<PAGE> 1
Registration No. 33-_____________
As filed with the Securities and Exchange Commission on June __, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
AASCHE TRANSPORTATION SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3964954
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
10214 NORTH MT. VERNON ROAD (815) 864-2421
SHANNON, ILLINOIS 61078 (Telephone number, including
(Address, including zip code, of area code, of registrant's
registrant's principal executive offices) principal executive offices)
AASCHE TRANSPORTATION SERVICES, INC. STOCK OPTION PLAN
(Full title of the plan)
Mr. Larry L. Asche Copy to:
Chairman and Chief Operating Officer Joel R. Schaider
Aasche Transportation Services, Inc. Sachnoff & Weaver, Ltd.
10214 North Mt. Vernon Road 30 South Wacker Drive, Suite 2900
Shannon, Illinois 61078 Chicago, Illinois 60606
(815) 864-2421 (312) 207-1000
(Name, address, including zip code and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Proposed maximum Proposed maximum
to be registered Amount to be offering price per aggregate offering Amount of
(1) registered(1) share price registration fee(4)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.0001 par value 864,600(2) (3) (3) $1,732.93
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) The amount being registered represents the estimated aggregate amount that
could be contributed by the employees. The amount is estimated solely for the
purposes of calculating the registration fee. This Registration Statement
includes any additional shares of the Registrant's Common Stock that may be
issued resulting from stock splits, stock dividends, or similar transactions.
(3) The offering price is not known.
(4) Pursuant to Rule 457(c), the registration fee was computed on the basis of
the price of Aasche Transportation Services, Inc. Common Stock, determined on
the basis of the average of the reported high and low prices of such stock on
the Nasdaq National Market on June 17, 1996.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission as
part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by Aasche
Transportation Services, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference in this
Registration Statement, except to the extent that any statement or information
therein is modified, superseded or replaced by a statement or information
contained in any other subsequently filed document incorporated herein by
reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995;
2. The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1996;
3. The Company's Current Report contained on Form 8-K dated
April 1, 1996; and
4. The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A dated July 26, 1994
(No. 0-24576), including any amendments or reports filed for the
purpose of updating such descriptions.
All documents filed by the Company or the Aasche Transportation Services, Inc.
Stock Option Plan (the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
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<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Six of the registrant's Certificate of Incorporation ("Article
Six") is consistent with Section 102(b)(7) of the Delaware General Corporation
Law, which generally permits a company to include a provision limiting the
personal liability of a director in the company's certificate of incorporation.
With limitations, Article Six eliminates the personal liability of the
Company's directors to the registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director. However, Article Six does not
eliminate director liability: (i) for breaches of the duty of loyalty to the
registrant and its stockholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (iii)
for transactions from which a director derives improper personal benefit; and
(iv) under Section 174 of the Delaware General Corporation Law ("Section 174").
Section 174 makes directors personally liable for unlawful dividends and stock
repurchases or redemptions and expressly sets forth a negligence standard with
respect to such liability. While Article Six protects the directors from
awards for monetary damages for breaches of their duty of care, it does not
eliminate their duty of care. The limitations in Article Six have no effect on
claims arising under the federal securities laws.
The registrant's Certificate of Incorporation contains provisions that
require the registrant to indemnify its directors and officers to the fullest
extent permitted by Delaware law. Under Section 145 of the Delaware General
Corporation law, directors and officers, as well as other employees and
individuals, may be indemnified against expenses (including attorneys' fees),
judgments, fines, amounts paid in settlement in connection with specified
actions, suits, or proceedings, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation -- a
"derivative action") if they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to criminal actions or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred
in connection with the defense or settlement of such an action, and the
Delaware General Corporation Law requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation.
The registrant's By-Laws contains provisions whereby the registrant shall
indemnify and hold harmless the directors to the fullest extent permitted by
applicable law against any and all reasonable attorneys' fees and all other
reasonable expense, cost, liability and loss (including a
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<PAGE> 4
mandatory obligation by the registrant to advance reimbursement of legal fees
and expenses) paid or reasonably incurred by such director or on his or her
behalf in connection with any threatened, pending or completed action,
suit or proceeding, or any inquiry or investigation not initiated by the
director that he or she believes in good faith might lead to a proceeding,
inquiry or investigation (a "Proceeding"), relating to the fact that the
director is or was a director, officer, employee or agent of the registrant, or
is or was serving at the request of the registrant as a director, officer,
employee, trustee, agent or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, or by reason
of any action or inaction by the director in such capacity. However, the
registrant's obligation to indemnify the director is subject to a determination
by the registrant's Board of Directors that the director is entitled to
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
a. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in
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<PAGE> 5
periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
b. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act and each filing of the Plan's annual report pursuant
to Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to officers, directors, and controlling
persons of the registrant pursuant to the registrant's certificate of
incorporation or by-laws, or otherwise, the registrant has been advised
that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer, or controlling person
in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Shannon, State of Illinois, on June
20, 1996.
Aasche Transportation Services, Inc.
By: /s/ Larry L. Asche
------------------------------------
Larry L. Asche, Chief Operating Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Aasche Transportation
Services, Inc., hereby constitutes and appoints Larry L. Asche our true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for us and in our stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and all documents relating thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
necessary or advisable to be done in and about the premises, as fully to all
intents and purposes as we might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
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<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
respective capacities on June 20, 1996.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Larry L. Asche Chairman and Chief Operating Officer and
- ------------------ Director (Principal Executive Officer)
Larry L. Asche
/s/ Kevin M. Clark
- ------------------ Chief Executive Officer, President and Director
Kevin M. Clark
Chief Financial Officer (Principal Financial
/s/ Leon M. Monachos Officer and Principal Accounting Officer) and
- -------------------- Director
Leon M. Monachos
/s/ Diane L. Asche
- ------------------ Director
Diane L. Asche
/s/ Steven R. Green
- ------------------- Director
Steven R. Green
/s/ Richard S. Baugh
- -------------------- Director
Richard S. Baugh
</TABLE>
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<PAGE> 8
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
Aasche Transportation Services, Inc. Stock Option Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, this 20th day of June, 1996.
/s/Steven R. Green
------------------
Steven R. Green
BEING ONE OF THE MEMBERS OF THE
AASCHE TRANSPORTATION SERVICES, INC. COMPENSATION COMMITTEE
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description of Exhibit Page Number
- ------- ---------------------- -----------
<S> <C> <C>
4.1 Certificate of Incorporation of Aasche Transportation *
Services, Inc., as amended
4.2 By-Laws of Aasche Transportation Services, Inc. *
5.1 Opinion of Sachnoff & Weaver, Ltd. with regard to the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP with respect to the
financial statements of the Company.
23.2 Consent of Sachnoff & Weaver, Ltd. (included in
Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page
hereto)
99.1 Aasche Transportation Services, Inc. Stock Option Plan
</TABLE>
- ------------------------------
* Filed as an exhibit to Aasche Transportation Services, Inc. Registration
Statement on Form SB-2, Registration Statement No. 33-81942C, declared
effective by the Securities and Exchange Commission on September 23, 1994,
and incorporated herein by reference.
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<PAGE> 1
Exhibit 5.1
June 20, 1996
The Board of Directors
Aasche Transportation Services, Inc.
10214 N. Mt. Vernon Road
Shannon, Illinois 61078
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel for Aasche Transportation Services, Inc. (the
"Company") in connection with the Registration Statement on Form S-8 filed by
the Company with the Securities and Exchange Commission (the "Commission") to
effect the registration, pursuant to the Securities Act of 1933, of 864,600
shares of common stock, par value $.0001 per share, which may be offered by the
Company under its Stock Option Plan. In connection with this matter, we have
examined such documents, corporate records and other instruments as we have
deemed necessary for the purposes of this opinion.
Based on the foregoing, it is our opinion that the 864,600 shares of
common stock, par value $.0001 per share, which will be offered by the Company
pursuant to its Stock Option Plan, when issued and paid for as described in
said Registration Statement, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Sachnoff & Weaver, Ltd.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to 864,600 of common shares for the Stock
Option Plan of Aasche Transportation Services, Inc. of our report dated March
1, 1996, with respect to the consolidated financial statements of Aasche
Transportation Services, Inc. included in the Annual Report to shareholders
(Form 10-KSB) for the year ended December 31, 1995.
Ernst & Young LLP
Chicago, Illinois
June 20, 1996
<PAGE> 1
Exhibit 99.1
AASCHE TRANSPORTATION SERVICES, INC.
STOCK OPTION PLAN
<PAGE> 2
I. PURPOSE AND DEFINITIONS
A. PURPOSE OF THE PLAN
The Aasche Transportation Services, Inc. Stock Option Plan,
which is effective as of June 1, 1996, is an amendment and
restatement of the Aasche Transportation Services, Inc. Key
Employee Incentive Stock Option Plan (the "PRIOR PLAN"), and
reflects (i) certain design changes to the Prior Plan, and (ii) the
merger into the Prior Plan of a number of plans and agreements
previously maintained by the Company and certain of its Affiliates.
The plans and agreements that have been merged into the Plan are
set forth in Exhibit A to the Plan (the "EXHIBIT A PLANS").
The Plan is intended to encourage ownership of Shares by Key
Employees and Key Non-Employees in order to attract and retain such
Key Employees in the employ of the Company or an Affiliate, or to
attract such Key Non-Employees to provide services to the Company
or an Affiliate, and to provide additional incentive for such
persons to promote the success of the Company or an Affiliate.
The restatement of the Prior Plan and the merger into the Plan
of the Exhibit A Plans shall not in any way affect the rights of
individuals who participated in the Prior Plan and the Exhibit A
Plans in accordance with their provisions. All matters relating to
eligibility for Options and the number of Options to which such
individuals may be entitled based upon events occurring prior to
the adoption of this Plan shall, except as otherwise expressly
provided herein, be determined in accordance with the applicable
provisions of the Prior Plan and the Exhibit A Plans.
B. DEFINITIONS
Unless otherwise specified or unless the context otherwise
requires, the following terms, as used in this Plan, have the
following meanings:
1. AFFILIATE means a corporation which, for purposes
of Section 422 of the Code, is a parent or subsidiary of the
Company, direct or indirect.
2. BOARD means the Board of Directors of the
Company.
3. CODE means the Internal Revenue Code of 1986, as
amended.
4. COMMITTEE means the committee to which the Board
delegates the power to act under or pursuant to the provisions
of the Plan (which committee may be the Compensation Committe
of the Board), or the Board if no committee is selected. If
the Board delegates powers to a committee, and if the Company
is subject to Section 16 of the Exchange Act, then, if
necessary for compliance therewith, such committee shall
consist initially of not less than
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<PAGE> 3
two (2) members of the Board, each member of which must be a
"disinterested person" or Nonemployee Director, within the
meaning of the applicable rules promulgated pursuant to the
Exchange Act. If the Company is subject to Section 16 of the
Exchange Act, no member of the Committee shall receive any
Option pursuant to the Plan or any similar plan of the
Company or any Affiliate while serving on the Committee,
other than pursuant to Article VI hereof, or shall have
received any Option at any time within one (1) year prior to
his or her service on the Committee or, if different, for the
time period necessary to fulfill the then current Rule 16b-3
requirements under the Exchange Act, unless otherwise
permitted by the Exchange Act or any rules promulgated
thereunder. Notwithstanding anything herein to the contrary,
and insofar as it is necessary in order for compensation
recognized by Participants pursuant to the Plan to be fully
deductible to the Company for federal income tax purposes,
each member of the Committee also shall be an "outside
director" (as defined in regulations or other guidance issued
by the Internal Revenue Service under Code Section 162(m)).
5. COMPANY means Aasche Transportation Services,
Inc., a Delaware corporation, and includes any successor or
assignee corporation or corporations into which the Company
may be merged, changed, or consolidated; any corporation for
whose securities the securities of the Company shall be
exchanged; and any assignee of or successor to substantially
all of the assets of the Company.
6. DISABILITY or DISABLED means permanent and total
disability as defined in Section 22(e)(3) of the Code.
7. EXCHANGE ACT means the Securities Exchange Act of
1934, as amended from time to time, or any successor statute
thereto.
8. FORMULA OPTION means a Nonstatutory Option
granted automatically to a Nonemployee Director in accordance
with Article VI of the Plan.
9. INCENTIVE OPTION means an Option which, when
granted, is intended to be an "incentive stock option," as
defined in Section 422 of the Code.
10. KEY EMPLOYEE means an employee of the Company or
of an Affiliate (including, without limitation, an employee
who also is serving as an officer or director of the Company
or of an Affiliate), designated by the Board or the Committee
as being eligible to be granted one or more Options under the
Plan; provided, however, that Larry L. Asche, Diane L. Asche,
and Kevin
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<PAGE> 4
M. Clark shall not be eligible to be granted Options hereunder
except to the extent they have received Options under the
Exhibit A Plans.
11. KEY NON-EMPLOYEE means a Nonemployee Director or
advisor of the Company or of an Affiliate who is designated by
the Board or the Committee as being eligible to be granted one
or more Options under the Plan.
12. NONEMPLOYEE DIRECTOR is a director of the Company
who is not an employee of the Company or any of its
Affiliates.
13. NONSTATUTORY OPTION means an Option which, when
granted, is not intended to be an "incentive stock option," as
defined in Section 422 of the Code.
14. OPTION means a right, option or warrant granted
under the Plan.
15. OPTION AGREEMENT means an agreement between the
Company and a Participant executed and delivered pursuant to
the Plan.
16. PARTICIPANT means a Key Employee to whom one or
more Incentive Options or Nonstatutory Options are granted
under the Plan, and a Key Non-Employee to whom one or more
Nonstatutory Options are granted under the Plan.
17. PLAN means the Aasche Transportation Services,
Inc. Stock Option Plan, as amended from time to time.
18. SHARES means the following shares of the capital
stock of the Company as to which Options have been or may be
granted under the Plan: treasury shares or authorized but
unissued Common Stock, $.0001 par value, or any shares of
capital stock into which the Shares are changed or for which
they are exchanged within the provisions of Article VII of the
Plan.
II. SHARES SUBJECT TO THE PLAN
The aggregate number of Shares as to which Options may be granted from
time to time shall be Eight Hundred Sixty-four Thousand Six Hundred
(864,600) Shares (subject to adjustment for stock splits, stock
dividends, and other adjustments described in Article VII hereof);
provided, however, that if the Company is a publicly held corporation, as
such term is defined under Section 162(m) of the Code, the aggregate
number of Shares as to
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<PAGE> 5
which Options may be granted in any calendar year to any one Key
Employee shall not exceed one hundred fifty thousand (150,000) (subject
to adjustment for stock splits, stock dividends, and other adjustments
described in Article VII hereof).
If an Option ceases to be "outstanding," in whole or in part, the
Shares which were subject to such Option, if the Option was not
exercised, shall be available for the granting of other Options. Any
Option shall be treated as "outstanding" until such Option is exercised
in full, terminates or expires under the provisions of the Plan or Option
Agreement, or is cancelled by agreement of the Company and the
Participant.
Subject to the provisions of Article VII, the aggregate number of Shares
as to which Options may be granted shall be subject to change only by
means of an amendment of the Plan duly adopted by the Company and
approved by the stockholders of the Company within the earlier of one
year before or after the date of the adoption of any such amendment or
such other time period as may be required by the Exchange Act, if
applicable.
III. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee. A majority of the
Committee shall constitute a quorum at any meeting thereof (including by
telephone conference) and the acts of a majority of the members present,
or acts approved in writing by a majority of the entire Committee without
a meeting, shall be the acts of the Committee for purposes of this Plan.
The Committee may authorize one or more of its members or an officer of
the Company to execute and deliver documents on behalf of the Committee.
A member of the Committee shall not exercise any discretion respecting
himself or herself under the Plan. The Board shall have the authority to
remove, replace or fill any vacancy of any member of the Committee upon
notice to the Committee and the affected member. Any member of the
Committee may resign upon notice to the Board. The Committee may
allocate among one or more of its members, or may delegate to one or more
of its agents, such duties and responsibilities as it determines.
Subject to the provisions of the Plan, the Committee is authorized to:
A. interpret the provisions of the Plan or of any Option or
Option Agreement and to make all rules and determinations which it
deems necessary or advisable for the administration of the Plan;
B. determine which employees of the Company or of an Affiliate
shall be designated as Key Employees and which of the Key Employees
shall be granted Options;
C. determine the Key Non-Employees to whom Nonstatutory
Options shall be granted;
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<PAGE> 6
D. determine whether the Option to be granted shall be an
Incentive Option or Nonstatutory Option;
E. determine the number of Shares for which an Option or
Options shall be granted;
F. provide for the acceleration of the right to exercise an
Option (or portion thereof); and
G. specify the terms and conditions upon which Options may be
granted;
provided, however, that with respect to Incentive Options, all such
interpretations, rules, determinations, terms, and conditions shall be
made and prescribed in the context of preserving the tax status of the
Incentive Options as incentive stock options within the meaning of
Section 422 of the Code.
All determinations of the Committee shall be made by a majority of its
members and shall be reduced to writing and signed by a majority. No
member of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Option.
IV. ELIGIBILITY FOR PARTICIPATION
The Committee may at any time and from time to time grant one or more
Options to one or more Key Employees and may designate the number of
Shares to be subject to each Option so granted, provided, however, that
(i) each Participant receiving an Incentive Option must be a Key Employee
of the Company or of an Affiliate at the time an Incentive Option is
granted; (ii) no Incentive Options shall be granted after the expiration
of ten (10) years from the earlier of the date of the adoption of the
Plan by the Company or the approval of the Plan by the stockholders of
the Company; and (iii) the fair market value of the Shares (determined at
the time the Option is granted) as to which Incentive Options are
exercisable for the first time by any Key Employee during any single
calendar year (under the Plan and under any other incentive option plan
of the Company or an Affiliate) shall not exceed $100,000.
Notwithstanding the foregoing, if the Company is subject to Section 16 of
the Exchange Act, then no individual who is a member of the Committee
shall be eligible to receive an Option, except as otherwise provided for
under Article VI for Formula Options. If the Company is not subject to
Section 16 of the Exchange Act, then no individual who is a member of the
Committee shall be eligible to receive an Option under the Plan unless
the granting of such Option shall be approved by the Committee, with all
of the members voting thereon being disinterested members. For the
purpose of this Article IV, a
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<PAGE> 7
"disinterested member" shall be any member who shall not then be, or at
any time within the year prior thereto have been, granted an Option
under the Plan or any other plan of the Company or an Affiliate.
Notwithstanding any of the foregoing provisions, the Committee may
authorize the grant of an Option to a person not then in the employ of
the Company or of an Affiliate, conditioned upon such person becoming
eligible to become a Participant at or prior to the execution of the
Option Agreement evidencing the actual grant of such Option.
V. TERMS AND CONDITIONS OF OPTIONS
Each Option shall be set forth in an Option Agreement, duly executed on
behalf of the Company and by the Participant to whom such Option is
granted. Except for the setting of the Option price under Paragraph A,
no Option shall be granted and no purported grant of any Option shall be
effective until such Option Agreement shall have been duly executed on
behalf of the Company and by the Participant. Each such Option
Agreement shall be subject to at least the following terms and
conditions:
A. OPTION PRICE
The exercise price of the Shares covered by each Option granted
under the Plan shall be the "fair market value" of the Shares on
the date of the grant of the Option; provided, however, if the
optionee owns directly or by reason of the applicable attribution
rules more than ten percent (10%) of the total combined voting
power of all classes of share capital of the Company, the Option
price shall be not less than one hundred ten percent (110%) of the
said fair market value on the date of grant. If the Shares are
listed on any national securities exchange, the fair market value
shall be the mean average of the high and low sales prices, if any,
on the largest such exchange on the date of the grant of the
Option, or, if none, on the most recent trade date thirty (30) days
or less prior to the date of the grant of the Option. If the
Shares are not then either listed on any such exchange or quoted on
NASDAQ, the fair market value shall be the mean between the average
of the "Bid" and the average of the "Ask" prices, if any, as
reported in the National Daily Quotation Service for the date of
the grant of the Option, or, if none, for the most recent trade
date thirty (30) days or less prior to the date of the grant of the
Option for which such quotations are reported. If the fair market
value cannot be determined under the preceding two sentences, it
shall be determined in good faith by the Committee.
6
<PAGE> 8
B. NUMBER OF SHARES
Each Option shall state the number of Shares to which it
pertains.
C. TERM OF OPTION
Each Incentive Option shall terminate not more than ten (10)
years from the date of the grant thereof, or at such earlier time
as the Option Agreement may provide, and shall be subject to
earlier termination as herein provided, except that if the Option
price is required under Paragraph A of this Article V to be at
least 110% of fair market value, each such Incentive Option shall
terminate not more than five (5) years from the date of the grant
thereof, and shall be subject to earlier termination as herein
provided.
D. DATE OF EXERCISE
Upon the authorization of the grant of an Option, or at any time
thereafter, the Committee may, subject to the provisions of
Paragraph C of this Article V, prescribe the date or dates on which
the Option becomes exercisable, and may provide that the Option
rights become exercisable in installments over a period of years,
or upon the attainment of stated goals, provided, however, that
unless the Option Agreement expressly provides to the contrary, no
Option may be exercised until eighteen (18) months have lapsed from
the date of grant. Attached hereto as Exhibit B are the dates of
exercise, number of Shares, and Option prices for the Options
granted to Larry L. Asche, Diane L. Asche, Kevin M. Clark, Brian
Gast, Leon Monachos, Trey Trumbo and Greenley Capital Company, L.P.
E. MEDIUM OF PAYMENT
The Option price shall be paid on the date of purchase
specified in the notice of exercise, as set forth in Paragraph J.
It shall be paid in such form (permitted by Section 422 of the Code
in the case of Incentive Options) as the Committee shall, either by
rules promulgated pursuant to the provisions of Article III of the
Plan, or in the particular Option Agreement, provide.
7
<PAGE> 9
F. TERMINATION OF EMPLOYMENT
1. A Participant who ceases to be an employee or of
the Company or of an Affiliate for any reason other than
death, Disability, or termination for cause, may exercise any
Option granted to such Participant, to the extent that the
right to purchase Shares thereunder has become exercisable on
the date of such termination, but only within three (3) months
after such date, or, if earlier, within the originally
prescribed term of the Option, and subject to the condition
that no Option shall be exercisable after the expiration of
the term of the Option. A Participant's employment shall not
be deemed terminated by reason of a transfer to another
employer which is the Company or an Affiliate.
2. A Participant who ceases to be an employee for
cause shall, upon such termination, cease to have any right to
exercise any Option. For purposes of this Plan, "CAUSE" shall
be deemed to include (but shall not be limited to) wrongful
appropriation of funds of the Company or an Affiliate,
divulging confidential information about the Company or an
Affiliate to the public, the commission of a gross misdemeanor
or felony, or the performance of any similar action that the
Board or the Committee, in their sole discretion, may deem to
be sufficiently injurious to the interests of the Company or
an Affiliate to constitute cause for termination. The
determination of the Board or the Committee as to the existence
of cause shall be conclusive and binding upon the Participant
and the Company.
3. A Participant who is absent from work with the
Company or an Affiliate because of temporary disability (any
disability other than a permanent and total Disability as
defined at Paragraph A(6) of Article I hereof), or who is on
leave of absence for any purpose permitted by any
authoritative interpretation (i.e., regulation, ruling, case
law, etc.) of Section 422 of the Code, shall not, during the
period of any such absence, be deemed, by virtue of such
absence alone, to have terminated his employment or
relationship with the Company or with an Affiliate, except as
the Committee may otherwise expressly provide or determine.
4. Paragraph F(1) shall control and fix the rights
of a Participant who ceases to be an employee of the Company
or of an Affiliate for any reason other than death,
Disability, or termination for cause, and who subsequently
becomes Disabled or dies. Nothing in Paragraphs G and H of
this Article V shall be applicable in any such case except
that, in the event of such a subsequent Disability or death
within the three (3) month period after the termination of
employment or, if earlier, within the originally prescribed
term of the
8
<PAGE> 10
Option, the Participant or the Participant's
estate or personal representative may exercise the Option
permitted by this Paragraph F, in the event of Disability,
within twelve (12) months after the date that the Participant
ceased to be an employee of the Company or of an Affiliate or,
in the event of death, within six (6) months after the
issuance of letters testamentary or letters of administration
to the executor or administrator (but in no event more than
one (1) year after the date of death of such Participant).
G. TOTAL AND PERMANENT DISABILITY
A Participant who ceases to be an employee or Key
Non-Employee of the Company or of an Affiliate by reason of
Disability may exercise any Option granted to such Participant (i)
to the extent that the right to purchase Shares thereunder has
become exercisable on or before the date such Participant becomes
Disabled as determined by the Committee, and (ii) if the Option
becomes exercisable periodically under Paragraph D, to the extent
of any additional rights that would have become exercisable had the
Participant not become so Disabled until after the close of
business on the next periodic exercise date.
A Disabled Participant shall exercise such rights, if at all,
only within a period of not more than twelve (12) months after the
date that the Participant became Disabled as determined by the
Committee (notwithstanding that the Participant might have been
able to exercise the Option as to some or all of the Shares on a
later date if the Participant had not become Disabled) or, if
earlier, within the originally prescribed term of the Option.
H. DEATH
In the event that a Participant to whom an Option has been
granted ceases to be an employee or Key Non-Employee of the Company
or of an Affiliate by reason of such Participant's death, such
Option, to the extent that the right is exercisable but not
exercised on the date of death, may be exercised by the
Participant's estate or personal representative within six (6)
months after the issuance of letters testamentary or letters of
administration to the executor or administrator, but in no event
more than one (1) year after the date of death of such Participant
(or, if earlier, within the originally prescribed term of the
Option), notwithstanding that the decedent might have been able to
exercise the Option as to some or all of the Shares on a later date
if the Participant were alive and had continued to be an employee
or Key Non-Employee of the Company or of an Affiliate.
9
<PAGE> 11
I. VESTING OF OPTIONS UPON A CHANGE IN CONTROL
The vesting of Options will be accelerated, and the Options
will become immediately exercisable, upon a "Change in Control" of
the Company. A Change in Control is deemed to have occurred if (1)
a person (as such term is used in Section 13(d) of the Exchange
Act) becomes the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, in one or more
transactions, of Shares of the Company representing fifty percent
(50%) or more of the total number of votes that may be cast by all
stockholders of the Company voting as a single class, without the
approval or consent of the Company's Board of Directors, (2) there
is a consolidation or merger of the Company in which the Company is
not the surviving corporation, or (3) a plan or proposal for the
liquidation or dissolution of the Company is adopted.
J. EXERCISE OF OPTION AND ISSUANCE OF STOCK
Options shall be exercised by giving written notice to the
Company. Such written notice shall: (1) be signed by the person
exercising the Option, (2) state the number of Shares with respect
to which the Option is being exercised, (3) contain the warranty
required by Paragraph N of this Article V, and (4) specify a date
(other than a Saturday, Sunday or legal holiday) not less than five
(5) nor more than ten (10) days after the date of such written
notice, as the date on which the Shares will be purchased. Such
tender and conveyance shall take place at the principal office of
the Company during ordinary business hours, or at such other hour
and place agreed upon by the Company and the person or persons
exercising the Option. On the date specified in such written
notice (which date may be extended by the Company in order to
comply with any law or regulation which requires the Company to
take any action with respect to the Option Shares prior to the
issuance thereof, whether pursuant to the provisions of Article VII
or otherwise), the Company shall accept payment for the Option
Shares and shall deliver to the person or persons exercising the
Option in exchange therefor an appropriate certificate or
certificates for fully paid non-assessable Shares. In the event of
any failure to take up and pay for the number of Shares specified
in such written notice on the date set forth therein (or on the
extended date as above provided), the right to exercise the Option
shall terminate with respect to such number of Shares, but shall
continue with respect to the remaining Shares covered by the Option
and not yet acquired pursuant thereto.
10
<PAGE> 12
K. RIGHTS AS A STOCKHOLDER
No Participant to whom an Option has been granted shall have
rights as a stockholder with respect to any Shares covered by such
Option except as to such Shares as have been issued to or
registered in the Company's share register in the name of such
Participant upon the due exercise of the Option and tender of the
full Option price.
L. ASSIGNABILITY AND TRANSFERABILITY OF OPTION
By its terms, an Option granted to a Participant shall not be
transferable by the Participant and shall be exercisable, during
the Participant's lifetime, only by such Participant. Such Option
shall not be assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) and shall not be subject to
execution, attachment, or similar process. Any attempted transfer,
assignment, pledge, hypothecation or other disposition of any
Option or of any rights granted thereunder contrary to the
provisions of this Paragraph L, or the levy of any attachment or
similar process upon an Option or such rights, shall be null and
void.
M. OTHER PROVISIONS
The Option Agreement for an Incentive Option shall contain such
limitations and restrictions upon the exercise of the Option as
shall be necessary in order that such Option can be an "incentive
stock option" within the meaning of Section 422 of the Code.
Further, the Option Agreements authorized under the Plan shall be
subject to such other terms and conditions including, without
limitation, restrictions upon the exercise of the Option, as the
Committee shall deem advisable and which, in the case of Incentive
Options, are not inconsistent with the requirements of Section 422
of the Code.
N. PURCHASE FOR INVESTMENT
Unless the Shares to be issued upon the particular exercise of
an Option shall have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended, the
Company shall be under no obligation to issue the Shares covered by
such exercise unless and until the following conditions have been
fulfilled. In accordance with the direction of the Committee, the
persons who exercise such Option shall warrant to the Company that,
at the time of such exercise, such persons are acquiring their
Option Shares for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares, and shall
make such other representations, warranties, acknowledgements and
affirmations, if any, as the Committee may require. In such event,
the persons acquiring such Shares
11
<PAGE> 13
shall be bound by the provisions of the following legend (or
similar legend) which shall be endorsed upon the certificate(s)
evidencing their Option Shares issued pursuant to such exercise.
"The shares represented by this certificate have been acquired
for investment and they may not be sold or otherwise transferred
by any person, including a pledgee, in the absence of an
effective registration statement for the shares under the
Securities Act of 1933 or an opinion of counsel satisfactory to
the Company that an exemption from registration is then
available."
Without limiting the generality of the foregoing, the Company
may delay issuance of the Shares until completion of any action or
obtaining any consent that the Company deems necessary under any
applicable law (including without limitation state securities or
"blue sky" laws).
VI. FORMULA OPTIONS
A. Each Nonemployee Director shall be granted automatically a
Formula Option to purchase five thousand (5,000) Shares upon the
initial election or appointment of such Nonemployer Director to the
Board and at the conclusion of each annual meeting of the Board
thereafter.
B. The purchase price of the Shares subject to the Formula
Option shall be equal to one hundred percent (100%) of the "fair
market value" as of the date of grant, as such term is defined in
Paragraph A of Article V.
C. The Shares subject to the Formula Option granted to a
Nonemployee Director shall become exercisable immediately upon
grant and may be exercised until ten (10) years have lapsed from
the date of grant.
The foregoing notwithstanding, if a Nonemployee Director shall
cease to be a director of the Company because of death or
Disability, all Shares for which a Formula Option has been granted
shall be exercisable only in accordance with Paragraphs G and H of
Article V. If a Nonemployee Director ceases to be a director of
the Company for any reason other than death or Disability, his or
her right to exercise the Formula Option, and the timing of such
exercise, shall be governed by the terms of the agreement setting
forth the Formula Option; provided, however, that if a Nonemployee
Director shall commit any act of malfeasance or wrongdoing
affecting the Company, any unexercised portion of the Option shall
immediately be terminated and be void.
12
<PAGE> 14
D. Formula Options shall be evidenced by an Option Agreement
which shall conform to the requirements of the Plan, and may
contain such other provisions not inconsistent therewith, as the
Committee shall deem advisable. The provisions of Article V
governing Options, and the exercise and issuance thereof, shall
apply to Formula Options to the extent such provisions are not
inconsistent with this Article VI.
VII. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; SALE OF COMPANY SHARES
In the event that the outstanding Shares of the Company are changed into
or exchanged for a different number or kind of shares or other securities
of the Company or of another corporation by reason of any reorganization,
merger, consolidation, recapitalization, reclassification, change in par
value, stock split-up, combination of shares or dividend payable in
capital stock, or the like, appropriate adjustments to prevent dilution
or enlargement of the rights granted to, or available for, Participants
shall be made in the manner and kind of shares for the purchase of which
Options may be granted under the Plan, and, in addition, appropriate
adjustment shall be made in the number and kind of Shares and in the
Option price per share subject to outstanding Options. No such
adjustment shall be made which shall, within the meaning of Section 424
of the Code, constitute such a modification, extension, or renewal of an
Option as to cause the adjustment to be considered as the grant of a new
Option.
Upon a business combination by the Company or any of its Affiliates with
any corporation or other entity through the adoption of a plan of merger
or consolidation or a share exchange or through the purchase of all or
substantially all of the capital stock or assets of such other
corporation or entity, the Board or the Committee may, in its sole
discretion, grant Options pursuant hereto to all or any persons who, on
the effective date of such transaction, hold outstanding options to
purchase securities of such other corporation or entity and who, on and
after the effective date of such transaction, will become employees or
directors of, or consultants to, the Company or its Affiliates. The
number of Shares subject to such substitute Options shall be determined
in accordance with the terms of the transaction by which the
business combination is effected. Notwithstanding the other provisions
of this Plan, the other terms of such substitute Options shall be
substantially the same as or economically equivalent to the terms of the
options for which such Options are substituted, all as determined by the
Board or by the Committee, as the case may be. Upon the grant of
substitute Options pursuant hereto, the options to purchase securities
of such other corporation or entity for which such Options are
substituted shall be cancelled immediately.
13
<PAGE> 15
VIII. DISSOLUTION OR LIQUIDATION OF THE COMPANY
Upon the dissolution or liquidation of the Company other than in
connection with a transaction to which the preceding Article VII is
applicable, the Participant shall have the right immediately prior to
such dissolution or liquidation to exercise any Option granted
hereunder.
IX. TERMINATION OF THE PLAN
The Plan shall terminate (10) years from the earlier of the date of its
adoption or the date of its approval by the stockholders. The Plan may
be terminated at an earlier date by vote of the stockholders or the
Board; provided, however, that any such earlier termination shall not
affect any Options granted or Option Agreements executed prior to the
effective date of such termination. Except as may otherwise be provided
for under Articles VII and VIII, and notwithstanding the termination of
the Plan, any Options granted prior to the effective date of the Plan's
termination may be exercised until the earlier of (i) the date set forth
in the Option Agreement, or (ii) ten (10) years from the date the Option
is granted, and the provisions of the Plan with respect to the full and
final authority of the Committee under the Plan shall continue to
control.
X. AMENDMENT OF THE PLAN
The Plan may be amended by the Board and such amendment shall become
effective upon adoption by the Board; provided, however, that any
amendment that increases the numbers of Shares for which Options may be
granted, other than as provided by Article VII, or changes the
designation of the class of employees eligible to receive Incentive
Options, or otherwise causes the Incentive Options to no longer qualify
as "incentive stock options" as defined in Section 422 of the Code,
shall nevertheless be subject within one (1) year either before or after
such adoption by the Board to the approval of the stockholders of the
Company, and provided, further, that any amendment that requires the
approval of the stockholders of the Company in accordance with the Rule
16b-3 requirements of the Exchange Act, shall be subject to approval of
the stockholders within the requisite time period of such Act.
XI. EMPLOYMENT RELATIONSHIP
Nothing herein contained shall be deemed to prevent the Company or an
Affiliate from terminating the employment of a Participant, nor to
prevent a Participant from terminating the Participant's employment with
the Company or an Affiliate.
14
<PAGE> 16
XII. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
directors or as members of the Committee, the members of the Committee
shall be indemnified by the Company against all reasonable expenses,
including attorneys' fees, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be
a party by reason of any action taken by them as members of the
Committee and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel
selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as
to which it shall be adjudged in such action, suit or proceeding that
the Committee member is liable for gross negligence or willful
misconduct in the performance of his or her duties. To receive such
indemnification, a Committee member must first offer in writing to the
Company the opportunity, at its own expense, to defend any such action,
suit or proceeding.
XIII. MITIGATION OF EXCISE TAX
If any payment or right accruing to a Participant under this Plan
(without the application of this Article XIII), either alone or together
with other payments or rights accruing to the Participant from the
Company or an Affiliate ("Total Payments") would constitute a "parachute
payment" (as defined in Section 280G of the Code and regulations
thereunder), such payment or right shall be reduced to the largest
amount or greatest right that will result in no portion of the amount
payable or right accruing under the Plan being subject to an excise tax
under Section 4999 of the Code or being disallowed as a deduction under
Section 280G of the Code. The determination of whether any reduction in
the rights or payments under this Plan is to apply shall be made by the
Company. The Participant shall cooperate in good faith with the Company
in making such determination and providing any necessary information for
this purpose.
15
<PAGE> 17
XIV. SAVINGS CLAUSE
This Plan is intended to comply in all respects with applicable law and
regulations, including, (i) with respect to those Participants who are
officers or directors for purposes of Section 16 of the Exchange Act,
Rule 16b-3 of the Securities and Exchange Commission, if applicable, and
(ii) with respect to executive officers, Code Section 162(m). In case
any one or more provisions of this Plan shall be held invalid, illegal,
or unenforceable in any respect under applicable law and regulation
(including Rule 16b-3 and Code Section 162(m)), the validity, legality,
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and the invalid, illegal, or unenforceable
provision shall be deemed null and void; however, to the extent
permitted by law, any provision that could be deemed null and void shall
first be construed, interpreted, or revised retroactively to permit this
Plan to be construed in compliance with all applicable law (including
Rule 16b-3 and Code Section 162(m)) so as to foster the intent of this
Plan. Notwithstanding anything herein to the contrary, with respect to
Participants who are officers and directors for purposes of Section 16
of the Exchange Act, if applicable, and if required to comply with rules
promulgated thereunder, no grant of, or Option to purchase, Shares shall
permit unrestricted ownership of Shares by the Participant for at least
six (6) months from the date of grant or Option.
XV. EFFECTIVE DATE
This Plan shall become effective upon adoption by the Board.
XVI. GOVERNING LAW
This Plan shall be governed by the laws of the State of Delaware and
construed in accordance therewith.
Adopted this 20th day of June 1996.
16
<PAGE> 18
EXHIBIT A
(i) Stock Option Agreement between Aasche Transportation Services, Inc. and
Larry L. Asche dated September 23, 1994.
(ii) Stock Option Agreement between Aasche Transportation Services, Inc. and
Diane L. Asche dated September 23, 1994.
(iii) Stock Option Agreement between Aasche Transportation Services, Inc. and
Kevin M. Clark dated September 23, 1994.
(iv) Non-Employee Directors and Advisors Plan.
(v) Stock Option Agreement between Aasche Transportation Services, Inc. and
Brian Gast dated May 1, 1995.
(vi) Aasche Transportation Services, Inc. 1995 Incentive Stock Option Plan.
(vii) Polar Express Acquisition, Inc. 1994 Stock Option Plan.
(viii) Stock Option Agreement between Aasche Transportation Services, Inc. and
Leon M. Monachos dated May 15, 1996.
(ix) Consulting Agreement between Greenley Capital Company, L.P. and Polar
Express Acquisition, Inc. dated August 31, 1994
<PAGE> 19
EXHIBIT B-1
LARRY L. ASCHE STOCK OPTION AGREEMENT
1 GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase all
or any part of a maximum of 26,000 Shares (the "OPTION"), on the terms
and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be a
Nonstatutory Option as defined in the Plan.
2 EXERCISE OF OPTION
Subject to the Plan, the Option shall be exercisable as follows:
<TABLE>
<CAPTION>
Number EXERCISE PERIOD
of Exercise
Shares Price Commencement Date Expiration Date
- ------ ----- ----------------- ------------------
<S> <C> <C> <C>
5,000 $8.75 January 1, 1995 September 23, 2001
6,000 $9.00 January 1, 1996 September 23, 2001
7,000 $9.25 January 1, 1997 September 23, 2001
8,000 $9.50 January 1, 1998 September 23, 2001
</TABLE>
Notwithstanding anything in this paragraph 2 to the contrary, the Option
shall become exercisable, if there shall occur any of the following:
(a) merger of the Company into any other Company in which
merger the Company is not the surviving Company;
(b) consolidation of the Company with any other Company;
(c) share exchange with any other Company in which the Company
is an acquired party;
(d) a sale, lease, exchange or other disposition of all or
substantially all of the assets of the Company; or
(e) the voluntary dissolution of the Company by consent or vote
of its shareholders.
<PAGE> 20
In such events, the entire Option becomes exercisable on and as of the
record date for determining the holders of the Common Stock entitled to
vote upon such merger, consolidation, share exchange, disposition or
dissolution. The Option (unless exercised) shall expire and become
null, void and of no further effect on and as of the date that the
holders of the Common Stock are entitled to vote upon such merger,
consolidation, share exchange, disposition or dissolution.
The Company covenants and agrees that, in addition to any other notice
requirement to which the Company may be subject, it shall give the
Optionee not less than ten (10) days' prior notice of the record date
for determining the holders of the Common Stock entitled to vote upon
any such merger, consolidation, share exchange, disposition or
dissolution.
-2-
<PAGE> 21
EXHIBIT B-2
DIANE L. ASCHE STOCK OPTION AGREEMENT
1. GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase
all or any part of a maximum of 26,000 Shares (the "OPTION"), on the
terms and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be a
Nonstatutory Option as defined in the Plan.
2. EXERCISE OF OPTION
Subject to the Plan, the Option shall be exercisable as follows:
<TABLE>
<CAPTION>
Number
of Exercise EXERCISE PERIOD
Shares Price Commencement Date Expiration Date
------ -------- ----------------- ---------------
<S> <C> <C> <C>
5,000 $8.75 January 1, 1995 September 23, 2001
6,000 $9.00 January 1, 1996 September 23, 2001
7,000 $9.25 January 1, 1997 September 23, 2001
8,000 $9.50 January 1, 1998 September 23, 2001
</TABLE>
Notwithstanding anything in this paragraph 2 to the contrary, the Option
shall become exercisable, if there shall occur any of the following:
(a) merger of the Company into any other Company in which merger the
Company is not the surviving Company;
(b) consolidation of the Company with any other Company;
(c) share exchange with any other Company in which the Company is an
acquired party;
(d) a sale, lease, exchange or other disposition of all or
substantially all of the assets of the Company; or
(e) the voluntary dissolution of the Company by consent or vote of its
shareholders.
<PAGE> 22
In such events, the entire Option becomes exercisable on and as of the
record date for determining the holders of the Common Stock entitled to
vote upon such merger, consolidation, share exchange, disposition or
dissolution. The Option (unless exercised) shall expire and become null,
void and of no further effect on and as of the date that the holders of
the Common Stock are entitled to vote upon such merger, consolidation,
share exchange, disposition or dissolution.
The Company covenants and agrees that, in addition to any other notice
requirement to which the Company may be subject, it shall give the
Optionee not less than ten (10) days' prior notice of the record date for
determining the holders of the Common Stock entitled to vote upon any
such merger, consolidation, share exchange, disposition or dissolution.
-2-
<PAGE> 23
EXHIBIT B-3
KEVIN M. CLARK STOCK OPTION AGREEMENT
1. GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase
all or any part of a maximum of 26,000 Shares (the "OPTION"), on the
terms and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be a
Nonstatutory Option as defined in the Plan.
2. EXERCISE OF OPTION
Subject to the Plan, the Option shall be exercisable as follows:
<TABLE>
<CAPTION>
Number EXERCISE PERIOD
of Exercise
Shares Price Commencement Date Expiration Date
------ ----- ----------------- ------------------
<S> <C> <C> <C>
5,000 $8.75 January 1, 1995 September 23, 2001
6,000 $9.00 January 1, 1996 September 23, 2001
7,000 $9.25 January 1, 1997 September 23, 2001
8,000 $9.50 January 1, 1998 September 23, 2001
</TABLE>
Notwithstanding anything in this paragraph 2 to the contrary, the Option
shall become exercisable, if there shall occur any of the following:
(a) merger of the Company into any other Company in which merger
the Company is not the surviving Company;
(b) consolidation of the Company with any other Company;
(c) share exchange with any other Company in which the Company is
an acquired party;
(d) a sale, lease, exchange or other disposition of all or
substantially all of the assets of the Company; or
(e) the voluntary dissolution of the Company by consent or vote
of its shareholders.
<PAGE> 24
In such events, the entire Option becomes exercisable on and as of the
record date for determining the holders of the Common Stock entitled to
vote upon such merger, consolidation, share exchange, disposition or
dissolution. The Option (unless exercised) shall expire and become null,
void and of no further effect on and as of the date that the holders of
the Common Stock are entitled to vote upon such merger, consolidation,
share exchange, disposition or dissolution.
The Company covenants and agrees that, in addition to any other notice
requirement to which the Company may be subject, it shall give the
Optionee not less than ten (10) days' prior notice of the record date for
determining the holders of the Common Stock entitled to vote upon any
such merger, consolidation, share exchange, disposition or dissolution.
-2-
<PAGE> 25
EXHIBIT B-4
BRIAN GAST STOCK OPTION AGREEMENT
1. GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase
all or any part of a maximum of 100,000 Shares (the "OPTION"), on the
terms and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be a
Nonstatutory Option as defined in the Plan.
2. EXERCISE OF OPTION
Subject to the Plan, the Option shall be exercisable as follows:
<TABLE>
<CAPTION>
Number
of Exercise EXERCISE PERIOD
Shares Price * Commencement Date Expiration Date
------ --------- ----------------- ---------------
<S> <C> <C> <C>
20,000 $7.625 May 1, 1995 May 1, 2000
20,000 $7.625 May 1, 1996 May 1, 2000
20,000 $7.625 May 1, 1997 May 1, 2000
20,000 $7.625 May 1, 1998 May 1, 2000
20,000 $7.625 May 1, 1999 May 1, 2000
</TABLE>
In addition to the foregoing, (i) 20,000 Shares shall become exercisable
in the event Gross Revenue exceeds $40 million and an Operating Ratio of
less than 92 is achieved by the Company for any fiscal year ending after
the Execution Date; and (ii) 20,000 Shares shall become exercisable for
each additional $20 million of Gross Revenue and an Operating Ratio of
less than 92 is achieved by the Company for any fiscal year ending after
the Execution Date; provided, however, that the total number of Shares to
become exercisable shall not exceed, in any event, 100,000 Shares. For
purposes of this Agreement, Gross Revenue and Operating Ratio shall be
determined by the Company in accordance with generally accepted
accounting principles and consistently applied and, in the case of
Operating Ratio, shall mean, total operating expenses and selling,
general and
- ----------------
* In the event the closing price of the Shares on any anniversary date of
the Optionee's first day of employment shall be less than the Option price, the
Option price shall be adjusted to the average closing price of the Shares for
the ten (10) trading days prior to such anniversary date.
<PAGE> 26
administrative expenses divided by operating revenues. For
purposes of the foregoing calculation, operating expenses shall not
include interest expense, other income or expense, gain or loss on the
sale of equipment, related party lease expense, income taxes, or any non-
operating extraordinary expense.
Notwithstanding anything in this paragraph 2 to the contrary,
the Option shall become exercisable, if there shall occur any of the
following:
(a) merger of the Company into any other Company in which merger
the Company is not the surviving Company;
(b) consolidation of the Company with any other Company;
(c) share exchange with any other Company in which the Company is
an acquired party;
(d) a sale, lease, exchange or other disposition of all or
substantially all of the assets of the Company; or
(e) the voluntary dissolution of the Company by consent or vote
of its shareholders.
In such events, the entire Option becomes exercisable on and as of the
record date for determining the holders of the Common Stock entitled to
vote upon such merger, consolidation, share exchange, disposition or
dissolution. The Option (unless exercised) shall expire and become null,
void and of no further effect on and as of the date that the holders of
the Common Stock are entitled to vote upon such merger, consolidation,
share exchange, disposition or dissolution.
The Company covenants and agrees that, in addition to any other notice
requirement to which the Company may be subject, it shall give the
Optionee not less than ten (10) days' prior notice of the record date for
determining the holders of the Common Stock entitled to vote upon any
such merger, consolidation, share exchange, disposition or dissolution.
-2-
<PAGE> 27
EXHIBIT B-5
LEON M. MONACHOS STOCK OPTION AGREEMENT
1. GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase
all or any part of a maximum of 200,000 Shares (the "OPTION"), on the
terms and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be a
Nonstatutory Option (for 100,000 Shares) and an Incentive Option (for
100,000 Shares), both as defined in the Plan.
2. EXERCISE OF OPTION
Subject to the Plan, the Incentive Option shall be exercisable as
follows:
<TABLE>
<CAPTION>
Number
of Exercise EXERCISE PERIOD
Shares Price Commencement Date Expiration Date
------ -------- ----------------- -----------------
<S> <C> <C> <C>
20,000 $3.75 May 15, 1997 May 14, 2006
20,000 $3.75 May 15, 1998 May 14, 2006
20,000 $3.75 May 15, 1999 May 14, 2006
20,000 $3.75 May 15, 2000 May 14, 2006
20,000 $3.75 May 15, 2001 May 14, 2006
</TABLE>
Subject to the Plan, the Nonstatutory Option shall be exercisable as
follows:
<TABLE>
<CAPTION>
Number
of Exercise EXERCISE PERIOD
Shares Price Commencement Date Expiration Date*
------- --------- ----------------- ----------------
<S> <C> <C> <C>
100,000 $3.75 May 15, 1996 May 14, 2006
</TABLE>
- -----------------
* Paragraph F of Article V of the Plan notwithstanding, if the Optionee's
services are terminated pursuant to Paragraphs 6A, 6B, 6D or 6E of his
Employment Agreement, the Nonstatutory Option shall expire on the earlier of
May 14, 2006 or six (6) months after the date his employment is terminated.
Paragraph I of Article V of the Plan shall not apply to the Optionee.
<PAGE> 28
EXHIBIT B-6
TREY TRUMBO STOCK OPTION AGREEMENT
1. GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase
all or any part of a maximum of 100,000 Shares (the "OPTION"), on the
terms and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be an
Incentive Option as defined in the Plan.
2. EXERCISE OF OPTION
Subject to the Plan, the Option shall be exercisable as follows:
<TABLE>
<CAPTION>
Number
of Exercise EXERCISE PERIOD
Shares Price Commencement Date Expiration Date
------ --------- ----------------- ---------------
<S> <C> <C> <C>
25,000 $7.66 June 30, 1996 August 25, 1999
25,000 $7.66 June 30, 1997 August 25, 1999
25,000 $7.66 June 30, 1998 August 25, 1999
25,000 $7.66 June 30, 1999 August 25, 1999
</TABLE>
Paragraph H of Article V of the Plan notwithstanding, in the event of Trumbo's
death, the Expiration Date shall be one (1) year after such death.
<PAGE> 29
EXHIBIT B-7
GREENLEY CAPITAL COMPANY, L.P. STOCK OPTION AGREEMENT
1. GRANT OF OPTION
The Company grants to the Optionee the right and Option to purchase
all or any part of a maximum of 41,100 Shares (the "OPTION"), on the
terms and conditions and subject to and with the benefit of all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Option granted herein is intended to be
Nonstatutory Option as defined in the Plan.
2. EXERCISE OF OPTION
Subject to the Plan, the Option shall be exercisable as follows:
<TABLE>
<CAPTION>
Number
of Exercise EXERCISE PERIOD
Shares Price Commencement Date Expiration Date
------ -------- ----------------- ---------------
<S> <C> <C> <C>
41,100 $2.43 August 31, 1994 August 31, 1999
</TABLE>
