Warrant
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE, TRANSFER
OR OTHER DISPOSITION OF THIS WARRANT, SAID SHARES OR ANY INTEREST THEREIN MAY BE
EFFECTED WITHOUT, AMONG SATISFYING OTHER CONDITIONS, (I) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, (II) AN OPINION OF COUNSEL FOR THE
HOLDER THAT SUCH REGISTRATION IS NOT REQUIRED OR (III) RECEIPT OF A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT
REGISTRATION UNDER THE ACT IS NOT REQUIRED.
Void after 5:00 p.m., Utah Time
on September 18, 2010
SIMON TRANSPORATION SERVICES INC.
WARRANT TO PURCHASE
SHARES OF CLASS A COMMON STOCK
--------------------------
This certifies that as of September 19, 2000 (the "Grant Date"), for
value received, Jerry Moyes (the "Purchaser") or registered assigns (the
Purchaser or such assignee, as applicable, being referred to herein as the
"Holder"), is entitled to THREE HUNDRED THOUSAND (300,000) warrants, each such
warrant entitling the Holder to purchase one (1) share of Class A Common Stock,
par value $0.01 per share (the "Class A Common Stock"), of Simon Transportation
Services Inc., a Nevada corporation (the "Company"), at a price of Seven and
no/100 Dollars ($7.00) per share (the "Exercise Price") (such warrants and this
certificate evidencing such warrants being referred to herein, collectively, as
this "Warrant"). The number of shares of Class A Common Stock to be received
upon the exercise of this Warrant (the "Warrant Shares") and the Exercise Price
may be adjusted from time to time as hereinafter set forth.
1. Exercise of Warrant. Subject to the provisions of Section 2 below,
the portions of this Warrant with respect to which the Holder's rights have
vested may be exercised at any time or from time to time on or after the Grant
Date, but in any event no later than 5:00 p.m., Utah time, on September 18,
2010, or if such date is a day on which federal or state-chartered banking
institutions in Utah are authorized by law to close, then on the next succeeding
day which shall not be such a day; provided, however, no portion of this Warrant
may be exercised with respect to fewer than 10,000 Warrant Shares at any one
time, as such number is adjusted from time to time in accordance with Section 7
below. The rights of the Holder in this Warrant shall vest with respect to
100,000 Warrant Shares (or such other number of Warrant Shares that represents
no fewer than one-third of the total number of Warrant Shares issuable in
connection
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with the exercise of this Warrant, as such number is adjusted from time to time
in accordance with Section 7 below) on each of the first three anniversaries of
the Grant Date. Such exercise shall be effective upon presentation and surrender
to the Company at its principal office or at the office of its stock transfer
agent, if any, of a copy of this Warrant with the duly executed Notice of
Exercise form set forth on Exhibit A (attached hereto and made a part hereof by
this reference) (the "Notice of Exercise"). The Notice of Exercise must be
accompanied by payment, in cash or by certified or official bank check, payable
to the order of the Company, in the amount of the Exercise Price for the number
of the Warrant Shares, together with all taxes applicable upon such exercise.
The Company may require the Holder to execute such further documents and make
certain representations and warranties as the Company deems necessary to ensure
compliance with exemptions from applicable federal and state securities laws as
required by Section 2 below.
2. Compliance with Securities Laws. This Warrant may not be exercised
by the Holder unless at the time of exercise (i) a registration statement
registering the Warrant Shares upon such exercise is effective under the
Securities Act of 1933, as amended (and together with the rules and regulations
promulgated thereunder, collectively, the "Securities Act"), or the transaction
in which such Warrant Shares are to be issued is exempted from the application
of the registration requirements of the Securities Act, and (ii) the Warrant
Shares have been registered or qualified under any applicable state securities
laws or an exemption from registration or qualification is available under such
laws. This Warrant may not be exercised so long as the Holder is in default
under the representations, warranties or covenants of this Warrant.
3. Stock Fully Paid; Reservation of Shares. All Warrant Shares that may
be issued upon the exercise of this Warrant shall, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issue thereof. The Company hereby
covenants and agrees that at all times during the period this Warrant is
exercisable it shall reserve from its authorized and unissued Class A Common
Stock for issuance and delivery upon exercise of this Warrant such number of
shares of its Class A Common Stock as shall be required for issuance and
delivery upon exercise of this Warrant. The Company agrees that its issuance of
this Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Class A Common Stock upon the exercise of this
Warrant.
4. Fractional Shares. No fractional shares or stock representing
fractional shares shall be issued upon the exercise of this Warrant. In lieu of
any fractional shares which would otherwise be issuable, the Company shall, in
its sole discretion, either (i) pay cash equal to the product of such fraction
multiplied by the fair market value of one share of Class A Common Stock on the
date of exercise, as determined in good faith by the Company's Board of
Directors or (ii) issue the next largest whole number of Warrant Shares.
5. Transfer, Exchange, Assignment or Loss of Warrant or Certificates.
(a) This Warrant may not be assigned or transferred except as
provided herein and in accordance with and subject to the provisions of the
Securities Act and any other applicable federal and state securities laws. Any
purported transfer or assignment made other than in accordance with this Section
5 and Section 8 hereof shall be null and void and of no force and effect.
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(b) This Warrant shall be transferable only upon the receipt
by the Company of an opinion of counsel satisfactory to the Company to the
effect that (i) the transferee is a person to whom the Warrant may be legally
transferred without registration under the Securities Act or any state
securities laws; and (ii) such transfer will not violate any applicable law or
governmental rule or regulation including, without limitation, any applicable
federal or state securities law.
(c) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the duly
executed Assignment Form set forth on Exhibit B attached hereto and made a part
hereof by this reference and funds sufficient to pay any transfer tax. In such
event, the Company shall execute and deliver a new Warrant in the name of the
assignee named in such Assignment Form, and this Warrant shall promptly be
cancelled. This Warrant may be divided or combined with other Warrants which
carry the same rights upon presentation thereof at the principal office of the
Company together with a written notice signed by the Holder thereof, specifying
the names and denominations in which new Warrants are to be issued. The terms
"Warrant" and "Warrants" as used herein include any Warrants in substitution for
or replacement of this Warrant, or into which this Warrant may be divided or
exchanged.
(d) Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate representing Warrant Shares issued upon the exercise hereof and, in
the case of any such loss, theft or destruction, upon receipt of an indemnity
reasonably satisfactory to the Company, and, in the case of any such mutilation,
upon surrender and cancellation of this Warrant or such stock certificate, the
Company will execute and deliver a new Warrant or stock certificate of like
tenor and date, and any such lost, stolen, destroyed or mutilated Warrant or
stock certificate shall thereupon become void.
Each of the Holders of this Warrant, the Warrant Shares or any other
security issued or issuable upon exercise of this Warrant shall indemnify and
hold harmless the Company, its directors and officers, and each person, if any,
who controls the Company, against any losses, claims, damages or liabilities,
joint or several, to which the Company or any such director, officer or any such
person may become subject under the Securities Act or any statute or common law,
insofar as such losses, claims, damages or liabilities, or actions in respect
thereof, arise out of or are based upon the disposition by such Holder of the
Warrant, the Warrant Shares or other such securities in violation of the terms
of this Warrant.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder by virtue hereof are limited to those expressed in
this Warrant.
7. Adjustment of Exercise Price and Number of Shares. The number and
kind of securities issuable upon the exercise of this Warrant and the Exercise
Price of such securities shall be subject to adjustment from time to time upon
the happening of any of the following events after the Grant Date:
(a) Subdivision or Combination of Class A Common Stock. If the
Company at any time subdivides (by any stock split, stock dividend or otherwise)
one or more classes of its outstanding shares of Class A Common Stock into a
greater number of shares, or combines (by reverse stock split or otherwise) one
or more classes of its outstanding shares of Class A Common Stock into a smaller
number of shares, the number of Warrant Shares purchasable upon exercise of this
Warrant immediately prior thereto shall be adjusted so that the Holder of this
Warrant shall be entitled to receive the kind and number
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of Warrant Shares or other securities of the Company which it would have owned
or have been entitled to receive after the happening of any of the events
described above had this Warrant been exercised immediately prior to the
happening of such event or any record date with respect thereto. If the Holder
is entitled to receive shares of two or more classes of capital stock of the
Company pursuant to the foregoing upon exercise of the Warrant, the Company
shall determine the allocation of the adjusted Exercise Price between the
classes of capital stock. After such allocation, the exercise privilege and the
Exercise Price of each class of capital stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Class A Common Stock in
this Section. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event. Such adjustment shall be made successively
whenever such a payment, subdivision, combination or reclassification is made.
(b) Adjustment in Exercise Price. Whenever the number of
Warrant Shares purchasable upon the exercise of each Warrant is adjusted as
provided in this Section, the Exercise Price payable upon exercise of each
Warrant shall be adjusted by multiplying such Exercise Price immediately prior
to such adjustment by a fraction, of which the numerator shall be the number of
Warrant Shares purchasable upon the exercise of each Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of Warrant
Shares purchasable immediately thereafter.
8. Transfer to Comply with the Securities Act.
(a) Neither this Warrant, the Warrant Shares, any other
security issued or issuable upon exercise of this Warrant, nor any interest
therein may be sold, transferred or otherwise disposed of except to a person
who, in the opinion of counsel reasonably satisfactory to the Company, is a
person to whom this Warrant or such Warrant Shares may legally be transferred
pursuant to Section 5 hereof without registration and without the delivery of a
current prospectus under the Securities Act with respect thereto, and then only
upon compliance by the Holder and such purchaser with the requirements of
Section 5 and receipt by the Company of an agreement of such person to comply
with the provisions of this Warrant with respect to any resale or other
disposition of this Warrant and/or such securities, as applicable.
(b) If the Warrant Shares are not subject to an effective
registration statement under the Securities Act and applicable state securities
laws, the Holder shall represent that the Warrant Shares to be issued upon
exercise hereof are being acquired for the account of the Holder for investment
purposes and not with a view to, or for resale in connection with, the
distribution thereof and that the Holder will not offer, sell or otherwise
dispose of such Warrant Shares except under circumstances which will not result
in a violation of the Securities Act and all applicable state securities laws.
The Holder represents that the Holder has no present intention of distributing
or reselling the Warrant Shares.
(c) The Company may cause the following legend, or one of
similar substance, to be set forth on each certificate representing Warrant
Shares or any other security issued or issuable upon exercise of this Warrant,
unless the Holder delivers an opinion of counsel satisfactory to the Company
that such legend is unnecessary:
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THE SECURITIES OF THE COMPANY EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND VARIOUS APPLICABLE
STATE SECURITIES LAWS. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE
SOLD, TRANSFERRED, PLEDGED, ASSIGNED OR ENCUMBERED BY A SECURITY INTEREST,
UNLESS THE PURCHASE, TRANSFER, ASSIGNMENT, PLEDGE OR GRANT OF SUCH SECURITY
INTEREST COMPLIES WITH ALL STATE AND FEDERAL SECURITIES LAWS (I.E., SUCH SHARES
OF CLASS A COMMON STOCK ARE REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE THEREUNDER) AND UNLESS THE SELLER, TRANSFEROR,
ASSIGNOR, PLEDGOR OR GRANTOR OF SUCH SECURITY INTEREST PROVIDES AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE TRANSACTION CONTEMPLATED
WOULD NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS.
9. Governing Law. This Warrant shall be governed by, and onstrued in
accordance with, the laws of the State of Nevada.
10. Modification and Waiver. This Warrant and any provision hereof may
be modified, amended, waived or discharged only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. Notice. Notices and other communications to be given to the Holder
shall be delivered by hand or mailed, postage prepaid, to such address as the
Holder shall have designated by written notice to the Company as provided in
this Section. Notices or other communications to the Company shall be deemed to
have been sufficiently given if delivered by hand or mailed postage prepaid to
the Company at 5175 West 2100 South, West Valley City, Utah 84120, Attn: Chief
Executive Officer, or such other address as the Company shall have designated by
written notice to the Holder as provided in this Section. Notice by mail shall
be deemed given when deposited in the United States mail, postage prepaid, as
herein provided.
12. Construction. The descriptive headings of the several paragraphs
and sections of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. Unless otherwise indicated, references to
sections shall be construed as references to the corresponding Sections of this
Warrant.
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13. Attorneys' Fees. The party to this Warrant that prevails in any
dispute or claim between the parties to this Warrant, to the extent such dispute
or claim arises out of this Warrant, shall be entitled to recover reasonable
costs and attorneys' fees relating to such dispute or claim.
IN WITNESS WHEREOF, the Company has executed this Warrant effective as
of the 19th day of September, 2000.
SIMON TRANSPORTATION SERVICES INC.,
a Nevada corporation
By:________________________________
Printed Name:______________________
Title:_____________________________
___________________________________
Jerry Moyes, an individual
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EXHIBIT A
NOTICE OF EXERCISE
TO: SIMON TRANSPORTATION SERVICES INC. (the "Company"):
1. The undersigned holder of the attached warrant (the "Warrant")
hereby elects to purchase _____________________ Warrant Shares (as defined in
the Warrant).
2. Please issue a certificate or certificates representing such Warrant
Shares in the name of the undersigned.
________________
(DATE)
_______________________________________
(SIGNATURE)
_______________________________________
(PRINT OR TYPE NAME)
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EXHIBIT B
ASSIGNMENT FORM
Dated: ____________________
FOR VALUE RECEIVED, _____________________ hereby sells, assigns, and
transfers unto ______________________ (please type or print)
______________________________ (address) the right to purchase Class A Common
Stock represented by the warrant attached hereto to the extent of _____________
shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint Simon Transportation Services Inc. (the "Company") and/or
its transfer agent as attorney to transfer the same on the books of the Company
with full power of substitution in the premises.
_______________________________________
(SIGNATURE)
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