a) unless all of the members of any committee shall be Directors, such
committee shall not have authority to exercise any of the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and (b) if any committee shall have the power to determine the amounts of the
respective fixed salaries of the officers of the Corporation or any of them,
such committee shall consist of not less than three (3) members and none of
its members shall have any vote in the determination of the amount that shall
be paid to him or her as a fixed salary. A majority of all the members of any
such committee may fix its rules of procedure, determine its action and fix
the time and place of its meetings and specify what notice thereof, if any,
shall be given, unless the Board of Directors shall otherwise by resolution
provide.
6. Committee Minutes. The Executive Committee and any other committee shall
keep regular minutes of their proceedings and report the same to the Board of
Directors when required.
7. Action by Committees Without a Meeting. Any action required or permitted
to be taken at a meeting of the Executive Committee or any other committee of
the Board of Directors may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, is signed by all members of the committee and such consent is filed
with the minutes of the proceedings of the committee.
8. Resignations. Any member of the Executive Committee or any other
committee may resign therefrom at any time by giving written notice of his or
her resignation to the Chairman of the Board, the President Chief Executive
Officer, or the Secretary. Any such resignation shall take effect at the time
specified therein, or if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the Chief Executive Officer, or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
9. Vacancies. Any vacancy in the Executive Committee or any other committee
shall be filled by the vote of a majority of the whole Board of Directors.
10. Compensation. The Board of Directors may at any time and from time to
time by resolution provide that committee members shall be paid a fixed sum
for attendance at each committee meeting or a stated salary as a committee
member in either case payable in cash, the Corporation stock, or such other
form designated by the Board of Directors. In addition, the Board of Directors
may at any time and from time to time by resolution provide that such
committee members shall be paid their actual expenses, if any, of attendance
at each committee meeting. Nothing in this section shall be construed as
precluding any committee member from serving the Corporation in any other
capacity and receiving compensation therefor, but the Board of Directors may
by resolution provide that any committee member receiving compensation for his
or her services to the Corporation in any other capacity shall not receive
additional compensation for his or her services as a committee member.
11. Dissolution of Committees; Removal of Committee Members. The Board of
Directors, by resolution adopted by a majority of the whole Board, may, with
or without cause, dissolve the Executive Committee or any other committee,
and, with or without cause, remove any member thereof.
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ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts. Except as otherwise required by law or by these
Bylaws, any contract or other instrument may be executed and delivered in the
name of the Corporation and on its behalf by the Chairman of the Board, the
Chief Executive Officer, the President, or any Vice President. In addition,
the Board of Directors may authorize any other officer or officers or agent or
agents to execute and deliver any contract or other instrument in the name of
the Corporation and on its behalf, and such authority may be general or
confined to specific instances as the Board of Directors may by resolution
determine.
2. Attestation. Any The President, any Vice President, the Secretary, or
any Assistant Secretary may attest the execution of any instrument or document
by the Chairman of the Board, the President Chief Executive Officer, or any
other duly authorized officer or agent of the Corporation and may affix the
corporate seal, if any, in witness thereof, but neither such attestation nor
the affixing of a corporate seal shall be requisite to the validity of any
such document or instrument.
3. Checks, Drafts. All checks, drafts, orders for the payment of money,
bills of lading, warehouse receipts, obligations, bills of exchange, and
insurance certificates shall be signed or endorsed (except endorsements for
collection for the account of the Corporation or for deposit to its credit,
which shall be governed by the provisions of Section 4 of this Article VI) by
such officer or officers or agent or agents of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as
the Board of Directors, the Chairman of the Board, or the President Chief
Executive Officer shall direct in general or special accounts at such banks,
trust companies, savings and loan associations, or other depositories as the
Board of Directors may select or as may be selected by any officer or officers
or agent or agents of the Corporation to whom power in that respect has been
delegated by the Board of Directors. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer or agent of
the Corporation. The Board of Directors may make such special rules and
regulations with respect to such accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of Directors, the
Chairman of the Board, the President, or any Vice President or the Chief
Executive Officer may exercise in the name and on behalf of the Corporation
the powers and rights which the Corporation may have as the holder of stock or
other securities in any other corporation, including without limitation the
right to vote or consent with respect to such stock or other securities.
6. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors, and may thereafter be changed from time
to time by action of the Board of Directors. Initially, the fiscal year shall
begin on October 1 and end on September 30.
7. Applicability of the Acquisition of Controlling Interest Statute. The
provisions of the Nevada Revised Statutes, Sections 78.378 to 78.3793,
inclusive, shall not apply to the Corporation or to the acquisition of a
controlling interest of the Corporation by existing or future stockholders.
ARTICLE VII
STOCK
1. Certificates. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by or in the name of the Corporation by the
Chairman of the Board, the Chief Executive Officer, the President, or a
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Vice President and by the Treasurer, Secretary, or an Assistant Treasurer or
Assistant Secretary. The signatures of such officers upon such certificate may
be facsimiles if the certificate is manually signed by a transfer agent or
registered by a registrar, other than the Corporation itself or one of its
employees. If any officer who has signed or whose facsimile signature has been
placed upon a certificate has ceased for any reason to be such officer prior
to issuance of the certificate, the certificate may be issued with the same
effect as if that person were such officer at the date of issue. All
certificates for stock of the Corporation shall be consecutively numbered,
shall state the number of shares represented thereby and shall otherwise be in
such form as shall be determined by the Board of Directors, subject to such
requirements as are imposed by the Nevada General Corporation Law. The names
and addresses of the persons to whom the shares represented by certificates
are issued shall be entered on the stock transfer books of the Corporation,
together with the number of shares and the date of issue, and in the case of
cancellation, the date of cancellation. Certificates surrendered to the
Corporation for transfer shall be cancelled, and no new certificate shall be
issued in exchange for such shares until the original certificate has been
cancelled; except that in the case of a lost, stolen, destroyed or mutilated
certificate, a new certificate may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
2. Transfer of Stock. Transfers of shares of stock of the Corporation shall
be made only on the stock transfer books of the Corporation by the holder of
record thereof or by his or her legal representative or attorney in fact, who
shall furnish proper evidence of authority to transfer to the Secretary, or a
transfer clerk or a transfer agent, and upon surrender of the certificate or
certificates for such shares properly endorsed and payment of all taxes
thereon. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
3. Regulations. The Board of Directors may make such rules and regulations
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issue, transfer and registration of certificates for stock of the Corporation.
The Board of Directors may appoint, or authorize any officer or officers or
any committee to appoint, one or more transfer clerks or one or more transfer
agents and one or more registrars, and may require all certificates for stock
to bear the signature or signatures of any of them.
4. Lost Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of the fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
5. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Nevada.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares of stock in the manner and upon
the terms and conditions provided in the Articles of Incorporation and the
Nevada General Corporation Law.
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ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any instrument
executed by or on behalf of the Corporation. Nevertheless, if in any instance
a corporate seal is used, the same shall bear the full name of the Corporation
and the year and state of incorporation, or words or figures of similar
import.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall indemnify its directors and officers to the maximum
extent permitted by the Nevada General Corporation Law. Indemnification shall
be provided unless it is ultimately determined by a court of competent
jurisdiction that (i) the indemnified party did not act in a manner he or she
believed in good faith to be in, or not opposed to, the best interests of the
Corporation and, (ii) with respect to any criminal action or proceeding, the
indemnified party had no reasonable cause to believe his or her conduct was
lawful. Expenses shall be advanced to an indemnified party upon written
confirmation that he or she has not acted in a manner that would preclude
indemnification above and an undertaking to return any advances if it is
ultimately determined by a court of competent jurisdiction that the party is
not entitled to indemnification under the standard set forth herein.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered, or amended, or new bylaws may be
adopted, by (i) the affirmative vote of a majority of all the directors. These
Bylaws may also be repealed, altered or amended, or new bylaws may be adopted
by the total voting power of the outstanding common stock of the Corporation,
or (ii) the affirmative vote of not less than a majority of the combined
voting power of the then outstanding capital stock of the Corporation. entire
Board of Directors; provided, that no repeal, alteration, amendment, or
adoption of these New Bylaws by the directors shall be effective to override
any provision adopted after the date of the New Bylaws by the Stockholders
and, further provided, that the Stockholders shall be entitled to override any
repeal, alteration, amendment, or adoption of any provision solely by the
Board of Directors by subsequent action.
The undersigned Secretary of Simon Transportation Services Inc. hereby
certifies the foregoing to be the Bylaws of the Corporation, as adopted by the
Board of Directors on the day of , 1995, 2000.
Alba_______________________________Bn
Lan__________________________________g
, Secretary
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Consent Card
This Consent is being Solicited by Jerry Moyes
Consent of Stockholders to Action Without a Meeting
The undersigned, a stockholder of record of Simon Transportation Services
Inc. (the "Company"), hereby consents pursuant to Section 78.320 of the Nevada
General Corporation Law, with respect to the number of Class A and/or Class B
Common Shares, par value $0.01 per share, of the Company held by the
undersigned, to each of the following actions, which will occur in the order
set forth in this Consent Card, without prior notice and without a vote, as
more fully described in the Consent Statement, receipt of which is hereby
acknowledged. The undersigned directs that this consent be filed with the
minutes of the proceedings of the stockholders, and this consent shall be
deemed to be so filed upon delivery to the Company.
1. Proposal No. 1--The Repeal of Current Bylaws Proposal: Repeal the Current
Bylaws in their entirety. Proposal No. 1 is worded as follows:
"RESOLVED, that the bylaws of Simon Transportation Services Inc., as
previously amended and in effect immediately prior to the adoption of this
resolution, are hereby repealed in their entirety."
[_] CONSENT[_] CONSENT WITHHELD[_] ABSTAIN
Note: If no box is marked with respect to the Repeal of Current Bylaws
Proposal, this Consent will be voted in favor of repealing the Current
Bylaws in their entirety.
2. Proposal No. 2--The New Bylaws Proposal: Adopt the New Bylaws in the form
attached as Exhibit A. Proposal No. 2 is worded as follows:
"RESOLVED, that the New Bylaws of Simon Transportation Services Inc., in
the form attached as Exhibit A to the Consent Statement of Jerry Moyes, are
hereby adopted as the bylaws of Simon Transportation Services Inc.,
effective immediately."
[_] CONSENT[_] CONSENT WITHHELD[_] ABSTAIN
Note: If no box is marked with respect to the New Bylaws Proposal, this
Consent will be voted in favor of adopting the New Bylaws.
3. Proposal No. 3--The Director Election Proposal: Elect the Nominees as
directors of the Company to serve until their successors are duly elected
and qualified. Proposal No. 3 is worded as follows:
"RESOLVED, that the following persons are hereby elected, effective
immediately upon the adoption of the New Bylaws, as directors of the Simon
Transportation Services Inc. to serve until the next annual meeting of the
stockholders of Simon Transportation Services Inc. or until their successors
are duly elected and qualified:
Jerry Moyes, Jon Isaacson, Earl H. Scudder, Gordon K. Holladay, Vickie L.
Moyes, Craig P. Moyes, Jeff L. Archibald, Patrice Archibald, Ronald G.
Moyes, Krista B. Moyes, Michael J. Moyes, Buddy Favero and Laura Favero"
[_] CONSENT[_] CONSENT WITHHELD[_] ABSTAIN
To withhold consent to a proposed Nominee, specify the Nominee in the
following space:
-----------------------------------------------------------------------------
Note: If no box is marked above with respect to the Director Election
Proposal, this Consent will be voted in favor of the election of all
Nominees.
The effectiveness of this consent is conditioned upon the approval of
Proposals 1, 2 and 3. If all of such Proposals are not approved as indicated,
none of the Proposals will be enacted even though sufficient consents may have
been received to approve a particular Proposal.
If you have any questions or need assistance, please contact MacKenzie
Partners, Inc., which is assisting Moyes in this Consent Statement. Call toll
free 1-800-322-2885
PLEASE ACT PROMPTLY. IMPORTANT: THIS CONSENT MUST BE SIGNED AND DATED TO BE
VALID.
Dated: ______________________ , 2000
Signature: _________________________
Signature (if held jointly): _______
Title or authority (if
applicable): _______________________
Consents can only be given by the stockholder of record on the Record Date.
Please sign exactly as name appears on your stock certificate(s) on the Record
Date or on the label affixed hereto. If shares are registered in more than one
name, the signature of all such persons should be provided. A corporation
should sign in its full corporate name by a duly authorized officer, stating
his or her title. Trustees, guardians, executors, and administrators should
sign in their official capacity, giving their full title as such. If a
partnership, please sign in the partnership name by authorized persons. The
consent card votes all shares in all capacities.
PLEASE MARK, SIGN, AND DATE THIS CONSENT BEFORE MAILING THE CONSENT IN THE
ENCLOSED ENVELOPE.
