<PAGE> 1
Registration No. 33-_____________
As filed with the Securities and Exchange Commission on January 9, 1997
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)
<TABLE>
<S> <C>
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)
</TABLE>
AMENDED EMPLOYMENT AND STOCK OPTION AGREEMENT
AND SEPARATION AGREEMENT
(Full title of the plans)
<TABLE>
<S> <C>
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
</TABLE>
(Name, address, including zip code and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered (1) registered(1) share price registration fee(4)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.0001 par value 110,000(2) (3) (3) $166.67
- ------------------------------------------------------------------------------------------------------------
</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(h), 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 high and low prices ($5.00) of such stock on
the Nasdaq National Market on January 7, 1997.
<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 Reports on Form 10-Q for the periods
ended March 31, 1996, June 30, 1996 and September 30, 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.
-1-
<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
-2-
<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.
-3-
<PAGE> 5
1. The undersigned registrant hereby undertakes:
a. 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 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.
b. 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.
c. 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.
2. 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.
3. 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
-4-
<PAGE> 6
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.
-5-
<PAGE> 7
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
January 6, 1997.
Aasche Transportation Services, Inc.
By: /s/ Larry L. Asche
-----------------------------------
Larry L. Asche, Chief Executive 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.
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 January 6, 1997.
Signature Title
--------- -----
/s/ Larry L. Asche
- ------------------
Larry L. Asche Chairman and Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Kevin M. Clark
- ------------------
Kevin M. Clark President and Director
/s/ Leon M. Monachos
- --------------------
Leon M. Monachos Chief Financial Officer (Principal Financial Officer
and Principal Accounting Officer) and Director
/s/ Diane L. Asche
- ------------------
Diane L. Asche Director
/s/ Steven R. Green
- -------------------
Steven R. Green Director
/s/ Richard S. Baugh
- --------------------
Richard S. Baugh Director
/s/ Gary I. Goldberg
- --------------------
Gary I. Goldberg Director
-6-
<PAGE> 8
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 Amended Employment and Stock Option Agreement
dated July 22, 1996 between Polar Express
Corporation, Aasche Transportation Services,
Inc. and Trey Trumbo
99.2 Separation Agreement dated July 26, 1996
between Polar Express Corporation, Aasche
Transportation Services, Inc. and Orin S.
Neiman
</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.
-7-
<PAGE> 1
Exhibit 5.1
[SACHNOFF & WEAVER, LTD. LETTERHEAD]
(312) 207-1000
January 8, 1997
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 110,000
shares of common stock, par value $.0001 per share, which may be offered by the
Company under (i) a certain Amended Employment and Stock Option Agreement dated
as of July 22, 1996 between the Company, Polar Express Corporation ("Polar")
and Trey Trumbo; and (ii) a certain Separation Agreement dated July 26, 1996
between the Company, Polar and Orin S. Neiman (collectively, "Agreements"). 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 110,000 shares of
common stock, par value $.0001 per share, which will be offered by the Company
pursuant to the Agreements, 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,
/s/ Sachnoff & Weaver, Ltd.
---------------------------
Sachnoff & Weaver, Ltd.
JRS/JNS
<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 110,000 of common shares 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.
/s/ Ernst & Young LLP
- ---------------------
Ernst & Young LLP
Chicago, Illinois
January 7, 1997
<PAGE> 1
Exhibit 99.1
AMENDED EMPLOYMENT AND STOCK OPTION AGREEMENT
This Amended Employment and Stock Option Agreement (this "Agreement") is
entered into as of July 22, 1996, between Polar Express Corporation, a Delaware
corporation (the "Company"), Aasche Transportation Services, Inc., a Delaware
corporation (the "Parent"), and Trey Trumbo (the "Executive") ("Parent" and
"Company" hereinafter referred to as "Aasche").
WITNESSETH THAT:
WHEREAS, Company, Parent, and Executive have a binding Employment and
Stock Option Agreement dated December 21, 1995; and
WHEREAS, the Company has informed Executive it wishes to restructure, thus
eliminating the Executive's position; and
WHEREAS, Company, Parent and Executive agree that the previous Employment
and Stock Option Agreement is a binding contract requiring Company to pay
compensation thereunder; and
WHEREAS, the parties wish to amend the Employment and Stock Option
Agreement to reduce compensation and eliminate any required duties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, it is hereby covenanted and agreed by the parties as follows:
1. Duties: The Executive shall provide such services and perform such
duties as he deems necessary. Any duties or services provided shall be at the
times and places determined solely by the Executive. Company shall have no
rights to require the Executive to perform any duties. The parties agree that
Executive is no longer an officer
<PAGE> 2
of Company or Parent. Moreover, Executive has no authority to act on
behalf of Aasche, and he shall not take any actions which could bind the
Company.
2. Compensation, Severance and Benefits:
(a) The Executive shall be compensated as an employee from execution of
this agreement until August 30, 1996, at an annual salary of $100,000 payable
in weekly installments.
(b) From and after August 30, 1996, until December 31, 1996, the
Executive shall receive an annual salary of $53,400.00 payable in weekly
installments.
(c) From and after January 1, 1997, until August 25, 1999, the
Executive shall receive severance pay of $59,900.00 annually payable in weekly
installments. After December 31, 1996, the Executive shall no longer be an
employee of Company.
(d) The Company will pay the entire cost of its normal medical
insurance to Executive and his family until the earlier of March 1, 1998 or
until the executive is employed by another employer who offers insurance to
executive as part of his compensation package.
(e) Company shall continue to make monthly payments on Employee's
vehicle until April of 1997, when such vehicle will be paid in full. The
Company shall continue to provide at its sole cost insurance on such vehicle
with the same deductibles and coverage currently in place until June 1, 1997.
(f) It is understood that Executive has in his possession computer
hardware and software which is at the Executive's home and a lap top computer
with printer and software which is used by the Executive at the office. Some
of the hardware and/or software on both systems were purchased by the Company;
however, it will be the sole property of Executive. The Executive agrees to
copy all data relating to Company which is contained on the computers and
provide Company a copy of such data.
(g) The parties understand and agree that Executive shall remain an
employee of Company for all purposes including purposes of Company's profit
sharing and other pension plans through December 31, 1996. The parties
understand and agree that beginning January 1, 1997, Executive shall no longer
be an employee of Company for such purposes.
3. Stock Option: All existing Options granted to Executive prior to
the date of this Agreement including, but not limited to, Options granted under
Aasche
2
<PAGE> 3
Transportation Services, Inc. 1995 Incentive Stock Option Plan or the
Polar Express Corporation 1994 Stock Option Plan are hereby terminated. Parent
hereby grants to the Executive the right an option (the "Option") to purchase
60,000 shares of Common Stock (the "Shares") on the terms and conditions set
forth in this paragraph.
(a) The Shares subject to this Option shall become exercisable in whole
on July 22, 1996, and the deadline for exercising the Option shall be August
25, 1999.
(b) The Executive shall exercise the Option by delivery to Parent of a
duly executed copy of the purchase from attached hereto as Exhibit "A". The
Option price (as hereinafter defined) shall be paid by full payment in cash.
(c) The Option price shall be the closing price on the date of the
execution of this agreement subject to adjustment provisions described below,
provided; however, that in the case Parent should at any time subdivide the
outstanding shares of common stock or shall issue a stock dividend on its
outstanding common stock, the Option price in effect immediately prior to such
subdivision or the issuance of such dividend should be proportionately
decreased and in case Parent shall at any time combine the outstanding shares
of common stock, the Option price in effect immediately prior to such
combination shall be proportionately increased effective at the close of
business on the date of such subdivision, dividend, combination, as the case
may be. Notwithstanding the foregoing, in the event the closing price on any
of December 21, 1996, December 21, 1997, or December 21, 1998 (the "Relevant
Date") of the Parent's Common Stock on the Nasdaq Stock Market shall be less
than the Option Price, the Option Price for the Shares underlying the
unexercised options, shall be adjusted to the closing price of the Parent's
Common Stock on such Relevant Date.
(d) The number of Shares shall be 60,000; provided, however, that in
case the Parent should at any time subdivide the outstanding shares of Common
Stock, or shall issue a stock dividend on its outstanding Common Stock, the
number of Shares subject to the Option immediately prior to such subdivision or
the issuance of such dividend shall be proportionately increased, and in case
the Parent shall at any time combine the outstanding shares of Common Stock,
the number of Shares subject to the Option immediately prior to such
combination shall be proportionately decreased, effective at the close of
business on the date of such subdivision, dividend, or combination, as the case
may be.
(e) Within ten business days after the exercise of the Option, the
Parent shall cause to be issued in the name of and delivered to the Executive a
certificate or certificates for the Shares and the Executive shall deliver
payment of the Option Price in the form described in (b) above. The Parent
covenants that (A) all Shares issued and
3
<PAGE> 4
delivered upon the due exercise of the Option by the Executive shall,
upon such issuance and delivery, be fully paid and nonassessable, and (B) the
Parent shall agree at all times to reserve and hold available a sufficient
number of shares of its authorized but unissued Common Stock to provide for
delivery of the Shares upon the exercise of the Option.
(f) Parent agrees that such shares shall be registered and freely
transferable on the public markets by December 15, 1996. Parent shall pay all
costs and expenses of such registration.
(g) Parent and Employee agree that options granted herein do not have a
readily ascertainable fair market value at the time they were granted as
defined by Section 83 of the Internal Revenue Code. Although both parties
agree to act consistently with such representation, neither party shall be
liable to the other in the event it is determined such options did have a
readily ascertainable fair market value at the time they were granted.
4. Pinnacle Membership: Company agrees to pay no more than the sum
of Two Thousand One Hundred Dollars for a membership at Pinnacle County Club
which will allow Executive to play the golf course. Any amount over Two
Thousand One Hundred Dollars shall be paid by Executive.
5. Security: All payments hereunder shall be secured by an
irrevocable letter of credit expiring August 25, 1999, in the sum of One
Hundred Fifty Thousand Dollars ($150,000.00). Said irrevocable letter of
credit shall provide that the issuing bank shall pay amounts up to One Hundred
Fifty Thousand Dollars ($150,000.00) upon presentation of a draft by Executive.
The form of the letter of credit and drafts required by the lending institution
must be acceptable to Executive with such acceptance not to be unreasonably
withheld. It is agreed that Aasche may reduce the letter of credit from time
to time so long as the letter of credit is sufficient to pay all consideration
remaining unpaid to Executive pursuant to this Agreement. Prior to such
reduction, Company must first
4
<PAGE> 5
obtain Executive's written approval; however, Executive should not
withhold such approval without good reason.
In the event that Company defaults on an obligation otherwise allowing the
Executive to draw on the letter of credit, the Executive agrees to provide
Aasche notice of such default or failure to pay. Aasche shall have ten days
from receipt of the notice of default to cure the default. If Aasche fails to
cure such default, Executive may draw on the line of credit. Any such draw
shall be equal to all consideration remaining unpaid to Executive for the
entire remaining term of the Agreement. The term "all consideration" shall
include, and be limited to, payments required pursuant to paragraph 2(a), 2(b),
2(c), 2(d) and 2(e).
6. Binding Effect: This Agreement shall be binding upon, and inure
to the benefit of, the successors and assigns of the parties. Nothing in this
Agreement, expressed or implied, is intended to confer upon any person or
entity other than the parties hereto or their respective successors and
assigns, any rights or benefits under or by reason of this Agreement. This
Agreement shall not be assignable by either party hereto without the prior
written consent of the other.
7. Integration Clause: This Agreement represents and contains the
entire and only agreement and understanding among the parties with respect to
its subject matter and supersedes any and all other prior and contemporaneous
oral and written agreements, understandings, representations, inducements,
promises, warranties, and conditions among the parties.
5
<PAGE> 6
8. Modification: This Agreement may not be amended or modified
except by an agreement in writing signed by an authorized representative of the
party against whom the enforcement of any modification or amendment is sought.
9. Joint Draftsmanship: Each of the parties participated in the
drafting of this Agreement intending for the language to be clear and
unambiguous. The parties jointly accept responsibility for any ambiguities in
this Agreement.
10. Governing Laws: This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Arkansas.
11. Litigation Costs: If any legal action or other proceeding is
brought for the enforcement of this Agreement, the losing or defaulting party
shall pay to the prevailing party reasonable attorneys' fees, costs and
expenses incurred in connection with the prosecution of defense of the action.
12. Notices: All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) three
(3) business days after it is sent by registered or certified mail, return
receipt requested, postage prepaid, (ii) when receipt is electronically
confirmed, if sent by fax (provided that a hard copy shall be promptly sent by
first class mail), or (iii) one (1) business day following deposit with a
recognized national overnight courier service for next day delivery, charges
prepaid, and, in each case, addressed to the intended recipient as set forth
below:
6
<PAGE> 7
<TABLE>
<S> <C>
If to Company or Parent: Aasche Transportation Service, Inc.
10214 North Mt. Vernon Road
Shannon, Illinois 61078
Attn: Larry L. Asche, Chairman
Fax No. (815) 864-2299
If to Executive: Trey Trumbo
c/o Stockland & Trantham, P.A.
21 South Block Street
Fayetteville, Arkansas 2701
Fax No. (501) 521-3608
</TABLE>
13. General Release of Claims and Hold Harmless: Executive and
Company hereby generally release and forever discharge each other from any
claims, demands, obligations, losses, causes of action, damages, penalties,
costs, expenses, attorneys' fees, liabilities, and indemnities of any nature
whatsoever, whether known or unknown, which as of the date of this Agreement
the parties had, now have, or claim to have. Excepted from this release are
only (i) this Agreement and any right or obligations arising under it, and (ii)
any rights to indemnification Executive may have on account of his service as
an officer or director of the Company or its predecessor. Parent hereby
ratifies and approves all actions taken by Executive while employed by Company
or its predecessor.
POLAR EXPRESS CORPORATION
By: /s/ Larry L. Asche, President
-----------------------------------
7
<PAGE> 8
AASCHE TRANSPORTATION
SERVICES, INC.
By: /s/ Larry L. Asche, Chairman
----------------------------------
/s/ Trey Trumbo
-----------------------------------
TREY TRUMBO
8
<PAGE> 9
EXHIBIT A
PURCHASE FORM
To: AASCHE TRANSPORTATION SERVICES, INC.
10214 N. Mt. Vernon Rd.
Shannon, IL 61078
The undersigned hereby irrevocably subscribes for __________ shares of
Common Stock of Aasche Transportation Services, Inc. pursuant to and in
accordance with the terms and conditions of that certain Amended Employment and
Stock Option Agreement dated as of July 22, 1996, and hereby makes payment of
_____________ Dollars ($________) therefor and requests that a certificate for
such shares be issued in the name of the undersigned and delivered to the
undersigned at the address listed below.
Address:
____________________________________
____________________________________
____________________________________
Dated: ______________, 1996.
9
<PAGE> 1
Exhibit 99.2
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is entered into this 26th day of July, 1996, by
and between Orin S. Neiman (hereinafter referred to as "Neiman"), Polar Express
Corporation, a Delaware corporation (hereinafter referred to as "Company") and
Aasche Transportation Services, Inc., a Delaware Corporation (hereinafter
referred to "Parent") ("Parent" and "Company" hereinafter collectively referred
to as "Aasche.")
WHEREAS, Company and Neiman are parties to a Consulting Agreement dated
December 21, 1995, which was amended on June 14, 1996; and
WHEREAS, the parties wish to terminate their Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
undertakings set forth set forth below, Company, Parent and Neiman agree as
follows:
1. Payment. Upon the execution of this Agreement, Company agrees to pay
Neiman the sum of $182,000.00.
2. Pinnacle Membership. Company and Neiman acknowledge that the Company
owns a membership in the Pinnacle Country Club. Company agrees to transfer
such membership to an entity chosen by Neiman at no cost to Company.
3. Computer. The parties agree that Neiman has in his possession a
lap top computer and software which is at Neiman's home. Some of the hardware
and software on such system was purchased by the Company; however, it will be
Neiman's sole property.
4. Stock Options. Parent hereby grants to Neiman the right and
option to purchase 50,000 shares of common stock on the terms and conditions
set forth in this paragraph.
Page 1 of 5
<PAGE> 2
a. The Shares subject to this Option shall become exercisable in whole
on July 26, 1996, and the deadline for exercising the Option shall be March 31,
1998.
b. Neiman shall exercise the Option by delivery to Parent of a duly
executed copy of the purchase form attached hereto as Exhibit "A". The Option
price (as hereinafter defined) shall be paid by full payment in cash.
c. The Option price shall be the closing price of the common stock
on the date this Agreement is executed, subject to adjustment provisions
described below, provided; however, that in case Parent should at any time
subdivide the outstanding shares of common stock or shall issue a stock
dividend on its outstanding common stock, the Option price in such dividend
should be proportionately decreased and in case Parent shall at any time
combine the outstanding shares of common stock, the Option price in effect
immediately prior to such combination shall be proportionately increased
effective at the close of business on the date of such subdivision, dividend,
or combination, as the case may be. Notwithstanding the foregoing, in the
event the closing price on any of December 21, 1996, or December 21, 1997, (the
"Relevant Date"), of the Parent's Common Stock on the Nasdaq Stock Market shall
be less than the Option Price, the Option Price for the Shares underlying the
unexercised options, shall be adjusted to the closing price of the Parent's
Common Stock on such Relevant Date.
d. The number of Shares shall be 50,000; provided, however, that in
case the Parent should at any time subdivide the outstanding shares of Common
Stock, or shall issue a stock dividend on its outstanding Common Stock, the
number of Shares subject to the Option immediately prior to such subdivision or
the issuance of such dividend shall be proportionately
Page 2 of 5
<PAGE> 3
increased, and in case the Parent shall at any time combine the
outstanding shares of Common Stock, the number of Shares subject to the Option
immediately prior to such combination shall be proportionately decreased,
effective at the close of business on the date of such subdivision, dividend,
or combination, as the case may be.
e. Within thirty business days after the exercise of the
Option, the Parent shall cause to be issued in the name of and delivered to
Neiman a certificate or certificates for the Shares and Neiman shall deliver
payment of the Option Price in the form described in (b) above. The Parent
covenants that (A) all Shares issued and delivered upon the due exercise of the
Option by Neiman shall, upon such issuance and delivery, be fully paid and
nonassessable, and (B) the Parent shall agree at all times to reserve and hold
available a sufficient number of shares of its authorized but unissued Common
Stock to provide for delivery of the Shares upon the exercise of the Option.
f. Parent agrees that such shares shall be registered and fully
transferable on the public markets by December 15, 1996, and Parent shall pay
all costs and expenses of such registration.
g. Parent and Neiman agree that the options granted herein do not
have a readily ascertainable fair market value at the time they were granted as
defined by Section 83 of the Internal Revenue Code. Although both parties
agree to act consistently with such representation, neither party shall be
liable to the other in the event it is determined such options did have a
readily ascertainable fair market value at the time they were granted.
Page 3 0f 5
<PAGE> 4
5. Release. Neiman and Aasche hereby generally release and forever
discharge each other from any claims, demands, obligations, losses, causes of
action, damages, penalties, costs, expenses, attorneys' fees, liabilities, and
indemnities of any nature whatsoever, whether known or unknown, which as of the
date of this Agreement the parties had, now have, or claim to have. Excepted
from this release are only (i) this Agreement and any right or obligations
arising under it, and (ii) any rights to indemnification Neiman may have on
account of his service as an officer or director of the Company or its
predecessor.
6. Consulting Agreement. All provisions of the Consulting Agreement
and the Amendment thereto are null and void.
7. Entire Agreement. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof. The Agreement may not be
modified orally but only by an agreement in writing signed by both parties.
8. Arbitration. Any controversy or claim arising out of, or relating
to this Agreement, or its breach, shall be submitted to arbitration in the
State of Arkansas in accordance with the then governing rules of the American
Arbitration Association. Judgment upon the award rendered may be entered and
enforced in any court of competent jurisdiction with in the State of Arkansas.
9. Attorneys' Fees and Related Costs. If any suit or other proceeding
is brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs
Page 4 of 5
<PAGE> 5
incurred in such action or proceeding, in addition to any other relief to which
he or it may be entitled.
10. Governing Law. This Agreement shall be interpreted and enforced
under the laws of the State of Arkansas.
/s/ Orin S. Neiman
-----------------------------------------
ORIN S. NEIMAN
POLAR EXPRESS CORPORATION
By: /s/ Larry L. Asche
-----------------------------------------
Larry L. Asche, President
AASCHE TRANSPORTATION SERVICES, INC.
By: /s/ Larry L. Asche
-----------------------------------------
Larry L. Asche, Chairman
Page 5 of 5
<PAGE> 6
EXHIBIT A
PURCHASE FORM
TO: AASCHE TRANSPORTATION SERVICES, INC.
10214 N. Mt. Vernon Rd.
Shannon, Illinois 61078
The undersigned hereby irrevocably subscribes for __________ shares of
Common Stock of Aasche Transportation Services, Inc. pursuant to and in
accordance with the terms and conditions of that certain Separate Agreement
dated as of July 26, 1996, and hereby makes payment of ___________ Dollars
($____________) therefor and requests that a certificate for such shares be
issued in the name of the undersigned and delivered to the undersigned at the
address listed below.
Address:
____________________________________
____________________________________
____________________________________
Dated: ____________, 1996.
