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As filed with the Securities and Exchange Commission on May 4, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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AASCHE TRANSPORTATION SERVICES, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
Delaware 4213 36-3964954
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
10214 N. Mt. Vernon Road
Shannon, Illinois 61078
(815) 864-2421
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
Larry L. Asche
10214 N. Mt. Vernon Road
Shannon, Illinois 61078
(815) 864-2421
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
Copy to:
Joel R. Schaider
Sachnoff & Weaver, Ltd.
30 South Wacker Drive, 29th Floor
Chicago, Illinois 60606
Telephone: (312) 207-1000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement. If the only
securities being registered on this form are being offered pursuant to dividend
or interest reinvestment plans, check the following box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: X
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Registration Fee
Securities to be Registered Registered Share(1) Price
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<S> <C> <C> <C> <C>
Common Stock, par value $.0001 per share 837,800 shares $4.125 $3,455,925 $960.75
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</TABLE>
(1) Calculated in accordance with Rule 457(c) based upon the average of the high
and low sales prices of the Common Stock on April 30, 1999 which was $4.125.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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- --------------------------------------------------------------------------------
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
- --------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED MAY 4, 1999
837,800 SHARES
AASCHE TRANSPORTATION SERVICES, INC.
COMMON STOCK
This prospectus covers 837,800 shares of the common stock of Aasche
Transportation Services, Inc., a Delaware corporation. The shares are being
offered by Madison Securities, Inc., James A. Jalovec, Aim Financial
Corporation, Gary I. Goldberg, Michael Todd Recob, Richard Percy, Linda Rockey
and Diane L. Asche. We will not receive any of the proceeds from the sale of the
shares.
We have not made any underwriting arrangements with respect to the
shares. Our common stock is quoted on the Nasdaq National Market under the
symbol "ASHE." On April 30, 1999, the last sale price reported was $4.125.
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THIS INVESTMENT INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 5.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this Prospectus is May __, 1999.
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TABLE OF CONTENTS
Aasche Transportation Services, Inc...........................................3
Risk Factors..................................................................5
Where to Find More Information................................................6
Information Incorporated by Reference.........................................7
Use of Proceeds...............................................................7
Selling Stockholders..........................................................7
Plan of Distribution..........................................................8
Experts.......................................................................9
Legal Matters.................................................................9
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AASCHE TRANSPORTATION SERVICES, INC.
We are a diversified transportation services company. We operate
primarily in two segments of the transportation services industry:
- the temperature-controlled segment
- the municipal solid waste segment
TEMPERATURE-CONTROLLED SEGMENT
Two of our subsidiaries, Asche Transfer, Inc. and AG Carriers, Inc.
operate in the temperature-controlled segment of the transportation services
industry. We deliver a variety of foods and other products for many Fortune 500
companies that require temperature-controlled service and "just-in-time"
delivery. "Just-in-time" delivery means that delivery times must be precise and
delivery must be dependable so our customers can control their inventory levels
and limit handling.
We offer premium-quality services to high-volume selective customers
with significant temperature-controlled delivery needs. We believe that these
customers provide us with more predictable, and, in some respects, less
price-sensitive business. Their business is less price-sensitive because we
believe that our customers choose their carrier based primarily on service,
rather than price. We are currently a core carrier for Coca-Cola, Hershey,
Tropicana Foods, Americold, S.C. Johnson Wax, Schreiber Foods, Abbott
Laboratories, Baxter International and Kraft Foods. "Core carrier" means a
relationship with a customer that is dedicated to transporting a significant
amount of the customer's goods.
We target the Midwest, Southeast, Northeast and South Central United
States as our principal service areas because we have had success in developing
significant customers in these markets. In particular, the Southeast, Northeast
and South Central regions provide us with additional delivery opportunities when
our trucks return to the Midwest.
We purchase or lease high-quality, late-model tractors and
temperature-controlled trailers manufactured to our specifications. Asche
Transfer, Inc. and AG Carriers, Inc. also contract with owner-operators to
provide additional tractors and trailers. We have equipped all of the tractors
in our temperature-controlled segment with a two-way, satellite-based tracking
and communication system, and we have a fully integrated management system. Our
dispatchers are able to monitor the location and delivery schedules of all
shipments and equipment, maintain constant communications with drivers,
coordinate routes and maximize utilization of drivers and equipment with our
technological systems.
We operate from five terminals located in Shannon, Illinois; Conley,
Georgia; Apopka, Florida; Tavares, Florida; and Tontitown, Arkansas.
MUNICIPAL SOLID WASTE SEGMENT
Our subsidiary, Specialty Transportation Services, Inc., carries
municipal solid waste and other special waste. We are the only national and the
largest for-hire carrier of municipal solid waste in transfer vehicles. In the
past ten years, large waste services companies have reduced
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and eliminated their "non-collection" trucking operations, creating a market for
for-hire carriers of municipal solid waste to landfill sites. Waste services
companies typically unload the waste they have collected from residential and
commercial sites at transfer stations, and for-hire carriers such as Specialty
Transportation Services, Inc. transport the waste from these transfer stations
to landfill sites.
We have long-term contracts ranging from five to twenty years with
municipalities and large national waste services companies, including Waste
Management, Inc., Republic Industries, Inc., Allied Waste Services, Inc. and
Browning-Ferris Industries, Inc. We are expanding our municipal solid waste
segment by continuing to build strong, long-term relationships with major
customers within the municipal solid waste market. We believe that our growth
will continue by:
- Increasing our marketing efforts and making more aggressive bids, in
particular to the large waste services companies;
- Seeking suitable acquisitions, primarily of smaller and regional
independent companies, to allow us greater access to new major
customers in additional geographic markets;
- Expanding into additional regions by establishing new terminals in
areas of high population; and
- Leveraging our transportation capabilities to add new outsourcing
opportunities for other types of solid waste and recyclables.
We market primarily to large national waste services companies that
outsource the transportation of municipal solid waste from transfer stations
to landfill sites. We currently have contracts in key markets such as New York,
New York; Los Angeles, California; Dallas, Texas; Phoenix, Arizona; Baltimore,
Maryland; St. Louis, Missouri; Portland, Oregon; Birmingham, Alabama; and
Nashville, Tennessee. We believe we have positioned ourselves to attract new
business in both new and existing markets.
We purchase or lease tractors and trailers suitable for the
transportation of municipal solid waste, and we also contract with
owner-operators to provide additional tractors and trailers. After two to three
years, we convert most of the tractors in our temperature-controlled segment for
use in our municipal solid waste segment for their remaining useful life. These
conversions allow us to lower the overall cost of equipment and provide the
municipal solid waste segment with an additional source of equipment during
periods of growth.
We operate in 19 terminals located in the following cities: Irondale,
Alabama; Chandler, Arizona; Lancaster, California; Moreno Valley, California;
Bradenton, Florida; Granite City, Illinois; Indianapolis, Indiana; Valparaiso,
Indiana; Nicholasville, Kentucky; Baltimore, Maryland; Freeport, New York;
Greensboro, North Carolina; Arlington, Oregon; Portland, Oregon; Bigler,
Pennsylvania; Duncan, South Carolina; Camden, Tennessee; Irving, Texas; and
Federal Way, Washington.
Our executive offices are located at 10214 N. Mt. Vernon Road, Shannon,
Illinois 61078. Our telephone number is (815) 864-2421.
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RISK FACTORS
Before you invest in our common stock, you should be aware that there
are various risks, including those described below. You should carefully
consider these risk factors, together with all of the other information included
in this prospectus, before you decide whether to purchase shares of our common
stock.
Some of the information in this prospectus contains forward-looking
statements that involve substantial risks and uncertainties. You can identify
such statements by forward-looking words such as "may," "will," "expect,"
"anticipate," "believe," "estimate," and "continue" or similar words. You should
read statements that contain these words carefully because they: (1) discuss our
future expectations; (2) contain projections of our future results of operations
or of our financial condition; or (3) state other "forward-looking" information.
We believe it is important to communicate our expectations to our investors.
However, there may be events in the future which we are not able to accurately
predict or over which we have no control. The risk factors listed in this
section, as well as any cautionary language in this prospectus, provide examples
of risks, uncertainties and events that may cause our actual results to differ
materially from the expectations we describe in our forward-looking statements.
Before you invest in our common stock, you should be aware that the occurrence
of the events described in these risk factors and documents incorporated by
reference could have a material adverse effect on our business, operating
results and financial condition.
AVAILABILITY OF DRIVERS
Competition for drivers is intense within the trucking industry. We
occasionally experience difficulty attracting and retaining qualified drivers
and owner-operators in our temperature-controlled segment. When this happens,
our trucks are temporarily idle, and we must reduce the level of service to our
existing customers. In addition, the shortage of qualified drivers reduces our
ability to obtain new business. We incur significant expenses in recruiting,
marketing and training new employees, and from time to time, we must
significantly increase compensation to retain our drivers and owner-operators.
Difficulty in attracting and retaining qualified drivers and owner-operators in
our temperature-controlled segment may adversely impact our business, financial
condition and results of operation.
FAILURE TO COMPLY WITH LOAN AGREEMENTS
We did not comply with some of our loan agreements in 1998, and we may
not be able to comply with these agreements in 1999. We have not been able to
obtain necessary waivers and amendments to our loan agreements from our lenders,
so we are in default on some of our loans. We plan to refinance or restructure
our loans to terms more favorable to us. Because we are in default, we may not
be able to refinance or restructure our loans and we may not be able to pay off
our loans under their current terms. In addition, we may not be able to obtain
new loans. Our industry is capital intensive, and we rely on loans and leases to
purchase new equipment. If we are unable to obtain new loans and leases, we may
have to limit our growth and we may have to operate our tractors and trailers
for longer periods. If we are unable to refinance or restructure our current
loans, or if we are unable to obtain new loans and leases, our business,
financial condition and results of operation may be adversely affected.
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INCREASES IN FUEL COSTS
We depend on diesel fuel to run our trucks. If the cost of fuel
increases, our results of operation will be affected even though we are able to
charge our customers for a portion of the fuel increase. We are only able to
charge our customers for increased fuel costs above a certain price level, so we
must bear any increase in fuel costs below that level.
ADVERSE IMPACT OF YEAR 2000 COMPUTER SYSTEMS COMPLIANCE
Many older computer software programs refer to years in terms of final
two digits only. Such programs may incorrectly interpret the year 2000 to mean
the year 1900. If not corrected, such programs could cause date-related
transaction failures. Although we believe we have corrected substantially all of
the systems that we believe are critical to our business, the year 2000 problem
may, however, adversely impact our business, financial condition and results of
operation by affecting the business and operations of our suppliers and
customers. For example, if the year 2000 problem affects our customers, we may
lose revenues because our customers may not be able to ship freight or pay us
for our services. We cannot predict whether our suppliers and customers will
suffer any adverse impact because of the year 2000 problem or the effect they
may have on our business.
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the following locations:
- - At the Public Reference Room of the SEC, Room 1024 - Judiciary Plaza, 450
Fifth Street, N.W., Washington, DC 20549;
- - At the public reference facilities at the SEC's regional offices located at
Seven World Trade Center, 13th Floor, New York, New York 10048 or
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661;
- - By writing to the SEC, Public Reference Section, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549;
- - At the offices of the National Association of Securities Dealers, Inc.,
Reports Section, 1735 K Street, N.W., Washington, DC 20006; or
- - From the Internet site maintained by the SEC at http://www.sec.gov. which
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC.
Some locations may charge prescribed or modest fees for copies.
We have filed with the SEC a Registration Statement on Form S-3 under
the Securities Act of 1933 covering the shares of common stock offered in this
prospectus. As permitted by the SEC, this prospectus, which constitutes a part
of the Registration Statement, does not contain all the information included in
the Registration Statement. Such additional information may be obtained
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from the locations described above. Statements contained in this prospectus as
to the contents of any contract or other document are not necessarily complete.
You should refer to the contract or other document for all the details.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring to these documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file with the Commission later will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities and Exchange Act of 1934 until the selling
stockholders sell all of the common stock. This prospectus is part of a
Registration Statement that we filed with the SEC.
1. our Annual Report on Form 10-K for the fiscal year ended December
31, 1998, filed on April 15, 1999;
2. the description of our common stock contained in our Registration
Statement on Form 8-A, declared effective on July 26, 1994; and
3. our Proxy Statement on Form 14A, filed on April 16, 1999.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: Aasche Transportation Services, Inc.,
10214 N. Mt. Vernon Road, Shannon, Illinois 61078, Attention: Leon M. Monachos,
Chief Financial Officer, Telephone: (815) 864-2421.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of any of the
shares by Madison Securities, Inc., James A. Jalovec, Aim Financial Corporation,
Gary I. Goldberg, Michael Todd Recob, Richard Percy, Linda Rockey or Diane L.
Asche. We will, however, receive proceeds from the exercise of warrants
underlying the shares issued to Madison Securities, Inc., James A. Jalovec and
Aim Financial Corporation as further described below in the "Selling
Stockholders" section. Assuming all of the warrants are exercised, we will
receive approximately $1,802,400 from the exercise of such warrants. We expect
to use such proceeds to reduce indebtedness.
SELLING STOCKHOLDERS
In January 1998, we completed an offering of $2,100,000 of our
promissory notes. In connection with the offering, we issued a warrant to
Madison Securities, Inc., our placement agent in the offering, to purchase
210,000 shares of our common stock at a price of $3.49 per share exercisable at
any time prior to January 8, 2003.
In January 1998, we received a $1,000,000 note from Aim Financial
Corporation. In connection with the receipt of the note, we issued a warrant to
Aim Financial Corporation to
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purchase 150,000 shares of our common stock at a price of $4.63 per share
exercisable at any time prior to January 30, 2003.
In January 1999, we entered into an exchange agreement with Gary I.
Goldberg, Michael Todd Recob, Richard Percy, Linda Rockey and Diane L. Asche,
most of whom are officers and directors of Aasche Transportation Services, Inc.
We exchanged a total of 135,000 shares of our common stock for a total of
$675,000 of subordinated debt that we owed to Mr. Goldberg, Mr. Recob, Mr.
Percy, Ms. Rockey and Ms. Asche.
In March 1999, we entered into an exchange agreement with James A.
Jalovec. Mr. Jalovec held a promissory note with a face value of $1,150,000 and
accrued and unpaid interest in the amount of $189,000 that we issued in January
1998. We agreed to exchange the promissory note for 267,800 shares of our common
stock and a warrant to purchase 75,000 shares of our common stock at a price of
$5.00 per share excercisable at any time prior to March 12, 2004.
The following table sets forth for each selling stockholder the number
of shares each selling stockholder beneficially owned prior to this offering,
and the maximum number of shares to be registered.
<TABLE>
<CAPTION>
Percentage of Total
Selling Stockholders Number of Shares Maximum Number Ownership after
Beneficially Owned of Shares to be Completion of
Prior to Offering Registered Offering
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<S> <C> <C> <C>
Madison Securities, Inc. 317,181(1) 210,000(1) 2.0
James A. Jalovec 741,250(1) 342,800(1) 7.5
Aim Financial Corporation 150,000(1) 150,000(1) 0
Gary I. Goldberg 431,932 90,000 6.3
Michael Todd Recob 22,500 10,000 *
Richard Percy 20,000 20,000 *
Linda Rockey 10,000 10,000 *
Diane L. Asche 544,842 5,000 10.3
</TABLE>
- ----------------------------
(1) Includes shares of common stock underlying the warrants.
* Less than 1%
PLAN OF DISTRIBUTION
We will not receive any proceeds from the sale of the shares. The
selling stockholders may sell the shares from time to time. These sales may be
made on one or more exchanges or in the over-the-counter market, or otherwise.
The shares may be sold by any one or more of the following:
- a block trade in which the broker or dealer so engaged will attempt
to sell the shares as agent but may purchase and resell a portion of
the block as principal to facilitate the transaction;
- purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus;
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- an exchange distribution in accordance with the rules of such
exchange; or
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
In making these sales, the selling stockholders may engage brokers or
dealers to arrange for other brokers or dealers to purchase the shares. Brokers
and dealers will receive commissions or discounts from the selling stockholders
in amounts to be negotiated prior to the sale. The selling stockholders and any
brokers or dealers participating in the distribution of the shares may be deemed
to be "underwriters" within the meaning of the Securities Act of 1933.
Accordingly, any commissions received by these broker-dealers and any profits
realized on the resale of shares by them may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933. The selling
stockholders may agree to indemnify these broker-dealers with respect to the
shares offered hereby against certain liabilities, including certain liabilities
under the Securities Act of 1933. In addition, we have agreed to indemnify the
selling stockholders with respect to the shares offered hereby against certain
liabilities, including certain liabilities under the Securities Act of 1933. If
such indemnity is unavailable, we will contribute toward amounts required to be
paid in respect of such liabilities. In addition, any securities covered by this
prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule
144 rather than pursuant to this prospectus.
We will pay the registration expenses relating to the offering and sale
of the shares by the selling stockholders to the public. These expenses
(estimated to be $25,716.75), include legal and accounting expenses, filing fees
payable to the SEC, applicable state "blue sky" filing fees and printing
expenses. We, however, will not pay for any expenses, commissions or discounts
of underwriters, dealers or agents for the selling stockholders.
Any underwriters, brokers, dealers and agents who participate in any
such sale may also be customers of, engage in transactions with or perform
services for Aasche Transportation Services, Inc. or the selling stockholders.
Our common stock is currently traded on the Nasdaq National Market. The
public offering price for any shares that are sold will be determined by the
price indicated on such system at the time such sale occurs, or at such price as
shall be determined through private negotiations between the buyer and the
selling stockholders, or their agents.
EXPERTS
The consolidated financial statements of Aasche Transportation
Services, Inc. appearing in Aasche Transportation Services, Inc.'s Annual Report
(Form 10-K) for the year ended December 31, 1998, have been audited by Ernst &
Young, LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given on the authority of such firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares has been passed upon for us by Sachnoff &
Weaver, Ltd., Chicago, Illinois.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the
distribution of the securities being registered:
SEC registration fee..................................$ 960.75
Nasdaq National Market Listing fee.................... 16,756
Accounting fees and expenses.......................... 2,500
Attorneys' fees and expenses.......................... 5,000
Miscellaneous......................................... 500
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Total........................................$25,716.75
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 9 of the Registrant's Certificate of Incorporation ("Article
9") 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 9 eliminates the personal liability of the
Registrant's directors to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director. However, Article 9 does not
eliminate director liability: (1) for breaches of the duty of loyalty to the
Registrant and its stockholders; (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (3) for
transactions from which a director derives improper personal benefit; or (4)
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 9 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 9 have no effect on claims
arising under the federal securities laws.
With certain limitations, Article 6 of the Registrant's By-laws
("Article 6") provides for indemnification of any of the Registrant's past,
present and future officers and directors against liabilities and reasonable
expenses incurred in any criminal or civil action by reason of such person's
being or having been an officer or director of the Registrant or of any other
corporation which such person serves as such at the request of the Registrant.
Indemnification under Article 6 is limited to officers and directors who have
acted in good faith and in a manner they reasonably believed to be in the best
interests of the Registrant. Any questions regarding whether the officer or
director has met the required standards of conduct are to be answered by (1) the
majority of disinterested directors, (2) a written opinion of a reputable
disinterested legal counsel selected by the Board, or (3) the stockholders.
Indemnification rights under Article 6 are non-exclusive. In the event of an
officer's or director's death, such person's indemnification rights shall extend
to his or her heirs and legal representatives. Rights under Article 6 are
severable, and if any part of that section is determined to be invalid for any
reason, all other parts remain in effect.
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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.
ITEM 16. EXHIBITS
A list of the exhibits included as part of this Registration Statement
is set forth in the Exhibit Index which immediately precedes such exhibits and
which is incorporated herein by reference.
ITEM 17. 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 (notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) or the Securities and Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
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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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
12
<PAGE> 14
SIGNATURES
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago and State of Illinois on the 30th of April
1999.
AASCHE TRANSPORTATION SERVICES, INC.
By: /s/ Leon M. Monachos
-----------------------------------
Leon M. Monachos
Chief Financial Officer
The undersigned officers and directors of Aasche Transportation
Services, Inc. hereby severally constitute Leon M. Monachos our true and lawful
attorney and agent, with full power to him to sign for us and our names in the
capacities indicated below, the registration statement on Form S-3 filed
herewith and any and all pre-effective and post-effective amendments to said
registration statement, and generally to do all such things in our names and on
our behalf in our capacities as officers and directors to enable Aasche
Transportation Services, Inc. to comply with the provisions of the Securities
Act of 1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorney to said registration statement and any and all amendment
hereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Larry L. Asche
- ----------------------------------------
Larry L. Asche Chief Executive Officer and Chairman April 30, 1999
of the Board of Directors (Principal
Executive Officer)
/s/ Leon M. Monachos
- ----------------------------------------
Leon M. Monachos Chief Financial Officer (Principal April 30, 1999
Financial Officer and Accounting
Officer)
/s/ Kevin M. Clark
- ----------------------------------------
Kevin M. Clark President, Director April 30, 1999
/s/ Gary I. Goldberg
- ----------------------------------------
Gary I. Goldberg Vice President, Director April 30, 1999
</TABLE>
13
<PAGE> 15
<TABLE>
<S> <C> <C>
/s/ Diane L. Asche
- ----------------------------------------
Diane L. Asche Vice President, Secretary, Director April 30, 1999
/s/ Richard S. Baugh
- ----------------------------------------
Richard S. Baugh Director April 30, 1999
/s/ Dennis D. Wilson
- ----------------------------------------
Dennis D. Wilson Director April 30, 1999
/s/ Michael Todd Recob April 30, 1999
- ----------------------------------------
Michael Todd Recob Director
</TABLE>
14
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
- -------------- ----------------------
<S> <C>
4.1 Specimen Common Stock Certificate (incorporated by reference from Exhibit 4.1
to our registration statement on Form SB-2 effective September 23, 1994).
5 Opinion of Sachnoff & Weaver, Ltd.
23.1 Consent of Independent Auditors
23.2 Consent of Sachnoff & Weaver, Ltd. (included in Exhibit 5)
24.1 Power of Attorney (contained on signature page)
</TABLE>
15
<PAGE> 1
Exhibit 5
[Sachnoff & Weaver, Ltd. Letterhead]
(312) 207-1000
April 30, 1999
Aasche Transportation Services, Inc.
10214 N. Mt. Vernon Rd.
Shannon, Illinois 61078
Re: Common Stock $.0001 par value per share
Gentlemen:
We have acted as counsel to Aasche Transportation Services, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3, as amended (the "Registration Statement"), filed by the
Company under the Securities Act of 1933, as amended, with the Securities and
Exchange Commission (the "Commission"), relating to the registration for
resale of up to 837,800 shares (the "Shares") of the Company's Common Stock,
par value $.0001 per share. We have examined the Registration Statement filed
with the Commission and we have reviewed such other documents and have made
such further investigations as we have deemed necessary to enable us to express
the opinion hereinafter set forth.
We hereby advise you that in our opinion the Shares have been duly
authorized by the Company and, upon payment and delivery will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities Exchange Commission.
SACHNOFF & WEAVER, LTD.
s/s Sachnoff & Weaver, Ltd.
16
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and the related Prospectus of Aasche
Transportation Services, Inc. for the registration of 837,800 shares of its
common stock and to the incorporation by reference therein of our report dated
March 12, 1999 (except for Note 4 and the third paragraph of Notes 5 and 6, as
to which the date is April 15, 1999) with respect to the consolidated financial
statements of Aasche Transportation Services, Inc., included in its annual
report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
s/s/ Ernst & Young, LLP
Chicago, Illinois
April 29, 1999
17
