As filed with the Securities and Exchange Commission on September 23, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
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PST VANS, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0411704
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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1901 West 2100 South
Salt Lake City, Utah 84119
(Address of Principal Executive Offices,
including Zip Code)
STOCK INCENTIVE PLAN
OF
PST VANS, INC.
(Full title of the plan)
KENNETH R. NORTON Copy to:
Chairman of the Board and RICHARD G. BROWN
Chief Executive Officer Kimball, Parr, Waddoups, Brown & Gee
PST Vans, Inc. 185 South State Street, Suite 1300
1901 West 2100 South Salt Lake City, Utah 84111
Salt Lake City, Utah 84119 (801) 532-7840
(801) 975-2500
(Name, address and telephone
number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate
Securities to Amount to be Price per Offering Amount of
be Registered Registered Share(1) Price(1) Registration Fee(1)
- -------------------------------------------------------------------------------
Common Shares,
$.001 par value 370,000 shares $4.08 $1,509,600 $521.00
===============================================================================
(1) Pursuant to Rules 457(h)(1) and 457(c), the offering price per share,
aggregate offering price and registration fee are computed on the basis
of the average of the high and low sales prices as reported on the
NASDAQ Stock Market (National Market System) on September 19, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act"), and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by PST Vans, Inc. (the "Registrant") with
the Securities and Exchange Commission are hereby incorporated by reference in
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995.
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1996.
(c) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1996.
(d) The description of the Registrant's Common Stock, $0.001 par value,
contained in the Registrant's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed under the Exchange Act for the purpose of updating
such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this Registration
Statement and to be a part hereof from the date of filing of such documents.
The financial statements and schedule of the Registrant included in the
Registrant's Annual Report on Form 10-K for the year ended December 31, 1995,
and incorporated by reference in this Registration Statement, have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said reports.
Future financial statements of the Registrant and the reports thereon
by Arthur Andersen LLP also will be incorporated by reference in the
Registration Statement in reliance upon the authority of that firm as experts in
giving those reports; provided, however, only to the extent that said firm has
audited those financial statements and consented to the use of their reports
thereon.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (a "Proceeding"), because he is or was a director of the
corporation or is or was serving at its request as a director, officer, partner,
trustee, employee, fiduciary or agent of another corporation or other person or
of an employee benefit plan (an "Indemnified Director"), against any obligation
incurred with respect to a Proceeding, including any judgment, settlement,
penalty, fine or reasonable expenses (including attorneys' fees), incurred in
the Proceeding if his conduct was in good faith, he reasonably believed that his
conduct was in, or not opposed to, the best interests of the corporation, and,
in the case of any criminal Proceeding, he had no reasonable cause to believe
his conduct was unlawful; except that (i) indemnification under Section 902 in
connection with a Proceeding by or in the right of the corporation is limited to
payment of reasonable expenses (including attorneys' fees) incurred in
connection with the Proceeding and (ii) the corporation may not indemnify an
Indemnified Director in connection with a Proceeding by or in the right of the
corporation in which the Indemnified Director was adjudged liable to the
corporation, or in connection with any other Proceeding charging that the
Indemnified Director derived an improper personal benefit, whether or not
involving action in his official capacity, in which Proceeding he was adjudged
liable on the basis that he derived an improper personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a determination
has been made (by the board of directors, a committee of the board of directors
or by the stockholders) that indemnification of the director is permissible in
the circumstances because the director has met the applicable standard of
conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify a
director who was successful, on the merits or otherwise, in the defense of any
Proceeding, or in the defense of any claim, issue or matter in the proceeding,
to which he was a Party because he is or was a director of the corporation,
against reasonable expenses (including attorneys' fees) incurred by him in
connection with the Proceeding or claim.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable standard
of conduct set forth in Section 902, the court may order indemnification as the
court determines to be proper, except that indemnification with respect to
certain Proceedings resulting in a director being found liable for certain
actions against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
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Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or in
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of the
corporation is entitled to mandatory indemnification under Section 903 and is
entitled to apply for court-ordered indemnification under Section 905, in each
case to the same extent as a director, (ii) the corporation may indemnify and
advance expenses to an officer, employee, fiduciary or agent of the corporation
to the same extent as a director, and (iii) a corporation may also indemnify and
advance expenses to an officer, employee, fiduciary or agent who is not a
director to a greater extent than the right of indemnification granted to
directors, if not inconsistent with public policy, and if provided for by its
articles of incorporation, bylaws, general or specific action of its board of
directors or contract.
The Registrant's Amended and Restated Articles of Incorporation provide
that the Registrant shall indemnify any person who 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 or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise to the fullest extent permitted by the Revised Act, as the same may
hereafter be amended, or as otherwise permitted by law.
The Registrant's Amended and Restated Articles of Incorporation provide
that the personal liability of any director of the Registrant to the Registrant
or its shareholders for a breach of fiduciary duty is eliminated to the fullest
extent permitted by the Revised Act. The extent to which the Revised Act permits
director liability to be eliminated is governed by Section 16-10a-841 of the
Revised Act, which provides that the liability of a director may not be
eliminated or limited for (i) the amount of financial benefit received by a
director to which he is not entitled; (ii) an intentional infliction of harm on
the corporation or its shareholders; (iii) a violation of Section 16-10a-842 of
the Revised Act which prohibits unlawful distributions by a corporation to its
shareholders; or (iv) an intentional violation of criminal law.
Indemnification may be granted pursuant to any other agreement, bylaw,
or vote of shareholders or directors. In addition to the foregoing, the
Registrant maintains insurance from commercial carriers against certain
liabilities which may be incurred by its directors and officers. The foregoing
description is necessarily general and does not describe all details regarding
the indemnification of officers, directors or controlling persons of the
Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page 7.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this 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 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, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 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
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, State of Utah, on September 6, 1996.
PST VANS, INC.
By /s/ Kenneth R. Norton
Kenneth R. Norton
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Kenneth R.
Norton and John Adams, and each of them, as his true and lawful attorney-in-fact
and agent, with full power of substitution, to sign on his behalf individually
and in the capacity stated below and to perform any acts necessary to be done in
order to file all amendments and post-effective amendments to this Registration
Statement, and any and all instruments or documents filed as part of or in
connection with this Registration Statement or the amendments thereto and each
of the undersigned does hereby ratify and confirm all that said attorney-in-fact
and agent, or his substitutes, shall do or cause to be done by virtue hereof.
Signature Title Date
/s/ Kenneth R. Norton Chairman of the Board and Chief August 27, 1996
Kenneth R. Norton Executive Officer (Principal
Executive Officer)
/s/ Robert D. Hill President, Chief Operating Officer August 26, 1996
Rober D. Hill and Director
/s/ Charles A. Lynch Director August 27, 1996
Charles A. Lynch
/s/ James F. Redfern Director September 6, 1996
James F. Redfern
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PST VANS, INC.
EXHIBIT INDEX
Regulation S-K Sequential System
Exhibit No. Description Page No.
4.1 Revised Articles of Incorporation of the
Registrant (incorporated by reference to
Exhibit No. 3.1 of the Registrant's Registration
Statement on Form S-1 (Reg. No. 33-87212)). -
4.2 Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit No. 3.2 of
the Registrant's Registration Statement on Form
S-1 (Reg. No. 33-87212)). -
4.3 Specimen Certificate (incorporated by reference
to Exhibit No. 4.3 of the Registrant's Registration
Statement on Form S-1 (Reg. No. 33-87212)). -
5 Opinion of Kimball, Parr, Waddoups, Brown &
Gee, a professional corporation, as to the legality
of the securities offered. 8
23.1 Consent of Arthur Andersen LLP. 9
23.2 Consent of Kimball, Parr, Waddoups, Brown &
Gee (included in Exhibit No. 5). -
24 Powers of Attorney (included on page 6 hereof). -
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<PAGE>
September 23, 1996
The Board of Directors of PST Vans, Inc.
1901 West 2100 South
Salt Lake City, Utah 84119
Re: PST Vans, Inc.
Registration Statement on Form S-8
Gentlemen:
As counsel to PST Vans, Inc., a Utah corporation (the "Company"), in
connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") to be filed under the Securities Act of 1933, as
amended, for registration of 370,000 shares (the "Shares") of Common Stock,
$0.001 par value, of the Company to be offered, sold and issued by the Company
pursuant to the Stock Incentive Plan of PST Vans, Inc. (the "Incentive Plan"),
we have examined the originals or certified, conformed or reproduction copies of
all such records, agreements, instruments and documents as we have deemed
necessary as the basis for the opinion expressed herein. In all such
examinations, we have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to the opinion hereinafter expressed, we have relied
upon certificates of public officials and statements or certificates of officers
or representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the terms and conditions of the Incentive
Plan and pursuant to the 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,
KIMBALL, PARR, WADDOUPS, BROWN & GEE
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 1, 1996
included in PST Vans, Inc.'s Form 10-K for the year ended December 31, 1995 and
to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Salt Lake City, Utah
September 13, 1996
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